Lawrie McFarlane: Don’t wait for Godot, let Eby seize moment

B.C. Attorney General David Eby recently advised us that “the decision about [restarting] criminal jury trials is entirely in the hands of the chief justice of the [B.C.] Supreme Court and the judiciary.”

There is not a shred of support for that statement in our country’s constitution, or our provincial statute book, as we shall see.

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Eby was fretting that because jury trials have been placed on hold due to the COVID-19 outbreak, a backlog has arisen that may take years to work through.

But Canada’s Supreme Court has imposed a time limit of 18 months to complete a trial in provincial court, and 30 months in superior court.

If those deadlines are not met, the accused may be set free. There are numerous instances of this happening across the country. Even accused murderers have been let go.

Now there is indeed some latitude if circumstances are exceptional, as they clearly are here. Nevertheless, the question remains, what happens if the delays drag on too long?

Eby wants to leave the handling of this delicate matter to B.C.’s judiciary. Yet on purely practical grounds, that makes no sense.

Our courts are one of the most under-managed systems in the public sector.

Long before COVID struck, wait times were brutal. The reason? Our courts are uncomfortable with the procedural discipline required to impose management.

A number of retired B.C. judges have said as much in reports that detail nearly unbelievable disregard for basic courtroom order. And these reports were written long before the COVID outbreak, or complaints about understaffing.

Part of the cause rests in the nature of legal training. Lawyers (and hence judges) are taught that every case is unique, that each must be treated as an incident unto itself.

You see this in the kind of decisions our appeal courts sometimes bring down. Every word uttered by the trial judge is pored over and dissected. Every courtroom decision is second-guessed, in findings that can run to hundreds of pages.

Fair enough. If you’re an accused person, you want that kind of attention to detail and precedent.

But managing is all about simplifying — about finding points of general consensus and embracing them. This our judiciary has repeatedly failed to do.

In the words of the Supreme Court when it imposed the latest in a series of (missed) deadlines: “The system has lost its way.”

So waiting for B.C.’s chief justice to manage through the COVID mess is like waiting for Godot. Either it won’t happen, or we won’t like the outcome when it does.

But there is a broader issue. Eby is quite wrong to say the decision to restart trials lies beyond his hands. It does not. It lies with him.

Here is what the Constitution Act says: “The Exclusive powers of provincial legislatures include … the Administration of Justice … including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction …”

Here is how the federal justice department interprets that provision: “The provinces administer justice in their jurisdictions. This includes organizing and maintaining the civil and criminal provincial courts...”

And here is what B.C.’s Attorney General Act says: “The Attorney General … must superintend all matters connected with the administration of justice in British Columbia that are not within the jurisdiction of the government of Canada.”

Which part of administering, organizing and superintending does Eby dispute? If the English language means anything, he is in charge, not the chief justice.

I’m being hard on the man. He’s a smart guy merely following years of precedent.

Our attorneys general understand that in any confrontation between a politician and a judge, the public will reflexively side with the latter. If the judiciary wants to run the show, and it most certainly does, better to aim for a quiet life and let it.

But this time around, there is an opportunity to regain control of a system that is far beyond self-help. If the COVID crisis has taught us anything, it is that actions which would previously have been political suicide, are now in the realm of the doable.

So let Eby seize the moment, and play the role our constitutional framework gives him.

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