It may seem that courts are slow to change – after all, judges wearing robes still sit at big desks at the front of our courtrooms and apply legal principles, some of which date back hundreds of years. But retired judges in BC have seen huge changes in the Provincial Court and its work over the last 45 years.
eNews asked several retired judges about significant changes they had experienced during their judicial careers - and got some responses that may surprise you.
It’s easy to take for granted the way things are today, but in some respects the working lives of BC judges were very different just a few decades ago.
Retired judge Cunliffe Barnett reported that judicial independence – the ability of a judge to decide each case on its own merits, without interference or influence of any kind from any source – has improved tremendously in the last five decades.
“When I became a Provincial Court Judge in 1973 most of my fellow judges were part-time lay judges - men with no legal training who had, for the most part, been recruited by the officer in charge of the local RCMP detachment.
The biggest change I personally experienced concerned child protection cases. After arriving in Williams Lake in October 1973 I very soon came to understand that it had been common practice (not just in Williams Lake) that such cases were decided in private discussions between the social worker and the judge before the courtroom doors were opened! When I abruptly declared that things would henceforth be done differently, a messenger was sent from Victoria to talk sense into me. I did not change my ways.”
During his time on the bench Judge Barnett saw the development of a merit-based appointment process where judges must have practiced law for ten years or had a range of related experience, and be vetted by Judicial Council on identified criteria before being considered for appointment by the provincial government Cabinet. With an improved appointment process and education for judicial officers and the public, there came widespread awareness that it is unethical for a judge to discuss a case privately with anyone. All communication about a case must include both parties, and judges decide cases based only on the evidence and submissions made in the courtroom, as Judge Barnett insisted on doing.
A BC courtroom today
Recognition of the need for judicial independence has also increased over the years. In the 1800s magistrates were sometimes paid a portion of the fines they imposed, giving them a personal reason to find people guilty and impose fines. Even if they avoided that temptation, it created the appearance they weren’t impartial.
Today, Canadian law recognizes that everyone in Canada has a constitutional right to have legal issues decided by fair and impartial judges. To guarantee this right, the Supreme Court of Canada has identified three essential conditions that ensure judicial independence: security of tenure, financial security, and administrative independence.
Security of tenure prevents the arbitrary removal of judges. Financial security provides an arm's length mechanism, through a special remuneration commission, for determining the salaries and benefits of judges. Administrative independence enables the Court to manage itself, rather than be managed by others. Although these protections apply to judges, they are for the benefit of the public. They allow courts to apply the rule of law that Canadians, through the electoral and legislative processes, have decided should govern them.
Another significant change is in the makeup of the Court. Retired judge Michael Hubbard said:
“My career as a Provincial Court judge started in 1982 and ended in 2014.The biggest change I saw was the appointment of women to the bench. There were just a few in 1982. I think the change was very positive and did much to make our court the energetic and positive place to work that it had become by my retirement.”
Retired judge Ann Rounthwaite added, “When I was appointed in 1986 there were seven other female judges sitting on the Court. Today there are 52 female and 94 male judges.” The proportion of women among full-time judges (excluding part-time Senior Judges) is higher (40% as of March 31, 2016), reflecting greater gender parity in more recent appointments. Over the last four fiscal years combined, appointments of women and men have been about even.
Retired judge Tom Smith commented on changes in the complexity of the law and the nature of the cases brought to court.
“When I was first appointed to the Provincial Court in 1981 the cases were shorter, there were fewer constitutional issues as there was no Canadian Charter of Rights and Freedoms (it was enacted in 1982), there were fewer reserved decisions, there were few contested cases about the custody of children, and few sexual abuse cases were brought to court.
The first days of the Charter were difficult - understandably, lawyers made seat-of-the pants submissions on Charter breaches and remedies - I read academic articles speculating about how the sections would be interpreted and I tried to make sense of it all and make diligent decisions. Once we had Court of Appeal and Supreme Court of Canada decisions to guide us, once I had more experience dealing with child witnesses and sexual abuse cases, my role became easier. The Judges’ Handbook and material presented at our judicial education conferences were also very helpful.”
Judge Barnett added that the BC Decisions project, “a brand new innovation that became even more useful when fax machines were invented and began appearing in court registries” helped judges research and apply case law. What was this innovation? The BC Decisions project mailed subscribers summaries of significant decisions of BC courts, printed on pages you inserted in mustard and ketchup coloured binders. You could order copies of decisions faxed to you.
Judge Rounthwaite mentioned the next major aid to a judge’s work - computers.
“In the late 80’s or early 90’s judges’ offices were equipped with desktop computers. Reserved decisions no longer had to be handwritten and read aloud in the courtroom or given to assistants to be typed on a word processor. Judges who were working on computers at home could now draft and produce their decisions on their office computers.
Then, as online databases of judicial decisions were established we could do legal research from our desks instead of visiting a library to search for a law book. Later we were given notebook computers we could take into the courtroom or travel with when working in courts around the province”
The type of work judges do has expanded over the last few decades to include not just deciding cases in a courtroom but mediating disputes in a conference room. Judge Hubbard commented on the introduction of judicial mediation:
“The other change that I found to be very positive was the introduction of settlement conferences into the Small Claims work in about 1990 - both in giving us a more stimulating function and doing a great service to the public in assisting the reasonable resolution of disputes. The same goes for family case conferences although I found family cases to be much more difficult to settle".
Given the changes in the last 45 years, more recent innovations like computerized trial scheduling and court appearances by video conference, and the promise of technology, the changes judges will see in the next ten years may be even more significant. Embracing innovation, learning from users and their experience in other fields, and adapting to change will all be key for judges and courts to continue to progress and merit public support.