“MAINTAINING PUBLIC CONFIDENCE IN THE COURTS IN THE 21ST CENTURY”

23 June 2015, Rt Hon. Beverley McLachlin, PC

Introduction

[1] Successful institutions respond to the temper of their times. If they fail to do so, they wither, sometimes die. The institution we call the courts — more grandly, the judicial branch of governance — is no exception.

[2] In this lecture, I shall address three questions: (1) Why should courts be concerned with the temper of our times? (2) What is the temper of our times?, and (3) How can we maintain public confidence in the courts so they can meet the challenges inherent in the temper of our times?

Why Should Courts Be Concerned with the Temper of Our Times?

[3] Determining the temper of the times is the constant and proper preoccupation of every discipline and every institution. Wise decision-making depends on understanding the context in which the decision rests. The particular context varies with the institution and the values it seeks to preserve. An economist describing the temper of her times might speak of financial uncertainty and stagflation. A security expert might light on the threat of terrorism. A health expert asked to define the temper of her times might cite global pandemics or the aging population. Environmentalists would doubtless cite melting ice-caps and rising seas and the social dislocation they will create.

[4] But I am a jurist, and when I speak of the temper of our times, a different set of issues come to mind — issues concerned with the fair and effective operation of the justice system and more broadly, democratic governance. More fundamentally, what comes to mind is the obligation of the courts to preserve the fundamental values upon which our Western societies rest. I speak of the cardinal values we have inherited from the Magna Carta¹ (whose 800th anniversary we celebrate this month) — values the courts have elaborated and embroidered over the ensuing centuries — liberty, the rule of law and democratic governance.

[5] I start from the premise that it is the task of the courts to protect these values — liberty, the rule of law and democratic governance — from incursion, and hand them on to the next generation more or less intact. I make no apology for this premise, nor shall I detain you by justifying it — the works of legal philosophers from Jeremy Bentham through Ronald Dworkin to the late Lord Bingham suffice.

[6] By liberty I mean the right of each person to be free from arbitrary state action not grounded in the law. By rule of law I mean the principle that all state power must be exercised according to law, which in turn sweeps in the right to be heard by an impartial magistrate; independence of the judiciary; access to justice; and the suite of values the late Lord Bingham describes in his book on the subject.² By democratic governance, I have in mind the role of the courts in maintaining the constitutional framework on which democracy hangs.

[7] The values of liberty, rule of law and democratic governance have faced different threats at different times in history. They have stood the test of time because they are vital to our way of life and embedded in our collective DNA. And they have stood the test of time because the judges and courts of the day understood the temper of their times and fought successfully to maintain these values in the face of the challenges presented by those times.

[8] Think of Lord Coke,³ in the 17th century. The temper of his times was the gathering strength of the idea, born of the Magna Carta, ⁴ that the King was subject to the law and that his legislative power could only be exercised by the King-in-Parliament — an idea fundamentally at odds with the Divine Right of Kings. These were difficult times — so difficult that they led to Coke being thrown out of office and later imprisoned. Yet Coke persevered. He understood the temper of his times and understood what was needed. The ideas of liberty and responsible government were in the air. His task was to maintain them in the face of the King’s obdurate insistence on the outmoded trope of absolute monarchy.

[9] Think of Viscount Sankey⁵ over 300 years later in the Person’s Case⁶ — the case that for the first time held that women were “persons” capable of holding public office. The case originated in the Canadian prairies. Five feisty women grew tired of being told that they could not serve as magistrates or in the Senate of Canada because they were not “persons” capable of holding public office. They took their cause to the Supreme Court of Alberta, where they won. But the Supreme Court of Canada, relying on clear and unbroken British jurisprudence that held women not to be persons, held against them.⁷ The “Famous Five”, as they are called in Canada, raised more money and took the case across the Atlantic to the Judicial Committee of the Privy Council, which ruled in their favour. Viscount Sankey, speaking for the law lords, said times had changed. Women were now taking part in public life outside the home. The law must adapt. He introduced the metaphor of the law as a “living tree, capable of growth and expansion”⁸ — a metaphor that continues to drive Canadian jurisprudence to this day. Viscount Sankey and his colleagues recognized the temper of their times, and responded in a way that enhanced liberty and democratic governance.

