Remarks to the Council of the Canadian Bar Association at the Canadian Legal Conference

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

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Good morning ladies and gentlemen. I am always very pleased to have the opportunity to address the Council of the Canadian Bar Association. Once again, it’s a great pleasure to speak to you about issues regarding the administration of justice that are of concern to the judiciary, and to members of the Bar. This dialogue underscores the strong and productive relationship between the Bar and the judiciary in Canada.

In my brief remarks today, I would like to speak to you about developments at the Supreme Court of Canada over the past year, and more broadly, about matters of prime importance for the continued health of the Canadian judiciary.

Since I last spoke to you in Calgary, the Court has welcomed a new member. Almost a year ago, on August 31, 2015, Justice Russell Brown was appointed to the Supreme Court of Canada from the Alberta Court of Appeal. In Justice Brown, we have discovered a talented, hard-working judge and an enthusiastic and generous colleague. Justice Brown has responded admirably to the challenge of serving on the Court.

The year has been one of mixed emotions, however. While we at the Court were extremely pleased to welcome our newest colleague, it is with sadness that we bid farewell to Justice Thomas Cromwell. On March 22, 2016, Justice Cromwell wrote to the Minister of Justice to inform her that he will retire from the Supreme Court of Canada effective September 1, 2016 — almost 8 years after his appointment to the Supreme Court of Canada, which followed 11 years as a judge of the Court of Appeal for Nova Scotia. Justice Cromwell has served on the Court with great wisdom, and made enormous contributions to the administration of justice, both as an esteemed member of the Court and as a champion for access to justice. He is a wonderful colleague and friend who will be greatly missed. Justice Cromwell will be continuing to head up the access to justice taskforce – the Action Committee on Access to Justice in civil and family matters.

Beyond changes to the Bench, the work of the Court continues apace with recent years. In 2015, we received 539 applications for leave to appeal. Consistent with the trend over the past few years, the Court granted leave in approximately 10% of cases. Twenty one notices of appeal as of right were also filed with the Court. We heard 63 appeals and rendered judgment in 74 cases. In 70% of cases, the Court was unanimous.

These statistics tell only part of the story, however. We must look to the cases for a more complete picture of the Court’s work. Since 2015 we have decided a host of interesting and challenging appeals. In particular, the Court considered the criminal prohibition against physician-assisted death in CarterFootnote 1, and the constitutional scope of the right to strike in Saskatchewan Federation of LabourFootnote 2. Other recent notable examples include the B010 group of refugee casesFootnote 3, where the Court held that acts of humanitarian and mutual aid do not constitute people smuggling under the Immigration and Refugee Protection Act; the DanielsFootnote 4 case, which raised the issue of whether the Métis and non-status Indians were “Indians” under s. 91(24) of the Constitution Act, 1867; the LloydFootnote 5 case, which asked whether a one‑year mandatory minimum imprisonment term for drug possession could result in cruel and unusual punishment; and the JordanFootnote 6 case, where the Court underscored the need to bring criminal cases to trial promptly to comply with the requirements of s. 11(b) of the Charter.

A number of challenging appeals remain under reserve. For instance, the appeal in Anita Endean v. Her Majesty the Queen in Right of the Province of British ColumbiaFootnote 7 calls on the Court to consider whether, in the course of the administration of a class action settlement, a provincial court proceeding may take place outside the province. Also under reserve is Royal Bank of Canada v. Trang, et al.,Footnote 8 which raises difficult questions regarding the protection of personal information in mortgage discharge statements under the Personal Information Protection and Electronic Documents Act. And from Quebec, we have the case Lizotte v. Aviva and Traders Insurance,Footnote 9 which raises issues regarding litigant and solicitor-client privileges in the context of an ethics inquiry against an insurance claims adjuster.

