Saturday, 17 March 2012

The three chief judges' statement on judicial independence: hear no problem, see no problem, speak no problem

(An edited version of this post appeared in the op-ed pages of the Vancouver Sun on March 20, 2012:

On a Sunday afternoon last August in Halifax, Governor General David Johnston made an extraordinarily thoughtful speech to the Canadian Bar Association’s annual legal conference.  The Governor General, by profession a lawyer, a legal academic and a university president, spent almost no time congratulating the bar for all of its wonderful achievements, and instead dared the country’s lawyers to imagine what their role could be in making Canada a “smarter, more caring nation” as we approach the nation’s 150th anniversary in 2017.
He described the challenge in these terms:
We live in rapidly changing times. I often illustrate today’s pace of change by saying it took three centuries for the printing press in 15th century Western Europe to reach a majority of the population and reinvent that society. By contrast, it took the Internet only ten years from the turn of the century to reach a majority of the world’s population. We all recognize the changes taking place. But we must go beyond this understanding. We must also be willing to embrace and adapt to change. We must scrutinize our social contract—both with the public and internally—to ensure that we stay relevant—that is, stay just—and continuously strive for the good.
Looking forward to the different ways in which lawyers might meet this daunting challenge, he offered a comment on the role of the courts.  The passage is worth quoting from at some length:
Let me now turn to a contemporary instance in which the administration of justice cries out for improvement: in the administration of our courts themselves....Although I have focused on court delays in Ontario, wide discrepancies exist all across Canada, both in our criminal and civil justice system. Why? Interestingly, Anthony Doob suggests that reducing these delays would require a hard look at what he calls “court cultures”; that is, “shared expectations about how things should work” among judges, the accused, defence counsels, Crown attorneys and legal aid. In addition to understanding these cultures, a shared willingness is needed to work towards ensuring a fair, equitable and speedy end to each case, for the benefit of the individuals involved, the legal system itself and society as a whole. We need to bring a sense of urgency to that shared culture and redefine professionalism.Judges, in particular, can help in our effort to reduce delays and improve the administration of our courts, by lending their expertise and authority to this important matter. As the individuals entrusted to preside over our courts, judges have a responsibility to ensure justice is served in all its forms, not solely when it comes to delivering judgments. 
The speech is inspiring for its insight into the challenges faced by the justice system, and the urgent need for legal professionals to take a leadership role in addressing these challenges.  
But it is even more unusual because not once does the Governor General say that the answer to what ails the justice system is more money, more lawyers or more judges.  In the final analysis, his message is eloquent, but blunt: 
To borrow a saying from a sister profession: physician heal thyself.
I have been reflecting on these words over the past couple of days as I have read, and re-read, the March 15, 2012 statement on judicial independence of BC’s three chief judges.  
It’s rare to get the chief judges of the province’s three courts to agree on anything; still rarer to imagine them joining voices on single statement.  
But if you were hoping that the three chief judges would have echoed the Governor General’s clarion call for a “shared willingness” to work towards a new approach to our justice system, you would be disappointed.  There is not the slightest suggestion anywhere in the five pages that there is a problem with the justice system.  No evidence that these senior members of the judiciary are even remotely aware of the growing crisis of public confidence in the administration of justice, let alone the role courts play in contributing to it.
No.  Instead of recognizing that, as the Governor General said, the administration of courts “cries out for improvement”, they have chosen instead to read us a lecture on judicial independence.
It’s almost tragic that in this rare moment when the provincial government is willing to pay just enough attention to the justice system to create a reform initiative, equip it with a thoughtful green paper, and send one of the province’s most respected lawyers out with a mandate to look for solutions, the province’s three senior judicial officials go out of their way to make sure we understand how unhelpful they intend to be in this process.    
Supreme Court Chief Justice Bauman has been quoted in the newspaper saying:
I don’t criticize politicians for not understanding these central concepts [judicial independence]. I’m frank in saying many in the legal profession don’t understand them either or get what they mean.