[10] Or think of the response of the English courts to the rise of the administrative state in the 19th century. Governance and society were changing. Ministerial responsibility was devolving to a host of agencies and civil servants. The challenge was to preserve the rule of law in the face of this momentous shift. The judges, aided by A.V. Dicey,⁹ took stock of the temper of their times, and developed sophisticated and powerful doctrines of judicial review.

[11] Finally, think of the human rights revolution in the latter half of the 20th century — a revolution that ushered in documents like the European Convention on Human Rights¹⁰ and the Canadian Charter of Rights and Freedoms.¹¹ Once again, judges took stock of the temper of their particular times and took on the challenge of finding the appropriate balance between individual rights and collective concerns.

[12] The challenge to our generation of judges, like those of generations past to whom I have referred, is to accurately assess the temper of our times and find responses that will meet the needs of our time while preserving liberty, the rule of law and democracy.

What is the Temper of Our Times?

[13] What are the characteristics of 21st century society that affect the central judicial task of meeting the needs of society while preserving liberty, the rule of law and a representative and effective democracy?

[14] Without suggesting that my list is exhaustive, much less correct, let me mention three 21st century challenges that judges need to grapple with as they go about their work of resolving disputes in a way that preserves liberty, the rule of law and democracy. My choice for the three issues that more than any other define the temper of our times is this: terrorism; the communications revolution; and globalism.

[15] The first defining development of the first part of the 21st century is the threat of terrorism and the correlative state preoccupation with security. The first duty of a government is to protect its citizens from harm. Terrorism, as we are all only too well aware, is a serious and deadly threat to the security of citizens. It may be home-grown terrorism, as in the London bombings in July 2005, or it may be external terrorism, as in the attack on the twin towers in New York in September, 2001. Whether perpetrated by the boy next door or by a far-off agent, terrorist attacks — as they are designed to do — beget fear in the populace. That, in turn, begets new laws designed to curb terrorism and protect the populace.

[16] The new laws, however well intentioned, inevitably curtail individual liberties. In constitutional democracies, like Canada, this may raise questions of how far the state is permitted to intrude on the liberty of the individual. When is it appropriate to allow pre-emptive incarceration of a person the authorities think is dangerous? What conditions must the state meet before it imprisons a person who has committed no crime? Can the state deport non-citizens it considers dangerous to states where they may face torture and death? These are but some of the questions courts on both sides of the Atlantic have had to grapple with in the context of terrorism.

[17] The second defining development of the first part of the 21st century is the digital revolution. Spawned in the last part of the 20th century, the Internet and its progeny have literally transformed the way human beings all over the world communicate and do business. Inevitably, this has produced and will continue to produce clashes involving the values of liberty and the rule of law. The challenge on the front of liberty affects a host of liberty related values. Like privacy — Sun CEO Scott McNealy famously pronounced “You have zero privacy anyway. Get over it.”¹² Like freedom from unreasonable search — my court, like every other Western court, has been grappling with when it is appropriate to search mobile phones and computers¹³ and when it is appropriate to convey a host of private information from that search (concerning not only the owner of the device, but hundreds of other people) into the hands of the state. There are some who say it is too late — the law will never find a way to regulate the myriad facets of the digital world and electronic communication. “Give up” they say, “Just let it happen”. But before we do that, we as jurists should consider the consequences of too casually quitting the field, with the consequences for the fundamental values of liberty and the rule of law of which we have been cast as the guardians.

[18] The third defining development of the 21st century is encapsulated by a simple word — globalism. Globalism in all its multitudinous manifestations — mass movements of information, mass movements of wealth, mass movements of people. Globalism in its impact on the make-up of our societies, changing them from groupings of relatively like-minded individuals sharing a common creed and common values to pluralistic groupings of people of many different races, creeds and backgrounds. Globalization, in all its varied manifestations, has the potential to completely upset a host of legal concepts connected to liberty, the rule of law and democracy.

[19] The defining concept of 19th and 20th century politics was the nation state, and much of our domestic and international law has been built on this foundation. But globalism is challenging — and will increasingly challenge in the future — the assumption of national sovereignty and citizenship based on the nation state. Can states really control their borders, or more precisely, the flow of information, wealth and people in and out of their borders? And how do populations deal with the new reality of increasingly diverse and multicultural societies? How we — that is the courts — deal with the multiple issues this will spawn, will indelibly imprint our time on this planet.

