There is a strange tension in British Columbia at the moment between the Government and the courts. As a result, the chief judges from each level of court in B.C. signed a statement about judicial independence and the rule of law which is re-published here.
This is a highly unusual step. Typically, the judges in our province can rely on lawyers to speak up in defence of the courts. Many lawyers have done just that in the last few years, ourselves included. The problem in this case is that the criticism is coming from the Government. And this poses a threat to judicial independence.
The statement was not directed so much at lay-readers, but specifically to members of the Government. The point is to educate those members of the Government who are not lawyers about the role of the court and judicial independence. In a nutshell the issue is that the Government has not provided funding to meet the needs of the courts to ensure that the courts can function properly. As a result, matters are often delayed due to court backlogs, structural problems and a shortage of staff, including judges.
As a result of delays, injustices have been done to some accused persons, such that the courts have granted applications to dismiss matters when the delay is beyond an acceptable period.
Statistically, despite the shortfall, relatively few cases have ended with a stay of proceedings due to delay. But each time it is newsworthy. The reporters look to the Government for an explanation. What has become a problem is that the Government has recently started to point the finger at the court.
This is where a perception arises that judicial independence and the rule of law are under threat. Simply put, courts are separate entities from governments for a reason. We need in our society a place where we can take disputes to an impartial person who can come to a decision about the law and the facts free of interference from any interested party. Governments are often an interested party. If the Government appears to be influencing the courts, it can no longer be said that the courts are a disinterested in the matters before them.
This is what the judges mean when they write about the rule of law. We are not ruled by a government, but all of us, including the Government are ruled by laws. And the laws (the rules) apply to everyone, including the Government.
But governments do not like to pay for courts, particularly when they do not like the court decisions. With an election just over a year away, the Premier announced a Justice Reform Initiative to review the problem of court backlogs and report back to the Government with suggestions.
This is what is happening on the face of it. This is one occasion where we cannot tell you the rumours of what’s going on behind the scenes.
From our perspective, there seems to be an attempt to undermine the power of courts and the role of lawyers. We glean this from the Government’s behaviour over the last few years. Here are some examples from our experience:
Example 1: IRP scheme
The rumour when the IRP scheme came in was that the Government hoped to reduce the staff of the Criminal Justice Branch by 20-40% in 2 to 3 years time. The IRP scheme did away with most drinking driving cases going to court, saving the cost of a judge, prosecutors, court staff, etc. We believe that taking matters away from court and lawyers was the number one goal of the scheme. At the same time it took away the methods to sort out the innocent from the guilty.
Example 2: Legal Aid cut backs
Legal aid tariffs in BC are historically among the lowest in the country and have been cut further in recent years. As a result, many lawyers who practiced criminal and family law have gone on to practice other types of law. The duties on lawyers are onerous, which is appropriate most of the time. The problem is that you cannot meet these duties and make a modest living defending cases on legal aid. The cutbacks could be viewed as an attempt to take away the opportunity for legal representation to the advantage of the prosecution.
Example 3: Judge shortage
The Government has been reluctant to appoint new judges and as a consequence, we have fewer judges sitting at fewer courthouse locations than we had a decade ago, despite a significant increase in the British Columbia population.
So where do we stand?
The judges who wrote the statement have been criticized for being condescending. Critics have said that it is akin to a first-year law school lecture. The problem, in our view, is that most of the members of the Government have not completed a first year law class. So if it is something that they need, this is a good opportunity for them to learn.
It is clear, however, that it comes with a tone of exasperation. The judges, court staff, prosecutors and lawyers have for over two decades worked very hard to demystified the system, implement changes to simplify processes, and to streamline matters wherever possible. For us it is particularly galling that people who have never worked in the system would make ill informed criticisms from the sidelines.
From our perspective, the courts work well overall. Generally speaking British Columbians can be proud of the job done by judges, court staff and Crown prosecutors in our province. Without exception the judges of our province put in their best effort to decide matters equitably, to move matters through the court expeditiously and to give everyone a fair shake. But this takes time. The system is well tested, having been developed over centuries. And it works well, particularly in disputes between the Government and individuals.
Our courts are the last line of defence to ensure that our rights are protected. But they need to be adequately funded.