24 THE ADVOCATE
VOL. 79 PART 1 JANUARY 2021
the Charter and other factors we cannot control. Something has to give. We
must decide what is properly in the domain of our higher courts and what
they cannot reasonably be expected to handle in an effective manner.
THE NECESSITY FOR DISCUSSION AND EXPERIMENTATION
The debate over access to justice will not lead to any improvement unless
we begin with the realization that no silver bullet will suddenly resolve all
the issues identified by Chief Justice Hinkson in the B.C. Supreme Court’s
2017 Annual Report. Certainly nothing “new” will solve these problems in
one fell swoop, as suggested by Justice Abella. Indeed, the Supreme Court
of Canada would do well to consider the logistical implications of its decisions,
for example on the criminal justice system, because it has essentially
required more perfection in less time, as if one need only issue such commandments
for change to occur. This has decreased the judicial system’s
ability to process cases and the government’s ability to prosecute serious
crime, as evidenced by fewer and much longer criminal trials that take away
time that would otherwise be devoted to other disputes (and generally to the
prosecution of crime). These problems have been left to government and
courts of original jurisdiction to resolve without much apparent consideration
of the realities of the situation.
Our judicial system is not an antiquated process that has remained in
place due to an unwillingness to consider better alternatives, as suggested by
Justice Abella. It might even be the best of a series of poorer alternatives,
reminiscent of Churchill’s comment to the effect that democracy is the worst
form of government, except for all those other forms that have been tried
from time to time. Our justice system can certainly be improved, but there
can be no doubt that it would be unwise to throw it into the trash bin of history
to replace it with something “new” without a disciplined look at the hard
facts. That is because, fundamentally, its process is not the root cause of the
problem. The fundamental problem is that it is being asked to deliver too
much justice and, in some areas of law, too much perfection for the subjectmatter
in issue.
In fact, our justice system has fared remarkably well to date in handling
an increasingly complex and time-consuming workload with stagnant judicial
resources, essentially doing more with less. Increasing the judicial complement
of the B.C. Supreme Court would help in resolving more disputes
more quickly (which is only one aspect of access to justice), but would not
make it cheaper for litigants to access judicial resolution. In any event, our
judicial system is fast approaching the point where the demands placed on
it will become crippling. We must adapt to the new pressures that have been