The first is that the governor general occupies a special position in our society. Leaving aside the political question of whether he or she is the de facto head of state whenever the sovereign is outside the country, the governor general sets a national tone and standards of conduct, removed from partisan considerations. The Governor General's Awards for literature and history are examples. The governor general is the Principal Companion of the Order of Canada and the Order of Military Merit, the highest levels of recognition for exceptional Canadians.
Governors general are themselves examples of the best of our society and have come from a variety of backgrounds, a feature particularly appropriate for a country such as Canada, with its immense breadth and diversity.
It is not only appropriate, but desirable, that persons holding such office be willing to address issues of national importance. Indeed, the governor general is in a unique position to identify concerns which require a national focus, concerns which political and other leaders might hesitate to raise for fear of losing a partisan or other advantage. We should welcome and encourage such initiatives, which help underline the meaning of citizenship.
The second point is that the role of the legal system in Canada and the administration of justice are fundamental to a society governed by the rule of law, as opposed to arbitrary administrative discretion. It is the rule of law which sets democracy apart from dictatorship. The rule of law is not simply a matter of having laws on the statute book. Instead, it is the challenge of making certain that the laws adopted by Parliament and provincial legislatures actually operate as they were intended, in response to the view of what society, clothed with such legislation, should be.
This is, admittedly, not an easy task. It requires recognizing not only rights worthy of protection, but also duties, as a part of a larger social responsibility. We have a long-standing tradition of appointing competent judges, who must be prepared to be completely independent in their application of the law and to do their part in the humane and efficient administration of justice. We have another important social institution, namely a self-governing legal profession, independent from both the judiciary and the administration. And we have the publicly funded system of administration of justice. Each of these is essential to the rule of law. Failure by any of them seriously compromises this objective.
Johnston was quite right to point to evident weaknesses in the administration of justice and elements of the legal system, particularly, at the meeting of the Canadian Bar Association, and to challenge the legal profession itself regarding its conduct within society. Issues of this nature tend not to be placed in the spotlight either by administration or the profession itself. They are considered delicate, potentially divisive and perhaps embarrassing. With respect, as the challenge relates to the legal profession, this completely misses the point of a self-governing profession, especially one which holds itself out as fundamental to the protection of societal rights and the administration of justice. Who better than the governor general to point out gaps between what is said and what is done? Who better than the governor general, especially one who is thoroughly familiar with the teaching and practice of law, to point out some of the recent excesses that have disrupted lives and the economy, and to ask whether and where the legal profession had failed to act with commensurate responsibility? Who better than the governor general to underline the difference between public service in a learned profession and simple maximization of profits in a business?
This has been a timely wake-up call to everyone concerned with the administration of justice as a whole, including the legal profession. It remains to be seen whether it has served its purpose or whether, having been briefly disturbed, the "system" will roll over and go back to sleep. If it does so, it will be at its own peril. A system of justice which does not respond to the needs - content, accessibility and timeliness - of the society which it purports to serve is doomed to failure. Any such failure will eventually have catastrophic social implications.
The legal profession has a unique opportunity to lead the necessary realignment. It has the knowledge, the experience and the talented individuals needed to drive the change. Or, it can carry on as before, in which case, someone else will inevitably occupy the vacuum and do the job for it. One way or another, however, it is whistling past the graveyard to think that things are just fine and can continue. That time has passed and the pressures on society and the administration are increasing too rapidly. Enlightened evolution is much preferable to more drastic and inexperienced reaction.
Richard W. Pound is a partner in the Montreal office of Stikeman Elliott. The opinions here are his own.