Supreme Court justice won’t hear of hearing fees

To the provincial government, B. C. Supreme Court Justice Mark Mcewan has become a veritable one- man judicial wrecking crew. First, he firebombed Victoria over its lack of funding of the provincial bench. Next he criticized the drunk- driving law for being seriously flawed.

Then he was off to scold the RCMP and the Criminal Justice Branch for their handling of the Hazelton First Nations standoff.

This week he single- handedly scuttled the government- imposed hearing fees for civil litigation, declaring they violated the constitution.

You cannot put a price tag on justice, the veteran jurist reprimanded Victoria — “some things are not for sale.”

It wasn’t good enough to say if people didn’t like the policy, they had recourse at the ballot box.

“The vote,” he thundered, wasn’t a “constitutional trump card in the hands of the government. … The right to access to the courts must also stand outside and beyond the competence of either parliament or the legislature to inhibit or abrogate.”

In Mcewan’s opinion, “our Constitution, unlike that of the United Kingdom, does not admit of the possibility that parliament or a legislature could shut the courts down …”

He had made quite an intellectual journey since being asked in 2010 to waive roughly $ 3,600 in hearing fees owed by a middle- class Vancouver woman who had lost a custody battle.

The request caused him to embark on a quest to determine the constitutional legitimacy of such fees and, in the end, he said she was off the hook.

That’s because elected representatives no longer call the shots in this country; unelected judges do. Democracy isn’t just about voting, Mcewan insisted, it’s also about the rule of law. Before elected representation existed, he intoned, the courts functioned as “a fully active legislative body.”

Mcewan’s lengthy cri- de- coeur came after two years of soul- searching and is built on the notion that parliamentary supremacy no longer exists in Canada.

As in the United States, in his view, the arrival of the written constitution transformed the judiciary into the independent third branch of government with institutional standing and a claim on resources.

“While there is little theoretical restraint on parliamentary supremacy in England, the division of powers in Canada transforms some of the premises we once shared, such that certain underlying principles are not subject to legislative constraint by either branch of government,” Mcewan explained. “Because the courts stand between the other branches of the government in a federal system, resort to the courts cannot be within the power of either branch to inhibit.”

His bound- to- raise- eyebrows decision is a 178- page tour de force.

Justice Mcewan surveyed Canada’s legal history from its roots in hoary documents such as the Magna Carta of 1225 and the 1494 statute of Henry VII, to the present day Charter of Rights and Freedoms.

The king did sell justice, he said — writs cost money both before and after the Great Charter was adopted.

Different kinds of levies have been imposed over the centuries and hearing fees existed both in Britain and preConfederation Canada.

Still, Mcewan said such charges raise fundamental questions respecting the relationship between the branches of the government and the concept of access to justice in relation to the rule of law.

He provided a trenchant interpretation, weaving together precedent with economic and cultural analysis.

Justice Mcewan traced the reintroduction in 1998 of hearing fees in B. C. to Britain’s controversial decision in 1992 to move to a user- pay system for its civil courts.

The alteration to the funding of a critical social institution was neither debated nor approved by the U. K. Parliament and the senior judiciary were unhappy with it.

Nevertheless, the last provincial NDP administration followed in those footsteps, introducing a similar cost- recovery regime here. The Liberal administration maintains the fee- for- service tariffs and vigorously defended them.

But Mcewan asked — is going to court a form of consumer choice subject to a schedule of fees, or a fundamental right?

Once justice is packaged as a service, as opposed to an independent arm of government, it is diminished and the judiciary or third branch must justify its claims to resources.

“It is not difficult to see how this ‘ novel political theory’ has come about,” Mcewan surmised.

“In a culture where almost everything is for sale it is evident that notions borrowed from the marketplace have come to influence the paradigms of government. But the premium a democratic society puts on inclusiveness, equality and citizen participation cannot be fulfilled in a society that sees citizens as customers or consumers ….

“Among the remarkable features of the [ government’s] submission is its complete failure to acknowledge these principles. The submission was not, in any sense, an expression of regret that it is unable to provide the means to live up to the ideals of democracy. It was a flat assertion that it cannot be compelled to try.” He was appalled. “The move to full cost recovery in England and British Columbia has been accompanied by declines in staffing levels [ in the courts] and in the commitment to legal aid,” Justice Mcewan complained. “The government’s preoccupation with reducing the cost of civil justice and of the court system in general has extended to other attempts to reshape the work and the role of the courts more directly. This is evident in the rationale offered for the hearing fees themselves. Cost recovery is only the secondary purpose of the fees according to [ Victoria]. The first is rationing court time.” Well, not on his watch.