"Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General
(UPDATE February 15, 2013 – The decision discussed below was overturned by the BC Court of Appeal in reasons for judgement released today)
I recently highlighted on-going friction between the BC Government and our Judiciary. In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.
Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government:
(1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).
(2) The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.
(3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”. Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.
(4) The AGBC’s anxious concern for trial efficiency is misplaced. Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them. It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees…
…The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.
 The Attorney General has a further role to play in explaining the function of the courts to government. The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…
 …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.
 The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees. Some things cannot be for sale.