by The Honourable Associate Chief Judge Hugh C Stansfield

When I made the shift from lawyer to judge, I found that my perspective changed in various ways. I experienced a renewed interest in jurisprudence. I reflected more than I had in the past about broad issues of the justice system. So the Constitution took on a vitality I’d not recognized previously, the maxim that “justice must be seen to be done” held new meaning, and I found myself worrying about administrative issues like public access to justice.

More recently, I have become increasingly preoccupied with what seems consistently to be adverse public perception of the justice system, and with actual shortcomings in its operation.

Should we worry about perceptions which often are misinformed? I think we must. In a society whose thinking increasingly is dominated by the media sound bite, perception tends to become reality. If the justice system is perceived to be arbitrary, aloof, soft on crime, or whatever, in time that perception will be accepted as fact. The concern, of course, is that the “fact” may engender a legislative or other response which may erode what we understand to be fundamental principles of justice, or at the least work hardship upon classes of persons who presently are served well by the system.

What about “actual shortcomings”? While I have suggested public dialogue often is misinformed, there are grains of truth which warrant our earnest consideration. What barriers are there to public access to justice, whether in cost, complexity, or systemic delay? To what extent do we structure the justice system with the interests of judges and lawyers in mind, rather than those of the “consumers”? Do we maintain practices and use language which foster the perception that we are out of touch with or are disregarding the rest of the community?

This is not to say that we should jump on popular bandwagons, nor accede to the stridency of interest groups. The historic principles of our system include its stubborn adherence to principles, and its insistence that any proposed change be demonstrably justified. But I submit there is a middle ground.

While the judicial branch of government cannot participate substantively in public dialogue which is, by its nature, inherently political, it can through its chief judge or justices, or through “information officers”, be more accessible to the public, and more actively educative.

Lawyers are not so constrained constitutionally. I respectfully suggest that the rich tradition within the Bar of applying its advocacy skills in public defence of principles of justice might be pursued more consistently by a greater number.

As to “fixing” the system, I expect the public would be well served if judges and lawyers alike could bring a greater collective will and creative energy to implementing improvements in our processes which can be achieved without abandoning fundamental principles.

The times demand that we improve our public relations. We must be and be seen to be more accessible, and actively to promote principled evolution in our systems. But as we grapple with these changing times, we will do well to regard the fundamental principles of justice as the corpus of a “trust” of which judges and lawyers are “trustees”. Our activism must parallel wise investment of trust assets: we must preserve the corpus—most especially those elements which are least apparent to the “beneficiaries” (the public)—and ensure it is conveyed intact to the next generation, hopefully enhanced, certainly not dissipated.

The Honourable Hugh C Stansfield, Associate Chief Judge, Provincial Court of British Columbia

This article was published in the October 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.