Political perspectives on justice administration

The leader of a political party is a person of influence...crowned by the party faithful, mandated by the electorate, he or she leads in the development of policy and priorities that potentially affect all of us. To find out what the leaders of the provincial New Democrat and BC Liberal parties think about some of the issues that concern the legal profession, BarTalk asked Glen Clark and Gordon Campbell to answer a few of our questions. Here are their responses.

1. In your opinion, what is the most crucial challenge to the effective administration of justice, and what is the most responsible way to deal with it?

GLEN CLARK: The most critical challenge that we face in the administration of justice is maintaining public confidence in our criminal and civil justice system. British Columbians from all walks of life have commented on the system’s strengths and weaknesses, with one overriding message: the justice system must reform if it is to retain public confidence. People want safe homes, neighbourhoods and streets; a justice system that’s tough on violent crime, with appropriate sanctions; a civil system that is fair and deals with issues quickly; and a reform process they can participate in. Yet people see an increasingly complex justice system that they do not have faith in, even as the cost of it is rising rapidly and more is being demanded of it.

Over the past few years BC’s population has grown at twice the national average. The average adult correctional facility’s daily population has increased 46 per cent and the adult community probation and bail caseload has increased 52 per cent over the last seven years. The backlog in our courts is unacceptably high. We are spending more on policing, courts and corrections than ever before, yet people often feel alienated from the system. Justice reform is essential. And clearly, because we can’t just continue to throw more and more money at the system forever, we have to work smarter.

The most responsible way to deal with these challenges is make sure that communities are strong and meaningful partners in the justice process. We have undertaken to develop a restorative justice system that gives communities a role in policies and programs. This will lead to a system that looks for consensual approaches to resolving disputes while ensuring that offenders are held accountable for what they have done and has them make amends to their victims and communities wherever possible. Such a system will reduce rather than increase the likelihood of further harm.

GORDON CAMPBELL: If our justice system is to enjoy public confidence in the next century, it will need to become more accessible, more affordable and more efficient. And yet clearly these goals must be achieved without sacrificing the fundamental requirements of fair process and equality before the law.

Accessibility means we must find alternative ways to make justice more accessible in communities. That means we must stop closing courthouses. Making criminals accountable in their own communities will increase public confidence in the criminal justice system. Bringing dispute resolution closer to home will ensure that our civil and family justice systems work for ordinary citizens.

Affordability means recognizing that our system of justice has become too expensive. Longer trials, more complex litigation processes, and a proliferation of justice-related programs impose an ever-increasing burden on the taxpayers who fund the system, and yet at the same time court user fees and legal costs are also rising. Clearly some of these pressures can be relieved if we can get the economy moving again, and increase government revenues. But I believe we also need to commit to a real attitude shift in our approach to the justice system. Longer trials do not enhance the quality of justice. Complex processes often simply add to the cost of resolving a dispute. And higher legal bills do not always mean improved service. These challenges will require a real commitment by governments, communities and the legal profession to separate that which is truly essential from that which is simply desirable.

Efficiency requires us to address the urgent problem of backlog and delays in the provincial courts. Chief Judge Metzger begins his recent report by stating that “the Provincial Court of British Columbia is in crisis”. The current delays are unacceptable. Addressing these challenges will require additional resources for the provincial court system. Finding ways to improve civil and criminal court processes to minimize the requirement for additional funds is critical.

2. How do you see the role of elected representatives in supporting and strengthening public confidence in the judicial system and the administration of justice in British Columbia?

GLEN CLARK: Elected representative must take a leadership role by introducing progressive public policy initiatives. For example, BC is a national leader in applications for dangerous-offender designations. We have given new resources for the DNA testing facility. We have improved criminal justice policies such as the revised Violence Against Women in Relationships policy. We have introduced innovative new programs, such as the hate-crime team and the internationally recognized provincial prostitution unit. We created a new squad to reduce the number of unsolved homicides. We introduced criminal-record-check legislation to protect children. We brought in legislation permitting class actions. We established simpler and better rules for dividing pensions after marriage breakdown. We piloted innovative family justice centres and created specialized training for family court counsellors and better enforcement of family maintenance orders. We created a new dispute resolution office to expand the use of dispute resolution programs in the court system and throughout government. We created a central registry of protection orders so that police can get information immediately on the status of a court order to protect women and children.

