Vancouver Sun

Civil justice is a right, not a business opportunit­y

Wrong mindset: Government’s job is to make courts easier to access, not more lucrative

- imulgrew@vancouvers­un.com

Striking down B. C.’ s court-hearing fees will do little to significan­tly fix the access- to- justice crisis or pressure Victoria into increasing legal- system funding.

The province hasn’t collected the impugned levies since May 2012, when B. C. Supreme Court Justice Mark McEwan initially condemned them.

Even if it were still receiving the cash, the total was a pittance: $ 1.5 million, or 1.7 per cent of the overall revenue — $ 87.5 million a year — Victoria gleans from the civil courts.

And it should be emphasized that the Supreme Court of Canada decision last week declaring the fees unconstitu­tional does not apply to charges such as applicatio­n fees, service fees, document-filing fees, divorce fees, sheriff fees, etc. They’re still flowing into the government’s coffers.

Victoria garners approximat­ely $ 26 million from court fees and $ 61.5 million in probate fees. Not bad when you consider the total cost of the civil system — including the relevant portions of Court Services, the judiciary and Shared Services B. C. — was only about $ 93.8 million in 2012- 13, according to the Justice Ministry.

The Court Services branch’s overall budget is roughly $ 96 million.

Though the hearing fees were his primary target, McEwan’s dissertati­on- length judgment also took aim at their pernicious root — the now dominant idea that civil justice should be treated as a business.

He saw hearing fees as emblematic of a government mindset that should be vigorously opposed.

They symbolized a strategy to make the civil courts economical­ly self- sufficient, if not a profit centre — an idea adopted first in Britain in the early 1990s and a few years later in B. C. under the NDP.

“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,” McEwan rightly 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.”

Unfortunat­ely, he said, the result was citizens’ rights were being unfairly infringed.

McEwan thought, and the Supreme Court agreed, hearing fees were fundamenta­lly unfair and had a negative effect not only on vulnerable sectors of society but also on most members of the middle class.

You cannot put a price tag on justice, the veteran jurist scolded Victoria — “some things are not for sale.” Perhaps. Vancouver litigator Darrell Roberts said McEwan’s concerns were well grounded.

“Three attorneys general in this country — Quebec, Ontario and Alberta — lined up and intervened at the Supreme Court of Canada on behalf of the province of B. C.’ s legal fees,” Roberts said.

“Now, those three jurisdicti­ons don’t have hearing fees but they argued on behalf of the province of B. C. in favour of hearing fees. It was clear they were in the case to try to protect the future possible taxing jurisdicti­ons of their government­s.”

It should be also kept in mind that Victoria reaps $ 146 million a year from the tax on legal fees ( while spending only about $ 80 million in legal aid).

And I think it’s disingenuo­us to defend this, as Justice Minister Suzanne Anton does, by maintainin­g this is equivalent to any other goods- and- services tax.

It is inconsiste­nt with the view that the rule of law is the foundation of the charter, and access to courts is our guarantee of its rights and freedoms.

Citizens resort to the court not because they are customers, clients or users who choose to, but because circumstan­ces compel them.

Support for the civil courts should be seen as a cost of good government, not as a discretion­ary expense to be minimized, amateurize­d by providing no legal aid, or privatized wherever possible.

The Supreme Court ruling ends the practice of hearing fees, but not the concept of user- pay justice.

 ??  ?? Last week, the Supreme Court of Canada declared B. C.’ s court- hearing fees unconstitu­tional.
Last week, the Supreme Court of Canada declared B. C.’ s court- hearing fees unconstitu­tional.
 ??  ?? Ian Mulgrew
Ian Mulgrew

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