My dear friends:

During my 20 years on the Supreme Court of Canada and more so, during my 10 years as the Chief Justice of Canada, I have had, through my various visits with the courts of many other countries (France, England, Morocco, Slovenia, Hungary, Austria and Croatia, to name but a few) and my hosting the judges of all levels of many countries, and in 1995 a delegation of the high court of 117 countries in Ottawa, amongst which 107 were represented by a delegation headed by their Chief Justice or President), witnessed first hand that many Canadians, including lawyers and law students and unfortunately some judges do not realize, the extent of the high repute all of our Courts and particularly, (and it is natural that it be so because of its visibility) Our Supreme Court of Canada enjoy worldwide. Many countries have referred to our judgements to find inspiration in coping with issues before them. Lord Goff, when presiding the Privy Council, hearing an appeal of a death sentence imposed by a commonwealth country rebuked one of his colleagues who questioned the pertinence of our Courts decision as regards the foreseeability requirement in murder, said to counsel: �What you are going to tell his lordship is that this is a judgement of the Supreme Court of Canada and therefore not lightly to be dismissed.�[1]

This remark was reported by Sir Sydney Kentridge, Q.C. last September during a speech he gave at the Symposium held for the 125^th anniversary of the Court, which in passing, I should mention was also attended by Chief Justice Barak of the Supreme Court of Israel.

Sir Sidney in his paper listed the many occasions on which your Supreme Court was relied upon in various Commonwealth countries. No less than 38 of our decisions were relied upon in the highest Courts in England, Australia, South Africa, the USA, India, New Zealand, Bermuda, Antigua and Barbuda, including the European Court of human rights last year in Ahmed v. UK, Hong Kong, and, to bring us to the topic I have chosen, more so in Israel�s Supreme Court and the academic and judicial reviews and various articles one finds in Israel�s legal literatures. The frequent references to our Court by the Israelis is due to two factors. To deal with the first: we, Canadians and Israelis, back in the mid-eighties established an Israeli-Canada Supreme Court exchange program. A protocol was signed between Chief Justice Shamgar and Chief Justice Dickson under which they co-chaired exchange visits every 2 or 3 years � This worked for a while. Indeed I was in Israel under this exchange and I had a most interesting meeting with academe of the University of Jerusalem and the judges of the Supreme Court. That is when I, and my wife, who was and is a federal court judge created ties of friendship with justice Barak, as he then was, and his spouse who was a judge of the industrial court which is in Israel considered a Superior Court. But political events and indeed some rather unfortunate consequences thereof were of such intensity that it was mutually felt by both parties that for various reasons it was preferable that exchanges be less formal and on a more individual basis. This did occur; a certain number of justices of Canada�s Supreme Court visited Israel and the exchanges were done through the avenue of the universities rather than governmental conduits. Our contact has never ceased and individual relationships and indeed friendships were developed in a less formal basis. In 1995, Justice Barak by then Chief Justice nominate (there is a process in Israel whereby there is a 6-month period between the appointment and confirmation) felt it would be presumptuous on his part to attend in Canada the world Chief Justices conference I referred to earlier, before his confirmation. However, at my request, he delegated a judge, Justice Etzhak Zamir, to the conference.

Between 1995 and today there have been many visits. Justice l�Heureux-Dube, to name but one amongst others, has been to Israel, and just last September Chief Justice Barak, as I mentioned, attended our 125^th anniversary celebration and seminar. A few weeks ago Chief Justice McLachlin was in Israel and agreed with Chief Justice Barak to revive the protocol. Actually they have agreed that a very well structured visit by the Chief Justice and two other judges will take place here in Canada in the spring of the year 2002.

Now the second factor, cause of these frequent references to our courts decision in Israel�s Supreme Court�s judgements and other countries. It has to do not only with the similarities of our human rights legislations that one finds in Israel Basic Law and our Canadian Charter of Rights and Freedoms; but also, and of great importance, the enlightened thinking and the impact of the Intellectual leadership of Chief Justice Barak.

Let me begin with a brief comparative analysis of the legislation.

