John Sopinka, the Charter and the Evolution of Canada's Justice System

Notes for the Sopinka Lecture delivered by

The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada
to
The Criminal Lawyers’ Association

Toronto Marriott Downtown Eaton Centre Hotel
Toronto, Ontario
October 28, 2016

Check against delivery

Gilakas’la. Good afternoon, everyone. I certainly wanted to thank Breese [Davies, vice-president of Criminal Lawyers’ Association] for that very kind introduction. And my sincere apologies for being late.

Again, I'm very pleased to be able to join you this afternoon to speak to you on Anishinabek territory, and it is indeed a pleasure to be asked to deliver this year's Sopinka lecture, because it gives me the opportunity to speak about Justice Sopinka's important work, but also on the role of advocacy and the state of Canada's justice system. And I was told that the late Justice Sopinka's daughter Melanie is in the room somewhere. Maybe not.

From what I understand, a very accomplished lawyer in her own right.

So just providing some reflections – and I appreciated Breese speaking about the mandate letter that the Prime Minister gave me, but thinking about Justice Sopinka, I had the opportunity, as many of us did, to listen to the now-confirmed Supreme Court of Canada Justice, Justice Rowe. Speaking as the then-nominee, he appeared before parliamentarians earlier this week, and he identified John Sopinka as his favourite in a long line of excellent jurists on Canada's top court. This choice does not surprise me. When I reflect on John Sopinka's illustrious career, I'm struck by how much Canada's justice system has evolved since his passing – his so sudden and unexpected passing – almost 20 years ago.

During his term on the Supreme Court, Justice Sopinka wrote several decisions that certainly have helped shape that evolution. Everybody in this room will be familiar with the 1991 Stinchcombe ruling. Before 1991, there was no legal duty on the Crown to disclose all relevant information to the defence. An outdated notion from today's perspective, the element of surprise remained a legitimate tool in the Crown's arsenal. The unanimous decision of the Supreme Court of Canada in Stinchcombe, written so eloquently by Justice Sopinka, helped to put this notion to rest. More than two decades later, it is widely considered a landmark case in the area of criminal law and fair trial rights.

Another decision written by Justice Sopinka has been much revisited and analyzed over the past year, the 1993 Rodriguez v. British Columbia case. Last year, as you know, the Supreme Court of Canada came to a different conclusion in Carter v. Canada. The court struck down the Criminal Code's prohibition of assisted suicide and created space for Parliament to draft a new law. Justice Sopinka's written decision in Rodriguez focused on the need to protect life and to protect vulnerable individuals, values that were upheld and clearly reflected in the court's ruling in Carter, even though the court came to a different conclusion. Those same values inspired the Government of Canada in its response to Carter.

I think the new law that Parliament passed in response to Carter speaks to the progressive nature of our justice system, a system that evolves continually to meet the changing needs and expectations of Canadians. Two factors play a particularly large role in driving this legal evolution: the Charter, of course, and advocacy. And when it comes to advocacy, trial lawyers, such as the men and women in this room, are important agents of change. Looking back in time, it is easy to see how our justice system and our society has changed. We must never lose sight of the fact that the two go hand-in-hand. In 1988, the appointment of John Sopinka, a Ukrainian-Canadian, to the Supreme Court represented something of a milestone. And today, as mentioned, my appointment as the first Indigenous woman to serve as the Minister of Justice and Attorney General of Canada also reflects how our society has changed.

For many years, I have advocated for new laws and policies to support reconciliation with Indigenous peoples. I've served as a Crown prosecutor, and as the Assembly of First Nations Regional Chief for British Columbia. And last year I was greatly honoured to be elected by the constituents of Vancouver-Granville to be their first Member of Parliament. And further, November the 4th, which is almost upon us, when the Prime Minister asked me to serve in cabinet—it was a very emotional moment for me. Of course, I felt honoured and privileged, especially being asked by a man for whom I have the utmost respect as a leader and a visionary.

