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Challenges Facing the Judiciary Today

The Honourable John D. Richard
Chief Justice of the Federal Court of Canada
Rideau Club
Ottawa, Ontario
24 October 2002


The Federal Court of Canada

The Federal Court of Canada was established in 1971 as the successor to the Exchequer Court of Canada, which was founded in 1875. Both Courts were established under the authority of section 101 of the Constitution Act, 1867, as courts of law, equity and admiralty for the "better Administration of the Laws of Canada".

The Court is bilingual, offering its services in both official languages of Canada, and bi-jural, administering the two legal systems - common law and civil law. It is also itinerant, in the sense that it sits and transacts business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties. It is the Court's objective to secure the just, most expeditious and least expensive determination of every proceeding based on its merits.

The Federal Court exercises a specialized jurisdiction, including a limited criminal jurisdiction, in areas governed by federal law. For example, the Court exercises jurisdiction in admiralty, intellectual property, proceedings by or against the Crown in right of Canada, and the supervision of federal boards, commissions and other tribunals.

I. Introduction

There are few institutions in today's society which are subject to more intense public scrutiny than the Canadian judiciary.

Twenty-five years ago, the main business of the courts was maintaining the criminal justice system and resolving private disputes in contract and tort.

These were the areas of law in which judges and the counsel who appeared before them had acquired expertise through years of study and practice.

Most Canadians had no contact with the courts or the law and did not really see themselves as being affected by judges' decisions.

The judgement of the day was not likely to spark controversial conversation and debate.

All of that changed in 1982 when we declared the Charter, which forms part of our Constitution, to be the "Supreme Law of Canada".

This declaration replaced our long-standing tradition of Parliamentary supremacy with constitutional supremacy.

Today, every exercise of state power must comply with the Charter's guarantees of our civil rights and liberties.

It is the court's responsibility to decide whether legislation is consistent with, or offends the Charter.

In doing so, the judiciary has adopted a new role - protector of the constitutional rights and freedoms of Canadians.

To fulfill this role, judges are called upon to determine a vast array of complex and divisive issues.

The resolution of these disputes often embraces social and moral questions that are of profound importance to society.

This has certainly been the case at the Federal Court which has been called upon to determine a number of difficult questions of national significance.

In Suresh v. Canada, [2000] 2 F.C. 592, the question was whether a refugee who, in the opinion of the Minister of Immigration, posed a danger to the security of Canada could be removed from Canada to a country where he faced torture.

Squamish Indian Band v. Canada, 2000 F.C.J. No. 1568
The Federal Court had to determine whether the Squamish Indian Band had a valid claim for an 82 acre piece of land in Vancouver. Their claim was rooted in a number of sale, surrender and expropriation transactions with the government beginning in 1869 and continuing through to 1965.

Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229.
The Court was asked to review the environmental assessment of the Confederation Bridge project joining PEI and New Brunswick. The Court was also asked to determine whether the project was constitutional.

Sauvé v. Canada (Chief Electoral Officer), [2000] 2 F.C. 117
The Court was asked to determine the scope of a prisoner's fundamental democratic right to vote in a federal election.

Weisfeld v. Canada, [1995] 1 F.C. 68
The issue was whether the RCMP's dismantling of a "Peace Camp" erected in political protest on Parliament Hill infringed a protester's right to free expression.

Canada (Attorney General) v. Mossop, [1991] 1 F.C. 18
The issue was whether an employer could prohibit an employee from taking bereavement leave following the death of his same sex partner's father. To resolve this question, the Court was required to determine whether a same-sex couple constituted a "family" under the Canadian Human Rights Act.

Hodge v. Canada (Minister of Human Resources Development), 2002 FCA 243
The question before the Court was whether common law and married spouses were equally entitled to the survivor pension provided under the Canada Pension Plan. At the time, the law required that, unlike a married spouse, a common law spouse had to be residing with the contributor at the date of the contributor's death to be entitled to the pension.

Symes v. Canada, [1991] 3 F.C. 507
The question before the Court was whether a self-employed mother could deduct the full amount of her nanny's salary as a business expense incurred for the purpose of producing income or whether she could only deduct a portion of the salary permitted under the "child care expense" provisions of the Income Tax Act. This case also engaged the equality provisions of the Charter. It was argued that the limitation violated section 15 as such costs are a major barrier to women's participation in the economy.

