Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it.

Justice McEwan argues that hearing fees, and more generally the government’s policy to reduce its expenses on the civil justice system (whether hearings, court staff, or legal aid), show that it regards “[s]upport for the civil courts … not … as a cost of good government but as a discretionary expense to be minimized … This raises a serious question about whether our constitutional arrangements are so ill-defined that the role of the judiciary is contingent on the role the other branches imagine for it.” (Par. 315)  This fight is not (only) about individual access to justice. It’s a fight between the judicial branch and the legislature (and/or the executive) over who gets to define the other’s role. Equality is not a realistic option here: either the legislature is supreme, and gets to tell the courts that they will only hear so many cases as it is prepared to pay for, or the courts are and get to tell the legislature that it is not quite free to decide how to allocate taxpayers’ money.

Each side has its weapon of choice in such a fight. For the government, that’s its democratic mandate. But Justice McEwan is clearly dismissive of the idea that “the ‘vote’ is … a kind of constitutional trump card in the hands of the government.” (He also thinks the courts can claim a democratic mandate of their own, but more on that in another post.) His own constitutional trump card is the principle of the Rule of Law, though not in the formal sense most developed by legal theorists (such as Lon Fuller), but rather what Jeremy Waldron calls its “procedural” aspect:

To the extent that government imposes limitations to deter or prevent litigants from seeking recourse to the courts, it undermines a fundamental premise of civil society: that there will be a place for everyone for the peaceful resolution of contentious issues according to law. To the extent the government imposes limitations on those who seek redress against government itself, it undermines its own accountability and legitimacy, and the rule of law itself. (Par. 347)

A cynic could say that this continues the remarkable record of underlying principles serving to protect only the power of the judiciary, as most (in)famously in the Provincial Judges’ Remuneration Reference, but even the invocation of the Rule of Law in the Manitoba Language Rights Reference can be read in this light, because it ultimately served to protect the Supreme Court’s power to strike down unconstitutional legislation. And, more generally, a cynic could point out the self-interest of the bench and the bar (which, through the BC branch of the CBA and BC trial lawyers’ association intervened―at the judge’s suggestion―to support the unconstitutionality of the fees) in trying to have as many people as possible settle their disputes in the courtroom rather than elsewhere.

Yet this does not necessarily make Justice McEwan wrong. Waldron’s arguments about the procedural aspect of the Rule of Law are convincing―as he points out, when a layman speaks of the Rule of Law, he is more likely to refer to the importance of the impartial application of law by courts to all citizens and to the government itself, and to the possibility each person has to make claims to an impartial court. So for a government to comply with the Rule of Law, it does need to provide a civil justice system to which all citizens have an opportunity to address themselves. Justice McEwan has a point when he says that courts “are a first charge on government, not a ‘service’ that competes for what is left over after government organizes its other priorities” and can be provided only if and to the extent that the legislature, in its wisdom, sees fit. Their existence and accessibility are essential to what government itself is―the kind of government we have anyway, one based on the law and not on arbitrary power.

But notice the shift of emphasis: what I have been talking about in the preceding paragraph is much more like an individual right to go to court, to access justice, than a don’t-tread-on-me separation of powers argument. I think that it is a weakness of Justice McEwan’s decision that it emphasizes the latter at the expense of the former. It is not so obvious why courts should win a fight against the legislature; Justice McEwan’s invocation of the fact that in England, the common law and the courts pre-dated Parliament and legislation is surely not enough. It seems to me that an argument from individual rights is more convincing than that from separation of powers. I will return to it in another post. For now, this is too much already.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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