Canada Assists Other Democracies by Sharing Its Judicial Talent

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Wednesday, April 10, 2024
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This blog post is part of a series on “SCC Decisions and more” written by CIAJ’s collaborator James Hendry. Read all his posts here.

Canada assists other democracies by sharing its judicial talent

The rule of law is often described as the rule of laws and not individuals. Amidst the roar of debate about this simplistic description, some basic ideas are commonly understood. Social and commercial life must be ordered by positive rules made by assemblies in the name of the people of the community. And impartial judges within an independent judiciary must decide disputes about whether individuals or corporate bodies in the community have complied with the rules used to govern individual conduct such as in business, or rules governing all members of the community such as the criminal law.

I believe that Canada has a strong, impartial, and independent judiciary and can send a strong message about the role of the judiciary in achieving the rule of law. Our judges themselves have interpreted the Constitution to develop rules and institutions to maintain a public perception of their impartiality, individually and institutionally. For example, the SCC determined the Constitution demanded a commission be interposed between the judiciary and the executive to depoliticize judicial remuneration. This contrasts with our southern neighbours where the public perception is that the current apex court has a conservative majority and a liberal minority. Consequently, Canada’s judiciary can offer advice to judges in other countries about how to develop and maintain a strong, impartial judiciary. Where we can help, we should. The more democracy in the world, the better.

It seems logical and appropriate for Canada to offer its judicial advice to judges in other countries who express a need for it in a globalized world where the rule of law needs some bolstering. Global Affairs Canada has an administrative arrangement, the Technical Assistance Partnership Project, with The Office of the Commissioner for Federal Judicial Affairs, to assist a few countries each year to strengthen public confidence in their judiciaries. The technical judicial assistance offered through the Project is aimed at helping with the effectiveness, inclusiveness, and accountability of a partner’s judicial system and is naturally carefully negotiated with their judiciary.  Judicial Affairs keeps an eye on the participation of Canadian judges to avoid affecting their impartiality. The Project is meant to contribute to Canada’s international development goals in furthering inclusive governance as we committed to in our Feminist International Assistance Policy and Sustainable Development Goals, and Canada’s well known commitment to human rights. Judicial Affairs contracted with the organization that hosts this blog, the Canadian Institute for the Administration of Justice, to assist with public communications about the Project.

Judge-to-judge discussions of common problems create trust between members of judiciaries. Canadian judges learn a great deal that they can bring home to their colleagues.

This judicial project has been working in Mongolia recently.

As international relationships go, Canada established diplomatic ties with Mongolia recently. Mongolia is squished between Russia and China, but has been expanding political, economic and defense relations with western democracies including Canada. Canada and Mongolia share mining and climate-related economic interests. The two countries signed an agreement for bilateral development assistance in September 2016, supporting a goal of Mongolia becoming a middle-income country by 2030. Economic cooperation and development require a sound judiciary. Investors and people in business need to know that their legal disputes will be resolved by impartial judges who apply known and understood rules of law. The rule of law requires that all disputes from the commercial to domestic receive the same impartial resolution.

Corruption can corrode the trust in judges and undermine not only the quality of their decisions, but also the public perception of how their disputes will be resolved. Mongolia, like other countries, has problems with this type of corrosion. Judicial ethics has been one of the focuses of Canada’s judges recent work with their judiciary this year. Chief Justice Marc Richard of New Brunswick has been very active in assisting with developing an Ethics Guide for Mongolian Judges and an Advisory Committee on Judicial Ethics. Chief Justice Richard has engaged with members of the Committee to hash out how to make Mongolian judges aware of these resources and how to give advice to judges on the application of the Guide in specific situations. They explored ways to creating a useful set of understandings to guide judicial behaviour in the future, including privacy issues and the need to provide prospective advice to colleagues rather than comments on past behaviour that might come before the Discipline Committee. Importantly, they discussed how the rest of the judiciary could be trained by members of the Ethics Committee in the ethical principles they have adopted. This has spread the Canadian take on how judges should behave to improve the overall public trust in the judicial system and why people could rely on their decisions. Justice Mary Moreau, now a judge of the Supreme Court of Canada, has worked on judicial independence issues with the Mongolian judges. She has also worked with them on the vital task of ensuring useful communication with the public served by the judges. She has discussed the two-way quality of these meetings resulting from her participation in this project.

Canadians pride themselves as being champions of human rights nationally and internationally. We must take the chances offered to demonstrate that commitment. Our judiciary is an important resource to share with countries in the process of developing theirs.  

***Not for use as legal advice

This blog addresses the Technical Assistance Partnership (TAP) Project, a five-year initiative funded by Global Affairs Canada (GAC) and spearheaded by Federal Judicial Affairs Canada (FJA).

To learn more on this project, listen to our Podcast with Errolyn Humphreys, Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs (FJA) Canada:
Episode 73: The TAP Project: Building Legal and Judicial Capacities in Developing Countries

About the author

James Hendry

James Hendry

James Hendry was called to the Ontario Bar in 1981. He was in private practice until 1984 when he joined the Canadian Human Rights Commission as counsel providing legal advice and litigation services, appearing at all levels of court, including the Supreme Court of Canada. In 1989, he was recruited by the Department of Justice. He was General Counsel in the Human Rights Law Section until 2011, specializing in civil Charter social policy advice and equality rights, and interpreting and designing human rights legislation. He was Research Director with the Canadian Human Rights Act Review Panel and a Visiting Scholar at Harvard Law School on a Canada-U.S. Fulbright Scholarship. He publishes extensively on Canadian and comparative constitutional issues and has lectured in Canada, Spain, South Africa, the United States, and Hong Kong. He taught Constitutional Law and Charter at the University of Ottawa, Faculty of Law and currently co-teaches a course on “Writing for Social Justice.” He designed and presented lecture series on the Charter, International Human Rights and Aboriginal Rights at Carleton University. He was the Editor in Chief of the Federated Press Charter and Human Rights Litigation journal from 1993 to 2016. He was founding Editor in Chief of the PKI Global Justice Journal, now published by Queen’s Law (2017 to 2022).