Supreme Court of Canada Justice Rosalie Abella speaks on Judicial Independence, Access to Justice and an angry Canadian public
Newly revealed off-the-record speech
On July 7, 2011, Justice Rosalie Abella gave a lengthy address at University College, London titled ‘Constitutions and Judges: Changing Roles, Rules and Expectations.”
According to the Supreme Court of Canada’s then Executive Legal Officer Owen Rees, the speech was never published and further – Justice Abella never shares her speaking notes with anyone.*
Well… despite Mr. Rees’ information, somehow Justice Abella’s speech was scanned and published online by University College and is still available for download at the University College website here. (pdf 4mb) I posted a copy on my website that has been OCR’d (optical character recognition) so the speech is now searchable. You can download that OCR’d copy here.
Justice Abella’s speech is a good read both for the public and the legal profession not only because of the insight into the thinking of one of our Supreme Court Justices but also because the judiciary is falling into a state that Justice Abella warned against in her talk.
The public’s trust in the judiciary is failing. A large part of that is due to the refusal of the judiciary as an institution to hold wayward judges accountable in any meaningful manner. Further, at the Federal level, the organization tasked with investigating and disciplining Federal judges, the Canadian Judicial Council, is so obviously nothing more than a whitewashing bureau with as little transparency as it has accountability.
Like every profession empowered to oversee itself, the judiciary ended up placing its own interests before the public trust. And transparency? What a joke…
Let’s talk Judicial Accountability and Transparency. The Canadian Judicial Council’s annual reports went from seventy-two pages in 1996 to TWO PAGES in 2016 – a clear message from both the judiciary and the CJC that the Canadian public can go to Hell for all they care.
You can access the CJC’s annual reports at their website here: CJC website annual reports.
Justice Abella on Judicial Independence… and on judges like Justice J. Bryan Shaughnessy
It is interesting that in her speech Justice Abella cautioned that judges should be vigilant that their judicial independence and impartiality are not cauterized by controversy. She also said that judges must keep the public confident that no matter what, rights and freedoms will be pursued and protected.
But what happens when, as in my case, a judge like Federal Court Justice J. Bryan Shaughnessy so obviously abandons even the appearance of impartiality and adherence to rule of law? And further, what happens when the Canadian Judicial Council and Attorney General of Canada openly defend and side with a judge whose conduct some lawyers have called ‘reprehensible’?
I submit that it is not the rogue acts of a handful of judges that undermine our justice system – it is the cover-ups that do the most damage to the public’s trust and confidence in our courts.
On reading her speech, I think that Justice Abella probably gets that point.
“Justice may be blind, but the public is not.” Supreme Court of Canada Justice Rosalie Abella.
Access to Justice
Starting at the bottom of page 19 of her speech and continuing for some time, Justice Abella talks about how important it is that judges retain the trust and confidence of the public and that the public is becoming angry over the lack of access to justice and the fixation of the justice system on procedure instead of a focus upon justice.
“So what’s the noise our profession can’t ignore? The sound of a very angry public. And it’s a public that’s been mad at us for a long, long time. Like the character from the movie Network, I’m not sure they’re going to take it anymore. And frankly, I’m not sure they should.”Supreme Court of Canada Justice Rosalie Abella.
“I’m talking of course about access to justice. But I’m not talking about fees, or billings, or legal aid, or even pro bono. Those are our beloved old standards in the “access to justice” repertoire and I’m sure all of you know those tunes very well. I have a more fundamental concern: I cannot for the life of me understand why we still resolve civil disputes the way we did more than a century ago.”Supreme Court of Canada Justice Rosalie Abella.
“I think it’s finally time to think about designing a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts. That’s what real access to justice needs, that’s what the public is entitled to get, and that’s what our professionalism demands. Justice must be seen to be believed. And getting people to believe in justice is what the legal system is supposed to do.” Supreme Court of Canada Justice Rosalie Abella.
Photo of Justice Rosalie Silberman Abella courtesy of the Supreme Court of Canada.
TEXT RECOGNIZED COPY BELOW – May have inaccuracies. Check against .pdf copies…
CONSTITUTIONS AND JUDGES: CHANGING ROLES, RULES, AND EXPECTATIONS.
University College London
The Constitution Unit The Supreme Court London, England
July, 7, 2011
Justice Rosalie Silberman Abella
Supreme Court of Canada
In 1929, overturning the Supreme Court of Canada’s decision that “Persons” in the constitution excluded women, Lord Sankey, on behalf of the Privy Council, directed the Court to interpret the Canadian constitution as a “living tree capable of growth and expansion”, and in a “large and liberal”, not a “narrow and technical” way. The Supreme Court of Canada has, in recent years, taken this direction very seriously in its interpretation of the Charter ofRights and Freedoms and has, as a result, reminded us of Isaiah Berlin’s aphorism that there is no pearl without some irritation in the oyster, since there is no doubt that this large and liberal interpretation has by now produced some large and liberal irritation.