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

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Remarks of the Right Honourable Beverley Mclachlin, P.C. Chief Justice of Canada Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada Council of the Canadian Bar Association Calgary, Alberta August 13, 2015 1 Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada Council of the Canadian Bar Association Calgary, Alberta August 13, 2015 Good morning ladies and gentlemen. Mesdames et messieurs, bonjour. I am always delighted to have the opportunity to address the Council of the Canadian Bar Association to speak about issues regarding the judiciary and the administration of justice in Canada. Le fait de vous rencontrer et d’assister à cette conférence chaque année contribue également à affermir la relation fructueuse entre la magistrature et les avocats. In my remarks today, I would like to speak to you about the developments at the Supreme Court of Canada over the past year, to provide you with an update regarding changes to the Canadian Judicial Council’s conduct process, and to share some thoughts with you about the judiciary in Canada. The Supreme Court of Canada Since I last spoke to you in St. John’s, Newfoundland, the Court has welcomed a new member. Effective December 1, 2014, Suzanne Côté was appointed to the Supreme Court of Canada directly from the Barreau du Québec. La juge Côté fait bénéficier la Cour de sa vaste CHECK AGAINST DELIVERY 2 expérience en tant qu’avocate de premier plan devant les tribunaux et de sa connaissance approfondie du droit civil du Québec, du droit commercial, des recours collectifs et du droit public. Justice Côté has thrown herself into the life of the Court with her well-known appetite for hard work. We have been absolutely delighted to welcome Justice Côté. As you know, there have been other changes to the composition of the Court. It is with sadness that we bid farewell to Justice Marshall Rothstein, who will retire on August 30, 2015 after having served over nine years on the Supreme Court of Canada, which followed over thirteen years as a judge of the Federal Court and the Federal Court of Appeal, and a distinguished career at the Manitoba bar. Justice Rothstein has served on the Court with great distinction and has made invaluable contributions to the Court and to Canada. He is a wonderful colleague and friend, who will be greatly missed. We welcome Justice Rothstein’s successor, Justice Russell Brown, who has been appointed to the Court effective August 31, 2015. Justice Brown has been elevated from the Alberta Court of Appeal. He comes to the Court with a rich background as a practitioner and law professor. During his time at the Bar, Justice Brown practiced in the areas of commercial law, medical negligence, personal injury, trust, estates, and competition law. His academic work has focused on tort law, property law and civil justice. We are looking forward to Justice Brown’s contributions to the Court. The Court has had a productive year. In 2004, the Court received 558 applications for leave CHECK AGAINST DELIVERY 3 to appeal. We granted leave in nine percent of cases. Sixteen notices of appeal as of right were filed with the Court. We heard 80 appeals and rendered judgments in 77 cases. In 79 percent of cases, the Court was unanimous. These statistics only tell part of the story. Notable appeals that were decided over the last year include: Carter v. Canada (Attorney General),1 in which the Court held that s. 241(b) and s. 14 of the Criminal Code violate s. 7 of the Canadian Charter of Rights and Freedoms insofar as they prohibit physician-assisted death for a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. R. v Nur and R. v. Charles,2 in which the Court struck down the mandatory minimum terms of imprisonment in s. 95(1) of Criminal Code for possessing loaded prohibited firearms or with readily accessible ammunition nearby because they were cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms. Saskatchewan Federation of Labour v. Saskatchewan,3 in which the Court held that the right to strike is protected as part of freedom of association under s. 2(d) of the Charter. 1 [2015] 1 SCR 331. 2 2015 SCC 15. 