And now for something completely..... A E Housman

Jogging into work this morning, it was damp and gray, but somehow the rain held off until the last few blocks before I reached my office.  Fish & Bird played in my earphones: “every whisper is a shout across the void”.  There was a hint of bright light on the western skyline.  And blossoms, blossoms all along the way.  For a moment or two, everything was just fine.  Was it just the endorphins?  Or maybe a hint of A E Housman: 

Loveliest of trees, the cherry now

Is hung with bloom along the bough,

And stands about the woodland ride

Wearing white for Eastertide.

Now, of my threescore years and ten

Twenty will not come again,

And take from seventy springs a score,

It only leaves me fifty more.

And since to look at things in bloom

Fifty springs are little room,

About the woodlands I will go

To see the cherry hung with snow.

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: http://bit.ly/GDPZNO)

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 15^th 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.

Bill 22 and the Supreme Court of Canada's adventures in labour law

As Bill 22 winds its way towards a final vote this week, and BC prepares for the next chapter of the current teachers’ contract dispute, I have been reflecting on what a dreadful mess the Supreme Court has made of public sector collective bargaining and the Charter of Rights and Freedoms.

The story begins with one of the most controversial pieces of legislation in the first term of the Gordon Campbell government, in which I was Attorney General, the infamous Bill 29 of 2002 (the Health and Social Services Delivery Improvement Act).

At the heart of this bill were provisions that rewrote - “stripped” - existing collective agreements in the health sector.  Its justification lay in the fact that the previous (NDP) provincial government had negotiated unaffordable agreements with these unions.  In our drive to restore the province to fiscal health, we decided that it was necessary to reduce health care workers wages; the tool chosen to do this was legislation.  

To add to the controversy that such a move would naturally create, we had promised in the 2001 election that we would not do this kind of thing.  So the outrage was compounded.

In our system of government, the central image - and foundation - of accountability is the ballot box.  When government strays too far from the will of the people, it is punished by the voters.  When this principle works, it is a marvel to behold.

In this case, the principle worked.  We were elected in 2001 with 77 of 79 seats.  Bill 29 was enacted a year later.  In the 2005 election, the voters responded with their verdict on four years of BC Liberal government by electing only 47 BC Liberals, a drop of 30 seats.  Though re-elected, the BC Liberals were clearly punished.  

By this time, however, a court challenge to Bill 29 had been launched, and it continued to wind its way through the system until it reached the Supreme Court of Canada.  The Court’s 2007 decision is known as Health Services and Support - Facilities Susbsector Bargaining Assn. v. British Columbia.

To summarize, the Supreme Court overturned 20 years of its own jurisprudence, and for the first time in Canadian history created constitutional protection for the process of collective bargaining.  It then applied its newly-minted principles to Bill 29 and decided that the legislation was in part unconstitutional and several of its provisions should be struck down.  It then suspended its order for a year to give government an opportunity to address the repercussions of its decision.

The foundation for the successful union argument was section 2(d) of the Charter of Rights and Freedoms, which says that everyone has the fundamental “freedom of association.”

The basic framework for the interpretation of section 2(d) in the context of labour law had been established by the Supreme Court of Canada in a series of decisions over 20 years.  Several attempts had been made to try to “read” protection for collective bargaining into section 2(d) and in each case the Supreme Court rejected the argument.

It is not the practice of Canadian governments to introduce legislation which is known to be unconstitutional.  And it gives no secret away to suggest that, whatever the labour relations politics of Bill 29, there could be no question at the time of its introduction that it was constitutionally sound.  Twenty years of Supreme Court of Canada decisions made that clear.

But in the Health Services case the Supreme Court of Canada turned the constitution on its head.  It violated a basic principle of the rule of law, namely that the law must be predictable and certain.  

When the Court overturns itself - and in this case we are talking about three recent decisions almost directly on point, not a dusty shopworn precedent from half a century ago - it undermines everyone’s ability to plan their lives.  Why?  Because you don’t know what the rules are.

This was not a case where the rule in question was uncertain.  It was perfectly clear.  It’s just that the Court decided to change it.  Nor was it a case where there was an overwhelming public consensus that the previous twenty years of decisions were seriously out of line and a modest re-alignment was necessary to get the jurisprudence back on track.  No, the question whether section 2(d) of the Charter should be extended to protect collective bargaining was highly contentious and vigorously debated.

The Court’s decision required government to consult with affected unions before enacting legislation that might affect their collective bargaining rights.  As a principle of political practice, the idea that government should consult during the development of public policy is a good one.  But converting good political practice into binding constitutional law is something else altogether.

The government, as I have said, had already paid the political price for politically controversial legislation.  There was absolutely no need for the Court to punish government still further by inventing a new constitutional principle of labour law.

What’s worse, the reasoning supporting the Court’s decision is, to put it generously, vulnerable to criticism.  A subsequent decision (called Fraser), just 4 years later, contains one of the most trenchant criticisms ever written by a Supreme Court justice, albeit in a concurring minority decision.  I will discuss this judgement in a subsequent post.

For all its flaws, and for now, the Health Services case remains the law.  It was subsequently invoked and applied in a trial court decision that overturned two critically important (and also highly contested) pieces of education legislation from 2002, Bills 27 and 28.  The Health Services decision is the ghost that haunts government as it tries now to bring an end to the teachers’ contract dispute.  

It is the reason negotiations, and even the debate on Bill 22, have taken so long.  In the case of the current legislative debate, you could even argue that we are seeing a classic example of the law of unintended consequences: a court decision intended to change public sector labour law now lengthens legislative debate for several weeks, preventing the Legislature from doing any other business that might also be important to the public welfare.

There is no partisan pleasure here.  Whichever party is in power, Health Services governs public sector labour relations in BC (and the rest of Canada).  By introducing enforceable process rights into public sector wage negotiations, the Supreme Court has enormously strengthened the hand of public sector unions as they make demands upon a fiscally-constrained public purse.  This is because process necessarily creates expense, delay and uncertainty, all of which tend to pressure governments to settle at higher amounts than might otherwise be negotiated.  

But important as that is, there is something much more fundamentally worrisome about this decision, because it suggests that there really is no certainty in even the most deeply entrenched principles of our law.  And in the long run, that is far more troubling than the provisions of any single bill.  

If I were advising the BCTF on their strategy post-Bill 22, I might be saying, be careful what you wish for.  A court that can change its mind once can change its mind again.  Wouldn’t it be ironic if the case which undid the Health Services decision came as result of a court challenge to Bill 22?