Court of King's Bench - Manitoba Courts
We are now entering the concluding portions of this morning’s program. But before we end this very special sitting of the Court of Queen’s Bench, permit me to take a few minutes to say to the newly-called members of the Bar, that I know that for most of you, the last four years have been a long and arduous period. First the demands of law school, followed then by a year of articling, with all of the challenges and uncertainties that that brings. This morning you have every right, along with your parents, spouses and partners, to not only rejoice, but also to be proud—and yes, perhaps even a bit smug. You should congratulate yourself on what you have accomplished. You have earned the right to join a very honourable profession.
As I alluded to earlier, this ceremony is a rite of passage. A ceremony of this nature has taken place for hundreds of years in jurisdictions with traditions not dissimilar from those we’ve observed this morning. This ceremony recognizes and underscores the fact that the practice of law is a profession different from all other occupations.
You must never forget and always believe that each one of you has a hand in determining the relevance of your role as a lawyer. How you create that role and that relevance, will undoubtedly have implications for how much meaning and satisfaction you will find in your work. Whatever your legal role—and it may change through the years ahead—I’m confident in predicting that our legal system and Canadian society generally, will continue to confront and present to you, two very specific and enduring opportunities currently disguised as challenges. The first opportunity relates to maximizing access to justice for all Manitobans. The second opportunity relates to what will be the ongoing project of reconciliation with our Indigenous co-citizens.
Respecting that first opportunity, as newly-called members of the profession in this, the year 2017, you will no doubt continue to hear much of the phrase, “access to justice”. Chief Justices everywhere in Canada, now more than ever, invoke that phrase not only as an objective, but as a measuring stick for how well the courts and the legal profession serve the public, whether it be in the areas of criminal, civil or family law.
As you will increasingly learn, the phrase “access to justice” is not a hollow concept. Indeed, as the newest members of the legal profession, you will have a unique responsibility to not let it become a hollow concept. In fact, you are entering the legal profession at a time when you will quickly learn that the justice system in Manitoba is now rife with new rules, practice directions, procedures and jurisprudence, directing you in a not-so-subtle way, toward a professional approach to proportionality. Accordingly, it will be as much for you as for the more senior members of the profession, to ensure that in the name of access to justice, whatever your role, whatever your organization or firm, whatever areas of practice you choose to undertake, you make efforts to provide to your clients and the interested parties, a service that is proportionate to the problem at hand; one that is more comparatively prompt, less costly and less complex. If you can at least attempt to do that, you will be part of a rewarding effort to facilitate, as never before, the ideal and objectives associated with the phrase “access to justice”.
Yet even as we aspire to those important objectives envisioning a less complex, a less expensive and a more efficient system of justice, those traditional objectives associated with “access to justice”, by themselves, fail to speak to the even more foundational challenges and issues surrounding the legal system’s relationship with Canada’s Indigenous citizens.
That brings me to the second opportunity that awaits you as new lawyers. I’m speaking now of both the short- and long-term project of reconciliation.
You are becoming members of the legal profession in Canada’s 150th year and at a unique time in our history. Not since the meeting of our ancestors with the First Nation Peoples of Canada has such an opportunity existed to establish a new and more just relationship with Indigenous peoples. As members of a noble profession, you as advocates must play an important role in defining and supporting that new relationship. You, as the newest members of our profession, can and must play a leading role in bringing a new understanding to our legal thought by informing and educating yourselves with respect to, amongst other things, restorative justice and Indigenous traditions more generally. Once obtained, consider yourselves encouraged to try to incorporate that new knowledge and understanding into your actions and into your fierce and fearless advocacy of Indigenous clients and Indigenous issues.
All of what I just mentioned is not just attaching to you as new lawyers. It is part of the collective responsibility of everyone who works in the legal system. The assumption of that responsibility will be made easier if we remember our history and the important and distinctive place in that history of our First Nation Peoples. I suspect that the long-term project that is reconciliation, will be more difficult without the perspective of history and without the perspective of knowing the grievance that comes from feeling that your foundational place in history has been forgotten or de-emphasized.
We all recognize that the history of Canada and of Manitoba is a history of founding peoples and new arrivals. The depth of that history, both shared and otherwise, has given rise to earlier challenges and earlier opportunities—some taken, many more missed. Needless to say, as Canadians and Manitobans, we all have histories. Some date back further than others. My own ancestors include Madame Marie Anne Gaboury, who was the first woman of European descent to travel to and settle in what is now Western Canada. That happened over 200 years ago. Madame Gaboury’s other claim to fame was that she was the maternal grandmother of Louis Riel. Yet as proud as I am of my Manitoba roots, they must be put into perspective. My historical roots, and I suspect the roots of most of you, pale in comparison to those of Indigenous Manitobans and Indigenous Canadians whose roots span not mere generations, or even centuries, but millennia. My point quite simply is this: we in the justice system need that perspective of time and history so as to not ignore or de-emphasize our responsibilities toward the Indigenous peoples of Canada who, despite their long and rich history, have been nonetheless estranged from our justice system for far too long.
The project of reconciliation will begin with the trust that will come from acknowledging that we can do better. It will also come from accepting the harsh but objective fact that whether it be in the area of criminal law, child protection or in other difficult areas, Indigenous Canadians are over-represented in the justice system and that any related systemic delay inevitably has a disproportionate impact on them.
To establish the necessary and foundational trust for reconciliation, it will be necessary to acknowledge that the over-representation about which I just spoke, frequently involves unique problems and challenges. Those who work in the justice system must realize that those unique problems and challenges typically transcend the traditional solutions associated with well-intentioned access to justice initiatives.
