Around 1996, I had lunch with a client who had moved to Vancouver from Hong Kong, but he still had a significant business presence in the soon-to-be-former British colony.
I asked him whether he was worried about Hong Kong being ruled by China instead of Britain.
His answer surprised me. He wasn’t as concerned about who had “political sovereignty” over Hong Kong as much as he was worried about a functioning judicial system, operated on the basis of the Rule of Law, which allowed litigants (in his case businesses like his) to obtain speedy justice in fair and unbiased courts. Its something I’ve written about before. But to my client, it was the lasting hallmark of British rule in Hong Kong.
At a conference of the B.C. branch of the Canadian Bar Association in Las Vegas in November, Chief Justice Robert Bauman of the Supreme Court of British Columbia gave a keynote address about a justice system “in peril.”
Reminding the audience that the Court Services budget had been reduced by 10 per cent over the past four years, he said: “Our judicial system is one of the best in the world. But it is threatened, if not in peril. … The stability and integrity of our courts and judicial system are being slowly eroded by a lack of funding.”
Dropping charges against an unrepentant drug dealer who had to wait 42 months for a trial – 21 months were attributable to “limitations in institutional resources” such as the availability of judges and registry staff – was one example of the damage being done to our court system by chronic underfunding. In short, the bad guys go free.
“The cuts to the Court Services budget for the Supreme Court that are in the offing are cuts to the bone,” the Chief Justice continued. “We have no fat left in our infrastructure. Cuts have meant clerks are unavailable for court functioning, fewer registry staff are available and sheriffs cannot maintain order or protect witnesses. We are not at the tipping point yet, but we are steadily edging toward it.”
You might not think underfunding the justice system matters much to the business community, but it does. Try getting a court date in B.C., to deal with a major piece of commercial litigation. Better yet, try getting to court quickly with a small-claims matter worth $25,000. My client could depend on the courts of Hong Kong to swiftly resolve his commercial disputes. But in British Columbia, in other Canadian provinces, and even in the United States, chronic underfunding of the justice system has made speedy justice for everyone more and more challenging.
Let me explain some of the problems.
First, the failure to appoint new judges in a timely manner because the replacement of retired judges is “not in the budget” means cases that should go to trial are delayed. They are delayed so long that “unrepentant drug dealers” get their charges dropped because an accused, by law, must be tried within a reasonable period of time. Although all of Canada was outraged last June to see hockey rioters pillage the downtown core of Vancouver, many of those “bad guys and girls” you saw on TV will get their charges dropped if there aren’t enough judges to try their cases in a reasonable period of time.
It’s been reported that at least 2,500 criminal charges – including attempted murder, drunk driving and drug trafficking – are in danger of being dropped due to unreasonable delays in the court system and “getting a judge.”
An overloaded court system that can’t deal with the drunk drivers, the drug traffickers and the other serious offenders in a timely manner can’t be expected to deal with the hockey rioters either, despite what politicians have said about swiftly bring them to justice.
And whether it is small claims, foreclosures by banks, shareholder-agreement disputes or breaches of contract, the justice system won’t be able to deal with these “commercial” law matters expeditiously if the system is clogged with non-commercial ones, such as criminal prosecutions. Yet the B.C. Criminal Justice branch, which is mandated with criminal prosecutions in the province, is required to reduce its budget by $6 million in 2012.
