Submission to the Justice Reform Committee
Presented by BCCLA Directors John Lenaghan and Michael Welsh
Other contributors:
BCCLA Executive Director John Russell ("Other issues")
UBC Law Professor Robin Elliot ("Judicial appointments")
May 1988
Mr. Chairman, on behalf of the B.C. Civil Liberties Association I wish to thank you and the members of your committee for this opportunity to address you. Perhaps at the outset I should mention that I am a member of the Law Society of British Columbia and until recently was a partner in a suburban law firm composed of seven lawyers. I have practised law for about nine years as a barrister and although over the years I have practised in the criminal and family law fields for the past three or four years my practice has been almost exclusively in the field of civil litigation with about fifty percent of my practice being personal injury work on behalf of the plaintiff. And it is the area of civil litigation that I would like to address today. My colleague Michael Welsh will address his remarks to the areas of criminal and family law.
Mr. Chairman, I cannot pretend that I have followed these proceedings religiously and have studied every brief presented to you, but I have gained certain impressions as to the nature of the concerns expressed.
It seems to me that much comment has been made and attention directed, both before this committee and in the media, to the perceived problems of delay, expense and complexity of the legal system and rightly so, since none of our social institutions can operate in a fiscal vacuum untouched by the economic realities of the day. However, I point out to the committee that these concerns form only one part of your terms of reference and must be balanced against the other, and I would submit more important terms of reference. And that is what I would first of all like to do today.
I think it is worthwhile stating the terms of reference at the outset. They are to make the existing legal system more accessible, relevant and efficient to those it seeks to serve. These are worthy goals but are they necessarily coherent or compatible goals? I think, with respect, that too little attention has been directed to this question for the simple reason that many unspoken assumptions have underlay the submissions you have received. It has been wide assumed I would suggest that there is agreement on the terms themselves—that everyone knows that making the courts more efficient means—that is, to get a bigger legal bang for the buck. That making the court more relevant means to eliminate the grievances and frustrations expressed by some, perhaps many, members of the general public.
But are these the only rational or acceptable interpretations? And even if they are, are they compatible with the goal of making the courts more accessible? Doesn’t making the courts more accessible necessarily assume more, not less, judges, courts and court staff? And if this is so, then isn’t it reasonable to assume that there will be longer, not shorter, waiting periods for cases to come to court? These, I would submit, are fundamental questions which must first of all be recognized as such, and then must answered as well as possible, bearing in mind that no one term of reference can be allowed to dominate to the exclusion of the others, but, rather, that there must be compromise. It would be all too easy to focus only on making the legal system more efficient in the sense of that word mentioned previously, to implement what might be called the Mussolini Principle in an effort to make the judicial trains run on time. But is an efficient bureaucratic system necessarily efficient justice? I think not. We in British Columbia live in a very complex society, and in an even more complicated world, both of which are likely are likely to become more complex as we approach the 21st century. If we truly want to make the courts more accessible to our citizens, then we had better be prepared for more expense and probably more frustration on the part of the public at lure, unless we undertake an immediate and far-ranging program to explain to our citizens what values we are seeking to promote and preserve. If we truly believe that citizens should not be denied their day in court, either because of a lack of facilities or because of the expense involved, then we must be prepared to shoulder the inevitable financial burden. While rights cannot always come before financial considerations, they ought to come before thrift. I assume that it is common ground between us that it is not desirable to make our legal system open and accessible only for the affluent or corporations, and close and bureaucratic for the rest of us. I assume that it is the goal of the Justice Reform Committee to provide our citizens with a legal system which they can comprehend philosophically and practically and which they can participate in as economically as possible given our complex society. This I would submit is the proper way in which to make the legal system more relevant to our citizens. I would submit therefore that the fundamental questions to be answered by you involve not goals, but the means that will achieve commonly accepted goals. I would now like to turn to a discussion of the ways in which I think the present system can be altered so as to approach those goals more closely.
