Our Justice System Is Under Attack
Across Canada, our justice system is under attack. In British Columbia, the New Democratic Party is erasing the law society, eliminating with it the independence of lawyers. In Alberta, the United Conservative Party sought to cease funding to legal aid – which funds individuals and families who stand at and below the poverty line and cannot afford justice otherwise – and continues to negotiate further oversight and restrictions to limit its reach. In Manitoba, the New Democratic Party removed a politician from caucus when it was discovered he had a connection to a lawyer who represented an accused, despite breaking no laws nor rules of decorum – and no apology is forthcoming. In Ontario, the Progressive Conservatives criticized judges for not being tough on crime, filled the appointing body with party-friendly ex-staffers, and continues to threaten oversight of judges who do not tow the party line. Parties of all political stripes, from province to province, attack the pillars of justice.
When existential threats are made, survival demands either fighting or bending the knee. Imagine if the law societies kowtowed to the government, punishing those lawyers who don’t fall in line with the political winds; if legal aid kowtowed to the government, allowing only litigation that was deemed acceptable by the political winds; if lawyers ceased to represent the accused for fear of government reprisal, and if politicians and others feared having a relationship with such lawyers; and if judges kowtowed to the government, disregarding legal jurisprudence in favour of longer sentencing times, less bail, and more punishing sentences. Such changes would cost us deeply, directly undermining our fundamental values, eroding the right to a fair hearing, the right to be presumed innocent, the right for everyone to access the justice system regardless of socioeconomic status, and the rule of law. These threats against the judicial system are real and are happening now.
Ever more vexing is the fact that these are polling-driven decisions by governments, which represent swing-voters on marginal issues. They do not represent the majority, nor do they protect a minority worthy of protection. They are decisions made purely on the basis of winning over the undecided voters, an artifact of a malfunctioning democracy. The absurdity of this kind of decision-making can be illustrated with an example. Suppose a fruit farmer must decide what to plant based on polling the people who will buy them. About half want apples and half want oranges. But a small margin of people want kiwis. Should the fruit farmer plant kiwis to appease the swing-voters? This is what we are seeing now with polling-driven decisions.
We prefer to make justice-driven decisions. We ignore the pollsters and make decisions based on a simple question: does this help or harm the justice system? Our voice and our existence, as individuals, as law associations, as law societies – is now more important than ever. We must stand against the tide of anti-democratic principles. It is not hyperbole to suggest our social fabric is tearing apart as we battle among the margins, leaving to rot the deepest and most important facets of democracy. We can advocate and make change for the better, entrenching judicial independence, improving legal aid, demonstrating self-regulation and good corporate governance, and reinforcing the tenets of life in the free world.
Justice is not a political plaything. It is the foundation for how we get along as neighbours and strangers, and guarantees the safety of living in our homes, of roaming our country freely, and of our economic system. It is a collective trust, table-stakes for happiness in society. Insist on a justice system that functions for us all.
You’ve asked: “[D]oes this help or harm the justice system?” Should the question be: Is this in the public interest? If as you write, “It is a collective trust, table-stakes for happiness in society. Insist on a justice system that functions for us all.”
https://www.cbc.ca/news/canada/manitoba/manitoba-premier-apologizes-to-defence-lawyers-1.7340706
The claim that the BC government is eliminating lawyers’ independence has been repeated often enough that it appears to be having an illusory truth effect. But amid all the moral panic from many lawyers who are heavily invested in the status quo, or who have axes to grind with the current government for decisions like the introduction of no-fault drivers’ insurance, I’ve yet to see anyone present realistic scenarios in which the government uses or abuses Bill 21 to become the controlling mind of the new regulator, lawyers or judges.
Lawyers’ self-regulation is being circumscribed (but not eliminated) in BC, sure. Lawyers’ independence? I don’t see it. I see pundits conflating the new regulator’s greater accountability to the public interest in furthering principles like access to justice and reconciliation, with some abstract loss of independence on the individual lawyer level.
In actuality, Bill 21 recognizes the independence of lawyers as a vital element of the rule of law. It creates a statutory duty for the regulator to “ensure the independence of licensees,” and makes all of the regulator’s decisions reviewable by a judge on that basis.
The legislation replaces a supermajority of elected lawyers (25 of 31 benchers) on the Law Society board with a bare majority of five elected and four board-appointed lawyers (nine of 17 directors), but limits government appointments to three of 17 directors (instead of six of 31 benchers). And it offers other safeguards against government intrusion.
I’m not aware of any polling that drove the current BC government to reform lawyer self-regulation. I don’t think it registers in public opinion at all. From my perspective as a life bencher who tried in vain to nudge the Law Society of BC to reform itself in the meaningful ways prescribed by the Cayton Report, the government stepped up to do right by a public that is starved of affordable legal service options. The Law Society just wasn’t willing or able to do it in the ample time it had.
So while I too lament the misplaced blame set upon our justice actors and institutions by populist governments, I don’t think Bill 21 in BC is an example or product of the phenomenon.
While the new BC Legal Professions Act does say it protects individual lawyers’ independence, it erodes the independence of the legal profession in terms of its governance, and in my opinion is inconsistent with BC’s obligations under international human rights law in that it unilaterally imposes the design of governance of lawyers in BC without consent of BC lawyers, who will have no say in governance of the legal profession other than to elect 5 of the 17 members of the new regulatory body, and through 4 other lawyers appointed by that body or the government. The process by which the law was passed is also inconsistent with BC’s international law obligation for democratic promulgation of laws. See Lawyers’ Rights Watch Canada’s most recent statement made shortly before the BC election: https://www.lrwc.org/bcelection2024-briefing-notes-2024-legal-profession-act/.
You wrote: “In Manitoba, the New Democratic Party removed a politician from caucus when it was discovered he had a connection to a lawyer who represented an accused, despite breaking no laws nor rules of decorum – and no apology is forthcoming.” In fact, Premier Wab Kinew called Gerri Wiebe, the lawyer representing the accused in the relevant case, to apologize personally and later apologized publicly on the floor of the legislature. He said: “Gerri Wiebe, I am sorry, I also want to say this: I apologize to defence attorneys as a profession. You perform an important function for our society. I offer these apologies with the deepest of humility, with the utmost sincerity and without reservation.” https://www.winnipegfreepress.com/breakingnews/2024/10/02/kinew-apologizes-to-defence-lawyers-after-mla-kicked-out-of-caucus