But for both me and the Prime Minister, the emotional reaction to the appointment was more than just personal. It was not that long ago that a person like me could not even vote, let alone run for office or aspire to such a high office. My mind flooded with memories of Indigenous leaders of days gone by and other Canadians who paved the way for the moment I was experiencing. And after the initial shock passed, I was immediately seized with the enormity of the task and the responsibility that was entrusted to me, but also, and more importantly, the incredible opportunity I now had to make a difference.

So turning to some of that list that we've talked about and some of the work that we're engaged in as the Department of Justice and as a government, a key focus of our government's commitment and my mandate letter is criminal justice reform. It was one of the tasks that Prime Minister Trudeau assigned in the mandate letter. He asked me, as part of a very long mandate letter, to assess the changes that have taken place over the past ten years; to increase the use of restorative justice processes and other initiatives; to reduce the rate of incarceration amongst Indigenous peoples; and to generally determine whether the current provisions of the Criminal Code are aligned with the objectives of the criminal justice system.

I have chosen to interpret my mandate letter in this regard incredibly broadly. Indeed, it seems a perfect time in our history to do so. Next year Canada will celebrate two important anniversaries: the 150th anniversary of Confederation, and the 35 years since the enactment of the Canadian Charter of Rights and Freedoms. And as we prepare for these important milestones, it is time for us together to formulate a vision and a framework for where Canadians want their justice system to be in the 21st century.

Those of us who have worked in the criminal justice system are all too familiar with problems such as overburdened court dockets and excessive delays, but these are merely symptoms of an underlying malaise. I suspect that everybody here today has experience with this common scenario. A young adult commits a non-violent crime, comes into contact with the justice system, and never really leaves. He or she enters a self-sustaining cycle of court appearances, court orders, breaches of those orders, and returns to custody. Soon the young person is spending more time behind bars than in their community, and has no hope of breaking that cycle. This cycle affects all Canadians. It delays other cases, it erodes public trust and faith, and it drives the costs of the criminal justice system up.

Imagine if we could change the system to better align it with the needs of all Canadians. What if the offender's first interaction with the criminal justice system did not become the first in a long series? What if it triggered supports designed to address the underlying factors that influenced the criminal behaviour in the first place – supports such as housing and shelter, assistance for mental illness and addiction, or an off-ramp to structure and support from an Indigenous community? For so many thrown into the system, we can do much better.

I am committed to a long-term, multi-pronged approach to achieve this aim one day, and one day soon. We've already reached out – I have already reached out – to my colleagues across government – the Minister of Health, the Minister of Social Development, Public Safety – and we are committed to working together in a collaborative way. I also intend to continue to work collaboratively with the provinces and territories, and have held roundtables in several provinces across the country to hear local and provincial perspectives, and to understand the different approaches to the administrative of justice across the country. And for the second time this year, I was pleased to be able to meet with my counterparts in the provinces and territories in Halifax to grapple with how we collectively address deep-rooted social problems that we all face and how we can collectively fashion a justice system that better serves Canadians. I was impressed by the almost uniform view that this transformational change is needed.

What follows, then, are some ideas guiding our efforts to review the criminal justice system to ensure it remains efficient and fair. To determine the best way forward, we will base our decisions on evidence and principles, and we will follow an approach based on listening to all voices and based on consensus building. I am convinced that, to truly fix the system, we must take a broader approach. We must look at society as a whole. Nowhere is this more evident than in the victimization of Indigenous women and girls, and society's shameful and tacit acceptance of this mistreatment. Indigenous women comprise only four percent of Canada's female population, and yet represent sixteen percent of the women murdered in this country between 1980 and 2012.
During the engagement sessions leading to the National Inquiry into Missing and Murdered Indigenous Women and Girls, I had the honour of hearing from loved ones, family members, survivors, and experts, and to listen to their concerns and expectations for the national inquiry. And I was proud to witness the launch of the inquiry this past August. And I am pleased that all the provinces and territories will be participating. I am confident that the inquiry will help us learn from the past and take the actions needed to end this national tragedy.

And just as this inquiry will be examining how Indigenous women and girls have been victimized, we are acknowledging how our criminal justice system has affected Indigenous peoples disproportionately. Last year, Indigenous people made up more than 25 percent of the total admissions to federal and provincial custody. I believe that offenders must be held to account for their actions, but I also believe that many Indigenous people see that the system does not serve their interests, and arguably never has. This is precisely why reconciliation with Indigenous peoples is so important. We must take a broader view if we want our criminal justice reform to be truly effective.

