Earlier this month I called BC’s Justice Reform Initiative ‘political theatre’ if Bill 44 and 52 passed before the government received Geoffrey Cowper’s final report. My opinion, unfortunately, has fallen on deafened ears as these bills have now gone through Committee and passed Third Reading.
Fortunatly for the those British Columbians unhappy that their right to a fair trial is being taken away when faced with a traffic dispute, you can point to MLA Kathy Corrigan’s comments from the House floor when challenging the Constitutionality of this legislation, where she declares that “The scheme would not survive a Charter challenge as so many personal rights and freedoms are being removed under the legislation“. (Click here for the link and scroll down to 1930 for the MLA’s comments).
Cynicism is an undesirable lens to view matters through but sometimes it is appropriate. Unfortunately, some of the recent Bills introduced this week in the BC Legislature make it very difficult to view BC’s Justice Reform Initiative in any other way.
You may recall earlier this year the Government made a bold presentation highlighting perceived shortcomings in BC’s Justice System. The Government announced that a Justice Review would be undertaken to “identify actions that government, the judiciary, the legal profession, police and others can take to give British Columbians more timely and effective justice services“
The Government appointed Mr. Cowper to head this review and he was tasked to “report to government as he develops recommendations around engagement of key institutions and stakeholders. Government will provide periodic updates in response to his recommendations and he will make his final report to government by July 2012.”
It is now early May. We are two months away from Mr. Cowper’s “final report“. Despite this, the Government has introduced two Bills which have passed second reading seeking to drastically overhaul BC’s civil justice and traffic court system. Specifically I’m referring to Bill 52 and 44. I discussed these here and here.
If the Review’s final recommendations are not in yet how can laws seeking massive overhaul to BC’s civil and regulatory justice system be introduced? If these Bills pass Third Reading in the Spring Session, it appears the Justice Review is mere political theatre. If not, and the Government actually takes Mr. Cowper’s findings into consideration before passing these laws, then I will admit to being too quick in playing the cynicism card.
As previously noted, BC’s Government and Judiciary are involved in a public row with the Government accusing the Courts of being inefficient and the Judiciary responding with complaints of underfunding. Additionally these two branches of Government are involved in litigation with the BC Court of Appeal recently upholding an order forcing the Government to produce otherwise confidential Cabinet submissions in a salary dispute with the BC Provincial Court. Enter Bill 44. This legislation, which just passed first reading, seeks to create “Civil Resolution Tribunals” which will run side by side with BC Courts. Their jurisdiction is anticipated to be ever-expanding by simple Order in Council with the ability of the Government to include anything that “could be dealt with by a Claim in Provincial Court under the Small Claims Act”.
Perhaps the most troubling aspect of this scheme is set out in Section 20 which holds that, except in very limited circumstances, parties must “represent themselves“. It does not take much imagination to understand that stripping people of the right to a lawyer provides a great advantage to institutional litigants.
The Government sets out that this legislation is designed to create “accessible, speedy, economical, informal, and flexible” dispute resolution. Although these goals are laudable, on scrutiny the Government does not appear to put its money where its mouth is with Section 9 specifically exempting claims against the Government from the jurisdiction of these tribunals. As Vaughn Palmer points out, this Bill is included in a “loaded up” legislative agenda making full scrutiny difficult with limited time. Legislation taking disputes away from the judiciary and further stripping people of the right to representation deserves public scrutiny. I imagine BC’s Provincial Court judges will have strong opinions on the matter as well. Whether these are voiced remains to be seen.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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