Geoffrey Cowper recently released the $125,000 report on the criminal justice system he was commissioned to write a few months ago.
When analyzing the recommendations in the report, it is important to keep in mind Cowper's background and his relationship with the premier.
Cowper's firm was one of Christy Clark's largest campaign donors when she ran for the leadership of the provincial Liberal party last year. Cowper himself was the unsuccessful defender of a former Liberal attorney general, Geoff Plant, when an overwhelming majority of Law Society members passed a vote of non-confidence in Plant as a result of cuts to legal-aid funding.
In this context, it is unsurprising that Cowper lacked the independence necessary to address bluntly the effects of the provincial government's decision to underfund both the judiciary and the legal aid system in the province.
As the 2011 Report of the Public Commission on Legal Aid in British Columbia pointed out, the provincial Liberal government cut legal-aid finding in the province by 40 per cent over a three-year period, commencing in 2002.
As the Office of the Chief Judge of the Provincial Court pointed out in a report entitled Justice Delayed, there were 16 fewer provincial court judges as of March 31, 2012, than there were in 2005. This is the result of the provincial government electing not to appoint judges who have either retired or who are no longer sitting full time in order to save money.
It is in this context that Cowper powerfully concludes: "No recommendation is made as to the general level of funding for the criminal justice system."
Given his background and loyalties, Cowper was simply incapable of speaking truth to power and pointing out the damage these funding decisions have had to the criminal justice system in terms of both fairness and efficiency.
Despite his various constraints, Cowper did acknowledge that virtually every submission he received that touched on funding called for increased legal-aid funding, and he accepted that doing so would be money well spent.
Along with Cowper's call for the creation of various committees, he called upon the government to fill five of the vacancies on the provincial court in an effort to reduce trial delays. So far, the government has failed to commit to even this very modest proposal.
One of the forward-looking resource issues not analyzed in the report is the impact that a number of recently introduced mandatory minimum sentences will have.
While the report points out that historically between 93 per cent and 95.5 per cent of criminal charges have been resolved without the need of a trial, this percentage is likely to go down as more people insist upon a trial.
The recent introduction of mandatory minimum sixmonth jail sentences for people convicted of growing more than five marijuana plants is almost certain to result in more cases proceeding to trial. There will simply be no incentive for people charged with such offences to plead guilty and go, with certainty, to jail. As trials take much more court time than do guilty pleas, this will inevitably lead to longer delays.
If we spend too much time making graphs of what has occurred in the past, without reference to changes such as these, we are likely to see court lists continue to grow while the government strikes more committees to study the issue.
Michael T. Mulligan is a barrister and solicitor with Mulligan Tam Pearson in Victoria.
