January 14, 2020 – Chris Hinkson, “The Administration of BC Justice”

Chris Hinkson
Chief Justice of the Supreme Court

In 2013, Prime Minister Stephen Harper announced that the Honourable Christopher Hinkson, a judge of the BC Court of Appeal, has been appointed the Chief Justice of the Supreme Court of BC.

Mr. Justice Hinkson obtained his Bachelor of Laws from UBC in 1975. He was called to the BC Bar in 1976 and subsequently practiced law with Harper Grey LLP from 1976 until 2007. His practice included medical malpractice, personal injury, professional negligence, commercial litigation, human rights litigation and administrative law. Mr. Justice Hinkson was appointed Queen’s Counsel in 1990.

Mr. Justice Hinkson was appointed to the BC Supreme Court in 2007 and to the Court of Appeal in 2010.

The Honourable Christopher Hinkson was appointed as the Chief Justice of the Supreme Court of BC by Prime Minister Stephen Harper in 2013. In his talk he shared an overview of the Supreme Court of BC, some of the challenges of the court, and described some of the surprising administrative aspects of his role which extend far beyond choosing the colour of the carpet at the new courthouse in Abbotsford.

The Supreme Court is a court of general and inherent jurisdiction, which means that it can hear civil, family, or criminal cases. Last year, 36% of the cases were civil, 40% were criminal, and 24% were family. The complete statistics on the breakdown and number of cases are available in the Annual Report, which is available on the Court’s website (www.bccourts.ca/ supreme_court/about_the_supreme_court/annual_reports/). The Supreme Court hears most appeals from the Provincial Court in civil and criminal cases and limited appeals from arbitrations. Canada follows the common law system that originated in England and all the judges who sit at the Court decide independently on the cases that they hear. While in most of the American states the Supreme Court is the highest court in the system, in Canada the senior court in each province is the Court of Appeal. As Chief of the Court of Appeal of BC, this makes Bob Bowman is the highest ranking-person in the province’s judicial system. The Chief Justice of the Supreme Court is the highest ranking-person of the trial courts in the province. The Chief Justice of the Supreme Court role has limited jurisdiction to intervene in the decisions of other members of the Court. The Chief Justice’s role includes the assignment of judges to cases, permitting a judge to come off the regular scheduleto attend courses or for personal reasons, addressing complaints regarding staff, and even hearing some cases that are more prolific in nature. As the Supreme Court is a circuit court, the Chief Justice must also decide where judges will travel. Judges are expected to spend eight weeks of the year, hearing cases in smaller communities. Circuit courts are used to remind judges of the needs of people in all areas of the province. Furthermore, there are only resident judges in 10 of the 28 centres. In 2018, the Court heard a total of 870 trials throughout the province, along with a much greater number of shorter applications. While this may not sound like a lot, trials are getting longer and more complicated. This is partially due to the gap left from a great number of retiring lawyers. Lawyers who are filling these roles haven’t received many opportunities to get trial experience and thus judges are lacking the level of counsel-work that they have grown accustomed to. In many cases, given the cost of litigation, lawyers are absent all-together.

In addition to a lack of experienced lawyers, judges are spread very thin. The number of positions for judges in BC has not increased since the 90’s despite rapid population growth and a dramatic increase in the number of ICBC motor vehicle accident cases going to trial instead of being settled out of court. Furthermore, fewer lawyers are applying to be judges given the complicated and lengthy application process in addition to the pay discrepancy.

Judges of the superior courts, including the BC Supreme Court, are appointed and paid by the federal government. The federal Judges Act requires that a person wanting to be a judge must have practiced law for ten years. In this time, they must have maintained good standing with a provincial Law Society that can attest to their fitness for judicial office. A process has also been put in place to appoint more judges that members of minority groups, including Indigenous people, visible minorities, and members of the LGBTQ community. Some observers have applauded the effort to make the judiciary more diverse, while others have said that the screenings are resulting in inexcusable delays to the vetting and appointment process. While the application process is difficult and tedious, appointing judges rather than holding elections helps ensure that judges are chosen based on having strong qualifications as opposed to their popularity. This objective process bolsters judicial independence and neutrality. Additionally, because judges do not need to campaign, they can devote all their time and energy to their work. Over the last several years, the constant shortfall of judges has resulted in more “bumping’ of hearings. Bumping is a problem for litigants and a waste of their resources. Parties have to wait longer for trial dates. On average, civil litigants waited 18 months for a five-day trial in 2018, while family litigants were waiting six to eight months. Criminal trial dates are generally made available on an as-needed basis, because of the liberty interests at stake when the accused is detained awaiting trial. Working with an incomplete complement of judges obviously increases the burden of those who are sitting as well, because it means that each judge must shoulder more work to balance the load. Judges usually sit from for 4.5 hours on trials. This may seem like a short period of time; however, judges need to take the time to prepare for hearings and to issue reasons for judgment once proceedings have concluded. In addition to trials, judges sit on a variety of conferences with litigants, which are typically scheduled before and after trial times. Conferences include judicial case conferences, case planning conferences, settlement conferences, judicial management conferences, pretrial conferences, trial scheduling conferences, and trial management conferences. The goal of pre-trial conferences is to ensure that the parties are well-prepared for quick and easy trials. In 2018, approximately 4,500 hours of judicial time were devoted to conferences. Judges are also assigned to hear applications in Chambers and are responsible for reviewing and signing desk orders in uncontested matters such as divorces. In order to reduce the burden on judges and wait times for trials, a variety of mechanisms at the court are used to encourage the parties to sort out differences and settle before going to trial, but these aren’t always successful.

