An Interview with The Honourable Chief Justice Robert Bauman

QWHAT’S ON YOUR MIND AS YOU HEAD TOWARD RETIREMENT?

The last 15 years of my career have been beyond anything I ever expected. I always wanted to be a member of the Court of Appeal and was lucky enough to join in 2008. Everything else was a bonus.

When I began as the Chief Justice of the Supreme Court, one of the most important challenges facing the judiciary was a lack of public confidence in the institution. I thought the reasons prompting that were perhaps misinformed and it was our job as judges to re-build public confidence.

I also recognized the institution’s need to remain viable in the 21st century. We’re steeped in tradition and we’re known to be conservative. While that has merit, we also have to be relevant. You often hear the anecdote that judges or lawyers from the 18th century could go into the courtroom today and not feel uncomfortable. The truth in that underlines the challenge.

I’ve endeavored to meet those challenges and have been successful in some regards. My office and the court are very open, and I think the public perceives it that way. I say this with full respect for my predecessors, but I think I’ve made the office more human. It’s important to the public to know who their judges are so they have confidence the decision makers in their lives are sensitive to their situation.

Approachability, accessibility and understanding by the public, in my view, increases confidence in the judiciary. The risks associated with openness and transparency of the judiciary are too often used as an excuse. We’re not prejudicing independence by knowing the community that we work in. We can use that information to help advance the interests of justice in ways that will resonate.

Q: WHAT ARE YOU MOST PROUD OF IN YOUR TENURE AS CHIEF JUSTICE?

I’m proud of the openness we have with the media. During my tenure, we haven’t turned down one request for comment, interview, open line show or other similar inquiry. And every time we’ve embarked on one of those exercises, it’s been to the benefit of the institution.

It seems to me that being forthright, acknowledging our weaknesses, and acknowledging where we can improve, upfront and honestly, can never hurt us. Obviously, the judicial process in any particular case is totally secret. But there are other aspects of our institution that shouldn’t be. And we should talk frankly about what the role of judges is in our society today.

and provincially today by bringing legislation in line with the United Nations Declaration on the Rights of Indigenous Peoples.

It’s not exaggerating to say we’re going to see a significant evolution in our relationship with Indigenous peoples; in the receipt of Indigenous legal orders into society and how that might impact the legal order we’re familiar with. It’s an exciting prospect. It’s a challenging one, but exciting, especially for young lawyers. I’d liken it to being on the verge of the Charter, and what it did to our society and the way we approach legal issues.

Legal pluralism is probably alive and well in Canada, and I think that’s certainly the federal view of things. I think we’re going to have to unlearn many of the things we thought we learned and be open to that kind of transition. Because that’s where true reconciliation lies. It’s not easy for many Canadians to face that kind of a challenge, but I think it’s inevitable that we have to.

Another huge area of evolution is what we’re undergoing with the regulation of the profession, including what it means to be a lawyer and what it doesn’t. This too will be challenging but if we’re going to resolve the access to justice issue, it probably has to happen.

Q:

DO YOU HAVE ANY HOPES FOR THE B.C. JUSTICE SYSTEM MOVING FORWARD?

Yes, the impact of true reconciliation on the institution and our society. We are seeing this play out federally

Let me say that I have an abiding desire that this regulatory reform is led by an independent Bar. Lawyers have a tremendous role to play in the new world. Because of their training, and the talents they inevitably bring to bear on any particular problem, lawyers remain leaders in our society, in our social institutions, and in our neighborhoods. Can we be leaders in the new way of practising law, if that’s indeed what we’re on the cusp of? We shouldn’t delegate it to politicians who don’t necessarily understand those principles. Lawyers shouldn’t give up their leadership role in these issues.

Q: ACCESS TO JUSTICE BC (A2JBC) BEGAN WHILE YOU WERE IN OFFICE, AND FOR WHICH YOU HAVE BEEN A LEADER. WHAT ARE YOU REALLY PROUD OF IN REGARD TO A2JBC?

A2JBC is an example of the courts being intimately involved in an initiative aimed at engaging the public and advancing change to make the justice system more accessible. It’s learning for us but it’s also demonstrating to our public that we’re part of the solution and we see beyond the four walls of the courthouse. A2JBC brings together a whole bunch of players that weren’t traditionally “in the tent,” with a view to breaking down the silos to come up with a holistic approach to the problem.

The family law collaborative is a case in point: it’s exemplifying the A2JBC approach by involving users, children, health professionals, judges and lawyers in an approach that puts family well-being at the centre.

Q: IN TERMS OF ACCESS TO JUSTICE, HOW DO YOU THINK WE’RE DOING?

The National Action Committee told us that, on that measure, we weren’t doing very well and I can’t really dissent from their conclusions. For average Canadians of average income, affording a two-week trial in the Supreme Court of British Columbia is beyond their wildest dreams. So something has to change.

The courtroom as a dispute resolution tribunal shouldn’t only be for governments and rich corporations. We’ve got to provide a meaningful service to people who have serious family law problems, serious small commercial problems, so they can come to us and get them resolved without losing their house.

We don’t know the right answer but some of the things we’re trying are mediation, early intervention and educating the public in the law. It is unbelievable what the public legal education sector has done over the last 15 years. The ability of the public to learn about the system has expanded exponentially.

We still have a long way to go and there’s a real need for concerted effort. And that’s again where A2JBC has pioneered performance metrics through the work of the Measurement Working Group. A2JBC’s Triple Aim and Measurement Framework have been critically acclaimed.

Q: THE COURT OF APPEAL HAS DONE A LOT OF WORK IN MAKING THE COURT MORE ACCESSIBLE FOR LITIGANTS: FROM RULES REFORM, TO COLLABORATING WITH ACCESS PRO BONO ON ITS APPEAL ROSTER PROGRAM. COULD WE IMAGINE A JUSTICE SYSTEM THAT IS SIMPLE ENOUGH THAT THERE IS NO REQUIREMENT FOR LAWYERS?

To say our new forms and rules could make the Court of Appeal eminently accessible to ordinary people would be exaggerating. Life is complicated, these issues are difficult, and there has to be order to it.

Unbundled services and licensed paralegals are an imaginative way to meet parts of the problem but it’s too simple an approach to be the whole answer. Lawyers’ training allows them to identify the real problems and bring the real solutions to bear. That’s invaluable and I don’t think there will ever be a time when legal training isn’t necessary to properly navigate the system. I just want to make lawyers more available and to bring their talents to more people.

Q: WHAT DO YOU HOPE IS YOUR LEGACY?

Progress on the themes I have described: greater public confidence in the institution, the public knowing who their judges are, and the court being open to hearing ways in which it can improve.

Q: DO YOU KNOW WHO IS GOING TO TAKE OVER WHEN YOU LEAVE?

Not yet. It’s the Prime Minister’s prerogative. There are many qualified people in our court and we’d be well served by any of them stepping up into the position. I have some input, but I don’t have any control over the process whatsoever.

Q: ANYTHING ELSE YOU’D LIKE TO ADD IN TERMS OF A MESSAGE TO THE PROFESSION?

Lawyers have to be cognizant of the risks the profession faces today and proactive in addressing them. I think it’s a time for activism and I wouldn’t want to see them put their head in the sand.

I said to the Benchers once, they’re custodians of traditions but they aren’t curators in a museum. They must have an eye to the future and they have to be loud and active in their leadership.

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