I should state at the outset that I am not one who thinks that the present system is in crisis or that it is unresponsive to the needs of litigants. On the contrary, I think it is remarkable how much, not how little, we are able to achieve through the legal system, given its limited resources. I think we can rightly be proud of our legal institutions. That is not to say that we can be content or complacent but it does mean that we should beware of radical solutions that sound good because they are stated just fast enough to allow us to hear the music but not the words. For example, it is clearly very appealing to many people to suggest that all personal injury claims be taken out of the courts and re-established in some system similar to the Workers Compensation Board. Visions of saved dollars dance before the eyes of taxpayers who everywhere and always feel overburdened. For others, not doubt the vision is of financially chastened lawyers who can no longer exploit the system but would it serve the cause of justice for the average citizens? I do not think so. If, as most surveys show, personal injury claims represent a clear majority of court cases how are we making the courts more accessible to our citizens by banning such cases from the courts? Shouldn’t they instead by given preference since the obviously involve the rights and interests of the majority of our citizens who find it necessary to seek justice in the civil courts of this province? Moreover, we are repeatedly told, and I think the experience of most barristers bears it out, that approximately ninety percent of all personal injury cases set for trial are settled without a trial taking place. Why then, for a mere ten percent of these cases, should the present system of trial before judge or jury be scrapped, and along with it centuries of tradition based upon the accumulated wisdom of our society? The cure would most certainly be lethal to the patient! This is not to say that the present system is above criticism since it clearly stands in need of improvement, but it is to say beware of doomsayers who would improve the system by eliminating it. With that caveat, I would now like to make some suggestions that I think could help to alleviate some of the problems of delay within our present system.
It is difficult to say what is an unacceptable delay in the judicial process. While the litigants themselves may feel that the process is cumbersome and slow, I would opine that generally, bearing in mind the volume of work that the system has to deal with, civil litigation in this province is not the problem it is often perceived to be or is represented to be by observers or and participants in the system. On the whole, most trials, if counsel are assiduous, take place within two years of the plaintiff consulting the lawyer, and, particularly in the area of personal injury litigation, excessive delay is due to both the nature of the legislated insurance scheme in the province, and the fact that quite often injured persons do not consult counsel early in the process, but only after months of unsuccessful negotiation with the insurance adjusters. Moreover, in the case of seriously injured persons, it often takes many years before they have recovered from their injuries and are in a position to settle their claims or to proceed to trial.
I made reference above the insurance scheme we have in B.C., and I would like to take a few moments to make some further comments. Unlike many other jurisdictions, here in B.C. we have a legislated monopoly in the field of automobile insurance and this has, in my respectful opinion, certain adverse effects on the legal system. From the moment that accidents are reported to ICBC the adjuster finds him or herself in a conflict of interest since on the one hand, presumably an adjuster owes certain duties to the injured persons (especially where that person has entered into a contract with the Insurance Corporation). On the other hand, in the monopolistic system we have in B.C., the adjuster has a clear and often paramount interest in settling any claim as cheaply as possible since, obviously, that is the function of an adjuster. A consequence of this conflict of interest is that there is an all too seldom resisted temptation to discourage a claimant from seeking outside assistance from lawyers. Over the years that I have practised in the field of personal injury litigation, an absolutely overwhelming majority of my clients have told me that this exactly the advice they have received from the adjuster whom they believed to be representing their interests, but who was in reality, of course, representing the interests of the person who injured them.
There is a second consequence that flows from the existence of our monopolized system, one that is very damaging to the manner in which personal injury litigation is conducted in B.C. The Insurance (Motor Vehicle) Act and the Regulations passed pursuant to it stipulate anyone making a claim involving injury must provide, inter alia, a statement to ICBC setting out the circumstances surrounding the accident. These statements, unless the injured person ahs consulted a lawyer, are made without any appreciation of their possible significance in the litigation process so that quite often claimants make statements that can come back to haunt them, often unfairly. Moreover, these statements are, almost without exception, written out by the adjuster as the result of questioning by the adjuster who, as I say, is really adverse in interest to the claimant. The claimant is then asked to read and sign the statement. In many cases, in my experience, the claimant if he or she reads the statement at all, des so in a cursory manner and signs without any reflection or appreciation that that statement may be presented to them on an examination for discovery by counsel for the defendant at which time words and phrases the claimant took no notice of at the time the statement was made, take on an altogether greater and probably more sinister significance.
