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Toronto Star - Aug 13, 2007, By Tracey Tyler, LEGAL AFFAIRS REPORTER Let judges run courts, lawyers say
Resolution urges governments to turn over control of court operation to judiciary to ensure autonomy
CALGARY – To some, having prosecutors running the court system is the precarious legal equivalent of leaving a fox in charge of a chicken coop. Yet in many provinces, including Ontario, that's reality, with attorneys general not just prosecuting people for crimes, but operating the court themselves.
But Canada's largest legal organization wants to cut those bureaucratic strings and turn control of court operations over to the judiciary. At its annual meeting here over the weekend, the Canadian Bar Association endorsed a resolution urging provincial and territorial governments to shift from government to judge-based control of court administration, calling it crucial to ensuring the independence of the judiciary.
"What we have is a situation where judges are often not masters of their own houses," said outgoing bar association president Parker MacCarthy, who brought forward the resolution.
There are practical and principled reasons for ending government control of the courts and the public will be the biggest beneficiary, he said in an interview.
While judges often know best what's needed to keep courts running smoothly, they're typically beholden to the whims of bureaucrats when it comes to deciding whether and how court budgets will be spent. This includes everything from hiring staff to rooms for juries.
But even more important is the potential for conflict of interest when the government, which regularly appears in court as a litigant, is also controlling the working conditions of the bench, he said.
Concerns about the government administering court operations were raised as long as 30 years ago, including by former Ontario attorney general Roy McMurtry. A report prepared for the Canadian Judicial Council last year said court administrators are often torn between loyalty to the government and loyalty to the judges they serve.
Complicating the situation further, the report said, is the tension that's developed in recent years between the judiciary and some provincial governments over their failures to follow the recommendations of judicial remuneration commissions and raise judges' salaries.
The report's authors, including Toronto law professors and court administration experts Carl Baar, Robert Hann and Lorne Sossin, recommended a "limited autonomy" model for court operations.
Their system would see governments setting court budgets, judges deciding how to spend the money and an independent commission set up to mediate disputes.
In other developments over the weekend, the bar association also approved a resolution calling on the federal government to scrap the GST on legal services to reduce the high cost of litigation and improve access to the justice system.
The resolution calls for legal services to be "zero rated" for the GST, not GST-exempt like groceries, said Toronto lawyer Allan Gelkopf, who chairs the association's commodity tax, customs and trade section.
While the net effect is the same for consumers – they would pay no GST on legal bills – it's an important difference for lawyers because zero-rating the GST entitles them to claim tax credits on goods and services purchased for running their law offices, he said.
However, members of the bar association who were hoping to ask Justice Minister Rob Nicholson today will no longer have that opportunity. Although Nicholson was scheduled to give a speech and take questions from lawyers – part of a long-standing conference tradition – he's been told by Prime Minister Stephen Harper he must remain in Ottawa, MacCarthy said yesterday during the conference's official opening ceremonies.
Harper is expected to shuffle his cabinet in the coming days. "I guess if your boss is the Prime Minister, you have to listen pretty carefully to those requests," MacCarthy said. Nicholson delivered a brief, pre-recorded speech yesterday by video.
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