[20] My list of game-changing 21st century developments — terrorism, the communications revolution and globalism — is incomplete, as I haven’t mentioned the environment and the threat of global warming; which promises to exacerbate the tensions born of globalization as cities are flooded and populations displaced. Nor have I mentioned demographics — the impact of the aging population in Asia, Europe, and North America — or the widening gulf around the world between the rich and the poor. And we would be foolish to ignore the fact that an increasingly powerful and populous part of the world, China, does not have the linguistic equivalent of the western term “rule of law”, and that large swathes of the Middle East see law as an emanation of religion.

[21] My point is simply this. The temper of the times we face is fundamentally different from the temper of the times a quarter century ago. Old assumptions are challenged; new developments rise on every side. These are sure to produce debates: debates on where lines should be drawn between individual rights and broader state interests; debates on how to deal with new technology; debates on multi-culturalism, pluralism and the limits of tolerance. The courts will inevitably be at the center of these debates, and what they decide will have an indelible impact on the future of our nations and on the world. If we get it wrong, if we allow the values of liberty, the rule of law and democratic governance to be overwhelmed by the monumental changes we face, the world will be the worse off. Or so I believe. With the courage of Coke,¹⁴ the judges of the 21st century must face the temper of their times and resolve to do what is necessary to preserve the legacy of which we are the guardians.

[22] In the decades to come, courts will be asked to answer pivotal questions relating to terrorism, the electronic universe and globalism. The questions will be complex, difficult and divisive. The answers the courts give — or decline to give — will shape our societies for generations to come. Giving the right answers will require wisdom and courage. Sometimes the answers the courts give will provoke criticism and ire. But if the rule of law is to prevail, the public must trust the courts.

[23] This brings me to the final segment of my talk — in the changing and challenging times we live in, what must we do to maintain a strong and effective judiciary?

How Can We Maintain a Strong and Effective Judiciary in the 21st Century World?

[24] If society is to successfully negotiate the challenges of terrorism, the digital revolution and globalism, it needs a strong and independent court system. Yet these very challenges are impacting how the justice system works, undermining the ability of courts to render effective justice. Not only do terrorism, the digital revolution and globalism raise new substantive issues that courts must consider, they are challenging the way courts have traditionally worked. If our judiciary is to remain strong and effective, we must recognize and deal with these changes.

The Fear of Terrorism

[25] One of the great legacies of the common law is the open-court principle. Justice must not only be done, but be seen to be done. Anyone can come to the courts and see what the witnesses are saying and what the judge or jury is deciding. The press and individuals are free to comment on what is happening. Of course, there are exceptions to this rule — for example, to protect minors from lasting damage, or preserve the identity of undercover officers. The common law has long recognized that in some cases, court proceedings should not be entirely open. But the restrictions have been few and closely-defined. Since the black days of the Star Chamber,¹⁵ the open-court principle has been extolled as essential to justice and public confidence in the justice system.

[26] This is changing. The “war” on terrorism is threatening to turn the basic paradigm of “open court — few exceptions” on its head where security is at stake. Governments everywhere are passing laws that undermine the open-court principle in the interests of protecting their countries and the world against terrorist attacks.

[27] In Canada, recent laws require that the hearing of some evidence relating to persons thought to pose a threat to security be conducted in secrecy. For instance, hearings to review the issue of security certificates and the detentions they authorize are often conducted partly in secret.¹⁶ Indeed our own Supreme Court, in a recent case dealing with the security certificate regime, was required to hold part of its hearing in camera¹⁷ at a secret location.¹⁸ Following closed hearings, judges still may issue reasons for judgments, but often only in heavily redacted form. Appellate courts are held to the same rules. The reality is that much of the judicial process involving security matters is conducted in secret, behind closed doors.

[28] The same is happening in the United Kingdom. Closed proceedings have been regularly used for some time in family cases,¹⁹ employment tribunals, ²⁰ special immigration appeals commission hearings, ²¹ and the investigatory powers tribunal, ²² which handles complaints about the intelligence services. This trend was broadened in 2013 with the adoption of the Justice and Security Act,²³ which provides for “Closed Material procedures” in civil proceedings if sensitive information is required to be disclosed in the course of the case.²⁴ The legislation raises a host of issues. How much of a particular court proceeding should be closed? How is the cone of secrecy to be maintained while allowing judicial work — which depends on support staff — to proceed efficiently? How are appeals to proceed? And what, if anything, is the press to be told?