There is currently a lot of pressure on the Supreme Court of BC. While the media generally have a good relationship with the Court, they place the blame on long trial wait times on the judges not sitting at hearings long enough. People awaiting trial are frustrated with the courts and judges are already overworked and under-supported in all their additional duties. Meanwhile the Court is asking for more judge positions and appointments to alleviate some of the frustrations, but not hearing back from the Federal Government. With no solutions being put forward from the Attorney General’s office, it appears that longer wait times and heavier workloads are the new normal.

Q&A 

Question: You said that you were all in favor of resolving disputes quickly and it’s rather interesting that the media serves the public with two somewhat parallel things going on that affect people getting resolution on a timely and prompt basis. One is in the private clinic department and the other is in your courts. Now in the private clinic department if people are in need or tired of waiting and need a whatever replacement there are people that can jump the queue and I’m told the judges go there, hockey players, prime ministers, prisoners… But you don’t seem to have that fast-track alternative. I know there’s the BC International Commercial Arbitration Centre, but that isn’t something that your judges refer people to, but what sort of relief have you got, because in the case of the private clinics, there is an alternative. You don’t seem to have any way of fast tracking for special people like PROBUS members. *laughter*

Answer: What can we do to expedite resolution of matters outside the court process? There are ways of doing that. There are a number of retired judges, some retired lawyers who specialize in mediation or arbitration. It’s not something I like to encourage because I like the inventory for the Court, but people who need something sorted out ahead of time, they can agree to go to mediation which is non-binding or they can go to arbitration which is binding. The problem is, when is the matter of ripe for settlement? When I was practicing law, we had to exchange expert reports 30 days before the trial. It’s is now up to 72 or 82 days, far too long, but we didn’t really know everything we were up against until we got all the expert reports, unless you had a relationship with the lawyer on the other side. You could talk frankly and sometimes settle cases. But unless both sides are keen to settle, there’s nothing we can do to force matters short of a summary trial. We do hear summary trial applications. If the case is a slam dunk and it’s clear who’s going to win, we don’t force people to go all the way through a full trial. We’ll hear the matter in Chambers and decide on less evidence than we hear at trial and not any cross-examination usually, but they have to be pretty obvious cases. And as I said earlier, I don’t necessarily fault ICBC for the proliferation of motor vehicle cases in the court, but I think this provincial government is looking very seriously at no-fault for motor vehicle litigation. I mentioned to the attorney that I know what he’s up to. I know I’m going to be the Fall Guy if it’s a no-fault. He’s going to say, “Well, you know, he struck down these rule changes,” and I’m being asked to eliminate the civil dispute resolution tribunal as unconstitutional. If I were to do that, I think it would probably result in no-fault pretty quickly but rather than the government having to explain it’s their problem, I would be the problem and that comes with the job. I accept that. The short answer I suppose is we can’t force settlement on unwilling litigants. All we can do is try and get matters heard. We’re struggling with that because we have so many vacancies and we’re short-manned as it is even without the vacancies. I’d like to be more optimistic.

Question: What is the resolution process when Indigenous rights are in conflict with Canadian law?

Answer: Well Mr. Horgan said yesterday that they aren’t. The elected representatives of the First Nations on the pipeline matter are supportive of the government’s position. It’s the hereditary chiefs who don’t have a license any longer to speak for First Nations who are creating the pushback. At the end of the day, this is a country that is governed by the rule of law and that includes our First Nations citizens and others. We do have to respect the fact that they have nation status and we have to negotiate with them, but at the end of the day the courts will make a decision and it may be one that the First Nations like or dislike. When I sat in the Court of Appeal we shut down a 100’s of millions dollars coal mine project because the First Nations in the area were enthusiastic about the Caribou herd of 17 creatures, all of whom were past childbearing years, who might like to eat the moss off the north side of the mountain, which was going to be sheared off by the coal mining company. And we shut the program down, and I was in the majority on that, and I was a reluctant member of the majority, but there are accommodations that must be made for First Nations that is part of the law of the land. It’s as enforceable as the parts that the First Nations don’t particularly like. I don’t know if that answers your question or not.

