Thank you for that kind introduction.

I am very pleased to be here today and have this opportunity to speak to you.

Before I begin my remarks, I would like to congratulate André Gervais for a very successful year as President of the Canadian Bar Association. I also want to congratulate the new president, Barry Gorlick. My department and I look forward to working with you over the coming year, Barry.

Confidence in the justice system

When I presented my first Report to Council last year, I spoke of our collective goal of increasing confidence in our justice system. I was concerned about the doubt that many Canadians have about the ability of the courts, the corrections and legal systems to deal adequately with crime, to hold young offenders accountable, to treat Aboriginal people fairly, and to provide timely access to justice.

Increasing confidence in our justice system is not an easy task, nor is it one that can be achieved in the short term. Canadians are questioning whether their governments, institutions and community leaders adequately represent them. They want a greater role in how justice is administered. And they want to find their values - which are diverse - mirrored in our institutions of justice and in the actions and words of the people who run them.

When almost 90 per cent of Canadians say that they have no confidence in the Young Offenders Act, we have a problem. And we have many other challenges. Aboriginal people still feel disadvantaged and isolated in their dealings with the justice system. Litigation - no matter how divisive it may be - is still the dominant paradigm for resolving disputes. And the lion's share of criminal justice resources goes to law enforcement, the courts and corrections.

Shaping the agenda

These are the kinds of challenges that have spurred my efforts to deal with the problem of declining confidence in our justice system. When I spoke to you last August, I identified three priority areas for the coming year: crime prevention, youth justice and the concerns of victims.

I also said that we would slow the pace of legislative change - especially to the Criminal Code - to give the justice system time to adjust to the many changes made during this government's first mandate. I indicated that we would focus on the legislative and program interventions most likely to bring about the desired increase in confidence among Canadians.

This meant implementing reforms to make the system more responsive and inclusive. It meant developing programs that encourage greater participation by individuals and communities. It meant taking a hard look at policies and laws and seeing to what extent they are at odds with the values and concerns of Canadians. It meant making the system more efficient. And it meant acknowledging its strengths and working with partners, like the CBA, to build upon them.

Today, I want to do two things: I will discuss the past year's developments and progress on the Justice agenda. But I would also like to spend a few minutes on a subject that concerns us all: namely, the role of the courts in a pluralistic democracy with an entrenched charter of rights. It is a subject that not just invites but compels the engagement of lawyers. Key players in the legal system who will be deeply affected by the outcome of such a debate, lawyers have a special responsibility to ensure that the debate is open to and understood by the public.

Youth justice strategy

Let me first report on the past year's activities.

Working on the issue of young offenders has crystallized for me what it means to develop policies in the new, more inclusive environment in which we find ourselves. Initiatives must reflect the concerns, values and needs of society.

This fall, I will replace the Young Offenders Act with a new youth criminal justice act that will be based on three key principles: prevention; meaningful consequences; and intensified rehabilitation.

The new youth justice act will place a strong emphasis on prevention and on making links with other government programs and services to assist children and youth, such as the Government's Crime Prevention Initiative and the National Children's Agenda. It will include firm measures to protect the public from violent and repeat young offenders, but emphasize effective alternatives and community-based sentences for the majority of young offenders who are non-violent.

This strategy reflects the fundamental principle that young offenders, with guidance and support, are more likely than adults to be rehabilitated. Young offenders can be rehabilitated by being given the opportunity to undo the harm they have done and through treatment and counseling.

Community-based crime prevention program

While we are improving the programming available for youth, public protection remains paramount. A $32-million-a-year national crime prevention initiative will encourage community-based responses to crime. Announced by my colleague, Solicitor General Andy Scott, and me in June, this program targets youth, women's safety and Aboriginal people, and is being undertaken in partnership with the provinces and territories, with communities, and with the private and non-profit sectors.

Its aim is twofold - to help communities deal with the underlying factors that lead children, young people and adults toward crime; and to mobilize communities in a multi-disciplinary and coordinated fight against crime. This initiative draws on the commitment, ideas, expertise and contributions of people involved in crime prevention at the local level, helping them to share best practices and to increase citizen participation in crime prevention. This program is about grassroots participation in the justice system. It is about people taking charge. It is about ownership in the truest sense.

