Ideas - Searching for Truth: The Honourable Louise Arbour

Episode Date: January 17, 2025

Is a criminal trial a search for truth? How do we navigate between the trial process and our lived experience in that elusive search for the truth? Former Supreme Court Justice Louise Arbour tackles these questions in her 2024 Horace E. Read lecture.

I distinctly remember hearing someone yell, stop that van. From CBC Podcast, an investigation into how young men are being recruited and radicalized on the internet. And she asked me if I was friends with a guy named Alec Manassian. By a new supercharged form of hate. On Facebook, police say he wrote the incel rebellion has already begun. A dark online subculture that's spilling over into the real world. Boys Like Me, available now on CBC Listen and everywhere you get your podcasts. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayed.

I'm Nala Ayed. The search for the truth is becoming more elusive. And that is former Justice Louise Arbour, delivering the annual Horace E. Reed lecture in Halifax. In the lecture, she explores two key questions. Is a criminal trial a search for truth? And how do we navigate between the trial process and our day-to-day life in that elusive search? Louise Arbour's impressive accomplishments are too many to list, but I'll mention a few. She was a Justice of the Supreme Court of Canada,

the United Nations High Commissioner for Human Rights, and Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. The lecture happened in late November 2024 at Dalhousie University's Schulich School of Law. It's called Searching for the Truth. I remember to this day the most striking discovery that I made after a few months in my new job as a trial judge. It's all about the facts. So you will appreciate my dismay when I recently came across the 2024 report of an organization

called Policy Horizons Canada. That report is entitled Disruptions on the Horizon. Policy Horizons describes itself as, and I quote, an organization within the federal public service that conducts strategic foresight on cross-cutting issues that inform public servants today about the possible public policy implications over the next 10 to 15 years. It is the Government of Canada's Centre of Excellence in Foresight. Our mandate, I quote them,

is to empower the Government of Canada with a future-oriented mindset and outlook to strengthen decision making. In my view, the author should have added a disclaimer warning that the content of the report could trigger some anxiety in those already concerned about the future and may therefore not be suitable for all audiences. The report examines some 35 possible events or circumstances in a variety of fields such as society, the economy, the environment, health, politics, geopolitics, and it ranks these

events in terms of the combined likelihood of occurrence and severity of impact on how we will live over a 3, 5, 10, 15 year time frame. The report then lists the top 10 disruptions, that is those that have the highest combined likelihood of occurrence and severity of impact over the shortest period of time. And the number one is, and I quote, people cannot tell what is true and what is not. The information ecosystem is flooded with human and AI generated content. Miss and disinformation make it almost impossible to know what is fake or real. It is much harder to know what or who to trust. That's the finding of that think tank.

Now, of course, other disruptions such as the outbreak of a world war would have much higher impact, but then are less likely to occur in the shorter term. But few would have much higher impact but then are less likely to occur in the shorter term. But few would have such cross-cutting relevance to the development of appropriate policy responses as the blurring of true and false. At one level, this is not surprising. We're all aware of the extent to which inaccuracies, falsities, and lies have actually already invaded the public discourse in recent years. But the scope of the impact of this culture change is truly startling.

Needless to say, this feeds into my lifelong professional preoccupation with the search for factual accuracy, both in justice and in public policy. I cannot canvas here the many legal areas in which this crippling inability to distinguish true from false could pervert our justice system. But think only of the task that we impose on our fellow citizens when we call on them to perform jury duty. If it's true that in their day-to-day lives, people will find it increasingly difficult to distinguish truth from falsehood, what does that imply for the guidance that we give them in a criminal trial where they are tasked essentially to reconstruct past events, a process on which the liberty of the accused

depends, and on which frankly in the long term, the credibility of the entire system resides. So this brings me to the so-called search for the truth in a criminal trial, and the apparently simple but often misunderstood rules that guide that process. So bear with me as we canvass a few of the fundamental rules that apply in a criminal trial. Through that exercise, we may get some insight into how we will overcome the deficit of trust that lays ahead for us, for all of us in the years to come, if we are to believe the predictions of Horizons Canada.