As I hope I made clear earlier, the responsibilities of the legal profession as they relate to reconciliation, must be shared. It is for that reason that I recently announced in the Court of Queen’s Bench the creation of a new committee: the Trust, Reconciliation and Access to Justice Committee, which will commonly be known as the TRA Committee (TRAC). The work of the new Committee will be inspired by, and infused with, the urgency and sense of purpose that underlie the relevant “calls to action” that were part of the conclusions of the Truth and Reconciliation Commission.
Put simply, the mandate of the new Committee will be to address the unique obligations, opportunities and challenges that currently surround the court’s relationship with Indigenous Manitobans in an era of reconciliation.
The carefully chosen words for the name of this Committee —“trust, reconciliation and access to justice”— should be seen as symbiotic. Those words are meant to signify and combine what must be both the long-term normative goals of a trusting dialogue and meaningful reconciliation, with the short-term practical solutions that address immediate systemic problems that touch in a disproportionate way, First Nation litigants.
The nature of the TRAC is founded on the simple proposition that, without establishing an ongoing and authentic dialogue and a mutual understanding based on trust, it will be difficult to walk even the first steps towards reconciliation. Further, the Committee is premised upon the view that if reconciliation is to take place, it must involve an exploration of ideas and unique restorative solutions that address in a particular way, the very specific access issues that define the still-uncertain relationship that exists between the justice system and Indigenous Canadians.
The Committee will proceed with its work mindful of the four pillars upon which its mandate rests.
The first pillar will involve efforts to build trust and understanding. These efforts will involve a targeted outreach to Indigenous communities in an effort to engage in a mutually respectful dialogue about justice issues.
The second pillar will see efforts made within the court, by judges of the court, to better enhance judicial awareness and understanding of the challenges and opportunities—cultural and legal—connected to reconciliation. That enhanced judicial awareness will be assisted by an ongoing dialogue amongst court members who will be able to examine current beliefs and understandings respecting the historical and contemporary issues faced by Indigenous Canadians. Lest there be ill-founded or misplaced apprehension about a so-called attempt to “re-educate” judges, it should be understood that what is being contemplated in this second pillar is the provision of a voluntary opportunity for the judiciary to enhance its capacity for intercultural understanding, empathy and mutual respect. From my experience, it is not the sort of opportunity from which most judges ever hide.
The third pillar entails the Committee identifying for implementation, specific initiatives. Some of these initiatives may constitute “low-hanging fruit”. Some may involve new and novel ways of utilizing the now well-recognized and successful Winnipeg Legal Help Centre. Other initiatives may involve the proposal of more fundamental change. Whatever the nature of the initiatives, it is understood that in the context of this third pillar, it will be necessary for the Committee to seek out concrete, tangible and practical solutions for the unique problems challenging First Nation access to justice. Whether it be in relation to specific aspects of court and/or systemic reform meant to mitigate the disproportionate impact of delay on Indigenous Manitobans, or in relation to the exploration of pilot projects in respect of restorative justice solutions, the Committee (in respect of this third pillar) will always be animated by the goal of producing real, identifiable results.
The fourth pillar of the Committee’s work foresees the need to normalize a certain attentiveness and vigilance in ensuring that the Court of Queen’s Bench judicial service in each division (General and Family) does what it can to take into consideration the unique and particular access to justice challenges facing Indigenous Manitobans.
As you can appreciate, the creation of the TRAC is a new and exciting beginning. The challenge will be to dream big but still manage expectations knowing that the project of meaningful reconciliation is long-term. Trust and understanding is organic and it is not susceptible or responsive to any one court’s or chief justice’s timetable.
Reconciliation in the context of the justice system, will not be realized in any one province or in any one court. Nor will reconciliation be realized with the creation of any one committee or on the basis of any one initiative. Shortcuts must be avoided and certain first principles must be remembered. Trust and understanding will not occur if candor and clarity are not present. In that regard, it should be clear and never be forgotten that, as innovative, open-minded and purposeful as the work of the Committee must be, it will always be understood that the work of reconciliation cannot inhibit the operation of the rule of law. Nor can anything the Committee proposes or undertakes, be seen in any way as compromising judicial independence generally or impartial decision-making more specifically. That said, there is much reason to be hopeful, perhaps even optimistic.
So there you have it, ladies and gentlemen, what I predict will be two persistent but transformative opportunities that await you as new lawyers. In the years ahead, in the context of those opportunities surrounding the issues of “access to justice” and “reconciliation”, you personally will have an opportunity to define your place in this profession and indeed, the profession itself. I repeat, you can expect that your role may from time to time evolve. Yet, despite what may be the evolution in your professional role and your own personal evolution and change, never lose sight of why you were first drawn to this profession. At the same time, never be afraid to ask why you continue to choose the law. Hopefully, your answer to that question will both clarify and reaffirm your commitment to what is, at its most basic and rewarding level, a profession of public service.
In the end I urge you to never forget your duty to your clients, your duty to your colleagues, your duty to your community, and finally, but not minimally, your duty to yourself. Respecting that duty, you owe yourself nothing less than the balance that defines a life well lived.
In conclusion, I do wish you all success in this most challenging but rewarding of professions.
Before closing, I wish to acknowledge with thanks the staff of the Law Society of Manitoba who have—as they do year after year—worked so diligently in organizing this special sitting of the Court and the reception that is to follow. They have spent a great deal of time and effort in making this occasion special for all of you.
I also acknowledge and thank representatives of the staff of the Court of Queen’s Bench who have volunteered their time to assist in the ceremony and who as usual have performed the tasks admirably.
In a moment, the Clerk will close the Court. Following the singing of O Canada, you are all invited to attend the reception to be held in the lobby of the Concert Hall immediately following the closing of Court. Thank you for your attention.