In an unprecedented speech to the Canadian Bar Association last week, Mr. Justice Robert Bauman, Chief Justice of the British Columbia Supreme Court, sounded the alarm on the declining state of our judicial system. He said: “It is threatened, if not in peril.”
“In nature, the process of erosion takes time- sometimes its pace and impacts are barely perceptible. Then comes a tipping point when that gradual, insidious process of incremental damage yields its dramatic finish -- the structure is diminished and collapses. The stability and integrity of our courts and judicial system are being slowly eroded by a lack of funding.”
Our courts and timely due process and the enforcement of the rule of law are foundational pillars of the smooth functioning of our democratic society. As such, it is in the public interest to defend and protect the integrity of the judicial system.
As Justice Bauman reminded his colleagues, the judiciary is one of the three branches of government in Canada, together with the legislative and the executive, and in theory the three branches of government are equal. “But in practice, the judiciary is the weakest branch because it depends entirely on the other two branches of government to pay the salaries of judges and to provide the critical infrastructure needed for an effective Superior Court system. If the executive and the legislative branches do not provide adequate funding to the courts, our whole system of justice is compromised”, he said. “The court must give effect to the rule of law.”
That means that Ottawa and Victoria must ensure that the court has the resources to do so. They have failed miserably.
The Chief Justice’s S.O.S. comes at a time when the massive crime legislation working its way through parliament will add enormous new pressures on a court system that is already stressed to the max.
Between 2008 and fiscal 2012/2013, the Court Services’ budget will be reduced by over 10%. The cuts to the Court Services’ budget for the Supreme Court that are in the offing are cuts to the bone. There is no fat left in court infrastructure. Bauman said that the Provincial Court finds itself in even more dire straits than does the Supreme Court. Appointments to the Provincial Court have not kept pace with retirements and departures from the bench. The result has been a growing and increasingly untenable backlog of cases. There are fewer judges to deal with an increasing workload. The criminal backlog in Surrey, for example, is so large that it would require three Provincial Court judges sitting criminal law, full-time, two years to restore wait times to appropriate levels.
In one case, Associate Chief Judge Brecknell granted a stay of proceedings to a defendant found guilty of possession of cocaine for the purpose of trafficking where there was a 42 month delay, 21.5 months of which was attributed to limitations in institutional resources. Judge Brecknell cited the shortages to the judicial complement and observed that as at March 31, 2011, 59% of the adult criminal cases pending in the court were over the 180 day completion guideline the Court has mandated for itself based on the case law of the Supreme Court of Canada. Of that 59%, 15% of the adult criminal cases pending have been pending for more than 18 months or 540 days. In granting the judicial stay of proceedings, Associate Chief Judge Brecknell said this:
The fact that an unrepentant drug dealer who has been convicted of possession of cocaine for the purpose of trafficking; and while involved in the trial of this matter has been charged with further like offences; should now be able to be free of the consequences of this very serious offence because the judicial system could not accommodate his trial, within a reasonable time should alarm and concern the community. However, all citizens, even drug dealers, are entitled to the full protection of their rights under the Charter.
“A judicial stay of proceedings in a criminal matter is the most obvious example of the system unacceptably breaking down. But I suggest the other more benign symptoms of the breakdown - delays in processing of documents/effects on scheduling flexibility for example, are just as serious and should be regarded with the same critical eye”, said Justice Bauman.
Some people accused of crimes go free without trial because the process has taken too long. In other cases, the court cannot function because there is no clerk or no sheriff.
Justice Bauman’s illustration of the seriousness of the problem goes deeper. “Another impact of inadequate resourcing of the courts is taking place, insidiously and in slow motion. Without adequate resourcing, the court’s traditional and essential role in maintaining societal order is being eroded and degraded.”
Being “tough on crime” is something that all citizens want and expect. Yet while politicians parade this bumper-sticker as an example of their toughness, they ignore and neglect properly resourcing the system that is on the verge of breakdown.
The integrity of the legal system is what breaths life into our democratic institutions. The Prime Minister and the Premier cannot be allowed to compromise it. The stakes are simply too great for us to ignore.