On to the third (and maybe last) part of my comments about the the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. On Thursday I wrote about the separation of powers aspect of the judgment; on Friday about its suggestion that there is a right to go to court. I turn now to the idea that the imposition of hearing fees is wrong not (just) because it infringes the judicial branch’s prerogatives or the rights of the citizens, but because it departs from a certain idea of what government and public services ought to be like.
This argument is related to the one about separation of powers; indeed, although Justice McEwan’s rhetoric suggests otherwise, I think it is necessary to make the separation of powers argument plausible. Taken on its own, the claim that the judiciary must be master in its own house and the legislature has no business interfering with the role of the courts by enacting rules that encourage people to settle disputes otherwise than through adjudication is incredibly far-reaching. It would make rules designed to encourage settlement (like Rule 49 of the Ontario Rules of Civil Procedure) or legislation providing for recognition and enforcement of arbitral awards constitutionally suspect ― but I don’t believe any court in Canada would think this a plausible constitutional principle. What might make the claims of impermissible interference with courts plausible here is the nature of the change imposed, rather than the mere fact that the legislature intervened in the working of the judicial branch.
The hearing fees imposed by British Columbia had the purpose and effect of “rationing” courtroom time and of making the people who actually go to court pay for the upkeep of the civil justice system. They reflected a conception of the civil justice system as a service of which people choose to avail themselves, and which benefits those who make this choice. If that’s what civil justice is, it is logical enough to make its “users” pay for it. That’s how arbitration works, for instance. But it’s not what civil justice is, says Justice McEwan.
For one thing, going to court is not exactly a matter of choice. Justice McEwan points out that “[e]very individual in society may quite unexpectedly require resort to the courts. This is much more a function of circumstance, than of choice, either for claimants and [sic], more obviously, for defendants.” (Par. 411) People who (believe themselves to) have been wronged, whether by private parties or by governments, may have little alternative but to go to court ― or forego their rights. Justice McEwan is quite right about this.
He could have added that most people who find themselves in court cannot be said in any meaningful way to “get something out of it.” Only a successful plaintiff gets something out of litigation – and even is presumably something he was entitled to. A successful defendant doesn’t get anything, except at most a (partial) reimbursement of his fees – nor, a fortiori, a losing plaintiff or defendant. A service, whether public or private, is a way of getting something – financial advice, education, a computer repair, whatever – something that one did not have before. Adjudication, it seems to me, does not fit into that category; sure, whatever side you are on and however it comes out, your legal position is ascertained – but does that, in itself, have a value for which it would in any sense be fair to make you pay?
And seeing litigants as paying customers creates practical problems too. As Justice McEwan points out, “[i]t is obviously difficult for the Court to allocate its own priorities to the work it must do in an atmosphere where some litigants believe the time available has been sold to them.” (Par. 418)
So far, so good, though of course it is debatable whether this is enough to make hearing fees unconstitutional. Stupid, unfair, not grounded in realities ― yes; but not every stupid and unfair law is unconstitutional. That’s why I think that Justice McEwan is on strongest ground when making individual right arguments.
But where he gets on really shaky ground, it seems to me, is when he goes beyond discussing the difficulties of treating adjudication as a service, and starts thundering about “a culture where almost everything is for sale,” in which “notions borrowed from the marketplace have come to influence the paradigms of government.” (Par. 408) Given the strength of the arguments relating specifically to adjudication, I don’t think that these more general claims are doing much work, so perhaps they can be disregarded as so much bluster. But (this) bluster is injudicious. It is emphatically not the province of the judicial department to say what society government ought to be like, beyond insisting on respect for legal rights and the Rule of Law; it is accordingly emphatically its duty to refrain from pontificating on these issues. I also think that as a substantive matter Justice McEwan’s views are at least partly mistaken, but in any case, a judge should avoid stepping into such controversies, especially when doing so is not at all necessary for the resolution of the case before him.
Still, while I find Justice McEwan’s hostility to “the values of the marketplace” rather thoughtless, and its expression in a judicial opinion inappropriate, he is right that they have no place in a courtroom, and that “[s]ome things cannot be for sale.” (Par. 431)