The same applies to all marginalized and vulnerable individuals, particularly those suffering from mental illness and addiction. Up to 80 percent of all federal offenders have past or current substance abuse issues. What if we did a better job at treating mental illness and addiction? Imagine the impact this could have on our justice system. I truly believe that societies will be judged on how they treat their most vulnerable.

So turning to some specific initiatives and work in terms of Drug Treatment Courts and drug policy, as everybody in this room knows, if you can address the factors that inspire criminal behaviour in the first place and perhaps reduce an offender's interaction with the criminal justice system, then you can break the vicious cycle. This is what Drug Treatment Courts are intended to do. These courts give sentencing alternatives for drug-addicted offenders who agree to attend provincially approved and court-supervised treatment programs. And according to the evaluation completed by Justice Canada officials two years ago, these courts produce promising results.

Earlier this year I had the opportunity to sit in on a session in Vancouver's Drug Treatment Court, right next to the courtroom in which I was a prosecutor for many years. I was truly touched with what I saw that day. I witnessed the sincere efforts of the judge, staff, and counsel to help the participants along the path of recovery, including frantic calls to get a bed in a detox centre, and congratulatory applause and incentives for doing well. While one offender, clearly high on drugs, was not yet ready to participate, another one had completed the residential treatment program, was now sober, and eventually received a suspended sentence with conditions. While I recognize these types of courts, often referred to as specialty courts, are not perfect and do not work in all cases, they show great potential, and I look forward to the input of the defence bar and others to help make them even better.

So last week I was pleased to introduce changes to the federal victim surcharge in the House of Commons.

Three years ago, as you know, judges lost the discretion to waive the federal victim surcharge for offenders who are truly unable to pay. The results have been overwhelmingly negative: Charter challenges, numerous judges refusing to impose the surcharge, and of course, countless sentences that cannot be enforced. One judge described the surcharge as a tax on broken souls. The new legislation that I introduced last week aims to put an end to those Charter challenges and restore fairness to the federal victim surcharge regime.

If passed, it would return to judges the discretion to waive the surcharge for the poor and marginalized – those truly not able to pay. The intent of the legislation is not to return to the former situation, when the surcharge was often waived even for those able to pay. The surcharge ought to continue to be a way to hold offenders accountable and to fund the delivery of programs and services to victims of crime. Clearly, though, the current situation is problematic, and we have introduced legislation to change it.

In terms of mandatory minimum penalties, I am certain that the rise in the use of mandatory minimum penalties is an issue of importance to everyone in this room, so I want to address it briefly. The Supreme Court of Canada has spoken definitively and clearly on this issue, and I am committed and currently engaged in a comprehensive examination and will be putting forward reform to the current use of mandatory minimum penalties. This is a priority for me, and the action is going to be taken in the near future.

In a similar vein, there has been significant media attention of late to outdated provisions of the Code, so-called zombie provisions, struck down by the courts for not complying with the Constitution. Section 230 relating to murder in the commission of offences comes to mind. Section 159 on anal intercourse has been mentioned as well. As one academic during our roundtables has suggested, the Criminal Code has a hoarding problem.

It is riddled throughout with provisions that have been struck down or read down by our nation's highest courts, but the old provisions remain. We have listened to the views of academics and other stakeholders on this front, and long prior to the recent media attention, I tasked my Department to develop a strategy to clean up the Criminal Code. And we look forward to substantive change on this front also in the coming months.

The preceding reforms are among the many I hope to introduce during my time as Minister of Justice. As I gather information from consultations, roundtables, and other engagements, I look forward to substantive change on other fronts as well, from bail reform to treatment of mentally ill in the criminal justice system. These reforms must be reflective of a cohesive vision for criminal justice reform. It will not be a tough-on-crime agenda, nor will it be the exact opposite. Instead, it should be a balanced approach to justice, one that is guided by evidence, a desire to keep the public safe, compassion for all, and sound principles. While by no means exhaustive, let me suggest what those principles ought to be and how they might guide us moving forward.