(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises or body of a person, nor in the body or belongings of a person.

(d) There shall be no violation of the secrecy of the spoken utterances, writings or records of a person.[8]

Our section 8: Everyone has the right to be secure against unreasonable search or seizure.[9]

Then their Section 8 Violation of rights

There shall be no violation of rights under this Basic Law except by a Law fitting the values of the State of Israel, designed for a proper purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein.[10]

It is easy to recognize our notwithstanding clause (Section 33) and our interpretation of Section 1 as set out in the test in Oake�s and subsequent applications of that decision.

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[11]

Oakes test in summary:

1. Sufficiently important objective;

2. Rational connection;

3. Least drastic means;

4. Proportionate effect.

Now for Section 11 Application � All governmental authorities are bound to respect the rights under this Basic Law.[12]

And our Section 32.1 This Charter applies
(a) to the Parliament and government of Canada in respect of all maters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.[13]

Their Section 6 Leaving and entering Israel �
(a) All persons are free to leave Israel
(b) Every Israel national has the right of entry into Israel from abroad.[14]

and our mobility rights of our Section 6.1): Every citizen of Canada has the right to enter, remain in and leave Canada.[15]

The Supreme Court of Israel has applied amongst other Schachter[16] (reading down-reading in, and when not to), Vriend[17], certain equal rights for same sex couples, Egan[18], Mossop[19], Haig[20] and Layloand[21], even though their equality rights that they have in their laws are not entrenched.

Back in 1993, I saw this coming. Within the cadre of the Israeli-Canada exchange program I went to Israel, as I said, to meet with Chief Justice Shamgar and his colleagues and to address the Hebrew University of Jerusalem. Though I had met in various countries and over the years Chief Justice Shamgar, and developed a sincere friendship with him, more of an affinity developed between Justice Barak and I having regard to his approach to the law even before the coming into force of the Basic Law, and my interpretation of our Charter of Rights and Freedoms. Prior to 1992, the introduction of the Basic Laws, Justice Aharon Barak had in the words of Professor Hillel Neuer, a graduate fellow at the Shalem Centre in Jerusalem, and I quote: �had worked to expand the Court�s role through the case-by-case erosion of doctrines, such as standing and justiciability, that had traditionally limited judicial activism.�[22]

An example, amongst many, is in the Tnu�at L�or case in which he raised the possibility, indeed the desirability of the Court being vested with the power to strike down Knesset laws. So it came as no surprise, that, when in 1992 the power was implicitly granted to the court, Barak referred to a constitutional revolution looking to the US and Canadian exercise of its powers which were explicit in our case. He said in an article entitled �The Constitutional Revolution�, and I quote: �If up until now judges were given �conventional weapons� to deal with legislation by way of interpretation and the creation of Israeli common law, now judges have been given �nonconventional weapons�, which allow nullification of legislation which does not observe the Basic Laws� criteria.�[23]

Then in 1995 � he said so much in the famous Bank Mizrahi judgement, and I quote: �With legislation of [the new Basic Laws] a substantial change occurred in the status of human rights in Israel. They have turned into constitutional rights. They have been given supra-legal constitutional status. A �regular� law of the Knesset cannot change them. Regular legislation cannot infringe a protected human right unless the demands set out in the Basic Laws are met. Nonobservance of the constitutional demands turns the regular statute into an unconstitutional statute. This is a statute which bears a constitutional flaw. The court can declare its invalidity.�[24]

This interpretation, as I see it, finds its footing in my humble view in Section 10 of the Basic Laws which states at:

Section 10 Validity of laws

This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law.[25]

Therefore, I imagine Barak�s reasoning is that �a contrario� the validity of subsequent laws will be affected. From there on in, the legal scholars started scrutinizing our Supreme court�s and also other Canadian court�s judgements under the Charter, and their interpretations by academe, and reference in Israel to Canadian jurisprudence in the field of constitutional law became much more frequent. That is when the Oakes test was adopted as the process to follow when doing an Israeli Section 8 (our Section 1 � The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society)[26] analysis. �It will have to pass a justificatory test in order to survive�[27] said Barak of a laws that restricts a guaranteed right� �It will have to be enacted for a proper purpose, befit the values of the State of Israel and impair the right to an extent no greater that is required�[28]; one obviously has to recognize Dickson�s and our Court�s test set out in Oakes that I set out earlier in my remarks.