This is all bad enough, but the worst consequence of the obligation to make statements to ICBC is that that obligation represents a fundamental inequity since the moment the statement is made I forms part of ICBC’s file and is available to defence counsel, whereas statements made by the defendant under similar legislative compulsion may never become available to counsel for the claimant on the ground that the statement is privileged since it was made in contemplation of litigation. That this is unfair is manifestly obvious, but the effects on the legal system are less so thought they are, in my opinion, just as serious. If plaintiff’s counsel could, as of right and because the plaintiff has had to provide his or her statement to the defence (directly or indirectly depending on one’s attitude towards the legal fiction that the defendant is a different legal entity from the Insurance Corporation), then I believe that many cases would not be litigated at all, or would be settled much more quickly. I would therefore ask the Committee to recommend that the Insurance (Motor Vehicle) Act be amended so that all statements, whether from witnesses or parties, made to ICBC in connection with a claim or action be available to counsel for either side upon written request. If this is done, then I believe there will be a dramatic increase in settlement of personal injury claims, or at least a very significant shortening of trials. Over the years I have had many cases in which the Insurance Corporation has advised my clients that fault for the accident lies wholly with the defendant only to find, when an action is commenced, that ICBC refuses to admit liability and, of course, refuses to provide a copy of the statements in their possession upon which, presumable, their evaluation of fault was based, to me on behalf of my client. And that services only to prolong the legal process since settlement is much more difficult when liability is in issue. And given that personal injury claims represent a very high percentage of trials in this province this one simple legislative amendment would have a dramatic effect on the problems that have been discussed over the months before this committee. And it would ensure that these claims, which necessarily in a modern society involve over the years many of our citizens, remain part of our open legal system and not part of a closed bureaucratic system susceptible to the political preferences of the government of the day, or the prevailing political climate, and therefore capable of being manipulated by politicians with an eye to re-election.
There are other changes, however, that I think would make the present system more manageable and less frustrating to the public and lawyers, and in some cases, to judges.
One of the most frustrating experiences awaiting counsel in the Lower Mainland is to spend all day in Supreme Court Chambers in Vancouver and to not get a hearing. This happens with depressing frequency, and for those of us who practice outside of Vancouver is particularly maddening since we cannot go back to the office to work on other matters. Now it is obvious that part of the problem stems from the number of applications on any given day, but I believe that an equal cause (and I say this with some trepidation) is the unreasonably short hours that Chambers’ judges sit, namely from 10 a.m. (for those judges who arrive on time) until 12:30 p.m. and then from 2 p.m. to 4 p.m.—a total of four and a half hours). And since it is not uncommon to see judges spend a considerable amount of time simply organizing the schedule of applications for that day, in fact less than four and a half hours is available for those applications. I believe that much time and expense could be saved if three fairly simple changes were instituted (however they might be to the bench). First, I recommend that the hours for the existing Supreme Court Chambers be extended and that the hours be from 9 a.m. until 5 p.m. daily, with the customary break for lunch. Second, I recommend that an evening Chambers be established to run from 6 p.m. until 9 p.m. And third, I recommend that Saturday become a regular Chambers day with, perhaps, special hours. Most law firms nowadays appear to regard Saturday as a regular working day (certainly the firms are not abandoned on the weekend), and I do not think therefore that this is as radical a proposal as it might appear to be at first blush, as far as counsel is concerned. Where it might cause concern, if not consternation, is amongst judges, but with appropriate scheduling I do not see why this should necessarily result in an unacceptable burden. Moreover, if use were made of retired lawyers and judges (or academics) to sit as super-numary judges, the judicial burden would in all probability be lightened not increased.