Outside the courtroom, we may actually need to reconstruct our intellectual and moral compasses to navigate this emerging reality, a reality that combines and at times confuses rationality, culture, trust, prejudices, moral integrity, personal interest and much more. So too actually in a criminal trial. So the so-called search for the truth during a trial, it is deceivingly similar to the way in which we integrate the past in our day-to-day lives. Importantly, it is governed by the law of evidence, much of which is now anchored in the constitutional protections granted to persons charged with crimes in the Canadian

Charter of Rights and Freedoms. So the law of evidence is the methodology applicable to the authoritative reconstruction of past events for the specific purpose of determining guilt or innocence. In a trial courtroom, an accurate reconstruction of the facts that are in issue is critical to adjust disposition of the case." Well that's not entirely true. A criminal trial is not a, quote, search for the truth in a philosophical or even in a scientific sense. It's a formal process through which the prosecution must

prove what it alleges beyond a reasonable doubt. What it alleges often includes intangible things such as the state of mind of the accused at the time of the events, what he knew, what he foresaw, what he intended. That exercise is rigorously governed by a set of rules designed in large part to discard irrelevant considerations and to guard against highly prejudicial ones, like biases and stereotypes that could infect the process and lead to a perverse outcome. In our system, many rules are poorly understood by the public, and they are actually rooted in the adversarial system, whereby the so-called search for the truth is largely in the hands

of the parties, each one pulling in a different direction. Some rules through which the evidence is excluded in a criminal trial have nothing to do with the quality of the evidence that is cast aside. So if they seem to impede the search for the truth, these exclusionary rules serve a different though related purpose. So let's take the hearsay rule. The rule is a little more complicated than its name suggests.

It may consist of preventing a witness from saying, I heard someone say something, but not always. If the only relevant purpose for the witness stating that she has heard that is in fact that she has heard it, whether it's true or not, then it's not precluded by the hearsay rule. For example, if an issue in the case is whether the witness was in a particular store on a given day and she's asked, how can you be sure that you were in that store on that day? She might say, well, I know that.

I know that I went there because a friend of mine told me there was a sale there on that day. Now, in that case, it doesn't matter whether there was a sale or not. So in that case, there's no violation of the hearsay rule. If on the other hand, the issue at trial is whether the accused intentionally killed his mother, a witness cannot say, the accused sister told me that he wanted to kill his entire family. Simple, you might think.

Well, not always so. Most students will confirm that because the rule makes no sense unless we understand its rationale. Here's say is not intrinsically a bad thing. In fact, outside the courtroom, we constantly rely on hearsay, even to make decisions that are very important to us on critical issues. What matters is that we trust the person who relays the information, we trust its original source and or we trust the process through which the information was acquired and conveyed. And our trust, of course, is a matter of degrees.

For instance, when I asked to give my date of birth, what I relay is hearsay. Even though obviously I was there, I also obviously have no personal recollection of the event. I simply trust what I was told, what has been recorded, and so do my interlocutors. Now, to a much lesser degree, we trust a news anchor who reports on events that took place at the other end of the world, about which she obviously has no personal knowledge. My point simply is that there's nothing intrinsically wrong with hearsay except in the adversarial trial system where hearsay deprives the opponent of the evidence of a full opportunity to test its reliability.

This is the rationale for the rule, and the only way to understand why it stands in the way of the search for the truth. So I'm gonna resist here, even though I love teaching hearsay when I was teaching evidence, embarking in an unending analysis of the hearsay rule and the rationale for its many exceptions.

My simple point is that in a criminal trial, we often prevent the jury from accessing information that they would probably find interesting and useful. Take for instance also confessions, also often called self-incriminating statements or criminal records, or more generally, bad previous misconduct. These are only introduced in a trial under very strict conditions designed to ensure that they're not given more weight than they deserve and that they don't unfairly prejudice the accused. Other disciplines, frankly in fact other legal systems, have no such concerns.

