CHECK AGAINST DELIVERY

Introduction

Thank you so much for that very kind introduction, Anne. It is impossible to live up to it — but thank you very much. And thank you, Madam President, for your kind words, and for the invitation from the law school to — in a very real sense for me — return home.

As has been mentioned, I began my teaching career here at the University of New Brunswick. In many respects, it was a great beginning to my career. I had wonderful friends and colleagues, many of whom are here this evening. There are too many to mention, so I am not going to try to list you all, because I will leave somebody out. But I do sincerely want to tell all of you that I reflect often on how instrumental all of you were to what I have been able to do over the past number of years.

Do you know, I was the first tenure-track woman law professor in this university. And that was 1976. Since I came from Nova Scotia, I didn’t know anyone here, and could have had a fairly isolating experience. But because of the generosity and kindness of all of my colleagues from those days, I think I got off to a wonderful start. I built my confidence, and developed a tremendous love for the teaching profession and the law that has stood me in good stead through good times and bad — and there have been some of both. I often reflect on my four years here, at this university, in this law school, in this community. And when I do, I say a silent but very genuine thank you. I think this evening is the first time I have had the opportunity to express my thanks in public.

This evening, we pay tribute to a great Canadian jurist. The University of New Brunswick’s Rand Lecture was begun five years ago to honour the life and work of Mr. Justice Ivan Rand — lawyer, politician, judge, and legal educator. Rand’s eclectic involvement in law and policy has opened this lecture series to a range of topics bounded apparently only by the speakers’ imaginations. Previous Rand lecturers have spoken on Israeli-Palestinian relations, property rights and economic growth, transportation law and policy, and, of course, the implied Bill of Rights.

I am indeed honoured to be the first Minister of Justice to deliver this lecture. And in this sixth year of the Rand Lecture, I thought it would be fitting to remember Ivan Rand not by reference to a specific area of Canadian law or policy, but rather by looking back on the record of Canadian justice during his lifetime.

When Justice Rand died in 1969, his 84 years had spanned the lion’s share of Canada’s first century, his understanding of justice, democracy and freedom clearly shaped by the times in which he lived. Characterized as a judge ahead of his time, his judgments and writings on labour law, civil and economic rights, dispute resolution, judicial review and legal education presaged and influenced developments in those areas long after his death. Because his story is also our story, Justice Rand’s life furnishes an ideal reference grid on which to plot a history of Canadian justice.

And so I propose to look back on Canada using Justice Rand’s life as a kind of historical time line. My observations will reflect my own preoccupations as Justice Minister and Attorney General of Canada — and, in particular, my interest in the integrity of this country’s justice system. I will couple this retrospection with some remarks about where the justice system is today and where I think it should go, because I believe our justice system is both a legacy and a work in progress — much as Ivan Rand characterized the law as a growing, thriving reflection and tool of an advancing society.

Justice Rand and Canadian History

Ivan Rand grew up in a Canada that was both similar to and different from the country we know today. Textbook accounts of regional rivalries and competing visions of economic expansion of a century ago have a familiar ring, to be sure. But law-making was less democratic and executive action more arbitrary; legislatures were sovereign and the methods for maintaining public order bore little resemblance to those of today.

Consider the year Ivan Rand was born. If we were to open a volume of statutes from, say, British Columbia in 1884, we would find on page 5 An Act to Prevent the Immigration of Chinese [47 VICT. Ch. 3]. It authorized constables to arrest without warrant "any Chinese who shall come into British Columbia."

On the April afternoon that Rand’s parents celebrated his first birthday, Canadian militia men, despatched by Ottawa, were on their way to Saskatchewan to crush the North-West Rebellion (spring 1885).

While young Ivan Rand learned to read and write in Moncton, residential schools for native children were executing a government-sponsored policy that would reverberate through Canada’s justice system for more than a century.

When Rand migrated south from New Brunswick to Massachusetts to study law at Harvard, groups of black settlers attempting to migrate north into Alberta from Oklahoma found their entry to Canada barred. Nothing in Canada’s Immigration Act actually authorized the exclusion of black Americans, but Ottawa had instructed immigration inspectors along the American border to deny entry to all blacks on the ground that they could not survive the harsh climate. As you might imagine, there was no opportunity for judicial review of those administrative decisions.

Rand moved to Alberta in 1913 to join a law firm in the thriving town of Medicine Hat, which was indeed a frontier town in a province created only in 1905. By 1919, business was no longer booming, prairie farmers were increasingly restless and a labour movement was gaining momentum across the country.