Many have expressed concern as regards what is meant by the Values of the State of Israel. I myself, when in Israel had long and most interesting discussions as to how one can reconcile the Jewishness of the State and its being a democratic society in light of many factors, one of which being the presence of various minorities, ethnic and religious. I felt this was Israel�s Supreme Court�s greatest challenge. Professor Neuer had foreseen tensions in this area, having regard to Chief Justice Barak�s approach to Jewish values. To use Barak�s words, he said: �the aggregate of values which form the image of the modern Israeli�.[29] Whom he then describes as �One whose values are universal, and is a member of the family of enlightened nations.�[30] Enlightened nations; I shall come back to that.

These words must be understood, I believe, by reference to a passage in Barak�s words found in �Israeli Studies� in an article entitled �The Role of the Supreme Court in a democracy� where he says the following: �I accept the view that Jewish Law has, for us, a special interpretative status that is different from every other legal system. This status does not entail a prioritized interpretative position that must be applied first and foremost; rather, it means that Jewish Law reflects the fundamental principles and values of our culture, whereby part of them comprise the fundamentals of our modern law. Indeed, we are a young state, yet an ancient people. Our roots are embedded in our long years of tradition.�[31] And now a very revealing passage is the following: �The fundamental values of Jewish Law shape our character, both as a people and as a state. This finds expression in our being not only a democratic state, but also a Jewish state. As such, the uniqueness of Jewish Law is not in Jewish Law as a system, (repeat) but in the basic principles underlying Jewish Law as a legal culture. These principles�inasmuch as they constitute a part of our modern legal culture�are used in the interpretation of legislation. In determining the purpose of a piece of legislation, the interpreter turns to basic principles and derives from them the objective purpose of the legislation. In this �derivation�, the fundamental values of Jewish Law and its integrity and perception of justice will be manifested.�[32] Further on he adds: �application of Jewish Law is not concerned with the application of comparative law; rather, the application of the fundamental values of Jewish Law is the application of the fundamental values of Israeli Law. Moreover, the application of Jewish Law is not only permissible, it is obligatory. It should be emphasized, however, that this application is only of those fundamental values of Jewish Law that constitute part of the fundamental values of our law and our system. We are a democratic state in which there are non-Jewish minorities. Only those fundamental values of Jewish Law that are compatible with this character become part of our system, and only they may be taken into account.�[33] These are the words of a very courageous and indeed enlightened person, a genuine Israeli.

If there are to be questions, I must conclude without further analysis of these issues. Let me first say to you our future lawyers. You may travel around the world with pride as regards the performance of your Supreme Court, indeed of your country. We have a Charter that is the envy of many. I am speaking of course, to use Barak�s words and deeds, the enlightened. You, as lawyers, will be, along with the courts, the guardians of those rights and freedoms. But be it in Israel, the European community or in Canada, a charter is of little effect if it is in a country that has not developed a human rights culture, indeed to use Barak�s words, a country guided by enlightened people. A charter is but a tool at the disposition of a people�s heart and soul, to be discarded or ignored, or to be used to further and protect the human dignity of every human being, whatever that human being has done, whatever be he or she�s origin, beliefs or religion. It is easy to shout out for one�s rights and freedoms. What is less easy sometimes, but all the more important, is to come forward when the rights of others are under attack. My attitude as a judge has, and I imagine Judge Barak�s also, been influence by something I read when you were much younger. They are the words of a German Pastor, probably a Lutheran, by the name of Martin Niemuller. He wrote: �First, they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the socialists, but I did not speak out because I am not a socialist. Then they came for the Jews and I did not speak out because I am not a Jew. Then they came for me and by then, there was no one left to speak out for me.� As future lawyers it is your duty to speak out for others. God, I wish there were more Chief Justice Barak�s around the world!

Thank you.