First, those responsible for administering the criminal justice system and creating its laws, including myself, ought to espouse the principle of proportionality and restraint when it comes to using criminal law to solve society's problems.

Criminal law, of course, has an important role to play, but I do not need to tell those present that it is a blunt instrument, with lasting repercussions for all affected by it. Before turning to the criminal law to tackle society's problems, we should first consider whether there are other, better, tools to use first or in conjunction with the criminal law to address the underlying problem. We need to create off-ramps, as I mentioned before, for the marginalized offender who needs help, not jail. In this way, the criminal justice system can be freed up to tackle truly serious crime in a timely way.

To the principles of proportionality and restraint I would add the importance of discretion – discretion for judges and for other actors in the justice system to tailor solutions to address the unique circumstances of the offender, as opposed to a one-size-fits-all solution that often does more harm than good. To these ideas of restraint, proportionality, and appropriate use of discretion I would add respect for the Charter of Rights and Freedoms. This respect should be proactive, not reactive, and the laws we create should reflect this. As most of you are aware, I'm also very interested in exploring rehabilitative and restorative approaches to sentencing. There will always be those who must be incarcerated for safety's sake, but what purpose is achieved by a system that does not have the infrastructure in place to reintegrate an offender into society once he or she is ready?

Finally, if restorative justice is to work as an approach and a principle, we must work to restore to victims a degree of faith and confidence in the criminal justice system while still protecting the accused's right to the presumption of innocence and a fair trial. This is a difficult balancing act, I know, but one I feel must be struck if we are going to bring Canada's justice system into the 21st century. Restorative justice and new approaches to criminal law will not work if the voices of all those affected by the criminal justice system are not heard.

Turning to judicial appointments, allow me just to speak about it for a bit. This is, after all, an address in commemoration of one of Canada's greatest justices. Canadians are more likely to have faith in a justice system when they see themselves reflected in that system. This is why we must strive to ensure that members of the federally appointed judiciary are representative of the diversity of the Canadian population.

As you know, our government recently filled a number of judicial vacancies in the country, including six in Ontario. This leaves the overall vacancy rates in Ontario around two percent, and across the country around 3.6 percent. The appointees throughout the country and in Ontario were of the highest calibre, and hail from diverse backgrounds and experiences, and we have every confidence that they will serve this country well. And that was one of the greatest things I get to do as the Minister of Justice, is to call each soon-to-be judge personally and to congratulate them on their appointment. Their reactions are quite diverse and surprising.

I was also pleased at the same time to announce a new, modernized judicial appointments process, one intended to fulfil our government's commitment to making the judicial appointments process more transparent, accountable, merit-based, and reflective of Canada's diversity. The changes to the appointments process are many.

To enhance accountability, our government has restored the full vote of the judicial representative on the judicial advisory committees, reintroduced the “highly recommended” category for evaluating candidates, introduced diversity and merit assessment training for committee members, and started a program of releasing the aggregate demographic data of judicial appointments to the public.

To increase transparency, our government has, among other things, introduced a new process to allow members of the public – lawyers and non-lawyers alike – to apply to sit as the Minister of Justice's public representative on the JACs.

To ensure openness, we have increased the scope and depth of the questions asked of judicial applicants, including to assess bilingualism; expanded the considerations of life experience, gender, and diversity by requesting self-identification; and required provincial and territorial court judges to go through the same assessment process as lawyers.

To increase diversity, we have provided specific direction to the judicial advisory committees to create a pool of candidates that reflect Canada's diversity.

So if anyone present wishes to sit as the government's appointed representative on the judicial advisory committees, please apply, or invite your friends to apply. They close on November the 17th. Everything is available online. And if there are any among you considering sitting on the bench, please apply, or re-apply, and ask your friends to apply, even if you do not necessarily hail from the traditional pipeline of would-be judges. Again, our government is committed to appointing the highest calibre of judges and creating a judiciary that reflects the society in which it serves. I look forward to working cooperatively with all of you towards this aim.

