CBA annual meeting focuses on judicial independence, rule of law

Chief Justice Richard Wagner tells members, ‘You speak where we cannot’

CBA annual meeting focuses on judicial independence, rule of law
Chief Justice of Canada Richard Wagner said the separation of powers is essential to judicial independence.

Judicial independence is a pillar of a democratic society, and lawyers have a role to play in maintaining the balance in the scales of democracy, Chief Justice Richard Wagner told the annual meeting of the Canadian Bar Association at the Fairmont Chateau Laurier in Ottawa on February 19.

“The CBA has had a long and productive history of working with the judiciary – and on the judiciary’s behalf, when we cannot speak for ourselves – to advocate for positive changes to our justice system,” the chief justice said.

The success of Canada’s democracy rests on maintaining the balance of the three branches of the state – executive, legislative, and judicial – the chief justice noted.

“This separation of powers and the ability of each branch to operate freely within its own domain gets to the heart of what judicial independence means,” he said. “The equilibrium of all three branches is what gives us our vibrant democracy, strong rule of law, and robust protections for people’s rights and freedoms. When one is upset, … the equilibrium goes out of balance.”

The “true beneficiaries” of judicial independence are Canadians, he said, “who can trust in their justice system because they have confidence that judges are deciding the cases that affect them independently and impartially.”

Chief Justice Wagner noted the Accord to strengthen the independence of the Supreme Court of Canada, which he and Minister of Justice David Lametti signed last summer, which sets out the Court’s independence from the policy- and law-making functions of the other branches of government. The attorney general is represented before the court frequently, he noted, with two-thirds of last year’s appeals that were heard by the Supreme Court involving criminal or constitutional matters; “government lawyers would have argued each of them.”

Although there had never been a time “when we on the bench felt inappropriate pressure from another branch of government to make a particular decision,” Canada’s democracy demands that even the perception of interference from another branch of government is avoided, he said.

“We live in troubled times. The rule of law and judicial independence are under threat around the world,” he said, and “we cannot be complacent. We must avoid actions that will disrupt the delicate balance Canadians throughout history have worked so hard to get right.

“As members of the bar and engaged citizens, you have a role to play in maintaining this balance … your involvement in the public discourse, as individual lawyers, and through the voice of the Canadian Bar Association, is necessary to support the judiciary and ensure judicial independence.

“You speak where we cannot,” the chief justice concluded.

In her report, CBA President Vivene Salmon also addressed the threat to judicial independence. “The CBA works on the front lines of our justice system to protect the core values of the legal profession from regulatory and legislative encroachment,” she said.

Noting that populism is on the rise and the rule of law threatened in countries such as Pakistan and Ukraine, “the CBA actively promotes the rule of law,” she said. The CBA’s Young Lawyers International Program, in collaboration with Global Affairs Canada, places young lawyers abroad to work with organizations in law reform, human rights and access to justice. (Applications for the program are due by April 30th this year.)

She also noted the CBA’s two strategic advocacy priorities, access to justice and protection of solicitor-client privilege, and describing the #LegalAidMatters campaign during the 2019 federal election as having made an impact.

Of the nine resolutions brought forward by members at the meeting, the first concerned the constitutional independence of the attorney general. Ottawa criminal lawyer Ian Carter moved the resolution, which was passed, to amend the Department of Justice Act to refer explicitly to the constitutional independence of the attorney general in prosecutions, and that any advice given by the attorney general to the cabinet must be “free of partisan considerations.”

A resolution to make a commitment to religious equality in the legal profession was brought by Derek Ross of the Christian Legal Fellowship, and seconded by Nour Farhat, a Montreal lawyer who is Muslim and wears a headscarf. The resolution, which was likewise passed, also condemned Quebec’s Bill 21 that was passed last year, which prohibits the wearing of religious symbols, including headwear, by public servants. This includes Crown prosecutors, judges, and anyone else working in the courts or Quebec ministries.

“We must denounce any law that denies equal access” to practising in all areas of the legal profession, said Farhat, who had seen her goal of working as a Crown prosecutor dashed when Quebec passed its law.

Bill 21 “represents one of the most egregious examples of discrimination,” said Sameha Omer, Director of Legal Affairs for the National Council of Canadian Muslims, and who likewise wears a headscarf, from the floor, urging her colleagues “to stand up against unjust policies” that discriminate against their fellow members of the bar.

Other resolutions passed at the meeting included:

  • Urging the federal government, provinces and territories to implement the United Nations Declaration on the Rights of Indigenous Peoples and consult with Indigenous communities to develop plans that achieve the declaration’s objectives;
  • Amending the Immigration and Refugee Protection Act and the Citizenship Act to define the practice of immigration law, and for the repeal of the College of Immigration and Citizenship Consultants Act, which the federal government passed in 2019. Toronto immigration lawyer Barbara Jo Caruso, who moved the resolution, said the resolution was needed to protect the protecting the public from the practice of immigration law by immigration consultants;
  • Urging governments to create or supplement, and properly resource, triage and referral systems for alternative dispute resolution;
  • Urging governments to affirm the distinct work or public sector lawyers by maintaining an adequate cohort of lawyers in the public sector.

A resolution on “climate leadership,” which would have adopted a definition of “climate justice” and urged lawyers to engage in pro bono activities to combat climate change was not passed, with concern expressed from the floor that the resolution did not fall within the CBA’s mandate to address injustices in the legal system.

One hundred members attended the CBA annual meeting in person, with another 200 participating remotely.

CBA Vice-President Brad Regehr will step into the role of President for 2020-2021 when current President Vivene Salmon’s term ends in August. Stephen Rotstein, the CBA board member for Ontario and a member of the audit committee, will become Vice-President.

Several members were honoured at the evening’s awards gala, including the Hon. Juanita Westmoreland-Traoré, a retired justice of the Court of Quebec, who was the first black female dean of a Canadian law school, and the first black judge appointed in Quebec. She received the CBA President’s Award.

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