15 March 2012

Courts Issue Rare Statement on Judicial Independence

On 8 February 2012, the Premier announced a new review of the justice system in this province, describing the review as:
"...a reform initiative to address B.C.'s justice system and identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services."
The review is not setting sail rudderless; it is intended to address certain issues identified in a green paper (PDF) the government released the same day. This is how the executive summary of the green paper frames those issues:
"This Green Paper is intended to highlight several key issues within the justice system of British Columbia. These issues include the way independence is preserved, the way information and processes are managed, and the way change is implemented.

"While significant progress has been made within the justice system in recent years, problems of cost and delay are appearing to a degree which is increasingly unacceptable. Action is required due to the reliance of British Columbians, their families and our economy on a sound system of justice.

"While the system’s basics – its integrity, its personnel and its ability to innovate – remain strong, indicators of the system’s performance and current health give a mixed and confusing message, particularly in the area of criminal justice. 'Inputs' into the system such as the rate of crime and the number of new cases are down. But the length of time spent by people remanded in custody or on bail awaiting trial is increasing, as is the total number of people being managed by the Corrections system. Costs, too, are increasing in real terms.

"The system is complex and challenging to reform. While it is possible to point to areas where a discussion of reform is warranted, it is also true that there are significant issues of culture and tradition within the system that may impede real understanding and change. Standing above this is the issue of independence of decision-making within the system. It is vital for our democracy that the exercise of judgment in criminal and civil cases – by police, by counsel, by judges and others in the system – be free of interference or influence. At the same time, the close linkage between the different parts of the justice system in managing case files, and our need to explain what is happening within the system, means we must administer the justice system as a system. In doing so, we must remain on strong constitutional grounds."
In reaction to the green paper, which included statements to the effect that judicial independence "should not be used as a shield against scrutiny on issues related to public administration," the courts of British Columbia issued a rare joint statement (PDF):
"We always welcome the opportunity to engage in dialogue with Government and other justice system participants on the issues and challenges facing the justice system. A fully functioning justice system is an essential element of a free and democratic society governed by the rule of law. Any suggestions for improvements to that system merit serious consideration.

"Such a review, however, must recognize that the various participants in the justice system operate within a constitutional framework. That framework places certain responsibilities on the participants and is founded on an independent judiciary. Any recommendations for reform must respect the constitutional framework in which we operate."
Today, the courts followed with a lengthier statement (PDF) explaining the basic apparatus and functioning of the Canadian legal system and the critical importance of judicial independence in elegant but accessible language. The joint statement clearly is intended to address the review and some of the government's messaging about the review (for example, "It has been suggested that judges may use independence as a 'shield' against scrutiny. This is a mistaken view."), but stands on its own as a compelling explanation of the need for an independent judiciary:
"There is a critical distinction between the police and Crown prosecutors on the one hand, and the judiciary on the other. The police and prosecutors are in the employ and within the authority of the executive branch of government. Although required to exercise their duties impartially and independently, at the end of the day they are agents of the Crown.

"Judges by contrast are not subject to the direction or control of the executive branch of government.

"There are sound reasons for this. Government, in its many manifestations, is frequently a party to court proceedings in an adversarial role. For example, the state is behind every criminal prosecution. Government agencies are frequently either parties to court proceedings, or are subject to having their decisions reviewed in the courts. Courts are called upon to decide disputes between our Aboriginal peoples, and various levels of government, or government agencies. Courts also have to rule on the validity of legislation, as to whether it is within the powers given to the Legislature or Parliament by the Constitution, and whether it conforms to the requirements of the Charter of Rights and Freedoms."
The court's unusual public comment on the review was not intended to signal a fundamental hostility to the idea of the enquiry and exploration, merely to remind everyone, and government, about the essential structure of the Canadian legal system and the importance of maintaining the independence of the judiciary from the executive branch of government. The statement concludes thusly: 
"The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality."
Read the Globe & Mail article on today's statement.