Another way in which the Chambers problem might be alleviated (solved is impossible), is by the establishment of specialized Chambers where only one kind of case is heard. For example, one of the most useful innovations in recent years and one which has received the whole-hearted support of the profession and the bench is Summary Trial procedure, especially Rule 18A applications. Unfortunately, at the present time these applications clog the Chambers list since they are usually the applications that are set for the longest time. They are also, I would submit, the most economical way to resolve legal disputes which otherwise would wend their way through the legal system to judgment after full trial. I would like to see these applications assigned to a special Chambers established exclusively for them. If this were done, I see no reason why the Registrar could not be given the power to assign specific times for hearing of these applications so as to avoid the need for counsel to be present in Chambers throughout the day until their case is heard. This might necessitate sanctions being imposed on parties (read: lawyers) who exceed their estimated time of hearing, or even ending the applications at the expiry of the time estimated, whether or not argument is concluded. Either sanction should assist counsel to make not only a realistic estimate of time, but also economical use of that time.
Finally, I would like to address the issue of alternate dispute resolution. I have endeavoured throughout this paper to emphasize the importance the members of the BCCLA attach to maintaining an open legal system where disputes are resolved by politically disinterested judges rather than by boards established by government and staffed by persons chosen, at least in some cases, on the basis of their philosophical affinity with that government. Alternate dispute resolution appears to be this year’s favourite solution to the perceived problems of our legal system. I would ask that if alternate dispute resolution systems are going to be legislated, this committee recommend to government that corporate claims, and not those of individuals, be assigned to them. I would add a further provision that if corporations, which more often than not can afford the cost of litigation more easily than individuals, wish to have their cases heard in the court system, then they have to pay for the real cost of that court and all attendant facilities.
Submission to the Justice Reform Committee
The fundamental terms of reference of this committee, when applied in the sphere of criminal law, should make us very wary of instituting wholesale change. The substantive and procedural aspects of criminal law have been built over the years to both ensure protection of society and the protection of the rights of an individual charged with an offence, for surely there is no time when the citizen’s right’s are more at stake. While our system may be expensive, that cannot be a major criterion for assessing its worth when so much else is at stake.
It is our submission that the present criminal justice system in British Columbia really works rather well. As this committee knows, the vast majority of cases are dealt with in the Provincial Court system. It is very seldom that trials in the Provincial Court bog down or turn into the extended or protracted proceedings that garner headlines regarding the slowness with which the system works.
Even in those odd cases, particularly in the Supreme and County courts, where trials become protracted, we must be careful in concluding that this is somehow wrong or wasteful. Justice cannot be done on an assembly line. When dealing with issues such as accessibility, relevance and efficiency, or the ability of citizens to understand our criminal system, we must look carefully at what those terms really mean in such a context. It is our submission that they really mean that if the charges brought against an accused are appropriate on the facts, that a fair and sufficient hearing is held of the charges and of the circumstances appropriate to any sentencing.
With this preamble, we do agree that certain changes may well be appropriate, although we reiterate that in our submission, this committee should approach all changes with a "minimalist mindset" as such is the most preservative of the accused. We now turn to the four specific areas in the criminal law sphere that have been particularized for this committee.
- Fostering the use of early and improved pre-trial disclosure procedures
In most cases, pre-trial disclosure is not a problem. Our experience, both in urban centres and in smaller centres, the practice is now to provide photocopies of tear-off sheets of the police report to crown counsel. It would be helpful for defence counsel to also be provided with written crown witness statements in addition to those made by the actual accused, and this surely is of no prejudice to the crown. There are often significant differences between the summary and the police reports and in the statements of witnesses. Knowing what the witnesses have actually said will surely be of benefit to both crown and defense in determining whether to enter a guilty plea or set a matter for trial, and how to conduct that trial.
In lengthier or more complex cases, some sort of pre-trial conference may well be appropriate. Under section 553.1 of the Criminal Code, which we understand will soon be proclaimed, such a procedure is contemplated in jury trials, and in any trials before a judge alone, with consent of the crown and accused. There may well be a valid role for such a pre-trial conference both in mere mechanical details, such as the actual length a trial may take when all parties have turned their minds to the issues, that the sharpening of the actual issues and perhaps, in some cases, a review by the crown counsel or defense counsel, of their respective cases with consequent decisions as to whether charges should in fact be dropped on the part of the crown, or whether the defense should be in fact looking for an alternative resolution and through trial the presiding judge might well be able to express a view of the situation which would assist, as well as perhaps expressing a view of an appropriate disposition should a guilty plea be entered. We would emphasize, however, in such a case that the same judge should not preside at any trial or sentencing hearing. We would also emphasize that caution should again be a byword so that there is no prejudice to the case for the crown or the defense.
