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.
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:
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.
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.
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:
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.