From within their own scientific method and ethical rules, these concerns about fairness and prejudice may not be relevant. Actually confessions were once considered the only reliable evidence of guilt and torture the only method of obtaining reliable confessions. Fortunately, in my view, we have come a long way since then on both counts. The convention against torture prevents it absolutely in all circumstances and the admissibility of a self-incriminating statement against an accused in a criminal case is subject to very strict requirements. To be admissible, a statement made by a person in authority, by a suspect, must have been

made freely and voluntarily, free from threats or promises. And stricter rules even apply to statements, self-incriminating statements made by minors in light of their vulnerability. In fact, there's no question that it would be very difficult for an accused to contradict, even under oath, an admission of guilt he would have made to a person in authority during the investigation. Not surprisingly, many jurors would find it hard to believe that a person would confess to something they didn't do. So the law purports to guard against the highly prejudicial effect of a

confession made in circumstances that may taint its reliability. This protection granted to the accused is embraced in the privilege against self-incrimination, which more broadly precludes an accused from being compelled to be a witness This protection granted to the accused is embraced in the privilege against self-incrimination, which more broadly precludes an accused from being compelled to be a witness against himself. But the rationale for this and for many other exclusionary rules goes beyond strict reliability. In fact, it's best expressed, as you know, in Section 24 of the Canadian Charter of Rights and Freedoms, which provides, if a court concludes that evidence was obtained in a manner that infringes or denies any rights or freedoms guarantees in this charter, the evidence shall

be excluded if it's established, having regard to all the circumstances, that the admission of it in the proceedings would bring the administration of justice into disrepute. So I'm not suggesting that the laws governing the admissibility of evidence in a criminal trial should govern the way we navigate the dangerous environment in which we are increasingly unable apparently to distinguish between true and false. Nor should this be, it would be utterly impracticable and totally unnecessary. An ethical journalist would not publish a story she believes to be false, except of course to expose its falsity. But in terms of methodology, she would not shout out a hearsay statement, she would simply

try to corroborate it. A psychiatrist will be interested in a patient confessing to a sordid crime, but not necessarily to validate its detailed accuracy. Maybe more for the sentiments and the emotions with which it is recounted. Guilt? Indifference, pleasure. In all these exercises in the end, we're all engaged, professionally or personally in our day-to-day life in the what happened for a variety of purposes and we depend on our reconstruction

of the past, the distant past and the more immediate past, for most of the decisions we make in our lives, big and small. I was always very conscious of having been conditioned by my interest in the law of evidence throughout my working life. Having been trained to believe that justice must be anchored in the highest possible attainable standard of accuracy in capturing reality, I often found it difficult to operate professionally in non-legal fields, whether in my five years with International Crisis Group, or in the various public policy and human rights issues with which I've been engaged, I always found it very difficult to shake the skepticism that I felt towards anything that did not satisfy me, at least on a balance of probability, but best beyond a reasonable doubt.

Thankfully, you'll be pleased to know, I managed to escape the pathologies of skepticism that are rampant amongst conspiracy theorists as I eventually succeeded in separating life from courtroom. Maybe for that reason, I am easily annoyed when I hear legal concepts used inappropriately, in my view, in day-to-day situations where they often seem to serve to confuse rather than illuminate. Take the presumption of innocence. As a legal concept, it is the cornerstone of our criminal justice system, expressly provided for in section 11D of the charter, which reads, any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

But like the hearsay rule, it has to be understood for what it is. And for that, I can do no better than to cite Herbert Packer's The Limits of the Criminal Sanction in which, in my view, he brilliantly explains not only the what, but the why of that fundamental rule. And here's what he says, it's a long quote. A murderer, for reasons best known to himself, chooses to shoot his victim in plain view of a large number of people. When the police arrive, he hands them his gun and he says, I did it and I'm glad.

His account of what happened is corroborated by several eye witnesses. He's placed under arrest and led to jail. Under these circumstances, which may seem extreme but which in fact characterize with rough accuracy the evidentiary situation in a large proportion of criminal cases, it would be plainly absurd to maintain that, more probably than not, the suspect did not commit the killing. But that is not what the presumption of innocence means. It means that until there has been an adjudication of guilt by an authority legally competent to make such an adjudication, the suspect is to be

treated for reasons that have nothing whatsoever to do with the probable outcome of the case, as if his guilt was an open question. The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome." End of quote. Understood that way, the presumption of innocence serves as a rationale for the many rules and rights in our criminal justice system, like the right to a lawyer, the right to an interpreter, the right to be released from custody prior to trial. And it's also linked to another legal concept, often misused, the benefit of the doubt, or

put in other terms, the burden on the prosecution to prove guilt beyond a reasonable doubt. But like the hearsay rule, these ideas often make no sense in day-to-day life. For instance, if you want to hire a babysitter to look after your three-year-old for the evening, and you hear from your neighbour that she heard that your proposed candidate is said to have smacked a little kid in the park the other day, you don't have to give the proposed babysitter the benefit of the doubt, and you're perfectly entitled to move to your next candidate. The presumption of innocence as defined by Packer has no application here.

