Thoughts for the Future
Over the past 100 years, the Court has helped shape the province that Alberta is today. At times, it has been characterized as cautious and conservative; at others, as creative and courageous. Sometimes it has had to make unpopular decisions. But at all times, the members of the Court have acted in fidelity to the rule of law and the long-term interests of the province and its people. As the Court's second century continues, I have no doubt that this Court and its members will continue to faithfully protect the values and principles that are the foundations of our free, peaceful and democratic society.
Democracy cannot triumph over tyranny without the rule of law and an independent judiciary. Indeed, without both, there can be no democracy. The rule of law means that no one is above the law including the government. The rule of law is our common consensus, our acquired wisdom, our belief in shared values and our willingness to support and respect one another. Both its strength and its fragility arise from the fact that the rule of law is a belief and an honour system.
Nothing can be built, maintained, improved, used, saved or even spoken about without the shield and voice of the rule of law. It makes everything else possible. However, the rule of law is itself contingent on an independent judiciary able to fulfill its constitutional duty as the third branch of government.
Under the rule of law, citizens have the right to come to an independent court to enforce the law as against government. So too does government against those who might object to its actions. Independent judges have the right to review government actions to determine whether they are in compliance with the law and, where warranted, to declare government action unlawful. And independent judges have the right to review citizens' conduct under the law and, where warranted, to declare the conduct offends the law. These rights are the very assertion of democratic governance.
We are fortunate to live in a country where government recognizes how critical the separation of powers is to our democratic society and in a province in which the Alberta government has provided the resources and funding necessary through the years to support the courts.
The legislative and executive branches of government understand and accept that they will not always be able to do what they want. Sometimes, what they want may not conform to the paramount law, Canada's Constitution. As a general principle, it is the courts that make the final call on the law that binds us all. Government is committed to respecting these decisions in accordance with the rule of law. Otherwise, none of us have anywhere to turn. Most important, it understands that if the public does not have trust and confidence in an independent judiciary, people will not accede to the rule of law. And without the rule of law, all is lost.
There is a legal expression, The Law is Always Speaking. It invites a first question, To whom is it speaking? The answer is brief: Everybody. And that means everybody now and everybody to come. It also invites a second question, What is it speaking about? The answer: Everything. The law constitutes the threads of orderliness in the fabric of our society. As the essential underpinning of our ability to live together, the law touches everything and has always done so.
Citizens may not always recognize what an independent judiciary means to them until, that is, they run into a problem with, for example, an employer, neighbour, partner, family member, city, police or government. There are many failed and failing states around the world. What they all share is no rule of law and no independent judiciary. They may have constitutions promising both. But the people in those countries know the promises amount to little, or worse yet, nothing because nothing can be done to enforce them. That is not so in Canada. When there is a conflict to be resolved or constitutional rights to be enforced, we have access to independent courts. However, as with so many things in life, an independent judiciary is something that may not be appreciated until it is gone.
Defending the rule of law is a duty and challenge for the judiciary. We cannot fail. This requires credible knowledge and understanding of both the law and people. If the judiciary is to maintain its integral role in the delivery of justice, we ourselves must meet justice's highest standard. That means an impartial, informed, open-minded judiciary, respectful of change when warranted and resistant to change when capricious. Our citizens expect and deserve no less.
To those who will be called to serve as judges in the future, the law will also be speaking to you, and in your role, you will be expected to understand it and to explain what it means to the people of your time. In so doing, you will be adjudicators, teachers and administrators of justice. How you keep yourself informed, how you behave as people and how you carry out your duty as judges are symbolic representations not only of the authority of the law but also of the crucial value of the rule of law. That is why judicial education particularly on social issues is so critical. Without knowledge about the real problems of real people and the world around us, it is difficult to understand how one can judge it fairly. This education must continue to be a priority.
You may question what we have said and done, just as we ourselves have sometimes questioned what our predecessors did. But there is one thing that will always endure. That is your role as members of an independent judiciary sworn to protect constitutional rights and adjudicate impartially.
You hold your positions in trust for future generations. The burden you have taken on is foundational. You will need not just intellect and the ability to communicate. You will need courage and fortitude to maintain the rule of law. This ideal is not invulnerable. It is always under threat.
We, your predecessors, inherited the blessings of democracy, freedom, human rights and the power to maintain these things. This inheritance came at great cost. We did our best to improve the delivery of fair and equal justice and to ensure that all processes of law and government were done fairly and openly. You will do the same. But watch closely. All these blessings and the rule of law can be unraveled the same way they were originally knitted together. The subtle movement of the best of intentions may undermine the rule of law more than the forward rolling of weaponry. We do not need clashes of civilizations, or world wars, to let slip our grasp on the rule of law.
Be vigilant. Be devoted. Be fearless. Remember what you have been entrusted to do. No one else can do it but you.
Catherine A. Fraser
Former Chief Justice of Alberta