We must introduce these initiatives in partnerships with our communities. Underlying everything we do are certain important principles: fairness to all parties, accessibility to all members of the community, a spirit of partnership, efficiency and affordability and effectiveness. We must also include a much greater role for victims of crime. We have demonstrated our commitment to this principle in our Victims of Crime Act.

These initiatives will give all British Columbians a sense of ownership of their justice system. After all, the system does not belong to the lawyers, the judges or the politicians; it belongs to the people of this province.

GORDON CAMPBELL: Elected representatives have a duty to protect our justice system. For members of the Official Opposition this includes holding the government to account for its administration of the justice system and condemning the political interference we have seen in both the judicial and quasi-judicial matters. As the justice system comes under increasing public scrutiny, I think it is also important that legislators respect the independence of the judiciary as well as quasi-judicial processes, and to maintain the integrity of the judicial system. Regrettably, this is one area where the current government has, I think, failed to act responsibly, as the well-publicized events around Skeena Cellulose and Six Mile Ranch have demonstrated. I welcome input from members of the Bar in identifying specific justice issues and problems that deserve public attention.

As legislators we can support and strengthen confidence in the justice system by ensuring that, within responsible fiscal limits, there are adequate resources available, and by monitoring the issues of access, affordability and efficiency which I discussed earlier. Legislators can also take a leadership role in engaging the public and the legal profession in the on-going dialogue which is necessary to identify the changes which will improve the justice system.

3. The 7% Social Services Tax on legal services was introduced by the government of BC in 1992 to generate revenue to offset the cost of Legal Aid. More money is now collected through this tax than is being allocated to Legal Aid, and yet there are still people who cannot afford a lawyer but are denied eligibility for Legal Aid due to underfunding for this program. What is the answer to this problem when, as a society, we have committed to a system of justice which says that all people must be equal before the law?

GLEN CLARK: Unfortunately, we cannot do everything we would like. Over the past few years, the Liberal government in Ottawa has chosen to solve its financial problems on the backs of the provinces. BC has taken particularly large reductions in transfer payments for social services, health care and education. We have no intention of forcing the poor, the sick and the young to pay the entire cost of this downloading. Despite federal cuts and the need for fiscal restraint, we have maintained base funding for the Legal Services Society at $81.5 million for this year, the same base funding they had last year. BC continues to have the highest per capita expenditure on legal aid of any province.

The province pays $62 million of the LSS base funding. If the federal government contributed the same amount from the GST it collects on lawyers’ fees, base funding could be increased dramatically.

GORDON CAMPBELL: I have tremendous sympathy for all those who have been denied legal representation because the government has broken its promise to fund legal aid.

But I also believe the promise which the NDP made in 1992 was bad public policy from the start. It was wrong to tie legal aid funding to the revenue from the sales tax on lawyers’ accounts. I say this simply because there is no necessary correlation between the money collected from the tax and the amount needed to fund legal aid. In some years the tax revenue may decrease when the need for legal aid increases. Should we then reduce funding to legal aid? I don’t think so.

We must be prepared to define a realistic mandate for legal aid coverage and make sufficient resources available to fund that mandate. This means that funding formulas must be stable, certain and predictable. At the same time we need to be honest enough to acknowledge that government revenues are limited and their allocation is fundamentally a matter of priorities.

It is not enough simply to say that legal aid is important. A constructive debate about priorities means recognizing it is not possible to fund from government revenues the entire range of legal services which people of limited means might want. Persons accused of crimes whose liberty is at risk have a more urgent call upon society’s limited resources for legal aid funding than those whose liberty is not at risk. Similarly, disputes about children have for me a higher priority than other types of civil disputes. These are some of the issues we need to debate fully. If we are willing to engage in this debate constructively, then I believe we will take major steps forward in solving legal aid’s funding crisis.