The babysitter is not on trial for assault. But if she was, she should get the benefit of the doubt and the presumption of innocence would apply. And of course, you may very well choose not to jump to conclusion and to give her the benefit of the doubt. I wouldn't advise that. In the same way, when a candidate for an important public function, say for a US Supreme Court appointment, faces allegations of serious, possibly even criminal misconduct.

These allegations should be examined diligently and certainly not dismissed out of hand on the basis of the presumption of innocence and the benefit of the doubt. It's hard to understand what the rationale for the presumption of innocence would be here. Even though he should be treated fairly, the candidate's not entitled to that job. His liberty is not at stake. Of course, if the same allegations were brought against him as criminal charges, he should benefit from both. We often say that it's better that ten guilty person go free rather than punish one innocent,

but I don't see that it's better to put an unsuitable person in high office than to deny a candidate a job for which many others are perfectly qualified. So let me conclude briefly. I want to return to my original concern about our increasing inability to distinguish true and false. The search for the truth is becoming more elusive at a time where access to information is easier, wider and faster than it's ever been. The deficit seems to be in the filters through which we access that information. The traditional filters, news media, scientific sources, political leaders, the so-called elites, have all been

under attack and at times replaced by influencers who often have no other credentials than their popularity. So far, this cultural shift has not infected the uniquely designed process for reconstructing past events in the context of a criminal trial. But we may ask whether it could. Members of the jury no doubt import their own point of view, their experiences, assumptions and beliefs to the task they are given. Could we one day be tempted to replace juries by artificial intelligence computations, which would then be trusted to distinguish

between what is unlikely, what is probable, and what is certain. If so, we should remember that to sit in judgment of one Peirce is not purely an intellectual exercise. It is a moral one, a process that should be guided by the very wise words of an old English case called Pierce vs. Pierce. This is a case from 1846. I will quote from it and you'll see from the language it's very much from 1846, so bear with me.

"'The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice. Still, for the obtaining of these objects, which however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means. Not every channel is or ought to be open to them. Here's the punchline. Truth, like all other good things, may be loved unwisely, may be pursued too keenly, may cost too much."

So I invite you to reflect on whether other good things like peace, equality, or freedom may be loved unwisely, may be pursued too keenly, may cost too much, as I believe justice never should. Thank you very much for your attention. APPLAUSE You're listening to Searching for the Truth, excerpts from a lecture by Louise Arbour on CBC Radio 1 in Canada, on U.S US Public Radio, across North America, on Sirius XM,

in Australia, on ABC Radio National, on World Radio Paris, and around the world at cbc.ca slash ideas. You can also hear ideas on the CBC News app or wherever you get your podcasts. I'm Nala Ayed. I'm Sarah Trelevin and for over a year I've been working on one of the most complex stories I've ever covered.

There was somebody out there who was faking pregnancies. I started like warning everybody. Every doula that I know. It was fake. No pregnancy. And the deeper I dig, the more questions I unearth. How long has she been doing this? What does she have to gain from this?

From CBC and the BBC World Service, The Con, Caitlin's baby. It's a long story. Settle in. Available now. Louise Arbour was the UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

After Arbore's Horace E. Reed Memorial Lecture at Dalhousie University's Schulich School of Law, we held a question and answer session with the audience members. We began with a few of my own. What a privilege it is to be sitting with you. And please forgive me for, at least for a short period, broadening the conversation beyond your comments and beyond Canada, in fact. And I thought perhaps I would start with writing that you've done previously, a lecture that you've given previously, similar to this one, but addressing

the international context, in which you quoted Anne Michaels, a Canadian poet, saying that history is amoral, events occurred, but memory is moral. What we consciously remember is what our conscience remembers. And I wondered if you could talk about the pitfalls of reconstructing truth in the context you just talked about in this post-truth world, but at a time of really intractable international conflicts. S1C1 S1C1

