1. Introduction’
In a 1973 B.C. provincial statute, Chief Justices of the Supreme Court of British Columbia were given the power to directly and indirectly control their fellow trial judges. This posting contends that power effectively takes away the judicial independence of every other trial judge. It may result in new trials for criminal offenders tried and convicted since 1982 as well as for civil litigants since 1973.
In 1993 I wrote an 81 page paper on this subject that remains unpublished. Some of the following observations can be found on this website under the Category “Court Organization” and dated 24 and 27 September 2007. Included here are a few of those previous comments for ease of understanding. Several times over the past 20 or so years I have approached provincial government officials and recommended they repeal the 1973 section. I was rebuffed.
2. Constitutional Judical Independence
Canada’s 1867 Constitution does not expressly mention the principle of judicial independence. It does so by necessary implication using words in the Constitution's preamble.
Courts often rely on this preamble to fill in missing provisions in our 1867 Constitution. The part in question mandates that the four founding provinces of Ontario, Quebec, New Brunswick and Nova Scotia be federally united under the United Kingdom Crown “with a Constitution similar in principle to that of the United Kingdom.”
Therefore, Canadian courts may apply these words when searching for any mention of judicial independence in the United Kingdom’s written and unwritten Constitution before 1867. Fortunately, one exists in a 1701 U.K. statute called the Act of Settlement. Under that Act, U.K. judges finally acquired their independence. Hence, to make Canada’s 1867 Constitution similar in principle to that of the U.K., ours must be deemed to include the principle of judicial independence.
3. B.C.’s provincial government’s interference with judicial independence.
Until 1973, tradition placed B.C. Chief Justices as just first among equals with their fellow judges. That was in keeping with the principle of judicial independence. In other words, all the judges set the policies and administrative procedures of the court collegially or democratically. No one judge or group of judges had a veto.
In 1973, the B.C. provincial legislature changed that arrangement. By statute it elevated Chief Justices to the rank of the judges’ supervisor. There is no available information as to who asked for this change and why. Today, the statute gives Chief Justices “responsibility for the administration of the judges of the court.”
After 1973 Chief Justices began governing the court autocratically. If appointed at say age 65, they could and can rule over the judges until their compulsory retirement dates at age 75. Given Canadians’ overwhelming belief in democratic government, this is unconscionable.
3. Control by Chief Justices over ordinary trial judges
Chief Justices control their colleagues in the following ways:
• They set the number of weeks each judge will sit every year.
• They select the Chairs and members of all the Court’s Committees who may serve over a Chief Justice’s full term of office.
• They decide who will be allowed to attend judicial educational seminars inside and outside the province.
• They may deny a judge a sabbatical leave even though authorized by the Canadian Judicial Council.
• They supervise the assignment of cases to every judge within the province.
• They have restricted judges from voting on a reform even when a statute requires the vote of all the judges.
• They can and do ignore a resolution passed by the majority of the judges.
• When judicial vacancies occur in one or more of the seven judicial districts around the province several sitting judges may apply to fill the opening. Chief Justices may arbitrarily select the candidate of their choice for the position.
• Etc.
Besides impeding the progress of necessary reforms, these oppressive powers take away the judicial independence of every other judge. Mr. Justice Jamie W.S. Saunders of the Nova Scotia Court of Appeal recognized this concept in a 2003 paper he wrote:
“…. (judicial) independence in Canada means that the judge is:
• free, but obliged to decide on his own
• free from fear or favour
• free from any and all forms of coercion, threat or harassment, direct or indirect, whether from government, politicians, persons in authority, relatives, neighbours, interested parties, fellow judges, chief justices, judicial bodies or organizations, or any other source of improper influence whatsoever."
http://www.courts.ns.ca/bench/independence.htm
Applying the 1973 provisions of the B.C. provincial statute and its successors, Chief Justices directly and indirectly impose their administrative powers coercively to favour some judges over others. Conduct of Chief Justices creating a loss of independence need not be obvious. It need only create the perception of a loss. Individually and collectively, the above examples seem to create far more than a perceived loss of independence.
Put another way, in 1973, the B.C. provincial government removed an essential feature of judicial independence - the freedom of self government. It replaced that freedom with an administrative autocracy.
4. Lack of judicial independence in criminal matters
Section 11 (d) of the 1982 Charter of Rights and Freedoms gives persons charged with an offence the right to be tried by an independent tribunal. The concept of judicial independence was in the 1867 Constitution by implication as of 1867. It became entrenched in criminal matters under s. 11(d). Because of the 1973 provincial legislation, all criminal offenders tried by B.C. superior court trial judges after 1982 were not in fact tried by independent judges.
Arguably, any offenders tried between 1973 and 1982 are also entitled to a new trial.
5. Lack of judicial independence in civil matters
Two parts of the Constitution clash with respect to civil trials. One part says that judicial independence is a Constitutional principle. Another part says the provinces have the right to legislate on the administration of criminal and civil justice within their own province.
B.C.’s 1973 statute seems based on the proposition that despite the 1867 implied Constitutional principle of judicial independence, the province has the right to interfere with it under its Constitutional authority to legislate on the administration of criminal and civil justice. Given s. 11(d) of the Charter, there does not seem to be any wiggle room for the province to get around the necessity for an independent trial judge in criminal cases since 1982. And, it would be an inconsistent interpreation of the Constitution to deny civil litigants the same right since 1973.
Therefore, civil litigants had the right to be tried by an independent judge since 1973. They were denied that right by provincial legislation.
5. Other judicial and academic comments
Besides the paper of Mr. Justice Saunders mentioned above, other judicial and academic commentators have written on this subject. In 1992 Mr. Justice McPherson wrote in the Australian Journal of Judicial Administration that "it is exceptional for a Chief Justice to be invested with any legal authority over court affairs or with any particular power or control over other judges."
Quoting Professor Shetreet, Mr. Justice Mc Garvie wrote an article on the subject in the same Australian Journal titled "The Ways Available to the Judicial Arm of Government to Preserve Judicial Indpendence." At page 255 he commented that "the public service model of court administration with a Chief Justice as the administrator has "the result of chilling judicial independence ... and may even bring about attempts by judges to influence other judges which may result in subservience to judicial superiors. Hierarchial patterns are usual in the civil service ... but are objectionable in the context of the judiciary whose members must enjoy internal independence vis-a-vis their colleagues and judicial superiors."
Bottom Line:
1. Obviously, or at least by perception, B.C. superior court trial judges lost their judicial independence in 1973 because of provincial legislation that gave Chief Justices the power to rule the court autocratically.
2. Loss of this independence means that after 1973 all criminal offenders and all civil litigants probably now have a right to a new trial. Following the addition of the Charter to the Constitution in 1982, that right became firmly entrenched in criminal matters.
3. Until the 1973 B.C. statute is repealed or struck down as being unconstitutional, from now on, every B.C. civil and criminal trial eventually may have to be retried because B.C. superior court trial judges are not independent.
26 May 2008 (Revised 29 May 2008; 1 June 2008)
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