Canada The Canadian Justice Agenda: A Beacon At Home And Abroad

Friday, April 1, 2005 - 01:00

The Editor interviewsThe Hon. Irwin Cotler, Minister of Justice and Attorney General of Canada.

Editor: Mr. Cotler, would you tell our readers something about your background?

Cotler: I received both my undergraduate education and my law degree from McGill. I went on to do graduate work as a Woodrow Wilson Fellow at Yale Law School. In 1968, when my studies at Yale were coming to an end, Pierre Trudeau was elected Prime Minister. He appointed John Turner as Minister of Justice, and I wrote him a letter expressing interest in working at the Ministry of Justice in areas I had been involved with at Yale, which included poverty law, human rights and legal reform. Shortly thereafter I began working as a special assistant in these areas. Today I feel privileged to be sitting in the office that John Turner then occupied.

After my stint at the Ministry of Justice, I was recruited by a former law professor I had had at McGill, Gerald LeDain, to come teach at Osgoode Hall Law School in Toronto. He became Dean at Osgoode Hall and went on to serve on the Supreme Court of Canada. From Osgoode Hall I went to McGill Law School at the invitation of another former law professor of mine, John Durnford. John became Dean of McGill as well. That was in 1973, and I spent the next 26 years as a law professor at McGill.

Over the course of the years that followed I became involved in the defense of political prisoners, initially in the former Soviet Union. That began with a chance encounter with Avital Sharansky, the wife of then imprisoned Soviet dissident, Anatoly Sharansky, who had been forced to emigrate without him to Israel. There she met friends of mine, and I ended up as her husband's counsel. My defense of one political prisoner led to the defense of others in different places and involving different causes, and, of course, that in turn led to an involvement with the international human rights movement, of which my participation in the work of the Canadian Helsinki Watch Committee was a natural outgrowth. There was a convergence between my defense of political prisoners and my involvement with a variety of NGOs concerned with apartheid in South Africa and prisoners of conscience in the Soviet Union and elsewhere. While all of this was underway, I was also involved with domestic issues, including poverty law, women's rights and the constitutional legal struggle which resulted in the Canadian Charter of Rights and Freedoms in 1982. This is now firmly entrenched in Canadian law as our version of the American Constitution's Bill of Rights.

The quest for peace in the Middle East has also been part of my career from the very beginning. Between my two years at Yale, I spent a year in Israel and was there at the time of the Six-Day War in 1967. From that time I have never ceased to be concerned for peace and stability in the region.

Editor: Your career as a human rights activist has been extraordinary. How did this concern originate?

Cotler: I would say that it goes back a very long way. My mother was something of a personification of human rights, but she saw it as not so much a question of a grand agenda but rather as a simple and ongoingobligation to help victims of discrimination. My father was a lawyer. At a very early age, he introduced me to ethical principles that have come down to us across millennia and, at the same time, to some of the great jurists and legal scholars of the past, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes, and others. One of Holmes' pronouncements made a very deep impression on me: that a person who has not been actively, and passionately, engaged in the events of his time cannot be said to have really lived. The integration of these two themes - thought and action - underlies my career as an academic lawyer who has also been directly involved with the important human rights issues of our time.

I have been involved in a number of really searing human rights issues - Kosovo and Rwanda, for starters - that have caused me to think through ways to approach the killing fields that have so marred the history of the past century. How can these genocidal exercises be prevented? If they cannot be prevented altogether, how do we go about intervening and averting, at least in part, a human catastrophe? In Rwanda we did not intervene, and in Kosovo we only intervened belatedly. And whatever we learned from these two terrible events we do not appear to be applying to Darfur today. There is, however, an evolving doctrine that concerns the international responsibility to protect the victims of the killing fields. The struggle against impunity is part of this - the need to bring war criminals to justice - and if that struggle is won, I believe we may be on the way to developing a culture of prevention. That, in turn, may make the present century one in which, for the first time in history, those who violate the basic human rights of others are made accountable.

On the domestic side, I have been engaged in human rights activities on behalf of the National Coalition for Japanese-Canadian Redress and the Chinese-Canadian National Council, organizations that reflect some of thedarker sides of Canadian history. I have also worked on issues affecting the First Nations, the aboriginal peoples of our country, for a very long time. The Canadian government and people, I am happy to say, have been responsive to the need to address these experiences from our past.

I also have a long-time involvement with women's rights, both domestically and internationally. Over the years I have attempted to develop a 10-point grid to deal with women's rights, including the plight of women caught in the midst of armed conflict.

Editor: You have also had a parallel career as a peace activist, most particularly in the Middle East and on both sides of that divide. Our readers would be most interested in this undertaking, and in your thoughts as to whether there is a real possibility of peace at this point in time.

Cotler: I think there is a possibility for peace. In the Middle East, however, one must be careful not to transform a single event - such as the movement toward an independent Lebanon - into an institutionalized dynamic. The Israeli-Palestinian process appears to be in a more hopeful posture than it has been for some time. I do not believe that this conflict - in its present form - is about borders, about resources or land, or even about Jerusalem. I think it is about issues of legitimacy, the legitimacy of a Jewish state and the legitimacy of a Palestinian state, both of which historically have been rejected by the leaders of the Arab world. Indeed, in the past the Palestinian leadership was prepared to reject the legitimacy of an independent Palestinian state if that meant countenancing the existence of Israel. There are signs that we are past this double rejectionism, that we are moving toward a concurrent recognition on the part of both the Israeli leadership and the Palestinians that an independent and democratic Palestinian state is necessary for peace and stability in the region.