[29] My point is that we should recognize the dangers curtailment of the open-court principle poses to the justice system, and strive to ensure that the laws that curb it go no further than is necessary. In these troubled times, it may be necessary to impose greater limits on the open-court principle than have been accepted in the past. However, courts must take care to ensure that the limits on openness and transparency go no further than what is reasonably required.

[30] Enhanced security legislation associated with terrorist activities not only impinges on the open-court principle, it may also have consequences for the right of a detained person to know the case to meet (and the associated rights to instruct counsel and mount an effective defense). Here too, courts must be vigilant to ensure that the limits go no further than necessary. Notwithstanding security concerns, trials must continue to be fair.

The Digital Revolution

[31] The digital revolution also poses challenges for how courts administer justice. On the one hand, digitalization offers benefits to judges and court administrators. Computer technology helps us organize and schedule our work more efficiently and to target backlogs and inefficiencies. Word processing has revolutionized the way judgments are composed, edited and released. Materials that once filled endless bankers’ boxes are now stored on slim tablets, accessed by the flick of a finger. Court proceedings are televised and the results of court decisions summarized on Twitter. The tools of the digital revolution, used appropriately, assist courts to provide better and swifter justice.

[32] However, at the same time, the digital revolution poses profound challenges for the justice system as we know it. It makes available vast swaths of information, overwhelming the methodical processes of the time-honoured rules of evidence. This has led to new litigation technologies designed to “intelligently” sort, parse, collate and summarize the complex and voluminous data available.

[33] This expansion of material applies not only to facts but to the law. The digital revolution puts at judicial fingertips vast collections of judicial opinion from domestic and foreign courts, complicating the process of discerning precisely what the law is or should be. In the pre-digital world, law report editors selected for publication the judicial decisions that they deemed important; now everything any judge or scholar writes anywhere is grist for the legal mill.

[34] The result is the simultaneous broadening and flattening of information and understanding. The digital revolution vastly broadens the scope of available information and learning. However, it also tends to render our thinking on a given point shallower — the sheer vastness of the material available discourages probing reflection. More and more, whether in scholarship or submissions to the court, the primary focus is on describing existing knowledge rather than reflecting on the best options, the most compelling solutions. We gain from the breadth of material available, but we may lose profundity. This poses a challenge to judges. The judge’s task is not merely to synthesize available information and learning, but to take the best of it; not to describe available solutions, but choose the best solution, in terms of the law and its impact on society. It is important that judges think broadly; it is even more important that they think deeply.

[35] The digital revolution also poses a challenge to courts because of the way it has speeded up our world. Courts of the past were accustomed to proceed at a leisurely pace, denoted by the phrase “due deliberation”. That suited a world in which mail took time and the telephone was unknown. It definitely does not suit a world where, hastened by electronic delivery, messages are delivered instantly; contracts made in hours; and disputes resolved within days. To people accustomed to wrapping up their affairs on the spot, the deliberate pace of court proceedings seems increasingly unacceptable — go for mediation; go for arbitration; go anywhere but to the courts, where the answer may be right, but arrive too late to be of practical use.

[36] In the over-informed, complex and fast-moving world of the 21st century, the truth is that courts too often fail to keep up with the demands a citizenry trained to expect prompt and effective responses. Delays are seen as too long, costs too great. Ordinary people, it is said (with some justification) cannot access the justice system. Perhaps the courts can provide effective justice for the wealthy and for large corporations, although some dispute even this. But, the accusation goes, they are not providing access to justice for the ordinary women, men and children of the land.

[37] Recently, the Chief Justice of Ontario said this is an address to the legal profession:

“The fact of the matter is that our profession, and the courts where we work, are seeing litigants turn away from us because we are unable to adequately serve them. More than 60 percent of family law litigants represent themselves because the court system is too expensive and they cannot afford to hire lawyers throughout this process. I do not need to tell you the destructive impact of this state of affairs on families and the costs to the public purse.”²⁵

[38] The Chief Justice of Ontario went on to express the same concerns regarding civil litigation, and to ask whether the legal profession, as we know it, will survive in its present form.

