Agenda for the Future: Part two of a two-part series

The Honourable Andrew Petter, Attorney General of British Columbia

In your view what parts of the justice system most need to be fixed and what do you see as the role of government in doing that?

I think it would be presumptuous of me to say what most needs to be fixed, and in fact in most cases I am impressed at just how much is already being done. For example, we have worked cooperatively over a long period with the Bar and the judiciary to look at alternative ways of resolving disputes. We know that court proceedings can be effective in resolving issues, but sometimes mediation can be even more effective, can be lower cost, can leave the parties with a higher degree of satisfaction, and can produce a result that is more likely to be stable over the long term.

I think we have to sensitively explore ways of encouraging alternatives, particularly if the result is that the court system is reserved for the more serious forms of dispute that can only be resolved in court. Based on considerable consultations and with the support of many in the Bar and in the judiciary, we have brought forward legislation to allow for a broadening of notice to mediate procedure, and to allow for a broadening of notice to mediate in provincial court. I think there is some real thought being given by all parties to how we can make the court system part of a range of dispute resolution solutions that can suit society and can produce the best result at the lowest cost.

One other area where I think we as a society can do more in the legal system is with respect to aboriginal people. The extent to which aboriginal people come into contact with the courts and are represented in our prison population is of huge concern to me as a human being. I think it is one if the real social failures that we have as a society not come close to addressing or overcoming. I don’t know quite how we do it, frankly, but we do need to be very attentive to it. One thing I have tried to do is to look at whatever aspect of the legal system I am dealing with and to consider how it affects aboriginal people. It could be a charging policy of the crown, or recognizing that there may be different ways of resolving issues in aboriginal communities, or examining access to legal aid or community justice resources. We have to find better ways to resolve issues in respect of the aboriginal population rather than simply relegating that population to the prisons.

In the last couple of years in particular, there has been a real concern that where the mental health system and addiction system fall down the court system has been asked to pick up. What is your response to that?

Well, I certainly have had some exposure to that since becoming Attorney General. It’s not an area that I have a lot of background in, but clearly there is a huge public concern around the extent to which mental illness or things like Fetal Alcohol Syndrome are a contributing factor to a whole range of anti-social behavior, including a whole range of what looks like criminal behavior, and makes it very difficult to respond. The government has, over the past few years, put in significant new resources, but clearly the problem is greater than even those additional resources.

I don’t have any easy answers, but I think you’re right, it’s an ongoing concern that such a large proportion of people who come into contact with the law and who are in our prisons suffer from some form of mental illness, or some form of psychological disorder. And where it isn’t treated, it will likely reoccur and result in what will show up in the criminal statistics as recidivism, but may in fact be symptomatic of an ongoing mental problem that can’t be treated other than in a health way. The challenge is in determining how we do that, how we make those connections and deal with these deeply rooted social problems. It is a real dilemma.

Can you comment on the labour relations with crown prosecutors?

I am very pleased that we were able to get a resolution with the crown prosecutors that I think meets their concerns and requirements. It was tough, it required some tough bargaining, and it didn’t satisfy all the aspirations of the Crown Counsel Association and it didn’t meet all the requirements of government either, but I think what it does do is respond in a significant way to some of the outstanding issues that needed to be addressed.

It provides first of all, to the Crown Counsel Association, formal recognition and now legislated recognition of the Crown Counsel Association as the bargaining agent. It creates a structure for bargaining and settlement, and it will be accompanied by an administrative agreement that will govern that bargaining relationship. It gives government some tools, such as essential service designation, and it gives to crown counsel some tools, such as the ability to withdraw their services once contracts expire. I think it’s a huge step forward, giving crown counsel the recognition that they were seeking, in a way that is respectful of their unique role.

You recently announced $1.4 million in additional funding for legal aid, however your own party is on record as saying that all of the 7 per cent tax collected on legal services should go to legal aid and that is still not happening.

I think the trouble with looking at the Social Services Tax and its relationship to legal aid is that one can define the services that are provided by government out of that tax in any number of different ways. The Bar chooses to construe it narrowly as only applying to legal aid services provided through the Legal Services Society, but in fact government has expanded other forms of services that well exceed the amount of revenue we take in from the tax in areas like family maintenance enforcement and a range of other programs.

I think, rather than arguing by looking backwards or pointing fingers, it is better to look forward and acknowledge that yes, there are huge pressures on the legal aid system. I think it is useful to acknowledge that we do contribute more as a province than other provinces to legal aid, but I freely acknowledge that’s there’s more than can and should be done. If we can work cooperatively from that point of view I think we’re more likely to make headway.

How do you view the Attorney General’s relationship with the Bar?

There are lots of things I don’t like, but one of the things I do love about public office and the privilege to be a cabinet minister is how much I learn and how much new knowledge I can gain not only from those who are working in the ministry, but from those in the community. So on these kinds of issues, I really appreciate the input that the Bar has given on issues like anti-SLAPP, Representation Agreement, the changes to the Notice to Mediate. All of those are issues where my comfort level in moving forward is greatly enhanced when I know the issue has been thoroughly examined and I know what the views are at the Bar. And if the Bar and I agree on those views then it makes it even easier. If we have some mild disagreements, but I’m confident we can overcome them, then at least I know where they stand and at least I know what the concerns are and that’s the way it should be.

In the time since becoming Attorney General, I’ve had lots of opportunity to talk to lawyers, the CBA, the Law Society and the judiciary, and I’ve found it a very stimulating and positive experience. I’m enjoying the opportunity to reconnect with some old friends, make some new ones; to argue a little bit – that’s something that lawyers like to do and I’m no different – but also to seek some common ground. The clear sense I get is that we’re all trying to make a better society for citizens. We sometimes disagree, sometimes vigorously, about how to do that, but if we don’t lose sight that we’re working on a common goal and a common set of objectives I think goodwill will prevail and we’ll find a way.

This article was published in the October 2000 issue of BarTalk. © 2000 The Canadian Bar Association. All rights reserved.