Victims of crime

Just as participation and a sense of ownership can knit communities together in common cause, its absence can alienate and disenfranchise. One of the more troubling aspects of justice in Canada in recent years has been the system's failure to recognize and respond adequately to the needs of people who have been victimized by crime.

Traditionally, in criminal justice matters, our system has supported the interests of the accused over those of the victim. The principles underpinning this approach are understandable, but in practice it has been painful for victims of crime. Those who are thrust unwillingly into the criminal justice system need a more defined role in that system. At a minimum, victims deserve to get the support and legal protection they need, and the information they want, both about their rights and those of the accused.

Responding to victims' concerns must be a collaborative undertaking between the federal, provincial and territorial governments. The Federal-Provincial-Territorial Working Group on Victims of Crime has developed several recommendations, while the Standing Committee on Justice and Human Rights has been exploring legislation, policies and programs for victims in the criminal justice system.

These include the benefits of establishing a central office for victims of crime to improve co-ordination and information-sharing about victims' rights and services between jurisdictions. I will announce amendments to the Criminal Code and other policy changes regarding victims later this fall.

Amendments to the Canadian Human Rights Act, the Canada Evidence Act and the Criminal Code affecting persons with disabilities

Those are my priorities. But other important initiatives also progressed this past year. Victims' rights is an important aspect of inclusiveness. But another key aspect has been addressed this year through modernizing amendments to three pieces of federal legislation dealing with persons with disabilities. Through changes to the Canadian Human Rights Act, the Canada Evidence Act and the Criminal Code, we have improved the access and participation in our judicial system of over 4 million Canadians.

New Extradition Act and war crimes cooperation

The problem of antiquated laws can also impact on Canada's ability to fight international crime. Last May, I tabled a Bill to modernize Canada's extradition laws. It will merge the Extradition Act and the Fugitive Offenders Act into one comprehensive act that will simplify the extradition process in Canada for our partners who wish to extradite a fugitive and, reciprocally, for Canada when it wishes to bring back fugitives to face justice here. It will also enable Canada to meet its international obligations to hand over suspected war criminals to an international tribunal such as that in the Hague, or to the new international court, which Canada played a very key role in creating.

And, in a related move last month, the federal government allocated $46.8 million over the next three years to increase our success in bringing to justice those involved in genocide, war crimes or crimes against humanity. The new money will enable the Department of Justice to initiate some 14 new World War II cases over the next three years. It will also allow the Department of Citizenship and Immigration to substantially enhance its ability to process modern-day war crimes cases and enable the Government to set up a formal coordination process - a comprehensive plan that will allow all partners dealing with war crimes, from intelligence gathering to prosecution to deportation, to work together more closely than has been possible in the past.

Reform of the Federal Court and amendments to the Judges Act

Other reforms this year have included proposed changes to the Federal Court and the Tax Court that will create a single administrative framework. These will be introduced as legislation in the upcoming session and will improve the efficiency of both courts. The consolidation of administrative services of the two Courts will reinforce their independence by placing administrative services at arm's length from the executive.

Speaking of judicial independence, I also tabled amendments to the Judges Act last spring, which will enhance the autonomy of the judicial compensation process by establishing a permanent Judicial Compensation and Benefits Commission. The Bill also implements the government's response to the Scott Commission.

In the same legislation, our government included amendments that will pave the way for 27 new federally appointed judges for Unified Family Courts in four provinces. Widespread concern exists that the family law system is too slow, confusing and expensive and intensifies and prolongs the degree of family conflict. Jurisdictional overlap and the emphasis on courts and litigation to resolve family issues have contributed to delay and confusion. Unified Family Courts reduce these problems by enabling a single judge to hear all family matters under both federal and provincial law. But more importantly, these courts provide access to an array of family support services that help families resolve their problems in a timely, more amicable and less stressful way, reducing the potential for further conflict and improving the long-term outcomes for children and their families.

Review of Criminal Code defenses, including provocation, self-defense and the defense of property

Little inspires derision more than a law that has outlived its usefulness. However, some of our laws have remained virtually unchanged for more than a century.

That is why, for example, I tabled an amendment to the Criminal Code in Omnibus Bill in June that abolished the Year and a Day rule, a principle of law that goes back hundreds of years. Other Omnibus Bill amendments include improvements to relatively new legislation dealing with areas such as conditional sentencing, child prostitution and organized crime.