And on the topic of high-calibre appointments, I am so pleased – or I was so pleased – to be a part of the new process for appointing, and in this case replacing, Justice Cromwell on the Supreme Court of Canada. Earlier today the Prime Minister confirmed Mr. Justice Rowe of the Court of Appeal of Newfoundland and Labrador as the next Supreme Court of Canada justice, the first in 67 years. It was my pleasure to appear at the House of Commons Standing Committee on Justice and Human Rights earlier this week with the chairperson of the independent advisory panel, the Right Honourable Kim Campbell. Ms. Campbell explained the process by which the panel received and reviewed the applications for the Supreme Court of Canada vacancy. I explained why our government has adopted this new approach and why we nominated the eminently qualified Mr. Justice Rowe. And the following day, Justice Rowe himself appeared before parliamentarians at the University of Ottawa Faculty of Law to answer questions and to introduce himself to Canadians. It is my sincere belief that this new process has been open, transparent, inclusive, and accountable to Canadians in the way that has never been before.

So our government has taken several other actions to better align our justice system with the needs and expectations of Canadians. Bill C-16, which I was proud to introduce in the House of Commons earlier this year, would update the Canadian Human Rights Act to make it illegal to deny someone a job or otherwise discriminate against them in the workplace on the basis of their gender – or on the basis of the gender they identify with or outwardly express.

The bill would also amend the Criminal Code to include gender identity and gender expression in laws against hate speech. It was great to see so many Members of Parliament stand up and support it at second reading, 86 percent voting in favour. And just yesterday I had the opportunity to present, at the House of Commons Committee on Justice and Human Rights again, on this bill, and I certainly look forward to its swift passage.

The current state of legal aid is also an important issue, particularly for Canadians who come into contact with the justice system. Being able to afford adequate legal counsel can be beyond the means of many or most Canadians. Budget 2016 committed an additional $88 million over five years to criminal legal aid in the provinces, and to criminal and civil legal aid in the territories. And beginning in fiscal year 2021-2022, the Government of Canada will contribute an additional $30 million per year on an ongoing basis.

In addition to the Charter clean-up of the Code, my officials have been instructed to continue efforts to align existing laws with the Charter. Indeed, my hope is that the next 30 – or the next 35 – years will be marked by political leadership on the Charter, a culture of rights made explicit in the workings of government and Parliament. To this end, I consider the commitment in my mandate letter to reintroduce the court challenges program to not only be about affirming judicial responsibility for the Charter, but also about affirming our government's political responsibility for it as well. That political responsibility is affirmed by recognizing that even the best legislative proposals can fail to anticipate all possible impacts on the Charter. A court challenges program will serve as an additional protection for the years to come.

So in closing, and thinking about where we are, next week, as I said, will mark my one-year anniversary as the Minister of Justice and Attorney General of Canada. And I am still inspired and energized by the opportunity and the challenge. And while I'm proud of what we have accomplished, including almost half of my mandate letter, I know that for the rest it is still very much a work in progress. I have assembled an incredibly strong team around me, and we have all rolled up our sleeves to do the work that is necessary to build a justice system that better serves Canadians. Society will no doubt continue to evolve, and some of the practices and attitudes considered outliers today will likely become mainstream a generation from now.

As officers of the court, you have a duty to support this evolution and to help make Canada a more just society. This conference offers opportunities to increase your knowledge about important matters, such as the latest Charter litigation, interacting with the media – something I know a little bit about, and the use of expert testimony at trial. I encourage you to take advantage of these opportunities so that you can better serve your clients and the interests of justice. Advocacy remains an amazing driver for change.

I also encourage you to get involved in innovative programs and initiatives that promise to improve the system. Those of us who work in the criminal justice system must serve as agents of change. We need to engage and educate Canadians about what it will take to build a more effective and representative justice system. By working together, we can meet the challenges that we face and make the most of the opportunities we create. Surely this is the true legacy of Justice Sopinka. The justice system belongs to all of us. To be effective, it must reflect all of us and serve all of our interests. It is a never-ending journey, but I know that we can tackle it when we do it together.

Gilakas’la. Thank you for listening to me.