Canada v. Public Service Alliance of Canada, [2000] 1 F.C. 146
The Court faced the highly publicized issue of pay equity in the federal government. At issue was whether female employees were receiving different wages than male employees who were performing work of equal value.

President and Fellows of Harvard College v. Canada (Commissioner of Patents), [2000] 4 F.C. 528
The question was whether genetic engineers had the right to patent life forms, in that case, a genetically altered mouse. The implications of patenting the "Harvard mouse" are enormous since approximately 25 million laboratory mice are used up each year to test drugs, cosmetics and foods. (cited from the Globe and Mail). The decision will also have a far reaching impact on the patenting of other genetically modified animals such as monkeys and raises the important issue of the possible patenting of genetically modified humans.

Post 9/11, the role of the Court has been expanded in national security matters.

Under Canada's new anti-terrorism legislation, the Court is called upon to rule on the validity of the exercise of ministerial powers to search, seize and forfeit property, to intercept communications and to list terrorist groups, to name but a few.

The role of the judiciary as "resolver of disputes, interpreter of the law and defender of the Constitution" remains unchanged in times of crisis. What must change however are the tools and resources which judges draw upon when they are interpreting and applying the law. The events of September 11 and the response of the world, including the enactment of anti-terrorism legislation by various governments such as Canada's Anti-terrorism Act, have created a new environment for judicial decision-making. Within this new climate judges must adopt a global perspective in performing their role. The judiciary must be aware of and take into account the various declarations, resolutions and conventions made by non-adjudicative bodies with international standing, as well as the decisions of international tribunals. As recently stated by the Supreme Court of Canada in Suresh v. Canada, a complete understanding of the legislation under review and the Charter requires consideration of the international perspective.

Because the issues facing the judiciary today include complex social and moral issues, the public has attained a new awareness of the courts and the judges who preside over them.

This raises three challenges for judges.

First, the judiciary must provide for the effective and efficient resolution of these complex disputes.

Second, we must recognize that the role of judges evolves along with society, but that judges must also retain their special position of independence and public trust.

Third, the judiciary must meet the challenge of doing what it can to increase public understanding of the role of judges and the operation of the court system.

II. Complex Evidence

Very often trials in our Court are long and the evidence complex.

In order to expedite trials, the Federal Court has implemented rules which provide for the more efficient resolution of cases through case management and alternative dispute resolution.

These rules encourage the early resolution of litigation by offering parties the opportunity to discuss the possibility of settlement or the more efficient conduct of a trial.

III. Judicial Independence in a Changing Society

Judicial independence is the complete liberty of individual judges to hear and decide the cases that come before them free from interference of any kind.

The independence of the judiciary has been a cornerstone of the English political and legal system for centuries.

This principle has been faithfully upheld in Canada and is viewed as a fundamental constitutional right.

An independent judiciary has long been recognized as the foundation upon which a true democracy rests because it allows judges to make impartial decisions without fear of consequence.

This is critical since public trust in the legal system and the judiciary depends upon society's confidence in the impartiality of individual decisions.

Impartiality does not mean that judges have no sympathies or opinions but rather that they are free to consider and act upon different points of view without interference from any source.

In order to be able to make impartial decisions judges are expected to maintain a measured distance from governments and others.

Increasingly however, the nature of today's decisions places the judiciary at the centre of many current debates about social change and social values.

As a result, the public has attained a new awareness of the crucial need for a judiciary which is free to make independent and impartial decisions, and to apply the law as he or she understands it, without fear or favour, and without regard to whether a decision is popular or not.

However the requirements for impartiality and independence must not force judges to isolate themselves from the communities in which they live.

Judges must be sensitive to the issues and concerns that come before them for adjudication.

And judges, indeed society as a whole, must realize that the vast range of litigious issues now before the Courts engages the judiciary in making value-based decisions.

It is not possible to protect individual rights and freedoms without making value judgements.

This is clearly demonstrated by section 1 of the Charter which requires courts to determine whether a law which limits a right or freedom is nevertheless "demonstrably justified" as a "reasonable limit" in a free and democratic society.