[39] I believe that if we are to preserve public confidence in the justice system, we must provide justice to those who need it, regardless of rank or means. This is the joint responsibility of lawyers, judges and — ever since Henry II sent his assize judges throughout the realm — the state.

[40] Concerned that the access to justice problem has the potential to undermine public confidence in the courts, the judiciary in Canada is taking a leading role in bringing all the players together — lawyers, courts and government — to find ways to improve access to justice. Under the able leadership of my colleague Justice Thomas Cromwell, we have instituted a task force on providing better access in family and civil law.²⁶ The response of all groups has been positive, and across the country, from British Columbia to Newfoundland, new initiatives are being launched to help people get legal assistance and get to court when they need to.

[41] Yet the challenge is daunting. The easy part is convincing people that access to justice should be improved. We are discovering that we are just getting to the hard part — implementation. Good intentions are not enough. If we are to make inroads on the problem of access to justice, we must put concrete changes into place — reform of court rules and procedures; ways to ensure that processes are proportionate in terms of time and cost to what is at stake; new rules and ways of dealing with in-person litigants; and specialized tribunals tailored to deal with specific kinds of disputes, accompanied by effective judicial review. Above all, we need to accept the advantages the digitalized world offers in streamlining dispute resolution and effectively managing litigation, while ensuring that judging and justice do not fall victim to government time-keepers and that the independence of the judiciary is maintained.

[42] This is difficult, delicate work. But we have no choice but to undertake it. If we do not make the necessary changes, the legal profession and the courts will become increasingly irrelevant, putting at risk the rule of law upon which our society depends.

Globalization and Pluralism

[43] I earlier suggested that the newly “global” world (where ideas, information and people are constantly crossing borders and interacting in multitudinous ways) presents unprecedented challenges to national sovereignty and to our ability to live together in harmony in diverse, multi-cultural, pluralistic societies. Moreover, I suggest it poses challenges to how we administer justice through the courts.

[44] Confidence in the judicial system is a cultural construct of society. Most of us in this room tonight grew up with a belief that courts of justice, staffed by independent judges who render justice impartially, are fundamental to a free and democratic society. We also grew up with the confidence that judges in fact would be independent and impartial. More recent arrivals to our communities and our countries often do not share this culture or this confidence in the judiciary. Indeed, their experience may have taught them to expect corruption in the legal system and bias in judges. Moreover, language barriers and lack of understanding may preclude them from using the courts effectively. Such people may see no reason to respect the courts, to turn to them for help, or to follow their decisions.

[45] The challenge for the legal system, in a pluralistic society, is to foster a culture in which people of all creeds, races and backgrounds appreciate the fundamental importance of the justice system and the rule of law to society; and come to see, despite negative experiences in the past, that the system is fair and that judges deliver justice in an impartial effective manner. How do we do this? Let me suggest a few possibilities. Through civic education, preferably starting in primary school; through institutions of civil society that cultivate respect for law and justice; and, above all, through a profession and a judiciary that exemplify the highest ideals and deliver effective justice.

[46] What kind of judges do we need to provide justice in our complex, pluralistic world? We need judges who are not only fair and impartial, but who understand the complex world in which they live; judges who are courageous; and judges who understand the need to make decisions that impinge on political issues, without themselves being political. Above all else we need judges who adhere, and are seen to adhere, to sterling standards of ethical conduct.

[47] First, judges need to understand the complex world in which they live and the difficult issues that they are called upon to judge. This does not mean that judges must become experts in security and cyberspace or how society deals with difference. But it does mean that judges must understand the basic concepts and instrumentalities of these matters and be capable of learning what is necessary to deal with the dispute at hand. It is not enough to understand the legal concepts involved; modern judges require a realistic grasp of the technologies involved and the consequences of deciding a particular issue one way or the other. And they need to understand the pluralistic multi-cultural world in which they live.

[48] Judicial education is essential to ensuring that judges have the basic understanding they need to do their job. In Canada, we have come to realize the importance of this. Our National Judicial Institute and other organizations focus not only on keeping judges up to date on the matters that come before them, but also on social context education to assist judges in working appropriately in our pluralistic, multi-cultural society. Scotland is doing the same, and we prize our partnership with you in this endeavour.

