MONTREAL, June 3 /CNW Telbec/ -
Chers collègues, chers amis:
It is with considerable emotion that I return from whence I came. And it
is with both great pride and humility that I receive the Medal of the Quebec
Today, we rekindle old friendships, renew old acquaintances and revisit a
lifetime in the law-our chosen profession.
In this regard, the Quebec Bar is unique in Canada and North America, as
the keeper of two great legal traditions, British Common Law and French Civil
Law. Quebec is truly a bridge between Europe and America, between the old
world and the new.
The bilingual character of our country has its very origins in the duality
of our legal heritage. Long before there was a Charter of Rights, this duality
was reflected in the Constitution Act of 1867, in words which many of us know
"Either the English or French Language may be used by any persons in the
debate of the houses of Parliament of Canada and of the Houses of the
Legislature of Quebec...and either of those Languages may be used by a Person
in any Pleading or Process or issuing from any Court of Canada established
under this Act, and in or from all or any of the Courts of Quebec."
This is the fundamental bargain of Confederation, set out in a single
paragraph, Article 133, of the British North America Act.
Among other things, this reminds us that the Canadian constitutional
tradition of a pluralist, tolerant society did not begin in 1982. The Charter,
whose 25th anniversary we observe this year, and which was preceded by the
Diefenbaker Bill of Rights is a continuum of the BNA Act, whose legal
foundation can, in turn, be traced to the Quebec Act of 1774, and the
Constitution Act of 1791. These are not mere dates in our history, but the
legal foundations upon which our modern state has been built, from one
generation and one century, to the next. The Meech Lake Accord, had it been
promulgated in 1990, would have become part of that constitutional continuum.
Forty-two years ago, in 1965, I joined our profession, when I was called
to the Bar of Quebec. I remember coming to Montreal from Laval University, and
being hired as a young associate at Ogilvy Renault. The hours were long, the
pay was low, but we were young and life was good.
I was away from Montreal, and the firm, for the decade I headed the Iron
Ore Company and the decade that Mila and I were in public life. My time as
prime minister was a period of transformational change for Canada. And my
service was informed by my formation in the law. I understood the primacy of
the rule of law. I also understood the importance of an independent judiciary,
as the greatest and most important guarantor of our liberties.
Therefore, this occasion, of being honoured by my own profession, is
uniquely significant to me. Thus, the two points I want to discuss: the rule
of law and the independence of the judiciary.
The rule of law is not obscure, and the independence of judges is not
arcane. And in today's connected world, they are not consigned to back issues
of law reviews, nor are they echoes of forgotten debates at moot courts.
What do we mean by the rule of law? We mean that everyone is subject to
it, and no one is above it, without exception, and without preference. Not the
prime minister, not the governor general, not even the sovereign herself, on
whose behalf the rule of law is a fundamental tenet of our free society.
What do we mean by the independence of the judiciary?
We mean that Canada's Judges march to their own drummer. We mean that,
while they are appointed by a political process, they are above politics.
The late Chief Justice Brian Dickson, one of the great Canadian jurists of
the last century, put it very well when he wrote in 1986: "The role of the
courts as a resolver of disputes, interpreter of the law, and defender of the
Constitution requires that they be completely separate in authority and
function from all participants in the justice system."
As the former prime minister Arthur Meighen said in a Senate debate on the
independence of judges in 1932: "A judge is in no sense under the direction of
government. The judge is in a place apart."
Judges interpret the Constitution, the Canadian social contract, from the
division of powers in the Constitution Act to the equality rights provisions
under the Charter. They enforce the Criminal Code. They adjudicate disputes
and settle differences, in family law, in commercial law, in constitutional
Those are all the normal functions of the judiciary. But independent
judges are also the best guarantors of our freedoms, and in some cases, the
last or only line of defence for the rights and freedoms of Canadian citizens,
when they fall victims to abuse of power by their own government, or to witch
hunts carried out by the police.
When the power of the government, with all the legal and financial
resources at its disposal, is brought down on the head of a private citizen,
that can be both daunting and dangerous.
In such circumstances, who does a citizen have to defend him, other than a
lawyer brave enough to take on the government? And who can stop the
government, when it wrongfully persecutes and prosecutes a Canadian citizen?
The opposition can cry out at injustice, the media can publicize it, but
only a judge can put a stop to it, with a simple ruling from the bench.