One further comment which we might make is that it would surely be of assistance to both crown and defense if crown counsel were often not so inundated by their case loads that they could review a case at an earlier date and so be knowledgeable to discuss it with defense counsel prior to the eve of any hearing, it may well be that we are pinching pennies in these cases by not providing sufficient funding to hire an adequate number of crown counsel.
We also reiterate comments that have been (or likely will be) made by others that some of the lengthy and high profile trials that seem to occupy much of the court’s time are the conspiracy trials. By their nature, they are lengthy in proof. Often, the key players could also be convicted of the substantive offences involved, and those who could not be so convicted are usually minor characters on the periphery.
In attacking the real problem (which is often deportation and distribution of drugs) in these cases, it is really the major players who are important in any event if we are to clean up the problems our society faces in these areas. - Reforming the rules of evidence to allow simplified methods of proof of facts not in issue, tendering of exhibits, making of admissions and the expanded use of certificate evidence and of pre-trial procedures
It is our submission that this committee should be very careful in considering any changes in this area. The danger we perceive is that, in the process of simplifying the notices that the crown must currently provide (with which we take no particular exception) further intrusions may be made into the area of presumptions in favour of the accused or the crown. In many cases, the notices and certificates currently in use raise certain presumptions in favour of the crown. As the basic tenant of criminal law is the innocence of the accused until proven guilty, we would be very worried about increased uses of such certificates.
With respect to matters such as proof of facts not in issue, the present system of having crown and defense admit facts is surely one that can be used more often and which preserves the rights of the accused, as his or her counsel has the ability to decide what is and is not a real issue in the case. With respect to tendering of exhibits, we can suggest only that the real problem is proliferating a record with exhibits which are not really necessary in a case and that the court and counsel already have the ability to control this if their minds are directed to it. - Assessing the role of the preliminary hearing and ensuring that those features that cause it to be prolonged and costly are eliminated
The preliminary hearing is a major, and in our submission, important part of the criminal law process and should not be abolished. Its role is two-fold, both weeding out (those cases which should not proceed to trial) although we grant that the vast majority of cases continue through the preliminary hearing stage and providing the defense counsel with a real discovery of the case for the crown in serious offences.
Both these functions of the preliminary hearing are ones where they are retention. While most cases do pass through the tests provided for continuation to trial, it is certainly not unusual for a case to either be dismissed at the preliminary hearing stage, or for charges to be reduced at that stage for trial.
With respect to the "discovery" defense counsel usually has little in the way of resources beyond his or her own ability to acquire information through questioning of the new witnesses provided by the crown at the preliminary hearing, and by interviewing defense witnesses. There are not the financial resources available in most instances to defense counsel to do a major witness investigation outside of court. The preliminary hearing provides defense counsel with a real view of the case for the crown, and also provides crown counsel with a good view of his or her case from the mouths of the witnesses. The examination for discovery process is one that is entrenched both civilly and criminally in our province. There would certainly be a major uprising in the civil sphere if examinations for discovery were abolished or greatly curtailed. An accused in a criminal trial should surely also have the same rights of discovery.
We do see some areas in which the preliminary hearing process might be shortened. By disclosure of written witness statements by the crown, prior to the preliminary hearing, defense counsel would be able to obtain a better idea of what those witnesses will say. While we oppose substitution of such written statements for the preliminary hearing, we do suggest that perhaps it should be mandatory on crown counsel to provide all witness statements, and for defense counsel to inform the crown of those witnesses which he or she wishes to cross-examine. Thus, witnesses who are perhaps unnecessary for examination by either crown or defense, at that stage, can be eliminated from the preliminary hearing. - Simplifying the classification of offences, procedures, and levels of criminal courts now found in the Criminal Code of Canada
Much of the material under this subject heading perhaps falls outside the jurisdiction of the provincial government for any change. Moreover, some of the items under this heading may well be duplicated in the considerations of this committee on the jurisdiction and structure of the courts generally.
