Wednesday, 23 May 2012

Court Hearing Fees Are Struck Down as Unconstitutional

In a judgment released yesterday, the Honourable Mr. Justice McEwan declared unconstitutional the hearing fees charged by the B.C. Crown for use of courtrooms for hearings or trials.

In a tour de force 178-page judgment, which considered intervenor submissions from TLABC and CBA BC and took over two years to render, Justice McEwan reviewed the constitutional history of Canadian courts (starting from the Magna Carta), reviewed Charter and other access to justice considerations, and even likened access to the courts with public expectation of free health care.  Ultimately, he concluded with the following key lessons for the government:
(1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).
(2) The mandate of the province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.
(3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. ...
(5) Fees charged by government for services rendered in individual cases, such as filing fees, do not constitute impermissible impediments to access, and as such fall within the legislative ambit of the province under s. 92(14) and its responsibility for the administration of justice. There is no alternative to that kind of assistance, and it is of direct individual benefit. Although the government is not bound to charge such fees on a strict cost recovery basis (see Eurig Estate (SCC), para. 80 herein), the fees charged, given the limited nature of such services, could not “reasonably” rise to a level that are not affordable by all but the truly poor or indigent. To the extent that, for those properly described as indigent, such fees constitute an impediment to access, the exemption is available.
(6) The question posed by this case was limited to the constitutionality of hearing fees. In this respect, the focus was narrower than the focus in Pleau which also addressed, among other things, jury fees. To the extent Pleau is applicable to the issue in this case, I have accepted that court’s conclusions, and the distinction it recognized between hearing fees and fees for services. I have rejected the AGBC’s position that there are no distinctions among fees and that government’s discretion is not limited as to the fees it may impose. ...

The actual effect of the judgment is somewhat unclear, since Justice McEwan only struck down the hearing fees under the old Rules:
[432] For the reasons I have given, I find that the hearing fees set out in paragraph 14 of Appendix C Schedule 1 (B.C. Regulation 10/96 as amended) (see para. 70 herein) are unconstitutional, and that neither Ms. Vilardell nor Mr. Dunham is liable to pay them.
How this applies to the current hearing fees under paragraphs 9 and 10 of Appendix C Schedule 1 (B.C. Reg. 119/2010) remains to be seen.

In light of the recent "justice reform" debates, the following passage is also particularly notable:
(4) The AGBC’s anxious concern for trial efficiency is misplaced. Courts of inherent jurisdiction are equipped with all the tools they need to manage trials and to deter time wasting, and they use them. It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees. In their focus on particular facts, on individual circumstances and on scrupulous adherence to due process, the courts will never satisfy the norms of efficiency expected by those who imagine them as part of a government run “justice system.” However the “justice system” is conceived by government, it makes its deliveries to the courthouse door, and a different branch takes it from there. The AGBC’s recent criticism of the courts for “underdeveloped systems thinking” or “anecdotalism” is a misapprehension of the essential characteristics of the judicial branch of government: it amounts to criticizing courts for being courts. In “The Death of the American Trial” (University of Chicago, Press, 2009), Robert P. Burns addresses a relevant distinction at p. 128:
[The court] is a forum that offers an antidote to bureaucratic modes of social ordering... . A bureaucratic mode of social ordering is justified as the most efficient device for achieving legislatively pre-determined ends. It seeks to “exclude questions of value or preference as obviously irrelevant to the administrative task, and it would view reliance on non replicable, non reviewable judgment or intuitions as a singularly unattractive method for decision.
The courts exist as a place where questions of value matter, where individual voices can be heard, and where the deficiencies of bureaucratic and systematic modes of thinking may be carefully examined, rather than abetted. Courts cannot be enlisted into “systems thinking” without harm to their functional essence.
Appeal is surely to follow.