Canada’s “just society” has yet to be realized for many citizens

FILE: Entrance to Osgoode Hall in Toronto (Photo by Oaktree b/Wikimedia Commons, CC BY-SA 4.0)

The following is an abridged version of a speech delivered on Sept. 22, 2020 at the Annual Opening of the Courts celebration.

We are at a turning point in world history. These past six months have demonstrated the fragility of our very existence. Our social cohesion has been disrupted by an unseen enemy that has isolated us from the relationships that give meaning to our lives. Our economy has been re-focused by the investment of massive public resources to sustain our citizenry. The foundations of our society have been shaken in a manner unprecedented in most of our lifetimes.

Worldwide, nearly a million people have died and over 30 million have been sickened by the coronavirus.

Much of the impact of the virus has been in regions already plagued by poverty and inequality. But the impact has been disproportionately acute in our neighbour to the south, said to be the richest and most powerful nation in the world. To the extent Canada has fared better, it is a testament to the relative strength of our institutions, leadership, and citizenry throughout the pandemic.

But the coronavirus has also exposed the injustices and inequalities in western societies, including ours. In our province, the most vulnerable have been disproportionately affected: residents of long-term care facilities, migrant farm workers and the homeless. Those who are already marginalized, racialized communities and lower income households, have also been among the hardest hit.

Coincident with the pandemic, the prevalence and perseverance of anti-Black racism has been laid bare. A global protest movement, sparked by events in the United States, but resonating with experiences in Canada, has prompted many Canadians to ask hard questions about racism in our country and has caused just as many to demand answers.

Historically marginalized and vulnerable communities in Canada are asking whether our society, our governments, and our justice system, can really deliver on the promise of equity and justice for all peoples. Or whether the promise is often simply justice, fair treatment and prosperity for those who are privileged by race, colour or socio-economic status.

We are at a turning point in world history. Which way will we turn? Our record in seizing such moments has been far from perfect. After World War II ended 75 years ago, the United Nations was founded with the goals of eliminating the scourge of war and affirming human rights for all. And yet, this has been followed by a seemingly ongoing list of global conflicts and even genocides. The number of people fleeing violence last year was greater than it had ever been since World War II.

I came of age in the ’60s and’70s. Like many of my generation, I was profoundly affected by the assassinations of Martin Luther King Junior, John F. Kennedy and Malcolm X. We were inspired by the decades long civil rights movement. This, too, felt like a turning point. But despite some successes of these movements, we still have not fully acknowledged, responded to, or made adequate reparations for the historic effects of slavery and colonialism, nor for the centuries of racism and discrimination that have followed.

In Canada, the promise of a “just society,” made 50 years ago, has yet to be realized, particularly for many members of Indigenous, Black and racialized communities, the homeless and the impoverished. Can we truly say that we have embraced reconciliation with our Indigenous communities? Or that we have done our utmost to repair the consequences of discrimination, isolation and abuse of Indigenous, Black and racialized peoples? Or that members of Black, Indigenous and racialized communities are respected and, equally important, see themselves as full and equally respected members of our society? Will this horrendous global pandemic teach us anything about the commonality of human suffering, the humanity and dignity of all peoples and what it means to share this planet with others?

Like most historic turning points, the one we now face presents us with an opportunity to build a better world. As some have suggested, if we were to apply the energy and resources we have devoted to COVID to the viruses of systemic racism and economic inequality, we could indeed build a better world. But the other side of the turning point portends a decline into a frightening and dangerous world.

I firmly believe that the fundamental values and humanity of Canadians can lead us to the right path. I also believe that the judicial branch will play a vital role as we walk this path, in protecting the rights and freedoms of all Canadians, upholding the rule of law and, in so doing, recognizing the inherent dignity in every human being and the inherent right of every member of our society to achieve their potential, unfettered by the invisible chains of inequality and prejudice.

But we will not advance far down that path without a strong and vibrant justice system.

COVID has demonstrated some of the cracks in the foundation of our justice system. Some of those cracks can be repaired by an appropriate investment in technology and other resources to enable the courts to work more efficiently and to serve the public more effectively.

But it will take more — much more — to build a better justice system than simply more computers and more video screens. I believe we must radically re-think the process we use to achieve justice. We need to examine the way we do justice in criminal, family and civil cases and ask ourselves whether there is a more just, cost-effective and cost-efficient way to do things at every stage of the proceeding. That process must be fair, it must respect and promote the rights and freedoms contained in the Charter and it must not be unreasonably delayed.

When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back.

In order to be fair, and to avoid unreasonable delay, particularly but not exclusively where the state is a litigant, both parties must have competent legal representation. This speaks to the urgent need for a significant re-investment in legal aid, including duty counsel and legal clinics and support for pro bono services. It is, quite frankly, a false economy to think that cutting these vital services saves money. When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of our society, those whom our justice system purports to protect, are further victimized because their playing field is uneven.

Bold moves are required. But there are reasons for optimism.

I am encouraged by the appetite I see to re-think the way we do things.

I am optimistic about the progress in modernizing the courts. The work that has been done over the past six months is a testament to what we can achieve when we treat our justice system as a priority. With the co-operation of the bar, the bench, and the Ministry of the Attorney General, all Ontario courts have begun accepting electronic materials and hearing many matters by video conference. These resources have long been requested but have eluded us for decades.

I am optimistic about our youth and our educational institutions. Notwithstanding the myths about millennials, today’s young people are smarter and more socially conscious and engaged than any generation. As we speak, Ryerson University is launching its Faculty of Law. At the core of the law school’s mandate is a commitment to integrate law with technology and to incorporate equity, diversity, and inclusion within all aspects of legal education. Last summer, several colleagues and I participated in the new law school’s inaugural conference on Equity and Legal Practice, a conference that was proposed by the Court of Appeal’s Bar and Bench Diversity Committee. The desire to incorporate these themes throughout the curriculum was clear.

And I am optimistic that there is a new openness to law reform. There is increasing recognition that we, as a society, need to re-consider how we define “crime” and whether some offences, labelled criminal, should be regarded as health-related matters and addressed therapeutically. In recent months, as opioid deaths have soared, the Canadian Association of Chiefs of Police and many of Canada’s chief medical health officers, have suggested that after a century of drug prohibition, we should stop treating the use and simple possession of narcotics as a criminal offence and regard them as public health matters. We need to consider whether these and other social challenges are most effectively addressed outside the courts.

In confronting these challenges, I am inspired by two great leaders, Chief Justice (Geoffrey) Morawetz and Chief Justice (Lise) Maisonneuve, who sit by my side. Supported by the Ministry of the Attorney General, we have worked together as never before to reconfigure the justice system to respond to this crisis. I believe we have laid a foundation for the construction of a more just, equitable and sustainable justice system.

This article first appeared on Policy Options and is republished here under a Creative Commons license.