Looking forward, our autumn session promises to be very busy. We have 29 appeals scheduled. Some notable matters include three cases regarding Aboriginal and treaty rights and the Crown’s duty to consult and accommodate aboriginal peoples – Hamlet of Clyde River,Footnote 10 Chippewas of the Thames First NationFootnote 11 and Ktunaxa Nation Council.Footnote 12 In another significant case — B.C. Teachers’ Federation v. British ColumbiaFootnote 13 — the Court will consider once more difficult questions regarding the right to bargain collectively. In B.C. Freedom of Information and Privacy Association v. Attorney General of British Columbia,Footnote 14 it will consider the constitutionality of limits on third party election spending. Finally, in two cases, the Court will be called on to consider fundamental issues regarding activity on the Internet. The case Douez v. Facebook Inc.Footnote 15 asks whether a forum selection clause in an online contract of adhesion should be set aside in the face of protective statutes enacted in the public interest. And the case Google Inc. v. Equustek Solutions Inc.Footnote 16 asks whether Canadian courts may prohibit Google’s Internet search engine from displaying search results anywhere in the world.

As you can see, we have a busy and challenging fall session before us. As mentioned earlier, Justice Cromwell announced his retirement in March. It is now August and still no replacement has been appointed. The government has recently announced a formal process for appointing judges to the Supreme Court. I understand that process is important. But it is also essential that the current vacancy be filled so that the Supreme Court of Canada can discharge its responsibilities in the session to come in the best possible fashion. The Court needs – and the Canadian people are entitled to – a full complement of nine judges to decide the complex and important questions before it. I would be less than frank if I did not say that I am concerned about the length of time it has taken to fill this vacancy. I remain hopeful that we will be able to welcome Justice Cromwell’s replacement, if not in time for the October sittings, at the earliest possible date this fall.

Ours is not the only Canadian court with vacancies to fill. There are, at present, 44 vacancies in federally appointed judicial positions across the country. This is not the first time I have come before you to call upon the government of the day to meet its obligation to appoint judges in a timely fashion. There is something deeply wrong with a hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise. The perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved. Without a full complement of judges, and an efficient system for anticipating and filling vacancies, delay will continue to be a feature of our justice system. As the Court recently reminded us in R. v. Jordan, “[t]imely justice is one of the hallmarks of a free and democratic society”.Footnote 17 On the criminal side. “[t]he ability to provide a fair trials within a reasonable time is an indicator of the health and proper functioning of the [justice] system”.Footnote 18 As for the civil side, delay will continue to drive some users out of the public justice system and into private arbitration. Those users who cannot afford private justice should not be forced by their lack of means to suffer the strain and indignity of unnecessarily prolonged proceedings.

This brings me to the crucial issue of access to justice. We are fortunate to live in a country with a robust justice system buttressed by an independent judiciary. Yet access to justice in Canada remains a serious problem that imperils the public’s confidence in the justice system. It will be three years in November since the Canadian Bar Association issued its report on reaching equal justice. While progress has been made, there is still much to do. Rules and processes are still more complicated than they should be, causing unnecessary delays. Financial barriers continue to thwart access to justice. The low level of funding for legal aid leads litigants to appear in courtrooms without the support of counsel, placing unfair burdens on courts, the litigants, the bar and, ultimately, the public purse. And finally, some may hold attitudes of mistrust or fear toward the justice system, refusing to engage with it or acknowledge its legitimacy.

I believe meeting the challenge of providing access to justice to ordinary Canadians must be a top priority, if we are to maintain public confidence in the justice system. If people are excluded from the system, if they conclude it exists only to serve the interests of the elites, they will turn away. Respect for the rule of law will diminish, and our society will be the poorer.