I think one of the reasons we have so much difficulty finding common ground. And I'll say that very broadly, whether it's in some cases in interpersonal relationship, whether it's within society or culture, that is actually quite cohesive. Whether it's in a broader environment where positions clash, ideas, interests for the most part clash. I think it's in large part because of the take we have on the past and the way we see it. And I think we could even just think of very recent events, American elections for instance, a society that at one level is certainly much more cohesive than when it interacts with other parts of the

world, but which as we've seen is extremely divided internally. I think a lot of the divisions are... It would seem almost irreconcilable because there's a profound disagreement on reality, a reality that is informed on the perception of relatively recent event, whether there was inflation last year, for instance, where... So the factual underpinning is experienced by people in such a different way, and then it becomes a reality about which they're not prepared to yield anything. It's their reality.

It's their reality. It's what counts. So, you know, the International Crisis Group, for instance, you know, works in conflict, hopefully conflict prevention, but sort of conflict mitigation, conflict resolution, on a good day, conflict management. And I think at the heart of it is the starting point of the absence of a common ground and apprehension of what the past and therefore the present stands for. S1. BELL-SCHEWER-HERNANDEZ-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHEWER-SCHE the, you know, arrest warrants against Putin, against Netanyahu and members of Hamas. I wondered if we could speak a little bit about that. In the context of the body of the International Criminal Court, there have been a variety of responses to those arrest warrants, some saying they're symbolic, others saying, you

know, that they might act differently than what's expected. I wonder how you would describe this moment in the international legal system. Is it as symbolic, is it as important as people say it is? S? It is symbolic, but not only symbolic. Actually, it's real. Now what will be made of it will depend on all kinds of circumstances, but it's not just a symbol, it's actually real.

It comes from an international organization that has been created by states. They've undertaken obligations vis-a-vis each other. Unfortunately, states have undertaken lots of obligations vis-a-vis each other. I mentioned the Convention Against Torture. There are many where commitments have been made and not applied. It doesn't make it purely symbolic, right? These indictments are real, the arrest warrants have been issued are real from an organization that exists. Now it's very difficult to predict what will then unfold.

But let me just say a few things about the International Criminal Court that I think is often misunderstood. First of all, it's not a United Nations. The only justice instrument of the United Nations is the International Court of Justice, and it deals only with disputes between states. The International Criminal Court is a court created by treaty, the Treaty of Rome, where currently I think about 120 states are part of it out of 192 member states of the UN, and we all know all the big players in international conflict, the US, China, Russia, India, have not joined the court.

In fact, African states and European kind of Western states have in large part ratified the treaty. The other thing that is often misunderstood is that court only has jurisdiction when the national court that would be involved, that is the court, say, where the crime occurred, fails to act. So it's subsidiary to national jurisdiction. So, one of the ways that, for instance, Russia or Israel, for that matter, could block the jurisdiction of the court would be to investigate themselves the crimes that are alleged to have been committed. The court is secondary to credible national processes.

Obviously, if the court came to the view that these are show trials, just set up to bypass the jurisdiction of the court, they presumably wouldn't abide by that. But knowing what you know about the court and looking forward, how realistic do you think is it that any of those people named would actually ever appear at the court? The one thing I can tell you is I issued an indictment against Slobodan Milosevic and when I vividly remember when I gave a press conference and announced that I had charged him, at that time my indictment was only for crimes against humanity and war crimes. I didn't believe then that we had enough evidence to charge with genocide.

He was the strong man still, the president. At that time, he was the strong man, still the president. At that time, he was the president of Serbia. And a lot of journalists, I think, were very skeptical about whether he would ever be brought to justice. What can I say? I don't have a crystal ball. I told them, I don't know. I have a mandate, in my case, from the United Nations, these tribunals were created by the

Security Council, to investigate and indict those most responsible for the most serious crimes in the territory under my jurisdiction. That's what I did. The court following my request issued arrest warrants. I don't have a police force. I don't have any capacity to indict. But I can tell you that's what I said at the time. If I did not believe that one day under circumstances that are not apparent to me today but that one day he would actually stand trial in the Hague, I

wouldn't be wasting my time doing this work. It's not an exercise in symbolism. This is not theater. This is what I believe. Whether I'll be proven right or wrong, history will tell. And in what circumstances, one thing I was pretty sure was that what we had put in place elsewhere, that is international teams actually affecting arrest, i.e. being parachuted in a country to pick up a suspect in the middle of the night and bring it to us in The Hague.