Concern about the ongoing relevance and utility of some laws has also been expressed about certain of the defenses set out in the Criminal Code. The defenses of provocation, self-defense and defense of property are commonly invoked by people accused of crimes involving the use of force. Critics have argued that these defenses reflect archaic and outmoded values and principles and that they need to be reformulated to address modern concerns and realities, particularly in cases of domestic violence.

In response, the Department of Justice released a consultation paper in June, inviting responses from lawyers and others about whether the defense of provocation should be abolished or reformed and how the other Criminal Code defenses might be brought into step with modern values. Responses to this paper will shape new legislation to be introduced next year.

Section 690 Consultation

Another issue with which I am concerned is one that is part of this meeting's agenda and that goes to the very heart of the issue of public confidence in our system of justice. Certain highly publicized cases of wrongful conviction have shown that our justice system can make mistakes. Of course, I'm referring to Donald Marshall, Guy-Paul Morin and David Milgaard. Because our criminal justice system isn't perfect, the system has a built-in safety net. Section 690 of the Criminal Code gives the Minister of Justice the power to direct a new trial, order a new appeal or refer a specific question to an appeal court for its opinion in cases where the applicant demonstrates that a reasonable basis exists to conclude that a miscarriage of justice occurred. This remedy of last resort is reserved for convicted persons who have exhausted their appellate remedies. There is no statute of limitations on this remedy. For some, it can mean the difference between freedom and a lifetime in prison.

When the Commission on Proceedings Involving Guy-Paul Morin released its report in April of this year, one of its recommendations was that a criminal case review board be created to replace or supplement the powers currently exercised by the Justice Minister under section 690 of the Criminal Code. It was not the first time that such a measure had been proposed by a commission of inquiry. The Royal Commission on the Donald Marshall Jr. Prosecution recommended in 1989 that the provincial Attorneys General and the federal Justice Minister look into setting up an independent review mechanism to reinvestigate alleged cases of wrongful conviction.

In response to that recommendation, a federal-provincial working group was established in 1990. In its report, the working group reviewed the Marshall recommendations and advised ministers that an independent review body was unnecessary. Nevertheless, senior officials in the Justice Department took steps to improve the timeliness, openness and independence of the section 690-review process. Earlier this year, I instructed departmental officials to review the section 690 process and make recommendations on how these reviews might be further improved.

Despite these and other measures, some have continued to argue for the repeal of section 690 and its replacement with an independent review mechanism. Since its inaugural meeting in 1993, the Association in Defense of the Wrongfully Convicted (AIDWYC) has repeatedly called for the establishment of an independent commission to investigate suspected miscarriages of justice. They submit that an independent agency would be more open, less biased and able to process applications in a more timely fashion. They point approvingly to the Criminal Cases Review Commission created by the British Government in 1995.

In the next few weeks, my department will release a consultation paper to explore how the Government of Canada can improve upon the process that reviews applications for mercy of the Crown by persons alleging wrongful conviction. I welcome the views of the CBA and others for insight and guidance on this important issue.

Judicial Activism

As lawyers, we contribute to public understanding of the law not just through the development of public policy and legislation, but by taking part in and informing the major legal and constitutional debates of the day. And such a contribution is, I believe, rarely so needed than at the present time, when we are witnessing a heightened, and in some cases I think unprecedented, public criticism of our courts, in particular of the Supreme Court of Canada. Much of this criticism is unspecified and undefined, and has been captured by the amorphous term "judicial activism." Critics, by avoiding any attempt to define this term, and by associating it with some recent important judicial decisions, are creating an impression that the Courts are usurping a role other than that contemplated in our democratic constitutional structure.

In my view, this development raises the potential for serious harm to the credibility of the institution of the Canadian courts and the public perception of our system of justice as a whole.

Let me say clearly that by raising this I am not for a moment suggesting that criticism of decisions of the courts is anything other than healthy and appropriate in a free and democratic society. There is no doubt that judicial review under the Charter poses challenges, both theoretical and practical, for a society like ours that prides itself on its commitment to democratic principles.