Such is the authority of the judicial branch in our system of government,
such is the esteem in which judges are held.
Over a century ago, the great Oliver Wendell Holmes captured the essence
of the rule of law and the independence of the judiciary when he wrote: "The
reason why law is a profession, why people will pay lawyers to argue for them
or to advise them, is that in societies like ours the command of the public
force is entrusted to the judges in certain cases, and the whole power of the
state will be put forth, if necessary, to carry out their judgment and
The whole power of the state will be put forth. Or, the whole power of the
state will be stopped.
The power of the state can be used to carry out a judgment. But the power
of the state can also be stopped by a judgment.
A judgment is only a piece of paper. But words on paper, signed by a judge
as the author, are uniquely powerful in our society. A single piece of paper
from an independent judge, can leave the government and the police standing on
the courthouse steps, looking ridiculous and chastened.
We all know of such cases in Canadian jurisprudence, where an independent
judge has been the only person standing in the way of abuses of power by
government, including inappropriate activities by the police. The Beaudoin
case is but one example of flagrant abuse of power by those to whom power had
The independence of the judiciary, as Justice LeDain once wrote in a case
on judicial independence "connotes not merely a state of mind or attitude in
the actual exercise of judicial functions, but a status or relationship to
others, particularly the executive branch of government, that rests on
objective conditions or guarantees."
In the nine years I was prime minister, I was privileged to appoint
hundreds of judges to the superior courts, courts of appeal, the federal
court, the federal court of appeal and of course the Supreme Court of Canada.
For more than a century, these appointments had been uniquely in the
pleasure of the prime minister and the minister of justice. For decades,
judges were appointed, willy nilly, by the government of the day, with little
or no consultation with anyone. It is quite miraculous that in such a partisan
environment our courts emerged as strongly as they did throughout this period.
As a lawyer myself, I had a healthy respect for the opinions of others,
and I thought it was, frankly, too much power concentrated in the hands of the
prime minister and the government.
In 1986, I decided that the best way to strengthen the integrity and
independence of the judiciary was to create a new structure that ensured we
appointed only the very best to serve: we did that by creating judicial
advisory committees in each province, empowered to review and reject
candidates for the bench. They had the final word. The government undertook
not to appoint anyone who had not been approved by this committee. This
granted the Bar and the public powerful assurances of our intention to appoint
only competent and independent candidates to the bench - people who had
received prior approval of the Bar itself.
Since the files and process were completely confidential, no one was ever
embarrassed by negative publicity of being unqualified for appointment. The
system wasn't, and isn't, perfect. But it did create a consultative process
and a system of merit appointment, without opening up the judiciary to
elections or star chambers, as has often been the case in the United States.
The ultimate responsibility for appointments still rested with the prime
minister and minister of justice. We did our best to live up to the standards
I have enunciated. At one point the Supreme Court of Canada was composed
entirely of people I had the high honour and privilege to appoint - 8 Justices
- John Sopinka, Frank Iacobucci, Gérard La Forest, Claire l'Heureux Dubé,
Peter Cory, John Major, Charles Gonthier and Beverley McLachlin - and of
course, Antonio Lamer whom I had elevated to the position of Chief Justice.
It is important to remember that the objective is not merely to ensure the
independence of the recommendations on judicial appointments, but also to
appoint the most eminently qualified jurists our country can persuade to
accept "elevation" to the bench.
It is not a slam dunk to assume that the high honour of accepting the
role, responsibilities and status as a judge will automatically mean that
successful and respected practitioners will offer themselves for these posts.
Busy and well-rewarded lawyers sometimes shrink from the loss of income
inherent in "promotion".
We must therefore be mindful that, in setting judicial salaries, we are
also influencing to some extent the quality of the decisions by which our laws
are being interpreted. If Canada wants first class judges, it must provide
them with first class compensation.
I took it as a primary obligation as prime minister to ensure that only
people of the highest competence and integrity were appointed. Partisan
politics never intruded on these considerations. There was place for that
elsewhere in the system of government appointments. I am not infallible and I
am sure mistakes were made. But the bench is the backbone of our civil
society. Without fully independent judges, we will flounder and fail.