As a result, judgments are sometimes criticized on the grounds that they are based on a judge's personal view of a matter.

It is true that all members of the judiciary bring their unique life experiences to the bench and that, as human beings, they will have opinions.

But it is the duty of all judges to set aside their personal prejudices and views when they make decisions and to base those decisions on an impartial assessment of the evidence and legal authority.

When asked at her confirmation hearing about her views on abortion, Justice Sandra Day O'Connor, now an Associate Judge of the Supreme Court of the United States, stated that she could not answer as that was a question which would be before the Court, at which time she would decide the matter based on the submissions and evidence before the Court.

Indeed, a judge must be able to set aside his or her own views and to look at the question in dispute objectively.

More than ever the challenge for judges today is to look outside themselves and to consider the norms and values reflected in society.

The Canadian Judicial Council has recognized this challenge. The Council has prepared a compendium of advice for judges on the many difficult ethical issues they face on and off the bench.

The Council also works with the National Judicial Institute to provide opportunities for the education of judges about Canada's changing social context.

IV. Public Understanding of the Role of Judges

There has been a dramatic increase in the visibility of courts and the judges who preside over them.

Given the nature of decisions which judges are required to make, it is to be expected that reasonable people will have opinions which differ from those of the courts.

Judges cannot avoid making decisions that will attract public commentary and some of that commentary will be negative.

In fact, well-informed public commentary is vital to the functioning of our democratic institutions. To ensure that such commentary is constructive, the judiciary can play a role in enhancing the public's understanding of the courts.

The judiciary's role in public education is not a means of responding to criticism.

Rather, it is a means of ensuring that public commentary is based on an accurate understanding of the judiciary's role.

Today, the public is demanding to know more about the workings of the courts and about judges.

Judges need to undertake educational initiatives at all levels of the education system, address audiences representative of their communities, and engage the media constructively about the reporting of justice issues.

Judges need to recognize that neither their own personal development nor the public interest is well-served if they are unduly isolated from the communities they serve.

Judges should, to the extent consistent with their special role, remain closely in touch with the public and explain what they do and how the courts operate within the judicial system.

The Canadian Judicial Council has acknowledged that the judiciary has a responsibility to do what it can to increase public and media understanding of the role of judges and the operation of the court system.

The Council has endorsed a program of public education which encourages judges to take advantage of opportunities to help the public understand the role of the judiciary and the fundamental importance of judicial independence.

The Council also encourages judges to take opportunities outside their courtrooms to make the law and the legal process more understandable and accessible to the public.

Increasingly, judges are addressing, not only lawyers and other members of the judiciary, but equally important groups which are broadly representative of their communities.

Thus, public education has become an important part of a judge's office.

The challenge at hand, is to explain and illustrate what interpreting the law means in terms that are understandable.

V. Conclusion

I believe the Canadian judiciary is one of the finest in the world and it will adeptly meet the challenges which it faces in today's changing society.

It possesses the knowledge and experience to make tremendous contributions to the maintenance and continuing evolution of our democratic society.

Our judges have demonstrated their willingness and ability to set aside their personal views and to look at the issues of the day in light of the evidence before them.

Intellectual honesty and judicial curiosity continue to allow the law to grow and develop.

And judicial courage is of critical importance.

Judges must be fearless in their resolve to make even the most unpopular decisions according to the law, the evidence and good conscience.

Bibliography

Madame Justice B.M. McLachlin, The Charter: A New Role for the Judiciary, (1991) 29 Alta. L. Rev. (No. 3) 540.

Justice T. David Marshall, Judicial Conduct and Accountability, Toronto: Carswell, 1995.

Gavin Sinclair, The Courts under Siege: How the New Charter Politics are Affecting the Judiciary, (1999) 5 Appeal: Review of Current Law and Law Reform, 6.

Canadian Judicial Council, "Judges must understand, respond to changing society", News Release, July 23, 1999.

Canadian Judicial Council, The Judicial Role in Public Information, September, 1999.

Canadian Judicial Council, "Judges must explain what they do", News Release, November 1, 2000.

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Date Modified: 2015-09-09