I was pretty sure this would not happen to Milosevic. But what was, should have been quite predictable is exactly what happened. He lost power and his own people turned him over. That happens. So what will happen to existing warrants? The other thing I should say that is risky vis-a-vis these warrants is that we have never resolved the tension between justice and peace. When the International Criminal Court issued warrants against Joseph Kony, the Lord Resistance Army. It was seen

as a potential impediment to peace, that he would never make peace if he felt that he would stand trial in The Hague and be imprisoned for life. And when I indicted Milosevic, there were lots of concerns amongst NATO leadership that he would never surrender. NATO was at war with him and there were fears that, in fact, predictions that now he would have his back against the wall would never surrender. Well, he surrendered a week later. But in the case of the existing ICC warrants, some politicians, not jurists, I think will be concerned that they are an irritant to any potential peace process, both in the case of Russia, Ukraine, and Israel and Palestine. The last time we interacted actually through an intermediary,

the big question that we were trying to answer actually addresses very much the point that you just raised, which is, how do you in this world that we live in, and again, it's a very broad question, balance justice and peace in these really intractable conflicts that are going on? And with the old hat that you had on of the International Crisis Group, we spoke to mediators from Colombia, from Ireland, to talk about how do you invent peace in situations that are so intractable. So with that in mind, again, a massive question. Given what's going on in the world right now, what is a way of inventing peace when you

live in a post-truth world that is bitterly divided and is as conflicted as it is right now? S? There's a lot of questions about that. Well, I think the question I raised at the end of my talk is exactly on point. Justice, peace, freedom, all this can be pursued at too high a cost. It's very difficult, certainly for me at this stage of my career, to resist the idea that I should be very uncompromising. Militancy has a lot of appeal.

But then it has to be... It's a choice one makes, but when you're a very committed militant, you just pursue your case and you leave it to others. It's a bit like the adversarial system, to make their case and you don't feel the burden of compromising. But I think if you're involved in one way or the other, for instance, in a peace process, you have to ask yourself, can the pursuit of justice, i.e. accountability through criminal responsibility of political and military leaders, is that too high a price to save the human lives that would be saved if peace was put in place?

It's a legitimate question. At the same time, peace also can be pursued too keenly and could come at too high a cost. I mean, peace, if it requires a complete surrender of any of your hopes and entitlements and subjugation to a foreign authoritarian force, that's too high a price. So, I think that's an idea that one has to accept that all good things may be pursued too keenly. Justice, with a confession obtained by torture, that's too high a price to obtain it. So I think that's...

If one accepts that premise, then the question is, where can we find that consensus where both justice, peace, freedom, equality will yield a bit for something that accommodates the middle ground? S? There are a couple more quick questions about the situation down south and then I'll pass it on to the audience. One is, the Supreme Court in the US, of course we've all watched as it's become more politicized, more divided. Is there any reason for us to worry that something similar might happen in this context, in the Canadian context?

S1C1 I think we should be concerned with everything we see happening everywhere in the world and not be so presumptuous as to think that somehow we're immune from these things. The Canadian process for the appointment of particularly the Supreme Court of Canada justices is very bizarre. It would be completely unexportable. If a new country was setting up a constitutional framework, you don't think you would say to them, well, for your Supreme Court, which would have the constitutional powers to overturn legislation, legislation adopted

by democratically elected members of parliament, that this Supreme Court, they should be appointed just by the prime minister. He should just decide who he wants to put there. You'd think, I don't think that's a good idea, right? And yet, that's our system, and I think it works frankly quite brilliantly. Speaking for my own appointment. But in a sense, this is also

it's kind of the tensions between kind of formal rules and culture. In a sense, the vast discretionary power, and I exaggerate when the Prime Minister just picks, I mean we understand that there are informal processes in place of expected consultations and information, and in fact in Canada, contrary to the US, the playing field is curtailed. In the US, if there's a vacancy on the Supreme Court, it could come from anywhere in the country. In Canada, there's already regional, well, three definitely have to come from Quebec,

and there's the kind of constitutional convention, two from the West, one from the Maritimes, Ontario. So there's geographic, so it narrows the playing field. There's a long-term expectation that it mostly would come from the appellate courts, sometimes occasionally directly from the bar. And then, we're still a relatively small country. Within these circles, people know who are the serious players, the good people. So we have a formal process that looks really bad,

a lot of discretion in the hands of the prime minister, but in my view that works really well. In fact, the worst thing we could do is to be hypnotized by the fact that the formal process not very good and start to try to imitate the U.S. Oh, we'll have Senate confirmation hearings. See what that looks like there? I think that it would be...

