President's View

The justice system may change, but must remain independent

Robert W. McDiarmidRobert W. McDiarmid, QC

To prepare for this, my last President’s View column, I looked back at the events of the past year.

Personally, the year was immensely rewarding. I was privileged to be your representative at many local, county, national and international events, and I came away with a strong sense of pride in our profession. Here in BC, lawyers are well aware of our responsibilities to ensure high standards of ethical practice, and the public is well served in this province.

The most important issues for BC lawyers in 2006, however, arose not in this province, but in Ottawa where the Minister of Justice, The Honourable Vic Toews, QC, is making changes to our criminal justice system and to the way in which judges are appointed. These are issues that should merit a lot of thought and discussion by lawyers, and indeed, by all citizens.

Early in the year, Minister Toews announced that Members of Parliament would have an opportunity to question the proposed new selection for the Supreme Court of Canada, Mr. Justice Marshall Rothstein. Shortly thereafter, new mandatory minimum sentences were proposed for a variety of offences, ostensibly to deter the commission of crime. Then, this Fall, the Justice Minister announced new initiatives to make it easier to arrest and convict drivers impaired by drugs.

These proposals were followed by unilateral changes to the committees that advise the Minister on federal judicial appointments. One of the proposed changes is to include representation from the law enforcement community on the various judicial advisory committees.

Taken individually, these proposals all have some points worthy of debate. Mr. Justice Rothstein showed the country that the then-existing appointment process worked well by displaying an intelligence and character that has been the hallmark of Supreme Court of Canada appointments for at least as long as the 30-plus years I have been practising. So on balance, I think the experience, with the safeguards put in place to avoid US-style partisan muckraking, worked well.

Conventional wisdom suggests that the two “anti-crime” proposals resonate with a public that is increasingly tired of petty property crimes, havoc caused by impaired drivers, harassment by street people and well-publicized incidents of violent crime. However, the debate of these problems and proposed solutions must acknowledge that crime appeared to have been declining before these initiatives were announced. More importantly, close analysis also shows that harsh punishment does not work as a deterrent. Our provincial Attorney General, The Honourable Wally Oppal, QC, knows this and has publicly pointed out the abject failure of such measures to act as deterrents.

And is driving while impaired by drugs really a huge problem? Certainly, impairment by alcohol is, but I do not recall hearing of a fatal accident where impairment by drugs was felt to be a cause. So why put in place Criminal Code sanctions that require the imposition of highly intrusive procedures that, at first blush, appear to be contrary to the Charter?

The most recent initiative is the idea of increasing the number of people on the judicial advisory committees in order to include a law enforcement representative. The committees now have seven members. Three are appointed by the Justice Minister and one each by the judiciary, the Law Society, the Canadian Bar Association and the provincial Attorney General. The addition of a law enforcement representative will make eight.

This new change prompted an unprecedented comment by Chief Justice Beverley McLachlan, who decried both the lack of consultation as well as a threat to the independence of our courts. But perhaps Minister Toews has a point. Perhaps having a police presence will enhance, not diminish, judicial credibility, and thus judicial independence. Maybe a representative of the media could also be added, to enhance the perception of public input. However, traditionally none of the other seven appointees must come from a particular walk of life but each appointing body could recommend a candidate with a particular set of skills and experience at any time. One wonders, therefore, why the Justice Minister could not simply have named a police representative as one of the three Ministry appointees. And never mind the fact that the vast majority of criminal cases are heard by provincial courts.

So are all these issues connected? Many predict the likely outcome is that the government will see these popular anti-crime laws struck down as unconstitutional. Will the government use that as an excuse to act on so-called judicial activism by radically altering the way our judges are chosen, perhaps going to elections for trial level s. 96 judges, and US style confirmation hearings for appellate judges? Or are these legitimate and constitutionally sound measures to fight crime that will actually enhance the already good reputation of our courts?

One thing is for sure — our independent judiciary, backstopped by an independent legal profession, is a critical component of the makeup of this country. And the people who will keep it that way are the lawyers. It was thus when Shakespeare had Dick the Butcher suggest killing all the lawyers as Jack Cade’s first step in imposing a tyranny, and it remains so today.

Thank you for giving me the privilege of serving you this year. In return, please keep your collective guards up, so that we can continue to be leaders in serving the public interest in the administration of justice.