Annual Meeting of Action Committee on Access to Justice in Civil and Family Law Matters

From: Department of Justice Canada

Speech

Notes for an address by

The Honourable David Lametti

Minister of Justice and Attorney General of Canada

Montreal, Quebec

April 10, 2019

Check against delivery

Introduction

Good afternoon everyone. Thank you very much for that kind introduction.

I would like to acknowledge that we are on land that has long served as a meeting place amongst Indigenous peoples, including the Haudensosaunee and Anishinabeg nations.

It is a great privilege to be speaking with you all today. I have great respect for the Action Committee on Justice in Civil and Family Law’s work, and it is a pleasure to be here.

I would also like to thank the Right Honourable Beverley McLachlin for her leadership and work in the area of access to justice. As you all know, the former Chief Justice has demonstrated a deep commitment to addressing the barriers to justice that still exist for far too many Canadians. She has been a force for change in this area. Of course, I need not mention that her work has included convening this Action Committee back in 2008 and acting as its current chair, for which we are all grateful.

I would also like to thank each of you for your contributions to this committee and for the considerable time and energy you have all dedicated to this important cause. Today’s discussions around access to justice for Indigenous peoples and communities are a testament to the passion and desire that so many of you have for driving much-needed change.

This committee recognizes that improving access to justice lies at the heart of Canada’s promise as a country where all individuals should enjoy equal entitlement to the protections of the law.

In that sense, the work that you do is so important. You recognize that if we hope to achieve true access to justice – for Indigenous peoples, for marginalized populations, and for all Canadians – we must continue to gain a better understanding of what access to justice means for all parts of society, and what we as a country require to attain it.

Child of the Charter

Before I say a few words about what our government has done to support access to justice, I want to spend some time talking about what I understand it to be and why I place such importance on it.

My parents were Italian immigrants. They were in their early twenties when they arrived in Canada shortly after the Second World War, far from family and everything familiar.

My dad was a homebuilder, and he died young, at the age of 49. My mother worked at a number of jobs as she raised me and my three older brothers on her own.

My parents’ story is one of generational sacrifice: they sacrificed so that their children could have a better life than they did. They came to Canada because they believed it was a country where that kind of sacrifice would be meaningful.

I cannot overstate the gratitude I feel towards my parents for the opportunities that they made possible for me. Not everyone is so lucky.

I left home to go to the University of Toronto. I loved my time at U of T. It was a special, even unique moment to be studying politics in Canada. The constitutional debate was unfolding right in front of me. As a student in my early 20s, I was witness to the pivot point in Canadian constitutional and legal history and it was thrilling.

You could say I am a child of the Charter. It was born as I was finding my way intellectually. I could see then that our country had accomplished something important and was moving into a new era.

For me, the Charter was an affirmation of many of the values I held and grew up with. Here was a document that affirmed that Canada was a place where each individual would have the right to pursue his or her version of the good life.

No matter where you come from, or who you are, our collective aspiration is that you should have the right to the Charter’s protections, including the right to make your voice heard. And these rights should never be taken for granted.

Access to justice, of course, lies at the very heart of this vision of Canada. We believe in a country where all Canadians should have an equal right to the law’s protections. When we fail individuals or groups on this count, we fail not only them but also undermine our strength as a country.

These were the constitutional debates that I witnessed as a student in university, and the vision of what this country should be and stand for. They were a large part of the reason why I wanted to go to law school.

During my time at law school at McGill, and as a clerk at the Supreme Court, I met two of my life’s mentors: Rod MacDonald, who was president of the Law Commission of Canada and Chairman of the Faculty of Law at McGill, and Justice Peter Cory, for whom I clerked.

These two exceptional men were role-models for me. They embodied a deeply ethical approach to the law, and drummed into me the importance of equality as a central value of our justice system.

More than anything, though, what stood out with both of them was their absolute commitment to treating the people around them with respect, and giving those people the tools and freedom to grow and, once again, make their voices and ideas heard.

For the better part of two decades, I carried these values into my work as a professor in the Law Faculty at McGill. I am proud to see many of my students rise to important jobs in the legal profession, including a few in my own office.

The ones who make me proudest, though, are the ones who have chosen to use the tools that a legal education provides to give back to their chosen communities. In doing so, they are recognizing the reality that not everyone has access to the kinds of opportunities that all Canadians deserve.

Whether it’s the lawyer who helps the victim of domestic violence, the clinic that provides counseling services on wrongful dismissal, or the refugee who has escaped danger and hardship but still faces uncertainty, our country honours its commitment to equality of opportunity only when we can honestly say that we all have equal access to justice.

My life’s experiences have not just given me a passion for the law. They have also reinforced the importance for me of living in a country where we as Canadians can pursue our own version of the good life in all the many forms that takes.I believe that you cannot take anything for granted. There are forces in the world that would seek to undermine values we hold dear. As Canadians we must actively work to ensure that these values continue to thrive.

