Independence and the modern justice system – in step or at odds?
This article is based in part on the submission by the Law Society of British Columbia to Geoffrey Cowper, QC in development of his report: A Criminal Justice System for the 21st Century.
Concern about access to justice and affordable legal services has prompted much discussion about justice reform, not only in BC, but indeed across Canada and around the world.
In the UK, a criminal justice watchdog is to be appointed with the aim to help overhaul the justice system. This new criminal justice board will feature a senior judge and recommend reforms to improve accountability, make better use of technology and reduce unacceptable delays.
In Australia, the government is set to launch an inquiry into the impact that higher Federal Court fees have had on Australians’ access to justice over the past three years. And an Australian Supreme Court judge recently ordered the trial of an alleged serious criminal be delayed indefinitely until the cash-strapped Victoria Legal Aid can provide him with further legal assistance.
Here at home, over the last year we have seen the government Green Paper Modernizing British Columbia’s Justice System, Geoffrey Cowper, QC’s report A Criminal Justice System for the 21st Century, Parts one and two of the Ministry of Justice’s White Paper on Justice Reform, the passage of the Civil Resolution Tribunal Act and, this month, the third reading of the Justice Reform and Transparency Act, which provides for the establishment of the Justice and Public Safety Council to examine and suggest improvements to the functioning of the justice and public safety sector.
The Law Society is actively engaged in looking at ways in which access to legal services can be improved. Expanding the range of legal services that articled students and designated paralegals are permitted to provide under the supervision of a lawyer, looking at pro bono funding, and considering whether it is in the public interest that non-lawyer legal service providers be regulated are examples of the efforts underway at the Law Society.
But as all of the reports and publications over the last year acknowledge, reforming the justice system invariably raises the question of the independence, autonomy and control of the various bodies involved in the system.
The two faces of judicial independence
There are, of course, two aspects to judicial independence: adjudicative or individual independence and administrative or institutional independence.
Adjudicative or individual independence of the judiciary encompasses the security of tenure and the financial independence of judges. As the Chief Justices and Chief Judge stated in their letter on judicial independence, “It is easy to see how [these] are important to ensure judges are free from government or private pressures affecting their impartiality.”
Administrative or institutional independence was described in Valente v. The Queen,  2 SCR 673, as “control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.” As such, the institutional independence necessary to maintain a constitutionally sound separation between the judiciary and other branches of government includes:
1 . the assignment of judges to hear particular cases;
2. the scheduling of court sittings;
3. the control of court lists for cases to be heard;
4. the allocation of courtrooms; and
5. the direction of registry and court staff in carrying out these functions.
Administrative functions that do not directly and immediately affect the exercise of the judicial function fall outside the institutional independence of the courts and include the financial aspects of court administration and the personnel aspects of administration.
As a result, it is inevitable and necessary that the judicial and other branches of government must work together in carrying out judicial administration. As McLachlin J. (as she then was) noted in another decision, it is “impossible to conceive of a judiciary that is devoid of any relationship to the executive and legislative branches of government.”
Reconciling independence and accountability
In its submission to what was eventually published by Cowper under the title A Criminal Justice System for the 21st Century, the Law Society addressed the issue of individual and institutional independence in the face of change.
“It’s our opinion that independence cannot preclude discussing how organizations that are independent can improve performance and reduce any inefficiencies that may exist, or be perceived to exist, in their operations,” said Bruce LeRose, QC, former president of the Law Society, in the submission. “Stakeholders in the justice system must be prepared to recognize that the public expects some measure of accountability.”
The government’s Green Paper recognized this in suggesting that independence can stand in the way of the required environment of shared management information, diagnostic skills and capacity to implement reforms, and can therefore be an impediment to measuring and evaluating justice system performance in ways that meet the standards commonly applied to public institutions.
The Chief Justices and the Chief Judge also acknowledge that everyone recognizes there is a requirement for accountability for the allocation and disposition of the resources, human and otherwise, necessary to the proper functioning of the courts. As they stated in their letter, “There is bound to be continuing tension between the uncertain and varying demands for the resources, and the constraints on those who must budget for the supply of those resources.” However, accountability has to be constrained by what is permitted by the Constitution.
A number of ways to improve the justice system have been raised over the last few years. Proposals for case management, docketing, judicial specialization and monetary increases to small claim jurisdictions have all been discussed in the past. Some have been raised by the government, and some have been raised by the judiciary. Rather than the separate parts of the judicial system presenting, without consensus, proposed improvements and efficiencies, the Law Society favours an approach that would have all participants look seriously at their operations and together develop innovations designed to improve the efficiency of the system.
“Change needs to come from within and cannot be imposed from outside. However, it also must be recognized that a dialogue must take place in order to develop ways to improve the justice system to allow it to resolve disputes in a timely and affordable manner and thereby allow the public to retain confidence in the system,” explained LeRose. “If the public does not have confidence in the justice system and does not therefore feel it is relevant to them, the independence of all the stakeholders in the system is meaningless.”
Summarizes LeRose, “Striking the right balance cannot be done in a vacuum when there are many stakeholders involved in the system.”
The Law Society remains optimistic that the upcoming Justice Summit, in which the Law Society will be participating, and the programs and processes set out in the recently introduced Bill 15, the Justice Reform and Transparency Act, will facilitate greater dialogue and discussion about how to reconcile the necessary independence of the courts with the public accountability of the government.