As Rand and his partners contemplated closing shop, Canada was hit by a wave of strikes. Workers demanding higher wages, social reforms and the right to collective bargaining got decisive action from Ottawa. The federal government extended wartime censorship and replaced Winnipeg’s entire police force with soldiers and Mounted Police.

Ottawa ended the six-week Winnipeg General Strike of 1919 by authorizing the arrests of strike leaders on charges of seditious conspiracy. It then hastily amended section 28 of the Criminal Code to provide for 20-year sentences for persons found guilty of sedition. One activist, J. S. Woodsworth (founder of the CCF) was arrested and charged with seditious libel for quoting an egalitarian passage from the book of Isaiah in a strike leaflet. We may remember that it was Mr. Justice Rand who in R. v. Boucher spoke so eloquently of sedition and the necessity to limit the laws of sedition.

This was the Canada in which Rand found himself at age 35, though it also had a brighter side: women gained the right to vote in the same year.

By 1921, Ivan Rand, the Liberal MLA, was busy introducing progressive legislation of his own back in New Brunswick. During his very brief term as Attorney General, the New Brunswick legislature amended laws dealing with the rights of widows over their deceased husband’s estates, the protection of children of unmarried parents, education, succession duties and the poor. Rand apparently also introduced and argued for a resolution urging the federal government to decree an end to public executions in the province.

To conjure up the Canada of Rand’s early life takes some imagination. Imagine a political landscape dominated by a handful of powerful interests; a societal arena in which women were still fighting for the right to vote and were not considered persons for the purposes of appointment to the Senate; and a country where rights inhered not in individuals, but in collectivities — provinces, religions and cultures.

Justice in Canada changed for the better during the second half of Rand’s life, thanks partly to his Supreme Court judgments and scholarly influence. Arbitration replaced violence in the evolving field of industrial relations. Executive action was circumscribed by the rule of law in one of the most famous cases in our country’s history — Roncarelli v. Duplessis. And the courts began to champion the rights of individuals at the expense of parliamentary sovereignty.

These trends have accelerated since Justice Rand’s death in 1969. New forms of dispute resolution are supplanting litigation in family law, commercial law and tort law. Canadians have turned a permanently critical eye on their elected officials — something I am aware of everyday. The Canadian Charter of Rights and Freedoms has heightened both our sense of entitlement and our expectations about what the justice system can and should do. And public debate about criminal justice has polarized somewhat around the relative priority of collective security versus individual rights.

As Randall Balcome, Edward McBride, and Dawn Russell observed, in their examination of Supreme Court of Canada Decision Making: The Benchmarks of Rand, Kerwin and Martland,

Justice Rand’s contributions to public life and Canadian law foreshadowed in many ways the society we are building today.

Today’s Justice Priorities

What seems obvious, even from this freehand sketch, is that Canada’s justice system is still in a state of becoming. Despite the admiration of the many countries who yearn, quite rightly, to emulate our success, justice in Canada is still a work in progress — and probably always will be and probably should be.

In the three decades since Justice Rand’s death, we’ve evolved from a relatively homogeneous country bent on assimilating immigrants and Aboriginal people, to a pluralistic one, whose commitments to multiculturalism and Aboriginal self-government are enshrined in our Constitution; from a country whose political discourse was dominated by a few privileged voices, to one in which the number of viewpoints heard in public debate in any given day defies quantification.

Since the beginning of my mandate as Justice Minister, I have spoken often of the need to increase confidence in our justice system. The sense of doubt that many people have about the ability of the courts, the corrections system, the parole system and certain laws to deal adequately with crime, to hold young offenders accountable, to treat Aboriginal people fairly, and to provide access to expeditious justice reflects the diversity of needs and values in Canada today.

Our justice system has been slow to respond to these new realities and pressures. Why, for example, do Aboriginal peoples still feel disadvantaged and isolated in their dealings with the justice system? Why is litigation still the paradigm by which the justice system resolves legal disputes when it is a model that is foreign to many people’s instinctive sense of how to resolve disagreements or conflicts, and at the same time creating an atmosphere that deters many people from seeking recourse to justice at all?

And, perhaps more fundamentally — and I ask this question — is the justice system resistant to acknowledging that much of what it does touches only small parts of the problems that give rise to legal action? And that what may be required is working as part of a broader network of services to address these problems?

