POLITICS

Politicians can criticize judiciary, but shouldn't interfere: B.C.'s top judge

03/16/2012 01:43 EDT | Updated 05/16/2012 05:12 EDT
VANCOUVER - British Columbia's top judge says politicians are free to criticize the legal process, but they shouldn't interfere with how he and his colleagues do their jobs.

The B.C. government recently launched a review of its justice system, which is currently facing huge backlogs that are causing cases to be thrown out, and members of the Liberal caucus have had some pointed words for the province's judges.

Chief Justice Lance Finch of the B.C. Court of Appeal said politicians can express their opinions, but they must leave the administration of justice to the judges.

"It's not a matter so much of what people in political office might say, it's what they do," Finch said in an interview Friday.

"While we're always open to making changes that might be advantageous to the public, at the same time the judiciary has a responsibility to be vigilant in protecting independence. Not for the sake of independence, but for the sake of ensuring impartiality of the judges."

Finch joined the province's other chief judges this week to pen a statement asserting their independence.

The five-page statement, posted to the court's website Thursday, said any discussion about how to reform the justice system must respect the independence of judges. The document said judges will "remain steadfast" in protecting that independence, and it took issue with the suggestion judges use their independence as a "shield."

Last month, as Finance Minister Kevin Falcon delivered his budget, he defended his government's spending on the justice system by saying, "I respect the fact that there is judicial independence, but you know what? Judges cannot hide behind that shield and say, 'We have no requirement to try to do things better.'"

The following week, Liberal Kevin Krueger used a speech in the legislature to complain some judges are "bad apples." He said judges who criticize the government from the bench are "dishonourable."

Finch declined to comment on whether those sorts of statements are appropriate, but he said he understands politicians have a stake in how the justice system functions.

"Those elected officials have a responsibility to administer the taxpayers' dollars carefully, so they naturally have an interest in how courts and every other public institution functions," said Finch.

Attorney General Shirley Bond did not make herself available for an interview Friday, but instead issued a statement that said she respects the independence of the judiciary and any eventual reforms would reflect that.

Falcon couldn't be reached, and his office referred the issue back to Bond.

Krueger said Friday that his comments weren't directed at all judges and he stood by them. He said judges shouldn't use their rulings comment on government budgets, as some have.

The province appointed lawyer Geoffrey Cowper to conduct a review of the justice system and report back in the summer.

Finch said the chief judges will participate in the review.

"We're always in the course of reviewing our own processes and trying to improve them," he said.

"If other branches of government have ideas that would make a better system, then of course we're going to be open to it."

Cowper's appointment came as the province faced criticism over a lack of resources in the courts, including judges and sheriffs. More than 100 criminal charges were stayed last year by provincial court judges over trial delays, and that number is expected to rise.

Some judges have launched blistering attacks in their decisions, including New Westminster provincial court Judge Daniel Steinberg, who in a February judgment wrote: "There are no amount of press releases or talk-show appearances that are going to fix the overstretched limits of our institutional resources. There is only one course of action that will fix the current situation and that is action, not words."

Robin Elliot, a law professor at the University of British Columbia, said politicians appear willing to attack the judiciary with more frequency in recent years, and that could cause the public to question whether judges might be influenced by such rhetoric.

Elliot said the attorney general was once seen as the defender of the judiciary, but that role has largely disappeared.

"Judges can't enter the fray. They are very, very careful about what they say," he said.

"I think most members of the judiciary would argue if people in government criticize the judiciary, it's not a level playing field. Judges can't come back and say to a reporter, 'That particular comment is completely off the wall.'"

Elliot said it's difficult to predict how far the government could go in changing the way the courts operate.

He notes the Supreme Court of Canada has said the administration of the courts, including the assignment of judges to cases, the scheduling of hearings and the allocation of courtrooms, must remain independent from government.

Elliot said the government may be left with issuing recommendations and hoping judges listen to them.

"They (the government) are going to have to tread carefully," said Elliot.

"Studying that sort of thing and making recommendations is one thing. Imposing on the judiciary what the government thinks is the best solution is quite another."