In private practice, I always marveled at the competence and capacity of
many colleagues, and often had occasion to do so when serving as prime
minister. I made extensive use of both inside and outside counsel in such
complex files as Meech Lake, the Free Trade Agreement, the NAFTA, the creation
of the Sommet de la Francophonie, and tax reform, including the GST.
In all of these important matters, I was constantly impressed by the
tremendous knowledge, historical perspective and good judgment brought to the
files by members of the Bar.
Let me give you the example of Meech Lake, an incredibly complex and
politically sensitive file. At the long meeting at the Langevin Block, there
was a question by Premier Peterson of Ontario, echoing the concern of his
attorney general, Ian Scott, as to whether the distinct society clause
impacted on English minority language rights in Quebec. It was about three
o'clock in the morning. I called for a break in the meeting and asked our
inside and outside counsel downstairs to my office and put Mr. Peterson's
question to them. They both said no, there was no impact on minority rights.
Each had unique standing in the profession. Our inside counsel, Frank
Iacobucci, then deputy minister of Justice, was a former dean of Law at
University of Toronto and later a justice of the Supreme Court of Canada. Our
outside counsel was Roger Tassé, the former deputy minister of Justice at the
time of the adoption of the Charter and one of Canada's most brilliant legal
When I pointed out that Mr. Scott's concerns had been shared by Mr.
Trudeau in his article denouncing Meech, Mr. Tassé observed: "You know, Prime
Minister, I wrote much of the Charter. Trudeau and Scott are wrong. Nothing in
Meech dilutes minority rights." Frank Iacobucci agreed fully.
As Prime Minister I was reassured to receive legal advice of that calibre,
at a crucial moment in the negotiations. As I told them then: "I want you to
come back into the meeting and tell them what you just told me, in just those
The advice of our inside and outside counsel, both of them on the same
page, was critical to the success of that historic meeting, twenty years ago
As for the rule of law, the best example I can offer you is in the
negotiating history of the Free Trade Agreement with the United States.
The US system of resolving trade-related disputes was to have a
self-interested allegation of subsidy or dumping decided by a group of
partisan appointees of the administration, and, surprise, surprise, many of
these calls went in favour of the home team!
We therefore made a fair and even-handed dispute resolution system one of
our primary goals. Throughout the negotiations, we cared more about this issue
than did our negotiating partners. There are reasons for this, including the
definition of injury in trade law, which, because of the small size of our
market and the proportion of our output that is exported, made it easier for
the US to invoke against us than the other way around.
Be that as it may, through persistence and our calling upon US political
will at the highest levels, we managed to get a dispute resolution system
which, even if it allowed for each country to continue to apply, and even
amend, its own trade laws, created a brand new system of bi-national panels
with rotating chairs to ensure that decisions rendered were free of political
influence and on the basis of judicial interpretations of the actual laws,
that is to say, in accordance with the rule of law.
Unless we achieved this objective, we were prepared to walk away and told
the Americans so. The Agreement was signed only as the hands of the clock
ticked towards midnight on the last day of President Reagan's fast track
negotiating authority. Only then, and only when they were assured we would
walk rather than accept a deal without dispute settlement, did the Americans
So the Free Trade Agreement was approved by us only when we were sure that
disputes would be determined in accordance with the rule of law. Canada has
given as good as it has got - winning and losing disputes, but not
systematically subjecting ourselves to a game where the opposing coach was
also the umpire. I am very proud of that.
The rule of law and the independence of the judiciary are at the very
heart of our freedoms, in which of all us stand before the law as equals.
We must defend them ferociously and guard them with our very lives. Our
entire democratic system rests on this reality.
This is about what the great American Justice Learned Hand called "the
spirit of liberty". And as he famously said:
"The spirit of liberty is the spirit that is not too sure it is right. The
spirit of liberty seeks to understand the minds of other men and other women.
The spirit of liberty weighs their interests against its own without bias. The
spirit of liberty knows that not even a sparrow falls to earth unheeded. The
spirit of liberty is the spirit of Him who, 2000 years ago, taught mankind a
lesson that it has never quite learned and never quite forgotten -- that there
may be a kingdom where the least shall be heard and considered side-by-side
with the greatest."
I thank you for this great honour, and as always, dear colleagues, for the
honour of friendships of a lifetime.
For further information:
For further information: Sylvie Berthiaume, Coordonnatrice des
communications, Barreau du Québec, (514) 831-7811