On September 7, 2009, Chief Justice Donald I. Brenner will be stepping
down as Chief Justice of the Supreme Court of BC. He is leaving behind
a court which he believes is “as strong a trial court as exists anywhere.”
Recognizing that the strength of the court lies in its people, the
Chief Justice spoke very highly of his judicial colleagues and the
employees of judicial administration and court services who support the
judiciary. “Our employees are very dedicated. I think they do a great job of helping us to serve the public of British Columbia.”
Rising to the position of Chief Justice of the Supreme Court of British
Columbia, he envisioned a tenure spanning several years which would
allow him time to work to bring about various reforms focused mainly on
his personal objective – to see access to justice improved for all.
Nine years later, the Chief Justice is confident that he has achieved what he started out to do stating, “When
I started in 2000, my view was that the right length of tenure would be
between five and eight years: a period long enough to accomplish what I
wanted to accomplish, but not so long that I would start to grow stale.
I did not want to overstay because I believe that institutions such as
this court can benefit from the infusion of fresh ideas and energy that
can come with a periodic change of leadership. After nine years, my
view remains unchanged. And so, when I had accomplished a number of
things that I had in mind when I started, as well as the other things
that came along while I was here, I thought it was an appropriate time
to go.” But he added this emphatically “I was not going anywhere
until I had completed my work on the new Civil and Family Rules. When
the new rules containing all of the important changes that I was
seeking became law, the successful conclusion of that project meant
that I was able to step down.”
Primus Inter Pares
As Chief Justice, his is not a position of power but of influence. He
has always considered himself as just one of the 91 trial judges on the
court, but with additional administrative responsibilities. However, he
is considered the first among equals. “A chief justice has very
limited ability to control judges and this is essential. A chief
justice, above all, must respect, support and indeed defend the
principle of judicial independence. The best courts are those composed
of patient, tough minded but fair, vigorously independent women and
men free of any influence save their oaths to uphold and apply the rule
of law without fear or favour. I am proud to say that has always
described my judicial colleagues. However, that said, a chief justice
can still accomplish a great deal with the support of the court, its
staff and the bar.” Chief Justice Brenner is very grateful
because, from his very first day, he has enjoyed a very high level of
support from all of them.
Shortly after completing his first year in office, he published an
annual report. The annual report provided the public with statistics
and key developments that had taken place in the courts. He made sure
that it was posted on the court website heralding an era of openness.
He has consistently espoused his desire to see justice run efficiently
and effectively.
In his recently released annual report for 2008, he spoke of the
bumping of trials caused by a judicial vacancy rate approaching 10%. “Our
court operates on a very thin margin; we need all of our judges and
masters. Last year was somewhat unusual in that we had an abnormally
high number of retirements. While the federal government has been
working hard to fill judicial vacancies, the time it is taking to fill
the vacancies has forced us to cancel some trials and hearings.”
When asked to speak of his successes during his nine year tenure, the
Chief Justice said he prefers to leave that to others to assess.
However he did say that he believes that the court he is leaving is in
a very strong position because of the many changes that the court was
able to implement both externally and internally.
In looking back at the various rules revisions and pilot projects over
his tenure, the Chief Justice recalled that his first priority was to
address the challenges of family law.
He applauds the successful implementation of the Judicial Case
Conferences (JCCs) that have directly addressed access to justice. JCCs
are now available on a province-wide basis. Like many innovations, the
notion of early, mandatory judicial case management in family cases
was first tested using two different models, one in Vancouver and the
other in New Westminster. After becoming chief justice he encouraged
the court's Family Law Committee to combine the best practices from
each of the two pilot sites and develop a new, province-wide model. “Under the leadership of Justices Donna Martinson and Bruce Preston, the Family Law committee recommended the JCCs.” As he notes, these have allowed parties to enjoy the benefits of “getting
in early, getting cases settled early and getting those cases that need
to be tried to trial faster and with fewer interlocutory applications.”
That the JCC's are a success was evident in the Chief Justice's recent
province wide consultations on the new Civil and Family Rules. In
discussions with the bar, he was universally implored to keep the JCCs
unchanged.
He also cites the electronic version of the Request to Appear Back in
Front of a Master or Judge, which was introduced in December 2005, as
an example of how the court has become more efficient and effective.
This electronic form replaced a cumbersome system that required counsel
to write a letter to the trial scheduler, who then had to figure out
the reason for the request and find the judge or master who was seized
with the case. The judge or master would then take the letter and
decide what to do with it then return the letter to the trial
scheduler, who would then communicate with counsel. This process has
now compressed that time, sometimes within minutes.
A View From the Top
A Stable and Responsive Judiciary
In the work leading up to the creation of the new Rules of Court,
various members of the profession and the media paid a lot of attention
to what the role a judge in the superior courts ought to be. With the
planned introduction of case management as a tool to get cases moving
faster, there was a concern that the judiciary was going beyond its
traditional role as the interpreter of laws. Some groups were alarmed
at the notion that the courts were going to be unconstitutionally
flexing its judicial muscle.
He found this puzzling. “Our court has been engaged in judicial case
management for decades. In fact the most common complaint I have
consistently heard from the bar over the last nine years about judicial
case management is not about “nanny judges” but the opposite: that the
judges do not do enough of it and are not active enough. ”
However ultimately: “The role of the legislature is to pass laws
and the role of the judiciary is to interpret those laws. The new Rules
of Court that were passed confer a lot of judicial discretion. These
Rules give the judges and masters a wide discretion on the type of
orders they can make. And if the objects in the new rules are to be
achieved, and if we are to improve access to our court, judges need a
reasonable amount of discretion as well of course, as the willingness
to exercise it.”
On a self-regulated legal profession
The Chief Justice strongly believes in judicial independence, because
this is the only way that the public can have confidence that judges
will render impartial decisions. Similarly, he believes that the legal
profession must also be independent of any influence except that of
advancing the interests of its clients in accordance with the highest
ethical principles. He points to the long and proud tradition in our
province of a vigorously independent bar whose members fearlessly
advocate on behalf of their clients both within and without the
courtrooms of our province. Most importantly, an independent bar is
critical to the successful functioning of an independent judiciary.
The Chief Justice believes that the bar, supported by the judiciary,
must remain ever vigilant to preserve the bar's independence. He is
concerned that in a number of countries, governments have assumed the
regulation of the legal profession. In these times with elevated
public expectations and with all institutions under close scrutiny, it
is essential that the Law Society of BC adequately perform its historic
role of regulating the legal profession in a rigorous, timely and
transparent manner and ensure that the public understands the
importance of bar independence. He applauds the efforts of President
Turriff, QC who has spent so much time this year traveling the province
and speaking to many members of the public on these vital issues. !
The conclusion of Dom Bautista’s interview with Chief Justice Brenner will appear in next month’s issue.