There's the temptation to imitate something that looks good on paper but works terribly in reality, in my opinion. And yet ours is the opposite. S? Could you comment on your thoughts on how non-linear progress can be in people's rights when you look down south and you look at what happened with Roe v. Wade? Just your thoughts on the rights of women and progress where those rights are concerned? I mean, on that I have to say, I've changed my perception. And sometimes I wonder if I would have done the work I've done with the same faith in the future. You know, Leonard Cohen said, I've seen the future, brother, it is murder. I wish I'd paid attention when I first heard that because now I think that's so true.

For the longest time, I thought progress was linear. Progress in the constitutional protection, the constitutional protection of minority rights in a democracy, the maturity of democracies, human rights, even to some extent, sort of more economic equality. All this seemed within reach. I mean, every step was moving in the right direction. And now I've persuaded myself that in fact it's not linear, it's cyclical. And all I can hope for is that we're at the bottom of the wave, that at some point it's

gonna swing back up. But for instance, on gender equality, everything I hear in the UN system is very alarming. There's terrible pushback taking place, even in just the drafting of very formal statements that are negotiated, all the language of gender equalities being pushed out very systematically. And in the same way, I was once... I never formally joined because of some conflict, but the Centre for Reproductive Rights in the US, and I remember an occasion in which I said, you know, maybe we shouldn't rock the boat too much, you know, not kind of stir up that issue. And I remember this woman said to me, oh, make no mistake, they're stirring it up.

So no, we should not be quiet. Nothing is safe. Nothing is granted. I thought this was very pessimistic and in fact quite alarmist when I realized how right she was. So I think we have to be very committed, very vigilant about some of the fundamental gains that I think as a society we've made and continue to work on this. But at the same time, certainly on the international scene, when I look at the international human rights agenda, there are many from non-Western

countries and I'll call it, whatever you call it, the developing world broadly, that are now very overt about expressing their dismay that are... The promotion of our so-called values, funny enough, has always coincided with our interests. And I think there's a huge amount of suspicion vis-a-vis this kind of post-Second World War intellectual and political dominance of Western values. And values are very dangerous. When I talk about searching for the common ground and compromising and so on.

When people put their values on the table, it's the end of the conversation. They're not negotiable. And so we have to be very careful about advancing good things but being attentive to others. S? There's a last thing from me, which is how did we arrive at a place in the West where a political leader of a democratic country could score political points by attacking the judiciary? S? Oh, I don't think that's surprising. I don't think that's hard.

S? You don't see an increase in that in recent years. S? Oh, I think there has been. I mean, if we look at Mexico There is ill yes and the states Yeah, there's something superficially attractive in the idea that people with power should be democratically Selected it seems it's one of these simple ideas. So judges, why should they have to decide they haven't been elected? But then first of all, there's there are lots of judicial functions that have Are kind of neutral or as one of my colleagues one time put it to me, you know, don't

Don't be so obsessed about finding the right answer in this case He said the moral high ground is largely unoccupied. And I've had a lot of cases where I think that's true, the moral high ground was largely unoccupied. But in cases where, yes, they are fundamental issues, particularly on issues that are right but unpopular. Why would you want judges elected? You already have the source of power, both in the legislative branch and in the executive that are elected.

