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.
Second, the underfunding of legal aid for those with limited resources compounds the problems of delay. Leaving aside the moral and ethical issues of reducing or eliminating legal aid – and the corresponding savings such funding can make on the health and social services side of government spending – litigants without lawyers will inevitably represent themselves in court. Having little or no experience with the rules of civil procedure, evidence, contract law, criminal law or family law, they can (and do) stumble their way through the justice system and the courts, and more often than not they stumble poorly.
Judges often bend over backward to accommodate unrepresented parties who can't afford lawyers and can't get legal aid. This creates delays, bottlenecks and inefficiencies for everyone else. It delays trials that should go ahead including, no doubt, some of those 2,500 criminal prosecutions that are in danger of being dropped. And it delays the legal resolution of commercial matters in our courts.
Third, reducing or eliminating sheriffs or those charged with ensuring the safety of our courthouses will only result in judges cancelling hearings when they feel the safety of the court and those in it are in danger. And reducing budgets for court registry staff will compound delays in a system already plagued with them.
Think of the justice system like a bridge: if it's not maintained and upgraded, bits of it will collapse, making the structure unreliable. That's why money is needed to maintain the justice system, not only in B.C. but in other Canadian provinces as well.
But as former B.C. attorney general Geoff Plant has stated, throwing more money at a dysfunctional system only makes for a more expensive dysfunctional system. Perhaps recent media attention about the justice system "going over a cliff in slow motion" has had some effect.
On Feb. 7, the B.C. government announced nine new provincial court judges in an attempt to deal with the shortage of judges and the backlog of cases, but at least eight more judges are needed to return to 2005 levels. And on Feb. 8, the provincial government released a green paper entitled Modernizing BC's Justice System.
The B.C. government has instigated a review of the province's justice system, to be chaired by lawyer Geoff Cowper, who formerly ran B.C.'s Legal Services Society and who should be in a position to know the problems inherent in the system. Mr. Cowper will "identify the top issues affecting the public's access to timely justice and what can be done to ensure the efficiencies already under way have the desired impacts, while respecting the independence of the judicial system," which is management/MBA speak for a "systems analysis."
Although some criticize the review as being "just another study" and "a dollar too short and a day too late," Mr. Plant says he wonders why something as expensive and as complicated as the B.C. justice system shouldn't be looked at from a "public administration/business systems perspective" to streamline efficiencies where possible.
"I'm sure the business community would say 'what?'" he pointed out. "'You don't regularly do that anyway?'"
The Canadian Federation of Independent Business welcomes the review. CFIB vice president Laura Jones says, "We're spending more and getting less in our justice system, and any action to get more value for money and eliminate delays and backlogs will be welcomed by the business community."
Although Mr. Cowper is charged with consulting with the judiciary, Crown counsel, the legal profession and the police, there may be those in the business community who wish to monitor the review given the delays in the system will affect them as well.
Special to The Globe and Mail
Tony Wilson practices franchising, licensing and intellectual property law at Boughton Law Corp. in Vancouver, and he is an adjunct professor at Simon Fraser University. His newest book, Manage Your Online Reputation, was recently published. His column appears every other Tuesday on the Report on Small Business website.
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