Over the past four years, those are precisely the kinds of values and principles that the Government has fought for. We have provided progressive, forward-looking Government that has not been afraid to embrace transformational change. That includes action in the area of access to justice, to which I now turn.

Reconciliation

I believe the discussions we’ve had today show that the protections the Charter provides are not always evenly applied throughout Canada’s diverse populations.

This Action Committee has spent the last few years focusing largely on access to justice for Indigenous peoples. This includes your discussions today concerning Indigenous legal orders in the context of access to justice, and on what access to justice means in the context of truth and reconciliation.

I want to re-affirm that the Government remains deeply committed to reconciliation, and to transforming its relationship with Indigenous peoples. Access to justice remains a critical component of these overarching aims.

As you may be aware, the Minister of Indigenous Services recently introduced a new bill on Indigenous child and family services.

This proposed legislation was co-developed with First Nations, Inuit and Métis partners, and would affirm Indigenous peoples’ inherent right to exercise jurisdiction over child and family services.

The bill contains principles that would guide how services are delivered to Indigenous children in all jurisdictions and regions of the country, while aiming to reduce what can only be considered as a humanitarian crisis: the number of Indigenous children in care. This is a groundbreaking bill, affirming a Section 35 right in legislation, as opposed to waiting for a court to do it. I cannot overstate the importance of this.

Moreover, in January, the Attorney General released Canada’s Directive on Civil Litigation Involving Indigenous Peoples. This document will guide Canada’s litigation strategy in cases involving Indigenous peoples, and help to ensure that decisions made in this context are informed by Canada’s commitment to a recognition and implementation of rights framework.

This Directive builds on the Government’s publication of the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, which outlined Canada’s commitment to a fundamental change in our relationship with Indigenous peoples. I would also add that we recognize the importance of revitalizing Indigenous legal systems, and the important role that Indigenous law institutes can play in understanding, developing and implementing Indigenous laws.

To this end, Budget 2019 proposes to provide $10 million over five years, starting in 2019-20, in support of Indigenous law initiatives across Canada through the Justice Partnership and Innovation Program, to improve equality for Indigenous Peoples in Canada’s legal system.

I am also pleased to share that Justice Canada will proudly be hosting a symposium on Indigenous Justice Systems this coming May in Ottawa. This will provide us with an opportunity for dialogue with Indigenous partners, academics, Indigenous law students, and civil servants from across Canada on the revitalization of Indigenous laws, and the experience internationally and domestically on the interactions between Indigenous and non-Indigenous legal systems. I believe these conversations will help generate ideas for Indigenous justice systems in Canada in terms of what they could look like and how they could intersect with the mainstream legal system.

In the criminal context, I know that restorative justice is a priority for our Indigenous partners, and I want you to know that it is a priority for me as well. I believe that restorative justice can make a tangible difference in improving access to justice.

I am confident that the work we will do, and what has already been accomplished, will have a profound impact on improving access to justice for Indigenous peoples.

Family Law

Another area where we have taken concrete steps to improve access to justice is in family law. Bill C-78, which we introduced last year and which is now in the Senate, is a major update to our family laws, the first of its kind in decades. I will do all that I can to get this important bill over the finish line.

C-78 is a key milestone in the Government’s ongoing efforts to improve the lives of Canadian families. Divorce and separation are realities for many Canadians, and over two million children live in families with separated or divorced parents. We all recognize that the impact of separation and divorce can be wide reaching, especially when children are involved. We also know that the needs of Canadian families have changed since federal family laws were last substantially amended 20 years ago.

Bill C-78 proposes to advance four key priorities: promoting the best interests of the child, addressing family violence, contributing to poverty reduction and making the family justice system more accessible and efficient.

The bill would require that when determining the best interests of the child, courts give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Another key area that reflects the bill’s child-focused approach is the introduction of new parenting terminology. We have focused on replacing property-based and outdated terms such as “custody” and “access” with child-focused terms.

A priority of the bill is to help improve protections for children and families who are experiencing, or have experienced, family violence.

The Divorce Act provisions on the care of children have not been amended in over 30 years, and current laws are silent on a number of highly challenging issues, such as relocation and family violence.

Since 1985, when the Divorce Act provisions on custody and access were last amended, our collective knowledge about family violence, and its impacts, has grown considerably.

We now know that separation and divorce can exacerbate an already violent relationship and that the period following separation is the time of highest risk. From 2007 to 2011, a woman’s risk of being killed by a spouse from whom she was separated was nearly six times higher than the risk of being killed by a spouse with whom she was living. We are committed to addressing this tragic reality that too many women and children still face. Increasing their access to justice will be a major component of achieving such a goal.

