The Written Word
for October 13, 1999

A little more today on the justice system. I have defended and will continue to defend the judiciary who cannot, appropriately, defend themselves. That is not to say that there aren't problems with the system - there are. And we should try to fix them.

We must surely start out with the proposition, however, that the system has served us very well indeed. The vast majority of the work is done by the Provincial Court and most of that is simply not noticed. Hundreds of judges throughout the Province daily mete out justice and do so well enough that the vast majority of their business doesn't ever get to our attention. In the perfect world, Parliamentarians make sensible laws which are even-handedly enforced by absolutely impartial judges who are appointed for their judicial ability only. We do not live in a perfect world. And one of the things which confuses and often annoys the public is the way judges are selected. Critics of the system point out, correctly in my view, that because the system is so powerful an arm of government that there should be more transparency in the appointment process. The public sees a three or four line news story that Joe Blow, a prominent lawyer, has just been made a Provincial Court Judge, or Supreme Court Judge or whatever and asks themselves, just who the hell is this cat that's getting all this power?

In fact, the Provincial Court Bench has been free from party political interference since the 70s and probably mostly was before that. Or was it? And is it? I have sat on cabinets that appointed Provincial Court judges and the first appointment I can remember as a Socred Minister was Leo Nimsick, son and namesake of a former NDP cabinet minister. The recommendation came from the BC Judicial Council which is non political and I'm satisfied that there is no serious politics involved. I take comfort from the fact that complaints about the appointment system to the Provincial Court Bench are few and far between. My question remains - is the process public enough?

With Superior Court Judges, I'm not sure that politics has gone away. There was a time, in my early days at the bar, that Liberals appointed Liberals and Tories appointed Tories - it was all part of the public trough. There was the occasional exception like my classmate Tom Berger but essentially it was a political affair. That has changed considerably. Now the appointment is made by the Minister of Justice (for that read Prime Minister) after consulting with bodies like the appropriate Bar Association. The fact remains, as I put to Chief Justice Williams, it just so happens that the Chief Justices of both the Supreme Court and the Court of Appeal were prominent Liberals. Chief Justice Williams conceded that all other things being equal, politics might still play a role.

Again, the vast majority - indeed almost all superior court appointments are non political but the public cannot, in the absence of any openness of the process, be expected to believe that.

The problem becomes much more acute when it comes to the Supreme Court of Canada. There the appointments are strictly political which is not to say that appointees are not able and impartial arbiters of justice. But now that the Supreme Court of Canada has these enormous powers conferred by the Charter of Rights and Freedoms, surely there must be a better way to appoint than simply the whim of the Prime Minister. I have no evidence to offer that Supreme Court of Canada judges have been appointed because of a particular position they have taken on Charter matters. But we do have a glaring example of a judge appointed because of his loyalty to Canada, which was ill-disguised code for opposition to Quebec separatism. Mr Justice Basterache was appointed on the eve of the reference to the Supreme Court of Canada on Quebec's right to secede - the so-called Bertrand case. It's not much of an answer to say that Judge Basterache's apparent bias was a good one because we happen, in this part of Canada, to agree with that bias ... It scarcely looked fair to many Quebeckers, even Federalist Quebeckers. Judges, while they cannot be free of any of the prejudices we all possess, must bring to the bench an aura of independence at least and certainly ought not to be seen as having a predetermined view on a major matter of public concern.

It may be that Canadians will never be ready for the American confirmation process which has become, in the case of American Supreme Court judges at any rate, a TV extravaganza. But surely the deep-seated concerns being expressed by the public have some basis and I suggest that basis is the relative secrecy by which judges at all levels are appointed.

Leaving aside the Supreme Court of Canada, I think the problem is answered by publicity ... I believe appearances on shows like this, as we have recently seen from both our chief justices and the Chief Judge of the Provincial Court go a long way to increase the comfort level the public has with its judges. As to the Supreme Court of Canada I remain unrepentant - there should be a public vetting process.

Justice must not only be done, it must manifestly be seen to be done. An old saw but an apt one. The more light we cast upon the justice system, the more confidence the public will have in it. It's as simple as that.

You can go to the bank with that one.