Supporting Democracy and the Rule of Law

People who know me know I describe myself as a “realistic optimist”. As an optimist, I tend to avoid starting an article or speech with clichés like, “In these troubled times”. But the realist in me recognizes events around us, near and far, have been discouraging. I am especially concerned by the receding understanding of and decreasing value placed on democracy and the rule of law.

What do I mean by that? And, beyond wringing our hands, what can those of us working in the justice system do about it?

Democracy and the rule of law are the building blocks for the stable, predictable environment that allows us to live our lives and resolve our differences fairly, efficiently, peacefully, and respectfully.

Yet, around the world we are witnessing efforts to diminish or dismantle the institutions that protect and preserve the pillars on which our collective and individual well-being rest. In particular, we can see that public confidence in the administration of justice is vulnerable to being undermined by misinformation and disinformation, overly divisive public discourse, incivility, and attempts to politicize courts.

While I wish it were otherwise, I understand it is difficult to safeguard our institutions. The principles and ideas that underlie democracy and the rule of law are not always obvious or simple.

Judges are constrained from speaking publicly about anything that could be construed as “political”. Out of respect for the roles and responsibilities of the legislative and executive branches of government, we have to stay in our lane.

The judiciary is therefore fortunate to be able to rely on the bar to defend the rule of law and explain constitutional principles, like judicial independence, in the public sphere. Indeed, the Code of Professional Conduct for British Columbia says on this point,

"A lawyer must encourage public respect for and try to improve the administration of justice" (5.6-1).

The commentary on this obligation addresses the lawyer’s position in the community as carrying greater responsibilities than those of a private citizen, in part because the mere fact of being a lawyer lends weight and credibility to public statements.

The Code acknowledges further,

"…judicial institutions will not function effectively unless they command the respect of the public…".

The Code requires lawyers to be cautious not to weaken or destroy public confidence in legal institutions or authorities by making irresponsible allegations.

This is not to curtail informed criticism of the justice system or courts where there are failures. As an Indigenous person growing up in B.C., and as someone who has worked extensively with survivors of Residential Schools, I am all too aware that our laws, policies, and systems have failed people and, at times, continue to do so.

But as someone who chose to become part of the system—a decision that dates to when I became a law student—I feel very strongly that we have an obligation to uphold the good things we have in our justice system, while we work to do better.

As lawyers, your voices are more important than ever, not just in formal, public ways, but in your individual conversations with family, friends, neighbours, and, perhaps above all, young people. You have the ability to give people the information they need to understand and support this democracy that we cannot afford to take for granted.

As for the judiciary, with so much at stake, now is not the time for the most cautious or timid approach. While, as I said, we have to stay in our lane, we have an obligation to protect and promote public confidence in our work. If we are unable to earn and keep the public’s trust, the rule of law and our democracy suffer.

In practice, this means engaging more with the public both to learn about people’s experiences and concerns and to promote understanding of who we are and what we do. It also means innovating and simplifying our procedures to better ensure ordinary people can access their rights through the courts.

And it means working tirelessly to strengthen our ability to do our work independently and impartially, including by maintaining appropriate boundaries with the other branches of government, working toward adequate resourcing and maintaining transparency.

Returning to my realistic optimism, I’m aware the collective efforts of the bench and bar can’t fix the world. But we can make a difference one respectful conversation at a time.