We do endorse, in the larger population centres, the current division of the provincial court system into a criminal division and a separate family and small claims division. In small centres, of course, this is not practical. In the superior courts, and in the Court of Appeal, a division into courts of criminal jurisdiction and appeal is perhaps something that could be considered.
With respect to classification of offences and procedures, we can say little other than to reiterate that, in our opinion, the present system works fairly well. Perceived problems, such as inconsistencies in sentencing or highly technical charges, are often more perceived than real. Much effort is now under foot to obtain uniformity in these areas and we do not see the need for wholesale change.
Finally, we note with respect to those aspects of your terms of reference which deal with "streamlining" criminal trials and the elimination of "unnecessary delays and undue technical arguments" that again it is our submission that these problems are more perceived than real. The "undue technical arguments" often relate to defences raised under the Charter of Rights And Freedoms. While to the man in the street this may seem a technical rather than a real defence, it is our submission that that man (or woman) once charged, soon begins to see the real value and importance that those arguments have. With respect to delays, we are not aware of any substantial delays currently with respect to the setting of criminal trials or sentencing hearings. If such delays do become apparent, we would certainly endorse the expansion of hours that the courts are open, to perhaps include evening or weekend sittings. The facilities are there and should certainly be used to their fullest potential.
- Legal aid
We offer here some impressions on the availability and quality of legal aid based on the approximately 100 referrals we make each year and on our experience with the clients we assist who often require legal aid in addition to our services.
We are concerned primarily that the tariff paid to lawyers for legal aid is substantially below what an average lawyer would expect to be paid privately in a similar criminal or civil matter. As a result, it is difficult for lawyers taking legal aid cases to cover overhead costs and obtain anything close to a reasonable fee for their services. Not surprisingly, in these circumstances legal aid work is viewed by many counsel as, essentially, charity work or as a public service to be done as part of one’s professional duty. It should be remembered that it was in response to the deficiencies of charity-based legal aid that the present system was created. The present system is returning perilously close in practice to that old model. With fewer end fewer counsel (often only junior counsel) willing to do legal aid work, access to justice for many disadvantaged persons has almost certainly been impaired, especially in complicated cases that require much effort or experience on the part of counsel to be properly conducted. And the situation is made verse because the financial eligibility requirements for legal aid are so unrealistic that very many persons who have absolutely no financial means to acquire the services of a lawyer are ruled ineligible for legal aid.
Although this committee has been asked to consider ways of streamlining the justice system and reducing the costs of using it, it must be recognized that, as a practical fact of life, in our type of society justice simply cannot be purchased cheaply. If this committee is serious about addressing problems of access, effectiveness, and relevance in the justice system it must address the problems facing our legal aid system. Unfortunately, we cannot avoid the fact that this will cost money.
On a related matter, we expect that you will have received many submissions suggesting ways in which legal aid coverage should be extended to new categories. We believe one case in particular deserves special attention—that of mental patients who apply for review of involuntary detention under the Mental Health Act. Since criminal legal aid is justified on the basis that a person’s liberty is at stake, the same reasoning applies to the case of involuntarily committed mental patients and would, therefore, seem to demand that legal aid coverage be made available for them too. We note also that the Legal Services Society Act almost certainly requires that legal aid be provided in these cases (see section 3). Moreover, in purely practical terms, the tangle of evidence that is usually involved in these cases calls for the services of counsel in order to ensure a fair hearing.
Finally, we urge the committee to look carefully at the recent provincial task force report on public legal services in B.C. (1984), which we believe includes, for the most part, an excellent set of recommendations for building towards a fair and effective legal aid system in this province. - Extension of Ombudsman’s mandate
Part of this committee’s terms of reference requires it to look at access to justice and alternative dispute resolution. The Office of the Ombudsman has, in our view, one of the best records in this province in terms of resolving disputes, and has brought a measure of justice and fairness to citizens in their dealings with government that was not available previously. Extending the authority of the Ombudsman to some of the un-proclaimed areas of his mandate, and giving him the resources to meet these new responsibilities, would provide greater access to justice for all British Columbians, and would do so at very little extra cost. Moreover, to the extent that the Ombudsman is effective in resolving disputes in these new areas, we expect that court actions will be avoided and the burden on the justice system will be lessened.