Question: When I was in Law School, there was talk of the development of artificial intelligence assistance to decision-making. Is that preceded anywhere?

Answer: David C. Harris is a judge in our court, he and Elliot Myers are very techy. They come and talk to me about things like artificial intelligence and I have no idea what they’re talking about. The Provincial Government is enthusiastic about that. I’m worried that I could be replaced by a robot, so I’m not a fan of entertaining artificial intelligence. So, we did look at it for some pretty routine matters. Part of the Civil Dispute Resolution Tribunal, it’s an online dispute resolution program for the most part, and I think that they may be able to make use of artificial intelligence for some of the routine matters that come up again and again, but we’re a long way from embracing that in Canada. The courts in the UK received a billion pounds for technology and modernization of their courts. The judge who leads it came out here to talk to us about the Civil Dispute Resolution Tribunal, and I know the Chief Justice of the federal court spent three weeks in Australia this summer, they’re quite a bit ahead of us in terms of the digital technology. I do know he managed to get to the odd winery while he was down in Australia. I’m hoping somebody will fly me for the same purpose of looking into artificial intelligence. It’s being looked at, but we’re a long way from that.

Question:  I’ve served as an expert witness in a few trials and one of the things that’s always troubled me is that while you’re to provide impartial advice to the court, you’re appointed and paid for by one of the parties. I’ve often wondered why the instructions and the appointment as an expert witness don’t come through the court, even if they are indeed going to be paid for by one of the parties. I would think that it would make expert witnesses more impartial. To be clear, I don’t have a problem with the lawyers identifying or suggesting the names. I just think the formal instructions or the formal appointment would be more effective if it was coming from the court rather than from the lawyer.

Answer: The question was why don’t the courts appoint the expert witnesses rather than the parties? That was one of the arguments that the Attorney General used to justify his rules because he said,” I’ll leave space for the courts to appoint experts.” Now, given my background with the medical community, I know a lot of doctors and I know the ones I’d like to listen to if they get called, but I don’t know the facts of the case, what the real issues are until the evidence starts coming out in front of me and then it’s too late for me to say okay, “now I need expert X.” Often, there are experts who are consulted who don’t give the opinion that the party who retained them wanted. I had a very unfortunate experience with Bob McGraw. He was an expert and I thought I knew what he was going to say, and he didn’t say what I expected. So, I buried his report. *laughter* That kind of thing goes on amongst the lawyers and therefore they’re better equipped to decide what kind of expertise they need and where to go. And when the experts come in front of us, there’s a reasonably recent decision from the Supreme Court Canada that says that judges have a gatekeeping role. In other words, we’re supposed to kick out experts who are not doing their job properly. That’s starting to come. We’re seeing experts who are told, “thanks for coming out, but we’re not going to listen to you.” They’re certainly a body who’d share that view. I think as judges, we have to stay out of the give and take. We don’t necessarily know, for example, what instructions to give an expert. Most lawyers who have an adverse in interest want somebody that can talk to frankly without worrying that the other side’s going to be told what the discussion was. It’s an adversarial process, that’s simply a part of it. There’s a push from time to time, they call it hot tubbing among experts, where you get together with your experts and have a frank discussion on your area of expertise. I don’t look good in hot tubs. *laughter*

Question: I have a question about a case that’s been going on for nine years to do with privatized medicine being practiced in British Columbia. It seems to me that nine years is a long time to wait for the government to decide if this is against the constitution or not. Why is it legal that judges are prevailed upon to get deferment after deferment after deferment?

Answer: Well, I can only say a little about the County Medical Clinic and why it’s taken nine years. Part of the reason it took nine years is because the lawyers weren’t ready to go to trial for six of the initial nine years. It’s been before the court for three years. Throughout the piece, the lawyers for Dr. Tay who is an old friend of mine, that’s partly the reason I’m not hearing the case, but the lawyers for Dr. Tay keep demanding more information from the Crown. You have to be careful what you ask for, because they got it, but there were hundreds of thousands of documents. So, they had to down tools to go through them all. I’m not sure a single scrap of it ever got referred to in front of the trial judge, but when the lawyers say to the judge, “we need more time,” usually we accept that there may be a good reason to extend the time. So, the sitting time on that case has not been anywhere near three years even, but it has been partly because the lawyers in the case do not get along at all. And so, they don’t give each other the usual accommodations that one would hope for. I do a talk for lawyers’ groups about professionalism, ethics, and collegiality. I worry that the people who come to listen to me talk about that are the ones I don’t need to be talking to and the one’s I need to be talking to don’t come. The system is not, generally speaking, prepared to accommodate people who can’t be reasonable, and I think there’s some blame on both sides of that case amongst the council. But Corydon Steveston, who’s hearing the case, has written I think over 60 judgments on points that lawyers disagree on. Some of them are pretty obvious, but they can’t agree. So, he’s been working hard, but I don’t think he’s going to send me a Christmas card this year.


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