Daniel Veniez: The rule of law is not negotiable
By Daniel Veniez
For a few years now, politicians have played to audiences extolling the virtues of “our men and women in uniform” and being “tough on crime”. These are important ideas that are used too often as slogans. Their real significance is lost in the numbing superficiality of political posturing.
It seems to me that many politicians and their surrogates need a refresher course in what a “law and order” government truly is and the implications of not understanding it.
The rule of law is not a cynical bumper sticker; it is a fundamental precept of a modern democracy. It is far more than a slogan; it is as much a pillar of our freedom as are elections and our legislatures. Yet, we invest far too little in the administration of justice, and sometimes only just give it lip service.
Our courts are understaffed and overworked. In Quebec, Crown prosecutors went on an unprecedented job action to protest against their low wages and high workload. The sight of these prosecutors in their robes marching for a decent wage and respect from the Crown was deeply troubling. It highlighted the long neglected stresses in an overstressed and largely neglected judicial system.
In an unprecedented speech to the Canadian Bar Association, Justice Robert Bauman, Chief Justice of the British Columbia Supreme Court, sounded the alarm on the declining state of our judicial system. He said: “It is threatened, if not in peril.”
He added that there “comes a tipping point when that gradual, insidious process of incremental damage yields its dramatic finish—the structure is diminished and collapses. The stability and integrity of our courts and judicial system are being slowly eroded by a lack of funding.”
As Justice Bauman reminded his colleagues, the judiciary is one of the three branches of government in Canada, together with the legislative and the executive, and in theory the three branches of government are equal.
“But in practice, the judiciary is the weakest branch because it depends entirely on the other two branches of government to pay the salaries of judges and to provide the critical infrastructure needed for an effective Superior Court system. If the executive and the legislative branches do not provide adequate funding to the courts, our whole system of justice is compromised”, he said. “The court must give effect to the rule of law.”
The chief justice’s S.O.S. came at a time when the massive crime legislation working its way through Parliament will add enormous new pressures on a court system that is already stressed to the max.
In one case, Associate Chief Judge Michael Brecknell granted a stay of proceedings to a defendant found guilty of possession of cocaine for the purpose of trafficking where there was a 42-month delay. Over half of this was attributed to limitations in institutional resources.
Judge Brecknell cited the shortages to the judicial complement and observed that as at March 31, 2011, 59 percent of adult criminal cases pending were over the 180-day completion guideline the court has mandated for itself based on the case law of the Supreme Court of Canada.
Among the 59 percent, 15 percent of the adult criminal cases have been pending for more than 18 months or 540 days.
In granting the judicial stay of proceedings, Associate Chief Judge Brecknell said this: "The fact that an unrepentant drug dealer who has been convicted of possession of cocaine for the purpose of trafficking; and while involved in the trial of this matter has been charged with further like offences; should now be able to be free of the consequences of this very serious offence because the judicial system could not accommodate his trial, within a reasonable time should alarm and concern the community. However, all citizens, even drug dealers, are entitled to the full protection of their rights under the Charter."
Meanwhile, Chief Justice Bauman said: “A judicial stay of proceedings in a criminal matter is the most obvious example of the system unacceptably breaking down. But I suggest the other more benign symptoms of the breakdown—delays in processing of documents/effects on scheduling flexibility for example, are just as serious and should be regarded with the same critical eye."
Bauman’s illustration of the seriousness of the problem goes deeper. “Another impact of inadequate resourcing of the courts is taking place, insidiously and in slow motion. Without adequate resourcing, the court’s traditional and essential role in maintaining societal order is being eroded and degraded.”
The integrity of the legal system is what breathes life into our democratic institutions, and is in many ways its oxygen. But so does a strict adherence to the rule of law.
Last week, B.C. Supreme Court Justice Mark McEwan expressed his frustration over the RCMP's refusal to end an aboriginal blockade in Hazelton, BC. Members of the Gitxsan First Nation have occupied the offices of the Gitxsan Treaty Society (GTS) since December 5th. Two days later, the GTS secured an injunction against the occupation. Now, almost six months later, the RCMP still has not moved to enforce the court ruling.
"If the court's order then is stuck in somebody's back pocket, which is what seems to happen, you know, then what have you got?" asked Justice McEwan. "You've got the court stamping its feet and nobody bothering to enforce it."
He asked Department of Justice lawyers before him whether they understood how "demoralizing and undermining to the whole idea of the rule of law it is to have people carry on in a community flagrantly in violation of both the Criminal Code and a court law—and a court order."
Expressing his utter exasperation, McKewan admonished the government: "You are saying that as long as you assemble enough people in this country, you can get away with anything. That cannot be. That cannot be."
Police are tasked with enforcing the law and respecting orders of the court. There cannot be wiggle room on this fundamental point. If police pick and choose which law they decide to enforce and at what pace—especially if it contravenes an explicit court order—order itself and respect for it breaks down. If there are exceptions to the rule of law, where does it stop?"
There's the general law that obliges the police to enforce the law. Unless we insist that the courts are adequately resourced, the administration of justice erodes. Unless we enforce the laws of the land, the notion that the law applies and is enforced equally and fairly to everyone, the very underpinning of our system is undermined.
This is a profoundly serious, and parliamentarians across Canada have been largely silent on these issues. That is a very dangerous abdication of responsibility and leadership that sends a powerful signal to citizens. The message is this: depending on who you are, where you are, and the delicacy of the problem, you might be able to break the law, defy a court order, and get away with it without any consequences.
Doing that is an affront to democracy. What is at stake is nothing less than the very liberties we so take for granted. Our jurists understand this. Why don't our MPs and MLAs?
Daniel Veniez is a former federal Liberal candidate in West Vancouver–Sunshine Coast–Sea to Sky Country. Reach him on Twitter at @danveniez.