Why should you have all the organs of governments subject to the will of the majority, when in fact the majority has made a decision by giving itself constitutional constraints to constrain its own powers. But again, it's easily... Because it's superficially attractive to say judges should be elected, it's not hard, I think, for politicians to do that. And I think what's really interesting is that certainly in Canada, I've been involved on issues where I'm pretty sure that popular opinion was not behind us in the court. Prisoners' right to vote, that's a case I had both when I was in the Court of Appeal

and then in the Supreme Court of Canada. I think on balance, most people would have thought, no, they shouldn't vote. Capital punishment. The big trade-off was in order to get rid of capital punishment, it's a mandatory life sentence with no eligibility for parole for at least 10 years, which we've seen very recently. It's very harsh in cases of so-called mercy killing. And we've made compromises, but what's quite extraordinary is that the public's confidence in the court, in our country, I think, in the courts and the Supreme Court of Canada, has not been eroded even in cases where on balance the majority of the

public would not have been in favor of the decision. I think there's faith in the integrity of the process that we need to preserve. Hello. Thank you so much for taking the time to speak with us today. I'm curious what role you think principles or practices of restorative justice may have in resolving this issue of finding the truth in criminal trials. S? That's in fact a really good example, I think, of essentially what I raised at the very end, which is that if it looks like it falls short of say accountability, it's not a bad thing.

Only someone who would believe that justice for instance has to be pursued at any cost, only someone who would believe that I think would feel that other processes that are more consensual in which there's a larger place for accommodating many interests, would reject that. So I think it fits in a much, much more sophisticated, common ground, consensual, a lot of good things are accomplished, but not one trumps all the other trumps. I can't even play cards anymore because of that. So there you have it. I think these are modern forms of appreciating the many ways in which

we can accommodate so many conflicting interests. Good evening, Madame Arbour. I'm going to ask you about something that has very little to do with the truth But is rather entirely concerned with efficiency, but that's kind of the point I think that with regards to the plea bargain system The most generous interpretation would be that it promotes the effective administration of justice Whereas perhaps the most damning interpretation would be that it causes people accused people to admit to facts which don't

reflect the reality or even at worst wash away a great deal of their criminality. But it is in fact essential to the functioning of the criminal justice system. My question is if you feel that the benefit is worth the cost. S1C1 In the current environment, I'd say yes. the cost? S1, S2, S3, S4, S5, S6, S7, S8, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9, S9 to get rid of 90% of the cases. The result of which accommodates the immediate interest of the party,

not always the public interest, and is essentially based on a false narrative. Sometimes it gets it right because the prosecution overcharged in the first place, but in a lot of cases, the narrative on which it's based is essentially a fiction that tries to accommodate the fact that this system could not deliver. And the final question. Madame Marlborough, since your report came out on sexual misconduct in the CAF, to what extent do you believe that the CAF has accepted your recommendations in good faith, and to what extent do you believe they've effectively begun to implement them? S1C1 One of the recommendations that I made that has been implemented is that the government

should appoint an external monitor of my recommendations. Someone has been appointed. I haven't followed everything that has been done since, but I know that mechanism is in place and it was a woman, I forget who she was, I don't know if she's still the same one in place, but anyway, somebody is out there independently supposedly monitoring and reporting annually on the progress on my recommendations. I thought this was the very minimum I could do not to guarantee or ensure, but at least have a little bit of hope that it would not go, my recommendations, into the graveyard

of recommendations. They had in CAF a huge board as big as this screen there with all the previous recommendations that had been made. I always referred to it as the graveyard of recommendations and I could see my tombstone was already there. They only had to add the date. I was very concerned. They've introduced legislation to remove the jurisdiction of the military police and the military justice system in the case of sexual assaults, but it may not get enacted

before the next election. It doesn't seem that anybody is in a great hurry, certainly not internally in the CAF. So there's considerable encouragement in the appointment of Jenny Keringan as the chief of the defense staff. She was in charge of all this cultural reform in the CAF. And I think that's certainly a signal of maybe some commitment, but I hope others are following more closely than I am. You were listening to Louise Arbour delivering the 10th annual Horace E. Reed Lecture. It was called, Searching for the Truth. It was held at Dalhousie University's Schulich School of Law in Halifax.

It was produced by Ideas producer Mary Link. And there's a link to a video of the full lecture on our website, cbc.ca.ideas. Special thanks to Sarah Harding and Elizabeth Sanford. Technical production, Danielle Duval and Jeff Doan. Our web producer is Lisa Ayuso. Senior producer, Nikola Lukcic. Greg Kelly is the executive producer of Ideas. And I'm Nala Ayed.