With great respect I have seen no evidence that politicians [and lawyers] do not understand judicial independence.  A couple of provincial politicians lately have been critical of the courts.  But there’s nothing in the principle of judicial independence which prevents citizens from expressing their view on the way judges do their job.  For the judges to see such criticism as warranting this full-scale-man-the-barricades defence of judicial independence is really quite astonishing. 
I don’t quarrel with the need to understand how our own constitution works.  Judicial independence is indeed important.  But, as I like to say in this blog from time to time, a little perspective is useful.  For example, take the following passage from the judges’ statement:
To preserve judicial independence, the Constitution of Canada requires three things:
1. Security of tenure: Once appointed, a judge is entitled to serve on the bench until the age of retirement, unless, for Superior Court judges, both houses of Parliament agree that he or she should be removed from office, or for Provincial Court judges, a tribunal established under the Provincial Court Act has ordered that he or she should be removed from office. 
2. Financial security: Judges are paid sufficiently and in a manner so they are not dependent on or subject to pressure from other institutions.
3. Administrative independence: Courts must be able to decide how to manage the litigation process and the cases judges will hear.
I would like to make three points about this passage.
Point 1.
The passage begins, “To preserve judicial independence, the Constitution of Canada requires three things.”
Well, in fact the written documents which constitute the Constitution of Canada say nothing about these three things.  In fact our Constitution contained no express reference to judicial independence until 1982, and that is a reference only to criminal proceedings (section 11(d) of the Charter).  The three specific elements quoted in this paragraph have all been read into the constitution by the judges during the course of their interpretation of the written constitution over the past century.  I make this point in part because some of this case law is quite controversial.  Indeed, the leading case in this area is one of the most heavily criticized decisions of the Supreme Court of Canada. (The Provincial Court judicial compensation reference case.)  So, just to be clear, it’s not that the Constitution of Canada requires these things, it’s judicial decisions that require these things.  
Point 2
The judges point out that financial security is a required element of judicial independence.  Canadian courts have indeed said this.  However, it is interesting in this context to note that in the United Kingdom, the source and well-spring of our legal traditions, approximately 95% of all criminal cases are decided by lay magistrates who have no legal training and work for free.  So, to state the obvious, financial security may be required for judges in Canada, but it’s certainly not a universally essential precondition for the rule of law, democratic freedom, or the protection of human rights.
Point 3
As the three judges point out, security of tenure is another element of judicial independence as it has developed in our country.  But it is not a required element of the judicial system in the United States, where a great number of cases are decided by judges who are elected, and therefore have no security of tenure whatsoever.  And please don’t tell me that the United States is not a country that generally adheres to the rule of law, respects democratic freedoms and human rights.
Of course, these points do not speak directly to the third element of the judges’ list, namely “administrative independence.”  Space does not permit a full critique of the judges view on this point.  Let’s just say it is a highly contested issue.  It is a recurring source of tension in the relationship between the courts and governments in every province in Canada.  Governments in our country do not want to tell judges who should sit on cases.  But the idea that any participation by government in judicial administration is a violation of judicial independence is a bit of a stretch.    
But in the end, the question is not so much whether the three chief judges’ own view of judicial independence is over-stated.  The real question is why they have gone to such lengths to set themselves up as opponents of reform.  Without their active participation and leadership, any attempt at reform will be difficult, to say the least.  In truth, nothing in the current reform process is the slightest threat to judicial independence, reasonably understood, and yet, for some inexplicable reason, the judges have chosen to see it as a threat and to insist that they will participate, if at all, only on their own terms.
More’s the pity for that.  In the long run, judicial independence is worth defending only when those who hold judicial office see it, humbly, quietly, not as an entitlement, but as a privilege to be earned every day by hard work and the responsible and efficient exercise of judicial power. 
Like David Johnston, most Canadians know that the administration of justice is crying out for improvement and that real reform requires an active, contributing, constructively engaged judiciary.  Not, apparently, BC’s three chief justices.

No comments:

Post a Comment