Access to justice isn't political
Published Friday May 8th, 2009
That is an excellent question. I hope we have an excellent answer, and I think we do. The answer is within New Brunswick and his name is Chief Justice David Smith, who is the Chief Justice of the Court of Queen's Bench for New Brunswick.
-T.J. Burke, before the Senate of Canada, May 2008
My husband has an uncle who used to serve as a judge in Ontario (he retired last year). Back when he was sworn-in the local Member of Parliament, a Tory named John McDermid, attended the ceremony and gave a brief address.
A non-lawyer, Mr. McDermid walked up to the bar that separates the court from the gallery and turned to face the guests. He gave his salutations ("ladies, gentlemen, friends and family") and in a theatrical fashion turned about to speak to the half-dozen senior judges assembled behind the bench. "Learned justices" he said in acknowledgement, "please forgive my back, but there's not a vote amongst you!" It was a witty line, and probably not very original, but it was appropriate for the time. Back in those days, being appointed to the bench meant giving up your right to vote in federal elections. It was a different time, after all. It was 1981.
The law is a living thing. It changes and evolves over time. For more than a century, federally-appointed judges couldn't vote, but in 1988 a court determined this to be an unreasonable restriction from a bygone period, and the law changed. As circumstances change, so does the law and legal understanding.
This week New Brunswick's Attorney General, T.J. Burke, raised more than a few eyebrows when he decided to unload ("rebuke" was the word this newspaper used) on Mr. Justice David Smith, Chief Justice of the Court of Queen's Bench. What was the Chief Justice's offence? In a speech on Monday he suggested that the judiciary and other stakeholders be consulted before spending cuts are made to the justice system.
Ideally, he recommended, an arms length body could be established to administer the justice system (he suggested following the Irish model), so as to avoid unfortunate surprises like those that spilled from the provincial budget last March. (The budget eliminated the province's small claims courts, cut legal aid funding, and did away with the court social worker program.) In response, the A-G accused the Chief Justice of "crossing the line," of meddling in "matters political-" something judges don't do in Canada. Please!
The issue that Chief Justice Smith was addressing was one of access to the courts. It's not a new issue. It is, in fact, the primary reason that small claims courts were established in the first place.
A decade ago the courts, particularly the Court of Queen's Bench, were backlogged with cases, and small claims courts provided an outlet for speedier resolution of less contentious cases. With the recent cuts, disputes that would be handled in a quick and expeditious manner will now have to wait in line with all the other business that the Court of Queen's Bench normally adjudicates; simple things like murder trials, injunctions of ministerial orders, and class-action lawsuits. The cutbacks in legal aid funding and the court social worker program will just add to already lengthy delays in having cases brought before a judge.
Is access to the courts strictly a political matter, as the minister contends? Does a separation of governing powers demand that those most affected by cuts silence their concerns? Well, if it ever did, those days (like the days when judges couldn't vote) have long since passed.
Access, whether to legal aid, or to the courts, has been a top-button issue for both the Canadian Bar Association and the Chief Justice of the Supreme Court (the Rt. Hon. Beverly McLachlin) for some time. For the best part of the past decade, the CBA Annual Meeting has been noted as an opportunity for judges and the legal fraternity to impress the importance of access to justice on the federal Attorney-General and any provincial A-Gs who are present. Ms. McLachlin's 2007 address to the conference was an appeal for more courtroom resources and expedited procedures, as she noted that the courts had become the preserve of the wealthy. She called access to justice a "basic right," alongside education and health care. Was she being political?
While it may have been uncomfortable for the assembled A-Gs, no one suggested she return to Pincher Creek, Alberta, from whence she came. The pertinent question is, if the Chief Justice can't speak about issues of access, who can? Who will?
The truth, of course, is that during this past week's events the minister was being political.
Last year, appearing before the Legal Affairs Committee of the Senate, Mr. Burke couldn't say enough good things about Chief Justice Smith. This week, he suggested the Chief Justice's actions were "disconcerting and disappointing," which is to say Mr. Burke found himself in the uncomfortable position of having to answer for the cuts.
Mr. Burke's conduct is simply unbecoming in a province that has produced Attorney Generals Gordon Fairweather, Rod Logan, Louis Robichaud and Edmond Blanchard.
Lisa Keenan of Saint John is a lawyer and the former president of the New Brunswick Progressive Conservative Party. Her column appears on Friday.
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