Canadian Lawyer

Independence (And What Everyone Should Know About It)." In both cases, B.C. Court of Appeal Chief Justice Lance Finch, B.C. Supreme Court Chief Justice Robert Bauman, and Provincial Court Chief Justice Thomas Crabtree stressed the judiciary's willingness to talk about improvements to the administration of justice. "In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality, J British Columbia's Justice Reform Initiative had received two public submissions from the unlikeliest of sources: the normally silent chief justices of the province's three courts. The chiefs teamed up to issue an immediate reac- tion to the initiative, followed up several weeks later with a five-page essay entitled "Judicial udicial independence is one of the corner- stones of Canada's justice system, but some observers warn it could also be among the biggest obstacles to reforming the way it works. Within a month of its launch in February, judicial statements, it sounded to some like a sabre-rattling, play- by-our-rules warning to the provincial government. Former B.C. attorney general Geoff Plant was less than impressed with what he saw as an elbows-up defence of the court' It's hardly the most provocative language, but in the context of " they wrote. potential to undermine the reform initiative before it had even begun. "I think it was a time when the public needed a construc- tive signal from the judiciary about their willingness to engage in justice reform, and instead what we got was a lecture on judicial independence, s territory with the entitlement to be defended, rather than a privilege to be earned. It' " he says. "I think that notion has become an wall to protect themselves from the project of figuring out how to rebuild public confidence in the justice system." The province hired Vancouver litigator Geoffrey Cowper to System." The paper highlights the steady decline in crime rates, which have fallen by about one-third since 2004, and a sharp reduction in cases coming into the courts, with 13,000 fewer pro- vincial criminal matters heard in 2011 compared to 2001. Despite the apparently reduced workload, the report says costs and delays have consistently risen, and the province has found itself under fire for the increasing number of criminal charges stayed due to delays, a number that topped 100 in 2011. Among the challenges identified by the report were "over- head up the review, tasked with addressing challenges identi- fied in its green paper "Modernizing British Columbia' s Justice broad concepts of independence" that can limit accountability and make it harder to understand why inefficiencies occur. "Independence should not be used as a shield against scrutiny on issues related to public administra- tion," the report warns, urging Cowper to "establish a clear understanding of s become a concept that justice system actors use as a kind of the scope and limits of operational independence of police, the judiciary, corrections, and Crown counsel in a way that respects that independence while enabling a meaningful capacity to plan, implement, and analyze justice system services." In an interview, Bauman bristles at the suggestion that the judges' statement was obstructive. "On the contrary, rather than putting our heads in the sand, we've entered the debate by explaining what judicial independence means, and how it might, not constrain, but define, how reform is implemented. Some have suggested it was a shot across the bow, but that was not our inten- tion at all, and I was very distressed to see that some had inter- preted it that way, gets thrown around a lot, and it seemed to us that it was important to go back to first principles, not only for politicians, but for the public and for ourselves as well, to revisit what it means. I know you're supposed to have a thick skin with these things, but when you get criticism that you're a dinosaur, I'm not so good at it." Lorne Sossin, the dean of Osgoode Hall Law School, says the " he says. "Judicial independence is a term that rareness of the judges' actions may have provoked an overreac- tion. When you focus on the content of the statement, he says the court is, "very appropriately, asserting a guardianship role over the public interest in the provision of public services. We can forget that judicial independence as a constitutional value in Canada is not a right of judges. It' and preserving that sense of guardianship is critical." s a right of those who come before judges, mon law faculty, says the episode could have been avoided had the provincial government consulted with the judiciary earlier in its process. "To me, it looked like the judges were taken by surprise, which indicates poor stakeholder relations on the part of the B.C. government," he says. "It' the government can just enact reforms, and then a ministry or line officer just implements them. That' under our Constitution." In its 1997 reference on the remuneration of provincial s not like in other areas, where s not the way things work judges, the Supreme Court of Canada effectively read the core requirements of judicial independence into the Constitution by recognizing it as an unwritten principle that extends beyond its explicit mentions in the preamble to the 1867 Constitution Act and in s. 11(d) of the Charter. Those three core characteristics, repeated in the B.C. judges' statement, are: security of tenure, financial security, and administrative independence. Lorne Neudorf, an Ontario lawyer currently at the University of Cambridge completing a PhD examining judicial indepen- dence, says the SCC' The Supreme Court in this case really imposed tremendous constraints on how the judicial system can be reformed going forward. s decision has been "a bit of a disaster, frankly. around the world to invoke the concept in order to push back against reforms they see as going against their interests. The dif- ference in Canada, he says, is that the judges get the final say on what is constitutional. "The judges are saying, you can come up with the reforms you want, as long as it is within the confines " According to Neudorf, it's common for judiciaries www.CANADIAN Lawyermag.com A U GUST 2012 43 Adam Dodek, a professor on the University of Ottawa's com-

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