Who is the lawyer of tomorrow? What was the big takeaway from the Canadian Armed Forces review? What can railroads teach us about international law? We sat down with former Supreme Court justice, internationally renowned defender of human rights and BLG senior counsel, the Hon. Louise Arbour, for a candid conversation on her hopes for the future of law in Canada and around the world.
BLG: What are some of the most pressing issues facing law today?
Mme. Arbour: In the Canadian context, the most pressing issues are access to justice and affordability. For most people, the costs are astronomical. And the issues with timeliness are severe.
BLG: In 2018, former Chief Justice Beverley McLachlin said the principles and institutions underpinning the rule of law were under increasing attack, even in Western democracies. Is her statement still true in 2023?
Mme. Arbour: If anything, it's gotten worse. I see two big issues. Both are more U.S.-based, but anything that happens in the U.S. tends to affect — or infect — Canada to some degree. The first one is the politicization of the judiciary. In the U.S. you cannot refer to any public official, including judges, without the tag Democrat or Republican. In Canada it's creeping in. Sometimes newspapers will refer to a Supreme Court judge as “a Harper appointee” or “a Trudeau appointee.” This is irresponsible and misleading. It causes public distrust because it suggests that judges come with the baggage of partisanship or political ideologies. The second issue is the personal attacks on judges that some politicians in the U.S. are fond of — calling a judge deranged or corrupt. I find it disappointing that the bar associations are not rising to denounce that. The judiciary works on credibility and trust. If we let that get eroded, it will be very hard to gain back.
BLG: What do you predict for the future of law?
Mme. Arbour: It's very difficult to talk about law in the future without talking about artificial intelligence, which presents both amazing opportunities as well as cause for concern, particularly in litigation where much of what we do is the reconstruction of past events. With new technology comes the capacity to fabricate or distort images, text and voice recordings. The tools are now so sophisticated that they can pervert the process. Another issue — when you think of jury trials, for instance — is that, for many people, what they believe is more important than what they know. And what they believe is often based solely on who they like.
BLG: How about the role of the law in Canada specifically?
Mme. Arbour: It's a challenge for the law to strike the proper balance when it comes to evolving social norms. It can’t get ahead of itself, but it shouldn’t lag too far behind, either. We did quite well in Canada when it came to medical assistance in dying. It was a social debate that could have gone stale or turned very angry. The contribution of the courts made it a sober and respectful discussion, grounded in fact, science and principles. I believe the law can contribute to resolving divisive social issues in a way that is progressive and acceptable. But for this to happen, it’s important to preserve the integrity and confidence in the judiciary. Public political debate is often hijacked by those who have a megaphone and not much to say. This paralyzes the lawmaking process. In contrast, when the issues come to the courts, the debate is evidence-based, the tone is more respectful of contrary views and progress is made incrementally. In my view it’s a mistake to shut out the courts, in particular through the use of the notwithstanding clause of the constitution.
BLG: How has your recent work with the review of the Canadian Armed Forces and Department of National Defense influenced your views on the role of law and lawyers to shape a better future?
Mme. Arbour: It reinforced my general sense that the law must be applied universally. There is a special regime for the armed forces called martial law. Martial law is fine if it stays within the realm of military discipline, the preservation of hierarchy and obedience, like being AWOL, which is conduct specific to the military. But I don't think there should be a separate regime for criminal offenses, particularly sexual offences, because the process inevitably gets tainted by the culture. It's the same for prisons. In fact, somebody once said prisons are an environment where rules are omnipresent, but the rule of law is notoriously absent.
BLG: Let’s talk technology and the law. Friend or foe?
Mme. Arbour: It's neither. Or it’s both. Often at the same time. It’s a miracle that we can video call like this, but it becomes an immense irritant the minute there's a glitch. Technology has facilitated the work of lawyers. But at the same time, we’re expected to be much more self-sufficient because of these tools and they add so many irritants while we're trying to intellectually handle the substance of our work. Lawyers in private practice are prisoners to the immediacy that technology imposes on our time. Women in the profession were the first to speak up about the need to balance personal life and work life, and just as we were starting to make a bit of progress, technology took over. So, I think it's both friend and foe. But at the end of the day, it's what it is. It’s everywhere. Like air.
