Justice, it’s always worth repeating, is best guaranteed by democratic values and institutions. So it was with great optimism that I represented Canada at the recent inauguration of Mexican President Enrique Peña Nieto. Much of the President’s installation speech was devoted to the importance of democratic institutions, to the protection of basic rights and freedoms and to respect for the rule of law – by which I mean a legal system centred on the constant, relentless pursuit of justice.
As it happens, Canadians are playing a key role in the reform of Mexico’s criminal justice system, a profound change that itself is part of an important shift taking place in the practice of law across Latin America. What’s happening, and why does it matter?
Essentially, the people of Mexico are renewing their pursuit of justice, because they understand – perhaps better than most – that justice and the rule of law are what make us free and secure as citizens. They are what allow us to achieve our potential as human beings and as whole societies. With this in mind, Mexico is replacing its existing, inquisitorial, judicial system with an adversarial system similar to Canada’s, with the aim of reducing corruption and strengthening accountability, transparency and democratic rights.
In the Western world, the two main legal frameworks for criminal justice are known as the adversarial, or common law, system and the inquisitorial, or civil law, system. The inquisitorial system is premised on the notion that an independent officer of the state, whether a judge or a prosecutor, is the best person to seek the truth. Proceedings are conducted largely by paper and behind closed doors, with the judge issuing a verdict based on all the evidence that has been collected.
By contrast, the adversarial system is based on the notion that judges are apt to lose their neutrality if they investigate the case they are trying. Instead, the truth is most likely to surface where opposing counsel present their cases orally in court. In doing so, each counsel tries to convince an impartial judge or jury with no prior knowledge of the case that his or her version of events is true, while trying to cast doubt on the other side’s evidence. The prosecutor’s task is to vigorously and fairly present all relevant and admissible evidence to a judge or jury and let them decide the outcome.
Proceedings in an adversarial system must be open and transparent, inspiring public confidence and reducing fear of corruption or unfairness.
Another significant difference between the two models concerns evidence. In an inquisitorial system, police do not have to follow the same strict procedures as in an adversarial system when gathering evidence – meaning that evidence is considered admissible no matter how it’s obtained. By contrast, the judge in an adversarial system looks at the evidence to determine whether it has been gathered in accordance with the law. Judges have the power to exclude the evidence from the trial proceedings if they conclude it was obtained illegally. In short, the ends do not necessarily justify the means.
The challenges of Mexico’s sweeping judicial reform are enormous, and Mexicans have specifically sought out Canadian advice and assistance in several respects. In fact, my eldest daughter, who works as a lawyer with the Public Prosecution Service of Canada, is part of a legal team that has been training prosecutors and developing guidelines in five Mexican states with the hope of contributing to a fairer, more accountable and transparent criminal justice system that inspires public confidence. She has made 11 visits of this kind to Latin America, having also trained prosecutors, public defenders and judges in Chile and Colombia.
Elsewhere, Canadians are helping to build the capacity of Mexico’s law schools to support the ongoing renewal. For example, Luis Fernando Pérez Hurtado, president of the non-governmental Centre for the Study of Teaching and Learning of Law, spent six months in Canada studying the University of Ottawa’s law curriculum. With the support of the Department of Foreign Affairs’ Anti-Crime Capacity Building Program, the centre is working with Mexican law schools to convert their curriculum to reflect the new adversarial legal system.
Having been a student, professor and dean of law, I have witnessed up close how legal education can support the practice of law. By helping Mexican law faculties adapt to the reform and work in symbiosis with lawyers, judges and officials, Canadians are making a real contribution to the pursuit of justice.
These are powerful examples of the diplomacy of knowledge, defined as working together – across disciplines and across borders – to uncover, share and refine knowledge to improve the human condition.
As Governor-General and as someone who cares deeply about justice and the rule of law, I am pleased that Mexico’s judicial reformers are drawing insight and lessons from the criminal process used in Canada and in other Commonwealth countries. While imperfect and in need of constant evolution and improvement, Canada’s criminal justice system has a well-deserved reputation for transparency, accountability and impartiality. And as David Paciocco of the Ontario Court of Justice pointed out as part of Canada’s delegation to Mexico, the judicial reform taking place in Mexico offers Canadians a rare opportunity to reaffirm our own commitment to justice.
Just as Canada’s legal system is premised on the notion that the truth will surface where opposing counsel present their cases orally in court, I believe the exchange of ideas and experiences between Canada and Mexico can strengthen our democratic institutions and lead to greater justice and fairness for all. As close friends and partners in North America, let us strive for nothing less.
David Johnston is the Governor-General of Canada.
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