Fundamental to any democratic and just society is the principle of respect for the rule of law. However, for many of our fellow citizens, it is a rather vague term. The principle is intended to ensure that we are all are entitled to be treated equally by the law, the strong and the weak, the rich and the poor. for some, this may bring to mind the cynicism of the French philosopher, Anatole France who in the nineteenth century wrote of "the majesty of the law which equally prohibits the rich and the poor from begging in the streets, stealing a loaf of bread or sleeping under bridges."
However, in today's context, equality before the law is the major foundation stone of any truly free, just and democratic society. As Sir Hartley Shawcross stated 50 years ago at the first Commonwealth Law Conference:
"One cannot have freedom without law, nor can we have law without freedom, because the Rule of Law is the very negation of arbitrary despotic power.....That is what distinguishes Freedom under the Law from the state of anarchy which preceded law in the life of man."
When I think of the term "rule of law", I am often reminded of a scene from Robert Bolt's play, A Man for All Seasons.
The play revolved around the final months in the life of Sir Thomas More, Lord Chancellor of England, who found himself in what turned out to be a deadly conflict with King Henry VIII over the monarch's desire to divorce Queen Katherine.
In a memorable scene, Sir Thomas More's future son-in-law, a young man by the name of Roper urges Sir Thomas to arrest a villain of the play not because he had committed any crime but in Roper's words "he is clearly evil and therefore offends the law of God".
Sir Thomas replies, "Then let God arrest him" and goes on to state that "he would be prepared to let the devil himself go free until he broke the law of man".
The young man, Roper, is shocked by this response and states that in order to get after the devil, he'd be prepared to "cut down every law in England", to which Sir Thomas replies:
"And when the law was down, and the devil turned round on you - where would you hide? This country's planted thick with law from coast to coast - man's laws not God's - and if you cut them all down do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil benefit of law for my own safety's sake."
The reply of Sir Thomas More simply means that the dictates of expediency must not overcome our collective allegiance to the law and our respect for individual human rights particularly in an age of international terrorism.
There are, of course, many significant, continuing challenges related to the administration of justice. One of our major and continuing concerns is the issue of access to justice. By this, I mean the challenge of assuring legal representation and access to our courts for the less affluent, the poor and disadvantaged.
The challenges related to access to justice, however, go well beyond the problems faced by the poor. In fact, the current high cost of civil litigation is increasingly preventing almost all but the very affluent from pursuing a legal remedy through a trial.
I am hearing more and more frequently about the phenomenon of the so-called "disappearing civil trial." Disappearing because of the often huge cost of a trial. As a result, highly experienced civil litigation counsel may become an endangered species with the dramatic decline of the number of civil trials. This represents, of course, a serious access-to-justice issue and civil justice reform must remain a high priority for the legal profession throughout Canada.
In the criminal justice system in Canada, persons charged with serious criminal offences who cannot afford a lawyer are provided legal representation through legal aid plans. However, the financial resources available to these plans are not sufficient to provide the same assistance in civil law cases except to a certain extent in family law disputes. Indeed, the financial eligibility criteria restricts legal aid assistance to those who are below or close to the poverty line. The result has been and continues to be an increasing number of unrepresented litigants in both civil and criminal trials.
In my view, a just society is one that enables each of its members to have access to the kind of legal assistance that is essential for the understanding and assertion of their individual rights, obligations and freedoms under the law.
While the poor and friendless may often be out of political fashion, they are never without human needs. We also know that the poor and vulnerable may live in a free country but that it is often difficult for them to feel free. It follows that they are not truly free until they are able to assert the legal rights and remedies which are available to them.
It is therefore absolutely essential that government, with the strong support of the legal profession, ensure that adequately funded legal aid be a bastion of a democratic society as a guardian of individual liberties. We must also continually be reminded that our freedoms are at best fragile and that they depend on the ability of every citizen to assert in a court or tribunal their rights under law as well as receiving sound legal advice as to their obligations. Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community. In affording this protection, legal aid plans can make a deep and essential contribution to our society.
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As guardian of the rule of law the attorney general has a duty to ensure that all have access to the rule of law, that law enforcement is conducted according to law, that we have more than law and order in that we have ordered liberty according to law.
It was my privilege during my years as attorney general to fight for the expansion of legal aid and particularly the community based legal aid clinics, for stronger human rights legislation, and for accessible and independent police complaints system, for a wide range of reforms to increase access and advance equality through the justice system. These are not always popular measures with the government or the voters, but they are among the most fundamental duties of every attorney general and minister of justice.
In the context of legal aid, one of my major priorities as an attorney general was the creation of a network of legal aid clinics which are critical for access to justice for the disadvantaged. community based legal aid clinics, linked with community groups and community legal education and law reform initiatives, give access to those who are not reached by traditional fee for service systems. The more we can find new ways like this to deliver legal access, new ways like this to involve the community in the justice system, the stronger will be the rule of law.
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The legal profession includes a very broad range of impressive talent which should be made available to some extent to the entire community and not only to fee-paying clients. While many lawyers have traditionally performed pro bono work on an ad hoc basis, the challenge is to persuade law firms to recognize pro bono work as a part of their mainstream practice. Organized pro bono structures were adopted earlier in the u.s. because most American States do not have adequate government-funded legal aid plans.
The pro bono movement in the U.S. has been encouraged by concerns that have been expressed by the deans of the major law schools. For example, former Dean Anthony Kronnan of the Yale Law School in a book titled The Lost Lawyer: Failing Ideals of the Legal Profession described his book as follows:
"This book is about a crisis in the American legal profession. The message is that the profession now stands in danger of losing its soul. The crisis is in essence a crisis of morale. It is the product of growing doubts about the capacity of a lawyer's life to offer fulfilment to the person who takes it up. Disguised by the material well-being of lawyers, is a spiritual crisis that stands at the heart of their professional pride."
Former President Derek Bok of the Yale Law School has spoken of "the need for individual law firms to make practice more humane and more rewarding to their members.....and to think more deeply about how best to help them to think creatively about the challenge put forth by Justice Holmes namely "how to live greatly in the law."
I have long believed that lawyers are given a major public trust and therefore have special obligations to their communities. Publicly-funded legal aid plans will never have sufficient resources to meet all of the societal needs. a commitment to some pro bono legal assistance should therefore be regarded as a core professional value as It relates to the basic decency of helping those in need. Much has been given to their legal profession and it simply seems right to give something back. As a profession committed to justice, it is required that we help make justice more accessible.
While there are many thousands of lawyers in Canada dedicated to maintaining the profession's tradition of public service, for others, however, the practice of law is simply another form of business. Today, the profession may well be at a cross roads in determining whether or not it will remain fundamentally a helping profession.
Exerpted from the Symons Lecture, delivered yesterday in Charlottetown by R. Roy McMurtry, Chief Justice of Ontario