The current concerns and debate about the role of the courts is not surprising in light of the youth of the Charter. We have only to compare it to the similar debate about the appropriate scope of the role of the courts that continues in the United States after over 200 years of interpretation. The key questions that have been asked, and will continue to be asked for some time, concern the extent to which, and the circumstances under which, the courts should use that power. Also evolving is the question of what remedies are appropriate to deal with findings of unconstitutionality and when those remedies should be used.

However, suggesting that there is something "wrong" with the role played by the Court in shaping law and policy, something "wrong" with judicial review under the Charter or elsewhere, is not only destructive of the confidence of Canadians in the institution of the Courts - it is also seriously misinformed historically and jurisprudentially.

The courts have always shaped laws in important ways, occasionally creating major shifts in the way that social and economic issues are resolved. I only need to say Donoghue v. Stevenson and Hedley Byrne, for you to recall the sea change that followed in terms of personal and professional responsibility. Or to remind you of the Murdoch case that laid the policy groundwork for much of current family law. And who among us can forget reading with pride the vigour our courts showed in Roncarelli v. Duplessis, a judgment that made a legendary contribution to Canadian human rights.

Any reader of constitutional history, as well as constitutional law, also understands the importance of the courts' role in defining our constitutional and political landscape. We witnessed a great example of this last week when, in a historic judgment, the Supreme Court produced a carefully considered decision on the Reference the Government of Canada submitted regarding whether Quebec had the legal right to secede unilaterally from Canada. The Supreme Court provided all Canadians with a thoughtful and articulate analysis of the functioning of our democracy and the principles that underpin the Canadian federation. As well, we need look no further for a judgment that shows great respect for the appropriate roles of the political and judicial spheres.

If we can do nothing else, our profession should foster a more informed public awareness of the courts' role. We should remind people, for instance, of the historical fact that the Charter was adopted after broad public and political debate that culminated, ultimately, in it receiving widespread support. And while perhaps the impact of the Charter could not have been anticipated, we were all aware that the role of the Courts would evolve as a result of conferring on them additional responsibilities.

We should point out that charters or bills of rights are not unique to the United States and Canada. The Charter is not an international anomaly ( rather, it is a model for countries like South Africa, that look to us for the framework and precedents that will shape its new constitutional landscape. And we should take opportunities to counter those who would use decisions with which they disagree as opportunities to attack the institution itself, rather than engage in an honest, healthy and civil debate on the merits of a decision and the appropriate responses to it.

As members of the legal profession, we have a responsibility to dispel the notion that judicial review is anti-democratic - a notion often proferred when individual or minority rights have been protected. It is ironic that, often, those who most deride the courts and the Charter when it suits them, are often in other circumstances the most ardent defenders of individual rights and freedoms.

As a member of a government that has had to respond to judgments of some controversy, I am more aware now than ever of challenges that our democratic institutions face in the development of laws that balance complex and competing interests.

It has been suggested, and I agree, that a debate is overdue on these and related issues. We should encourage and participate in discussions about the respective responsibilities of all the players -- the courts, the executive, Parliament and legislatures ( in the important and often difficult issues that arise when responding to key public policy challenges.

Let us begin to talk about how we shape that discussion, recognizing that as lawyers, legislators and as judges, we don't own these issues. Finding a way to add a public dimension to the debate of these complex and, often, divisive questions, which engage historical, jurisprudential and practical considerations, is part of the challenge. But as these issues touch on how citizens relate to each other and to their institutions, and hence how we define ourselves as Canadians, it is one we must meet.

Conclusion

Let me close by saying that for a Minister of Justice, this annual meeting of the Canadian Bar Association is not simply an opportunity for me to speak to the profession at large; it is an opportunity for me to hear its views. I know well from experience that the discussion and dialogue in the sessions that have taken place and will continue this afternoon will produce a number of briefs and submissions on the direction the federal government should take on a variety of issues on the justice agenda. In my Department, hardly a month goes by when a thorough, considered, detailed submission is not advanced by the Canadian Bar Association on a matter of public policy.

While I cannot always act on your advice, I do want to tell you publicly how grateful I am to receive it and how important it is for you to continue this active, independent role. Thank you again for your contribution to the administration of justice and I look forward to working with the CBA in the coming year, as we face together the challenges of providing a system of justice in this country of which all Canadians can be proud and of which all Canadians can feel a part.

Thank you.