I don’t attempt today to answer all that must be done to increase Canadians’ confidence in the justice system, but I will comment on the general direction my Department is taking to address some parts of this challenge. And I want to say a few words specifically about a number of areas — the areas of victims, youth justice, Aboriginal justice and alternate dispute resolution (an important area of Mr. Justice Rand’s legacy to Canadian justice).

In each of these areas, it’s clear that we must work to provide Canadians with a greater sense of ownership of the justice system. Canadians will only feel that their justice system is working for them if it is accessible, relevant, and inclusive. This may mean changing its institutions, the power they wield, and that of those who run them. It should also mean that we change the way these institutions relate to those who use them. Just as Ivan Rand challenged many of the orthodoxies of his time, so too must we challenge what might be called the "willed exclusiveness" of the justice world.

Victims, Families and Violence

One of the more troubling aspects of justice in Canada in recent years has been the failure of the system to recognize and respond to the needs of women, children and other vulnerable groups who have been victimized by crime or family violence.

Traditionally, our system has supported the interests of the state or the collective — the "Queen’s Peace" — over those of the individual in criminal justice matters. While the principles underpinning this approach are worthy — and I would never suggest otherwise — its practical effect for individuals victimized by crime has been painful, since their needs and concerns have often been ignored.

As our justice system has evolved, we have come to understand that justice must be seen to be done at the local, as well as the global level. Justice is not an abstract concept, but one that has meaning and impact in the hearts and minds of individual Canadians.

Let us never forget that victims do not ask to become part of the criminal justice system. Yet once they are thrust into it, they do deserve to participate in the administration of justice with dignity and respect. At a minimum, they deserve the information they want and the support and legal protection they need. As Attorney General of Canada, I recently intervened to defend the constitutional validity of new Criminal Code provisions restricting public access to the medical records of complainants in sexual offence prosecutions. The case will soon go to the Supreme Court.

Victims say they are frustrated by the lack of coordination and information-sharing about victims’ rights and services between jurisdictions. I am therefore exploring the possibility of establishing a central victims’ office to help achieve these goals.

In the area of domestic violence, the Criminal Code has been updated. Spousal abuse is now considered an aggravating factor for the purpose of sentencing, and the special needs of child witnesses in the criminal justice process are now accommodated. The Department of Justice has also funded community initiatives promoting awareness and understanding of family violence as it affects various elements of the population — Aboriginal families, people in isolated rural or northern communities, disabled women and members of ethnocultural minorities.

Another area of concern for many Canadians has been the need to expedite justice in family law disputes and to acknowledge and limit the destructive influence that litigation sometimes has on families. To address these shortcomings in the current system, the federal government has begun to finance the creation and expansion of unified family courts in the provinces and territories. Pioneered in this province, these courts provide an array of community and other support services that promote durable solutions and improve prospects for families.

Youth Justice

Let me say a few words about our youth justice system. I suppose when we think of controversial issues — although there may be regional variations in this from time to time — few more controversial issues come to mind, at least if you are federal Attorney General, than the whole question surrounding than the Young Offenders Act. And few issues pose more challenges to policy makers to try and get it right.

Fully 90 per cent of Canadians believe dealing with youth crime is an important issue for governments today, and over 70 per cent have no confidence in the Young Offenders Act. There is an overwhelming sense among members of the public that the youth justice system is too lenient, and that youth are primarily responsible for a perceived rise in violent crime in Canada. Both of those things are demonstrably untrue. Both of those things are myth. But they are repeated day after day in this country in a way that has led to a situation where we now must confront the reality that the key piece of federal legislation dealing with young offenders is viewed as having little or no legitimacy. For some, the youth justice system has sadly come to symbolize the failure of our criminal justice system to reflect the values of those it was meant to serve.

At the same time, it is wrong to assume that this lack of confidence represents a hardening of public attitudes toward young offenders. Canadians want assurance that young offenders, particularly violent young offenders, will face meaningful consequences for their crimes. But they also have great hope for youth, and support new ways of approaching youth justice that give youth the opportunity to turn their lives around.

Perhaps most importantly, Canadians believe that changes to the law are not enough, nor are they the solution. Early intervention for children at risk, prevention programs, and other broad, integrated approaches — involving families, communities, teachers, social workers and many others — are the most effective way to deal with youth crime. Despite what some might say, reforming our youth justice system to better reflect Canadians’ concerns does not mean putting kids in jail. Canadians intuitively know that youth justice requires a holistic approach — one that ideally involves a high degree of federal-provincial cooperation, and functional integration of child welfare, mental health, and court systems.