I am pleased to share that in order to support access to family justice in both official languages, Budget 2019 proposes to provide the Department of Justice with $21.6 million over five years, starting in 2020-21, to support legislative amendments to increase access to family justice in the official language of one’s choice.

Un-represented Litigants

One aspect of both family and civil law that shines a glaring light on gaps in access to justice is with respect to the growing number of un-represented litigants.

Navigating Canada’s complex legal system can be daunting. Lack of legal representation is a major barrier to access to justice, particularly in regards to family and civil law, and especially for those who are economically disadvantaged. To help Canadians gain access to the legal education and information they need, Budget 2019 proposes to provide the Department of Justice Canada with an additional $8.1 million over five years, starting in 2019-20.

We also hope that other changes we have proposed make the process more efficient and less adversarial. By emphasizing the use of family dispute resolution as an option to resolve disputes, and by introducing easier methods to calculate child support, we hope to make this process work better for all involved parties.

Court Challenges Program

We all know that the Charter alone cannot guarantee access to justice for all Canadians. Indigenous peoples, marginalized populations, and various other groups within Canada experience barriers to securing justice and being treated fairly.

A nation-wide approach, that involves all players in our legal system, is essential to achieving cohesive action to promote and protect true access to justice for all Canadians.

I believe the Government of Canada has taken many positive steps towards addressing access to justice issues. But one that comes to mind when on the subject of the Charter, is the reinstatement of the Court Challenges Program.

With an annual budget of $5 million, the modernized program will provide funding to individuals and organizations who need financial support to access the courts to launch or participate in test cases of national significance, such as those that would advance human rights guaranteed under Canada’s Constitution.

Gender Equality

Another area of great importance to me, my department and the Government on the whole, is gender equality. We are proud of the progress we have made, we also know many gaps and inequalities still remain.

During its 2018 G7 Presidency, Canada made history by focusing on advancing gender equality and women’s empowerment, and integrating these issues into all G7 themes, commitments and initiatives.

Building on what we started at the G7, Canada will host the Women Deliver 2019 Conference in Vancouver from June 3 to 6.

The Women Deliver Conference is the world’s largest gathering of world leaders, advocates, academics, and activists on the health, rights and well-being of women and girls.

This conference, and the initiatives and legislation we have introduced to focus on gender equality and protecting women’s rights, couldn’t come at a better time.

This is because the disparity in access to justice experienced by women and girls still remains a significant issue. I have mentioned some of our initiatives that are intended to close this gap, but more needs to be done.

I spoke earlier of addressing family violence in the Family Law context. The principle applies in criminal law as well. We believe that protecting women from violence will help remove certain barriers to access to justice for many women.

The government updated sexual assault law for the first time in a generation in keeping with our commitment to ensure that survivors of sexual assault and gender-based violence are treated with compassion and respect.

Our changes clarify and strengthen the provisions related to consent, admissibility of evidence and legal representation for a survivor who brings forward a complaint. We are committed to ongoing consultations with stakeholders on this matter.

Judicial Appointments

We are not just working to transform and modernize our laws. We now have a process for appointing judges that is transparent, inclusive and accountable to Canadians.

At the Superior Court level, more than 293 judges have been appointed since November 2015. And these exceptional jurists represent the diversity that strengthens Canada. Of these judges, 55 percent are women, 6 are Indigenous, 15 are members of visible minority communities, 10 self-identified as LGBTQ2S and 3 self-identified as with disabilities.

All of these appointments underline our Government’s commitment to re-shape the bench to better reflect Canada as it is today, and make the courts more accessible.

Index Project

Our commitment to improving access to justice is more than simple lip service, but rather, something we actively track to ensure the legislation and initiatives we have put in place are having an impact.

In 2014, Justice Canada initiated the Access to Justice Index for Federal Administrative Bodies project, with the goal of developing and piloting a quantitative measurement of access to justice in the context of Canadian administrative law.

The project intends to fill a gap in terms of measuring access to administrative justice at the federal level in Canada, while providing baseline information on a few key indicators in order to track our progress. We hope this tool will inspire us to reach further and achieve even greater access to justice.

Our ability to measure progress will also push us to continue to innovate and expand on our understanding of access to justice and what is required to truly achieve it for all Canadians.

Conclusion

I don’t need to tell a room full of experts and legal professionals that access to justice is one of the most pressing issues we face in modernizing and transforming our justice system.

What I can say is that the work of this Action Committee is making a real difference with respect to better understanding the barriers that still exist for too many Canadians in their pursuit of justice. The dedication and passion you all show for advancing access to justice is inspiring, and you have my full support in advancing your cause.

You also have the full support of Justice Canada and the Government of Canada, as we pledge to continue to work alongside you, and learn from each other. Perhaps even more importantly, we can continue to work together to listen to, and learn from the people and communities who need our help most in their pursuit of justice.

Thank you.

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