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Canadian Chief Justice speaks at the School

Chief Justice of Canada, the Rt Hon Beverley McLachlin PC has received the Vice Presidency of the UCD Law Society on a  visit to  UCD. Her acceptance speech on the Canadian Charter of Rights, and the European Convention on Human Rights was well received by a distinguished audience which included the Chief Justice of  Ireland, John Murray, six other members of the Supreme Court, several High Court judges, distinguished lawyers, UCD law faculty and members of the UCD Law Society.

Chief Justice McLachlin reaffirmed the continuing national and international importance of human rights. She noted Professor Amartya Sen’s distinction (in The Idea of Justice (2009)) between human rights as moral imperatives and the type of rights enforceable in courts through the traditional processes of litigation. This made it all the more important that human rights be given an effective and appropriate legal form, nationally and internationally. She also noted recent claims that human rights have been downgraded in the foreign policy priorities of the advanced democracies. She was glad to note that this could not be said of Canada’s foreign policy and she reminded her listeners that human rights are essentially moral claims arising out of the human dignity of every individual in every society throughout the world. She noted that, in this respect, basic human rights values are those of every major world religion and historic civilisation. At any level—national, regional or global—the Chief Justice considered that three elements are required for the effective translation of human rights ideals into legal norms: explicit and appropriate guarantees of rights in statutes, constitutions and treaties; a vibrant and independent bar and bench, and a wider culture of respect for human rights and for the rule of law.

The Chief Justice explained that in Canada, despite the presence of the second and third of these conditions, truly effective protection of human rights was achieved only when appropriate and explicit legal protections were given in the Constitution, by the Canadian Charter of Rights and Freedom (1982). In her opinion, the crucial difference between the Charter and the Canadian Bill of Rights (1960) was that the Charter resulted from intense and profound national debate on what rights should be constitutionally protected and subject to which limitations. This enabled the Supreme Court of Canada to create a wide-ranging body of Charter case law, which had transformed many aspects of Canadian life. Canada was also now able to confront historic injustices—such as those suffered by aboriginal children, by racial and ethnic minorities and by women. The Chief Justice noted that the Constitution of Ireland had the same basic commitment to human rights as the basis of constitutional law; many of the same approaches – such as the proportionality test – had been found useful by the Supreme Courts of the two countries. The same general points were applicable to the international protection of human rights. She looked forward to the further development of existing and new human rights instruments and mechanisms, such as the European Court of Human Rights, the African Court of Justice and the International Criminal Court. These, she believed, to better legally protect human rights on the international level, just as national bills of rights and constitutional courts had in Canada and Ireland.

The Chief Justice of Ireland, Mr John Murray, briefly replied. He praised the contribution which the jurisprudence of the Supreme Court of Canada had made to the constitutional law outside Canada and he reflected on how national constitutional courts can most appropriately use examples from other jurisdictions. Legal science cannot operate with national blinkers, any more than there can be a German physics, a Chinese chemistry or a Canadian geology. At the same time, it was not the role of a judge to import into a national constitution concepts or values which had no place there, merely because a foreign decision presented them attractively. In contrast to jurists such as Justice Antonin Scalia, Chief Justice Murray considered that these two considerations can be appropriately reconciled by judges and he lauded the contribution which Chief Justice McLachlin and her court had made to this process.

Chief Justice McLachlin took questions from students on a variety of subjects such as the status of socio-economic rights, the role of referenda in constitutional law and the notion that the constitution is a “living tree.”

The formal part of the evening concluded with the presentation by the Auditor of the UCD Law Society, Mr Conor O’Hanlon, of the Vice Presidency of the Society to Chief Justice McLachlin.

The Chief Justice with LawSoc auditor Conor O’Hanlon

Chief Justice John Murray at the lecture

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