The issue of young offenders has crystallized for me what it means to work in this new, more inclusive environment in which we in the justice system find ourselves. Policy and program initiatives cannot be effective or command public support and confidence unless they reflect the concerns and needs of society.

Aboriginal Justice

One of the most tragic failures of our justice system, and consequently one of its greatest challenges, has been its inability to meet the needs of Aboriginal communities. The Department of Justice has long been involved in efforts to respond to the problems leading to and resulting from exceptionally high rates of crime, victimization and incarceration among Aboriginal people.

We are striving to give criminal justice institutions a better understanding of the problems encountered by Aboriginal people and to identify opportunities for reform. This means helping Aboriginal communities to explore innovations in justice programming, and institutions, that might offer a greater role for them in dealing with criminal offences and those who commit them.

Since the fall of 1996, the Department’s Aboriginal justice efforts have focused on ensuring a greater degree of Aboriginal participation in the administration of justice, as well as ensuring greater community safety and more appropriate justice interventions.

Community policing, the selective use of mediation and arbitration, community sentencing and corrections approaches, tribal courts and programs to promote restorative justice are all part of our government’s Aboriginal Justice Strategy. The object of these programs is both to reduce crime and to enable Aboriginal people to assume greater responsibility for the administration of justice in their communities — and therefore greater ownership.

Dispute Resolution

Before I conclude, I should also briefly touch on my Department’s work in the field of dispute resolution. Let us not forget that it was Justice Rand whose work in 1945 as the arbitrator in the long dispute between the Ford Motor Company and its employees resulted in the Rand Formula.

Alternative methods of dispute resolution hold the promise of providing better ways to deal with conflicts and disagreements, thereby helping restore confidence in the legal system. Decision-making should include the voices of those affected if the decisions are to be seen as effective and fair. When parties to a conflict can contribute directly to finding its resolution, they are more likely to see the result as reflective of their values and, therefore, they are more likely to cooperate in its full implementation.

Clearly, we must preserve the independent, neutral system we have worked so hard to build. But, I think perhaps we should think about, and discuss among ourselves, whether we need to focus it. If we used our more formal approach only where required, the benefits would be two-fold. First, scarce and expensive resources would be deployed to our greatest collective advantage. Second, and of greater long-term significance, the remaining matters could be brought into a broader system that attempted to deal with the whole problem facing the parties, not just the narrow dispute – which presently attracts the label of a "legal problem."

This would require us to look at the justice system as part of a continuum of responses to the problems people face in their lives. We could work in partnerships with the important, but often undervalued social services sector, not as the senior or authoritative partner, necessarily, but rather in a variety of support roles.

We could look to the health system to be a primary player in the battle against drugs. Our police and courts could in many instances provide the kind of firm motivation many people need to start changing a life of addiction, but could so by reinforcing treatment and social restoration models, rather than as funnels to corrections systems which do little if anything to break the cycle of addiction.

We could focus our family law systems on reducing levels of conflict, on educating about likely outcomes and about the likely impacts on children.

We could look at our youth justice system as part of a continuum which starts with early childhood interventions, often inherits issues still unresolved after extensive child protection or custody, and which must deal with youth who soon will be adults.

In the year ahead, my Department will be promoting a government-wide commitment to non-adversarial ways of resolving disputes. Working with Treasury Board, we will administer a new $4.6 million fund to support the development of non-litigious dispute resolution models to help federal government departments, agencies, Crown corporations, tribunals and courts make the transition to a different way of doing business.

Conclusion

Canadians have turned a permanent critical eye on their elected officials — they have become bolder in questioning whether their governments, institutions and community leaders adequately represent them.

Canadians today are more articulate, sophisticated and diverse than ever, and no longer willing to leave the job of governing in the hands of experts. They want to see their values mirrored in the institutions of justice and in the actions and words of the people who run them. They want themselves to have a greater role in how justice is served.

My challenge, and that of others in the justice system, as I said earlier, is to promote this kind of change.

Justice Rand once wrote that "criticism [that looks], in honesty, to the general benefit is a universal instrument in the process of democracy."

In that spirit, let us all resolve to be critics. And, like Ivan Rand, let us resolve to use our insight, our creativity and skill to fashion a justice system that is more responsive, more inclusive and more just than the one we inherited.

Thank you very much.