I want to say a word to you about judicial independence. With governments under fiscal pressures, problems with the administration of courts are surfacing more frequently. Judges and courtrooms may find themselves underequipped and understaffed. Technology necessary to make justice more accessible – and incidentally reduce costs in the long run – may be denied. Court fees may be pushed to levels inconsistent with ready access to the courts. As scholar Graeme G. Mitchell predicts, in the twenty-first century, the administrative independence of courts may well become “the new frontier in matters of judicial independence”.Footnote 19 It will be crucial to look at ways to ensure the proper funding and staffing of courts, while preserving judicial independence and ensuring public accountability for moneys spent. The Canadian Judicial Council did pioneering work in this area ten years agoFootnote 20 It concluded that there is a compelling constitutional rationale for changing the executive model of court administration in Canada (whereby court administration is provided by the federal and provincial public services) to models that feature a greater degree of judicial autonomy. I share this view.

Further reforms to court administration may also be called for. Improving and coordinating the administration of justice is increasingly becoming a matter of great concern to me personally and to the Canadian Judicial Council which I chair. What systems do we have in place to adopt and share best practices between court administrations across the country? What performance measures do we have to distinguish best practices from lesser practices, or from inefficiencies? These are the kinds of the questions the Canadian Judicial Council is charged with tackling. Its statutory mandate is to “promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts”.Footnote 21 I can assure you that the Council’s members — Canada’s 39 chief and associate chief justices — are utterly committed to improving the quality of judicial service in superior courts. Sadly I must also tell you that since losing a major part of our funding in 2014, and not seeing it restored in Budget 2016 despite our request, the Council finds itself struggling to meet its statutory objects. I call once again upon the Government of Canada to restore funding to the Canadian Judicial Council, and to rededicate itself to improving the quality of judicial service in superior courts.

Before I leave you to your deliberations, I must turn to a final item – the last but not the least. It gives me great pleasure to pay a well-deserved tribute to John Hoyles, who has served the Canadian Bar Association with dedication for 20 years. John’s mandate with the Association ends this year

The Supreme Court of Canada and the Canadian Bar Association enjoy a strong relationship, and for this, no small thanks go to John. I want to highlight John’s “first-alert” role in coordinating CBA public response to specific issues that pertain to the courts. This work is appreciated not only by my Supreme Court colleagues, but by judges across Canada. We as judges cannot respond publically to unavoidable criticism, but by ensuring that the Association’s response is timely, targeted and thoughtful, you, John, have made an impressive contribution to both the integrity and independence of Canada’s judiciary and to public confidence in the judicial system.

On behalf of all of Canada’s judges, I thank you for this important and highly appreciated work.

And now, ladies and gentlemen, I would like to thank the Canadian Bar Association for its continued support for the administration of justice in Canada and the Canadian judiciary, and for giving me the opportunity to speak to you today. I wish you productive deliberations during this conference and hope that you enjoy all Ottawa has to offer.


Footnote 1

Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

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Footnote 2

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245.

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Footnote 3

B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754.

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Footnote 4

Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12.

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Footnote 5

R. v. Lloyd, 2016 SCC 13.

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Footnote 6

R. v. Jordan, 2016 SCC 27.

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Footnote 7

File No. 35843.

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Footnote 8

File No. 36296.

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Footnote 9

File No. 36373.

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Footnote 10

File No. 36692.

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Footnote 11

File No. 36776.

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Footnote 12

File No. 36908.

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Footnote 13

File No. 36500.

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Footnote 14

File No. 36495.

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Footnote 13

File No. 36616.

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Footnote 16

File No. 36602.

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Footnote 17

R. v. Jordan, 2016 SCC 27, para. 1.

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Footnote 18

R. v. Jordan, 2016 SCC 27, para. 3.

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Footnote 19

Graeme G. Mitchell, “’Be Careful What You Wish For’: Administrative Independence and Alternative Models of Court Administration – The New Frontier”, in A. Dodek and L. Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010), at p. 98.

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Footnote 20

Canadian Judicial Council, Alternative Models of Court Administration (September 2006).

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Footnote 21

Judges Act, R.S.C. 1985, c. J-1, s. 60(1).

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Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
to the Council of the Canadian Bar Association at the Canadian Legal Conference
Ottawa, Ontario
August 11, 2016