[49] Not only must today’s judges possess the understanding of society essential to their work, they must also be courageous. The decisions that law and principle require a judge to render on the difficult issues of our time may not always please governments or the public. Judges, as never before, must commit themselves to doing the right thing, the principled thing. They must maintain the integrity of the law in the long run, even though it may bring criticism on their heads in the short term. That takes courage.

[50] Today’s judges must make decisions on matters that touch on political issues, without being political. It is fundamental that courts are, and are seen to be, independent and apolitical. This is not as easy as it sounds. The difficulty stems from the nature of many of the questions modern judges are asked to answer. More and more, the cases that come to court touch on difficult social and political matters that are also, or indeed primarily, within the purview of Parliament.

[51] Same-sex marriage, end-of-life assistance, whether a particular law imposes cruel and unusual punishment — courts are more and more required to pronounce on these and similar subjects. Often the issues are controversial. Sometimes they require the courts to directly or indirectly reconsider what Parliament has done. Charges of over-reaching the proper judicial role, summed up in the pejorative term “judicial activism”, inevitably follow. The danger is that the courts come to be seen as political actors — unelected political actors — undermining public confidence.

[52] The constitutionalization of rights has accelerated this phenomenon. Since the adoption of the Charter of Rights and Freedoms in 1982,²⁷ Canadian courts have been called on to grapple with a host of controversial subjects. And the same is increasingly true for Great Britain. The Human Rights Act 1998²⁸ requires the courts to interpret laws, insofar as possible, in conformity with Convention rights²⁹ incorporated in the Act. If a law is declared by the courts to be incompatible with those Convention rights,³⁰ it is for the political branches to remedy the incompatibility (or not).

[53] There is no easy way out of the dilemma posed by the increased presence of difficult social issues on the judicial docket. Courts cannot decline to decide legal questions that are brought before them, simply because they touch on contentious social issues that Parliament has addressed, or may address in the future. They cannot say to a litigant who challenges a law on credible grounds, “Go away, we prefer not to decide your case.” They have no choice but to take these questions on, and furnish the legal answers the law and doctrine require.

[54] While the courts have no choice but to answer the questions put before them, they must do so from an attitude of respect for Parliament and the Executive branches of governance. Just as the courts rightly demand that these branches respect the judicial arm of governance, so courts must respect them. In some cases, doctrines of deference may aid courts in finding the right balance. In all cases, careful attention must be paid to the remedy that is appropriate. For example, in Canada courts having found a law to be inconsistent with the Charter,³¹ may suspend the declaration of invalidity in order to give Parliament or the provincial legislatures time to craft a new law, thus avoiding a legislative vacuum. Parliament or the respective legislature typically responds by changing the law to conform to the Charter. Scholars use the metaphor of “dialogue” to describe this process of perfecting the law.³²

Conclusion

[55] Every generation faces its own unique challenges. Our generation is no exception. Our special challenges include the imperatives of meeting the threat of terrorism, dealing with the digital revolution and managing globalization in all its forms. These are issues that define the temper of our times.

[56] Our task as judges, faced with these challenges and the changes they are bringing, is dual ― one substantive, the other procedural. First, we must respond to the legal issues spawned by new 21st century concerns with wisdom and the resolve to preserve the values of liberty, the rule of law and democratic governance which define our societies. Second, we must ensure that the judicial system and the judges who work in it make the adaptations necessary to provide effective justice in the technologically driven, fast-paced and pluralistic world we live in.

[57] The challenges the courts face as they advance into the heart of the 21st century are numerous and grave, the right response too often elusive. We should see these challenges, not as problems, but as opportunities ― opportunities to improve our justice system, to revisit our sense of purpose, and revitalize our commitment to the rule of law.³³

* The Right Honourable Beverley McLachlin PC, was sworn in as a Justice of the Supreme Court of Canada in April 1989. On January 7, 2000, she was appointed Chief Justice of Canada. She is the first woman in Canada to hold this position.

In addition to her judicial duties at the Supreme Court, the Chief Justice chairs the Canadian Judicial Council, the Advisory Council of the Order of Canada and the Board of Governors of the National Judicial Institute.

A fuller biographical note may be found at http://scc-csc.gc.ca/court-cour/judges-juges/bio-eng.aspx?id=beverley-mclachlin (accessed July 2015)