The un-proclaimed area of the Ombudsman’s jurisdiction that we believe would be most usefully promulgated now concerns the activities of professional societies. The BCCLA receives 12 or more cases each year from citizens who are dissatisfied with the handling of complaints about the conduct of professionals by their governing societies. In our experience, complaints about professional conduct are often investigated in a haphazard manner by the governing society, and because they are often conducted in secret by the colleagues of an accused professional there is little guarantee that the matter has been dealt with fairly, and justice is rarely seen to be done. Extending the mandate of the Ombudsman’s Office here will provide a measure of independent oversight in these affairs that should help to maintain public confidence in professional societies and insure that internal disciplinary investigations are carried out with proper regard to the public interest. - Access to information
The BCCLA has long urged the province to enact access to information legislation. Government plays an increasingly large role in our lives and it is often the case that government information may be useful in determining a course of action that may be taken before the courts. We don’t know how frequently refusals of access requests have caused delays or problems for litigants, but we suspect that it happens frequently, judging from our experience with clients and contacts with other organizations such as the West Coast Environmental Law Association and the Public Interest Advocacy Centre. There are, of course, other compelling and perhaps more commonly offered reasons for having access legislation, based on our society’s commitment to self-government. The justice system, however, also has an interest in seeing that litigants get speedy access to materials that are relevant to the preparation of a case, and it is for all these reasons that the committee should see its way clear to recommending enactment of provincial access to information legislation. - Judicial appointments
The terms of reference of this Committee do not appear to include examination of the process by which the judges who serve in this province are appointed, end were it not for the fact that this matter was addressed in one, and possibly more, of the other submissions you have heard, we would not have bothered to address it. The submission in which we know this matter was dealt with was that prepared by Mr. Bryan Williams, Q.C., both on his own behalf and on behalf of the Canadian Bar Association.
The thrust of Hr. Williams’ recommendation on the issue of judicial appointments was that the provincial advisory committee system proposed in the McKelvey Report of the Canadian Bar Association be adopted both for the purposes of appointments to the Supreme Court of Canada and for the purposes of appointments to the provincial County Court, Supreme Court and Court of Appeal. There is no need here to delve into the details of this system; those can be found in the McKelvey Report. What is of concern to us here is Mr. Williams’ suggestion that, in addition to being far superior to the present system for appointing such judges, the provincial advisory committee system he recommends is preferable as well to the American congressional hearing system.
It is the position of the British Columbia Civil Liberties Association that, particularly in light of the important and extensive new powers given to the Canadian judiciary by the Charter, the process by which federally appointed judges are selected must allow for some form of meaningful public input. Canadians should be given an opportunity to know and, through their representatives if not on their own, scrutinize the qualifications of those to whom the government wishes to grant these powers. It is not our purpose here to describe the mechanism by which this would be done. One possibility would be to adapt as best one can the American congressional hearing approach to our parliamentary system. Another would be to extend to judicial appointments the form of legislative committee review of Order-in Council appointments introduced by the federal government in October 1985 following the Report of the Special Committee on Reform of the House of Commons (the McGrath Committee). Whatever the precise form of the process, the opportunity for public scrutiny must be meaningful. Under the system now in operation, no opportunity for public scrutiny exists at all. Under the system proposed by Mr. Williams—a system which, we note, the Minister of Justice, Mr. Ray Hnatyshyn, has recently indicated he is going to put in place—there is some opportunity for public input, but on no account can that opportunity be said to be meaningful.
Mr. Williams may be right when he says that the provincial advisory system would be superior to the system now in operation; in our view, he is clearly wrong when he says that the provincial advisory system would be superior to the American congressional hearing system. Far from shoving us its "worst side" in recent months, as Mr. Williams suggests, that system has shown us the great benefit of a system in which judicial appointments come under real public scrutiny. The American people, speaking through their representatives in the Senate, were able to express their views on the kind of constitution they wished to have. It was, in the best possible sense of the term, an exercise in democratic self-government. It is precisely that kind of exercise in which Canadians should be entitled to engage when judicial appointments are made here.