3 [2015] 1 SCR 245. CHECK AGAINST DELIVERY 4 And of particular interest to the legal profession, in Canada (Attorney General) v. Federation of Law Societies of Canada4, the Court held that the provisions authorizing the search and seizure of the records of lawyers and law firms in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act violated s. 8 of the Charter, and that the provisions requiring lawyers to gather and retain certain information regarding the identity of those on whose behalf they pay or receive money interferes with a lawyer’s duty of commitment to the client’s cause contrary to s. 7 of the Charter. Some notable appeals remain under reserve: Boutet c. Sa Majesté la Reine et Caron c. Sa Majesté la Reine,5 où l’on demande à la Cour si un droit constitutionnel exige l’adoption des lois albertaines en anglais et en français; et A group of cases concerning the meaning of “people smuggling” in the Immigration and Refugee Protection Act.6 The Court’s upcoming autumn session promises to raise a number of important questions. We have 25 appeals scheduled in October through December. Notable cases include: 4 [2015] 1 SCR 401. 5 Court File No. 35842. 6 Court File Nos. 35677, 35685, 35688, 35388 ad 35958. CHECK AGAINST DELIVERY 5 Daniels et al v. Her Majesty the Queen,7 which asks whether Métis and non-status Indians are “Indians” for the purpose of s. 91(24) of the Constitution Act, 1867, and are thus under the jurisdiction of the federal government. L’affaire Procureur General du Canada c. Chambres des notaires,8 soulève la question de savoir si le régime des demandes péremptoires établi par La Loi de l’impôt sur le revenu9 est conforme à l’article 8 de la Chartre canadienne lorsque le ministre s’adresse au notaire ou à l’avocat du contribuable afin d’obtenir des documents ou renseignements qui concernent le contribuable. World Bank Group v. Wallace et al,10 which asks a number of questions concerning the principles that govern the immunity of international organizations, and whether the Canadian courts have jurisdiction over the World Bank Group, specifically whether Canadian courts can compel its officers and employees to testify and produce internal documents. Reflecting on the past Court year, I can report that the Supreme Court of Canada remains highly productive and independent, and continues to enjoy a high level of confidence among 7 Court File No. 35945. 8 Court File No. 35892. 9 L.R.C., 1985 c. 1, par. 231.2(1), art. 231.7, par. 232(1). 10 Court File No. 36315. CHECK AGAINST DELIVERY 6 Canadians. Cette réflexion sur l’année judiciaire qui s’achève me permet de dire que la Cour suprême du Canada reste très productive et indépendante, et qu’elle conserve à un niveau élevé la confiance des Canadiens et des Canadiennes. Judicial Conduct Let me now turn to the Canadian Judicial Council, which I serve as Chairperson. The Council is created under the Judges Act with the mandate to promote the efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada. One of its most important functions is to independently review the conduct of judges, which is essential to maintaining the public’s confidence in the administration of justice in Canada. Canadians have consistently expressed a high degree of confidence in their judges. Part of preserving public confidence in the judiciary is ensuring that any concerns about a judge’s professional and personal conduct are heard and determined expeditiously and fairly. Two years ago in my address to the CBA, I expressed my view that the Canadian Judicial Council could improve its system for reviewing the conduct of judges. I am pleased to report that the Council has now implemented its most substantial reforms to the conduct process since its inception in 1971. Our goal has been to improve the efficiency, effectiveness and fairness of the conduct CHECK AGAINST DELIVERY 7 process. The Council consulted widely with the public at large, and with specific stakeholders, notably the Canadian Bar Association; the Minister of Justice and Attorney General of Canada, the Honourable Peter MacKay; and the Canadian Superior Courts Judges Association. These consultations were essential to obtaining the range of views concerning the conduct process and for considering their thoughtful suggestions for reform. Following these consultations, the Council adopted a number of measures to improve the conduct process, including the following: Providing more detailed information to complainants about the review of their complaint. Eliminating confidential reports by outside counsel, so that judges subject to a complaint receive all information gathered during the review process. Streamlining the conduct review process. Allowing the Judicial Conduct Committee to express concern to a judge and provide constructive feedback, if warranted, when complaints are dismissed. Inviting lay persons to participate on Review Panels, which decide whether a complaint should be referred to an Inquiry Committee. Replacing independent counsel with counsel who are engaged and directed by the Inquiry Committee, in keeping with the inquisitorial nature of the Inquiry Committee. CHECK AGAINST DELIVERY 8 These measures, taken together, will improve the conduct process.
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