Editor: You were elected to the Canadian Parliament in November of 1999. What compelled you to enter elective politics?

Cotler: I began the academic year in 1999 with the same happiness that I have had in every year since I began teaching. At that time Sheila Finestone, the sitting member for Mount Royal, the riding that I now represent, had been appointed to the Senate, which left a vacancy in the House of Commons. I was approached, and, at least initially, I was not interested. Just before the deadline for nomination, one of the other candidates withdrew and announced that he was supporting me. Eventually, the other two candidates also withdrew, and I was nominated as the liberal candidate by acclamation. I sensed an opportunity to accomplish something positive, and, in the end, I was elected with 92 percent of the vote.

Editor: The Prime Minister appointed you Minister of Justice and Attorney General of Canada a little over a year ago. Would you give us an overview of these positions?

Cotler: This is a dual portfolio. On the one hand, I am the Minister of Justice in the government of the day, which means that I am a sitting member of Parliament with certain executive responsibilities. As a member of the Cabinet, I sit on six standing committees, including the U.S.-Canada Relations Committee, Aboriginal Affairs, Global Affairs and Security and Intelligence. As Minister of Justice, in addition, I must insure that all of the prospective laws and policies of the Canadian government are in compliance with the Canadian Charter of Rights and Freedoms.

As Attorney General of Canada, I am the principal legal advisor to all the agencies and departments of government. I am also the chief prosecutor and have oversight responsibility for all prosecutions in this country which are within federal jurisdiction. Anyone who believes he or she has been wrongfully convicted and has exhausted all other remedies is entitled to make application to the Attorney General for a review of the conviction. I also have a special responsibility with respect to requests for extradition from other countries.

Editor: One of the principal themes of our publication concerns progress of the rule of law - and lack of progress - particularly in places where some other structure has been in place. In the eyes of the international community, the Canadian justice system serves as a beacon for people all across the world trying to establish the rule of law.This did not just happen.

Cotler: No, it did not just happen. The Canadian beacon owes its inspiration to a variety of sources. We have been fortunate in being able to draw upon the best of experiences elsewhere and then adapt those experiences to the reality of Canada. Our parliamentary system derives from Westminster, and over time we have evolved from being solely a parliamentary democracy to being a constitutional democracy. The Canadian Charter of Rights and Freedoms - a true guarantee of human rights under the rule of law Ñ benefits from the American experience, and Canadians, since 1982, have been able to enforce those rights in the same way as Americans have since the adoption of the Bill of Rights. Canadian law is, of course, infused with the principles of the rule of law that have evolved over centuries within the Anglo-American legal tradition, and at the same time, draws upon the French experience - as enshrined in the Quebec Civil Code - of the law as a framework for a just society. We are heirs to two great legal traditions, and we have attempted to distill the best of these traditions in designing a legal system for a modern Canada.

Editor: I think it is eminently fitting that the Canadian Minister of Justice is also a leading advocate of human rights in the international arena. Please tell us what role you will play - as I am certain you will - in that arena.

Cotler: We have a number of objectives in that arena. One, as I mentioned, is to combat mass atrocity and the impunity that so often accompanies it. We acknowledge an international duty to protect, and we seek to play a leading role in the development of international criminal and humanitarian law. This involves helping to build national justice systems abroad that will contribute to the construction of an international justice system. In this regard, we have an ongoing human rights dialogue with Indonesia, the largest Muslim country in the world, and we are working with China in the education and training of judges and prosecutors. Just this past December I paid an official visit to Egypt, Jordan, Israel and the Palestinians to confer with my counterparts and to share with them the Canadian justice agenda. Their responses to that agenda reflect, I believe, a sincere desire to understand what we have been able to do and to adapt and refine our experience to their reality. I am delighted to say that each of the ministers with whom I discussed this agenda has agreed to make this an annual event. I think this is a very positive step forward in our journey toward a truly meaningful rule of law in the international context.

Our international undertakings are anchored in our national justice agenda. With respect to the latter, let me mention some of the key objectives. Judicial appointments are extremely important and will endure long after I have left office. I have participated in the appointment of two outstanding jurists to the Supreme Court of Canada, Rosalie Abella and Louise Charron, which means that four of the justices of the Supreme Court are women. A secondobjective is the promotion of the Canadian Charter. A third concerns the relationship between security and individual rights, and we are engaged in the development of a principled response to terrorism. We see terrorism as an assault on the security of a democratic society and on the fundamental rights of the members of that society. The laws governing counterterrorism are in pursuit of the protection of society, but they must comport with the rule of law if they are not to undermine the very principles we seek to uphold. The use of torture must be condemned, and no group can be singled out for discriminatory treatment in the application of such laws. A fourth objective concerns the protection of the most vulnerable among us, and a fifth involves combatting racism and discrimination of all kinds.

Editor: What about the future? At some point you will be handing over to your successor. At that point, what do you hope to have accomplished as Minister of Justice and Attorney General?

Cotler: I would hope that we will be recalled for our role in thedevelopment of the finest judiciary available to our country, one reflecting our diversity and our commitment to legal excellence. And for our work on behalf of children and the most vulnerable people in our society. The work that we have done to improve the life condition of the First Nations is also something of great importance to me, and I hope we will be remembered for it. And, of course, I would like to have made a positive contribution to international peace and security and to the protection of human rights in the international arena.