4. The federal government has - and exercises - the power to make decisions which subsequently impact on provincial government responsibilities and expenditures. What are your ideas for realistic solutions to this federal-provincial government relations problem related to the timely and cost-effective administration of justice?

GLEN CLARK: Federal downloading has created other problems for the justice system. Reductions in health funding has had terrible consequences for mentally disordered individuals who need support and care but instead end up in the court system unnecessarily. These people need treatment, not sentences.

Cutbacks in transfer payments for social services place more of BC’s youth at risk. We know, for example, that every dollar spent on services to children yields seven dollars in savings down the road. The justice system bears the brunt of the costs of our failure to address the problems faced by children and youth. Some of our justice reform initiatives directed at youth will help, but what we need most is for the federal government to restore transfer payments to fair levels.

I would also like to see the federal government respond more quickly to provincial requests for changes to federal laws administered by the provinces. Over the last several years the Attorney General of BC has urged the federal justice minister to make changes to the Criminal Code and the Young Offenders Act to make it easier to bring the laws into line with some of the harsh realities we face in BC such as sexual exploitation of youth and hate on the internet.

As well, all the provincial premiers are working on a new social policy framework for the country. We hope to negotiate with the federal government a new cooperative regime that sets national standards and clear lines of accountability between provincial and federal jurisdictions.

GORDON CAMPBELL: The division of powers between the provincial and federal governments means that laws made by the federal government are often applied and enforced in the court system which is administered and paid for by the province. This is particularly true of criminal and family law. This inter-relationship creates the potential for tension. One source of tension is when the federal government enacts laws that do not work in the provincial context and then fail to correct the problem. An example of this is the recent amendments to the Criminal Code concerning conditional sentencing. In my view conditional sentences should not be available for violent or sexual offenders. Yet the federal government has thus far failed to amend the Criminal Code to address this problem.

Clearly, we need regular and meaningful consultation and co-operation before the federal government exercises powers that affect the provincial administration of justice. Currently, the provincial attorneys general meet with the federal minister of justice at least once a year to discuss justice issues of mutual concern. I think this process is reasonably effective, but, unfortunately, like most first ministers’ meetings, these gatherings happen behind closed doors and therefore beyond the reach of public scrutiny. In some cases, where the federal government makes decisions which may significantly affect the cost of operating the provincial justice system, I think the federal government needs to go further than simply consult. The federal government must commit to make adequate resources available to fund the changes which they initiate. Consulting without warning builds frustration. Taking action without considering consequences undermines rather than strengthens the system.

5. The contribution of lawyers to the governing, administration and well being of a province is clearly important. And yet, there is a lack of public understanding of that role and contribution. What advice do you have for those who are concerned about the public’s negative image of the legal profession?

GLEN CLARK: The legal profession in British Columbia has always played an important role in shaping the future of the province. Regrettably, this role is sometimes overlooked by the general public. For lawyers to change the public’s perception of the legal profession and its members, they must continue to assist British Columbians from all walks of life in understanding the law.

More than ever, lawyers must be responsive to the concerns of the people they represent and society as a whole. British Columbians have made it clear they want disputes settled quickly and fairly. Lawyers can continue to work with the government to promote justice system reforms that encourage more consensual approaches to resolving disputes, use plain language, ensure equitable access, and retain the confidence of the public.

Our reforms are based on a vision of a justice system with a new role for community and for consensus, for accountability and for reducing harm. These reforms will result in a justice system that has the confidence of the people of BC, to whom it belongs.

GORDON CAMPBELL: Far be it from me, a politician, to give advice to lawyers on how to improve their negative public image!

There are two comments I would make. Firstly, those in the legal profession should stop denigrating the profession. The law and those who practice it are pivotal and critical in a healthy democratic society. Secondly, remember and celebrate the contributions that those in the profession make to the community - from pro bono work to volunteer service on boards to speaking out and engaging in critical and public issues. When you are known to be part of the solution then people understand the contribution you make.

Our thanks to Premier Glen Clark and Opposition Leader Gordon Campbell, who responded to BarTalk’s questions within the challenging space/word limitations placed upon them.

This article was published in the August 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.