An Interview with The Honourable Chief Justice Robert Bauman


An Interview with The Honourable Chief Justice Robert Bauman

Q: What’s on your mind as you head toward retirement?

The last 15 years of my career have been beyond anything I ever expected. I always wanted to be a member of the Court of Appeal and was lucky enough to join in 2008. Everything else was a bonus.

When I began as the Chief Justice of the Supreme Court, one of the most important challenges facing the judiciary was a lack of public confidence in the institution. I thought the reasons prompting that were perhaps misinformed and it was our job as judges to re-build public confidence.

I also recognized the institution’s need to remain viable in the 21st century. We’re steeped in tradition and we’re known to be conservative. While that has merit, we also have to be relevant. You often hear the anecdote that judges or lawyers from the 18th century could go into the courtroom today and not feel uncomfortable. The truth in that underlines the challenge.

I’ve endeavored to meet those challenges and have been successful in some regards. My office and the court are very open, and I think the public perceives it that way. I say this with full respect for my predecessors, but I think I’ve made the office more human. It’s important to the public to know who their judges are so they have confidence the decision makers in their lives are sensitive to their situation.

Approachability, accessibility and understanding by the public, in my view, increases confidence in the judiciary. The risks associated with openness and transparency of the judiciary are too often used as an excuse. We’re not prejudicing independence by knowing the community that we work in. We can use that information to help advance the interests of justice in ways that will resonate.

Q: What are you most proud of in your tenure as Chief Justice?

I’m proud of the openness we have with the media. During my tenure, we haven’t turned down one request for comment, interview, open line show or other similar inquiry. And every time we’ve embarked on one of those exercises, it’s been to the benefit of the institution.

It seems to me that being forthright, acknowledging our weaknesses, and acknowledging where we can improve, upfront and honestly, can never hurt us. Obviously, the judicial process in any particular case is totally secret. But there are other aspects of our institution that shouldn’t be. And we should talk frankly about what the role of judges is in our society today.

Q: Do you have any hopes for the B.C. justice system moving forward?

Yes, the impact of true reconciliation on the institution and our society. We are seeing this play out federally and provincially today by bringing legislation in line with the United Nations Declaration on the Rights of Indigenous Peoples.

It’s not exaggerating to say we’re going to see a significant evolution in our relationship with Indigenous peoples; in the receipt of Indigenous legal orders into society and how that might impact the legal order we’re familiar with. It’s an exciting prospect. It’s a challenging one, but exciting, especially for young lawyers. I’d liken it to being on the verge of the Charter, and what it did to our society and the way we approach legal issues.

Legal pluralism is probably alive and well in Canada, and I think that’s certainly the federal view of things. I think we’re going to have to unlearn many of the things we thought we learned and be open to that kind of transition. Because that’s where true reconciliation lies. It’s not easy for many Canadians to face that kind of a challenge, but I think it’s inevitable that we have to.

Another huge area of evolution is what we’re undergoing with the regulation of the profession, including what it means to be a lawyer and what it doesn’t. This too will be challenging but if we’re going to resolve the access to justice issue, it probably has to happen.

Let me say that I have an abiding desire that this regulatory reform is led by an independent Bar. Lawyers have a tremendous role to play in the new world. Because of their training, and the talents they inevitably bring to bear on any particular problem, lawyers remain leaders in our society, in our social institutions, and in our neighborhoods. Can we be leaders in the new way of practising law, if that’s indeed what we’re on the cusp of? We shouldn’t delegate it to politicians who don’t necessarily understand those principles. Lawyers shouldn’t give up their leadership role in these issues.

Q: Access to Justice BC (A2JBC) began while you were in office, and for which you have been a leader. What are you really proud of in regard to A2JBC?

A2JBC is an example of the courts being intimately involved in an initiative aimed at engaging the public and advancing change to make the justice system more accessible. It’s learning for us but it’s also demonstrating to our public that we’re part of the solution and we see beyond the four walls of the courthouse. A2JBC brings together a whole bunch of players that weren’t traditionally “in the tent,” with a view to breaking down the silos to come up with a holistic approach to the problem.

The family law collaborative is a case in point: it’s exemplifying the A2JBC approach by involving users, children, health professionals, judges and lawyers in an approach that puts family well-being at the centre.

Q: In terms of access to justice, how do you think we’re doing?

The National Action Committee told us that, on that measure, we weren’t doing very well and I can’t really dissent from their conclusions. For average Canadians of average income, affording a two-week trial in the Supreme Court of British Columbia is beyond their wildest dreams. So something has to change.

The courtroom as a dispute resolution tribunal shouldn’t only be for governments and rich corporations. We’ve got to provide a meaningful service to people who have serious family law problems, serious small commercial problems, so they can come to us and get them resolved without losing their house.

We don’t know the right answer but some of the things we’re trying are mediation, early intervention and educating the public in the law. It is unbelievable what the public legal education sector has done over the last 15 years. The ability of the public to learn about the system has expanded exponentially.

We still have a long way to go and there’s a real need for concerted effort. And that’s again where A2JBC has pioneered performance metrics through the work of the Measurement Working Group. A2JBC’s Triple Aim and Measurement Framework have been critically acclaimed.

Q: The Court of Appeal has done a lot of work in making the court more accessible for litigants: from rules reform, to collaborating with Access Pro Bono on its appeal roster program. Could we imagine a justice system that is simple enough that there is no requirement for lawyers?

To say our new forms and rules could make the Court of Appeal eminently accessible to ordinary people would be exaggerating. Life is complicated, these issues are difficult, and there has to be order to it.

Unbundled services and licensed paralegals are an imaginative way to meet parts of the problem but it’s too simple an approach to be the whole answer. Lawyers’ training allows them to identify the real problems and bring the real solutions to bear. That’s invaluable and I don’t think there will ever be a time when legal training isn’t necessary to properly navigate the system. I just want to make lawyers more available and to bring their talents to more people.

Q: What do you hope is your legacy?

Progress on the themes I have described: greater public confidence in the institution, the public knowing who their judges are, and the court being open to hearing ways in which it can improve.

Q: Do you know who is going to take over when you leave?

Not yet. It’s the Prime Minister’s prerogative. There are many qualified people in our court and we’d be well served by any of them stepping up into the position. I have some input, but I don’t have any control over the process whatsoever.

Q: Anything else you’d like to add in terms of a message to the profession?

Lawyers have to be cognizant of the risks the profession faces today and proactive in addressing them. I think it’s a time for activism and I wouldn’t want to see them put their head in the sand.

I said to the Benchers once, they’re custodians of traditions but they aren’t curators in a museum. They must have an eye to the future and they have to be loud and active in their leadership.

Q: It’s interesting to hear you use the term “user” to refer to litigants. Do you feel that has been a change?

That kind of mindset is important if we’re going to put people at the centre of our efforts and realize we all work for them.

I was in Ukraine, in a small courthouse in Zaporizhzhia, and the Chief Justice said, “Let’s go down to the lobby.” The lobby was filled with people and I asked what’s going on. He said, “Well, we invited a lot of the public to come today and tell us what they think of our institution.” That was before the tragedy they are facing now, but I learned something that day about canvassing our users.

Part of a user’s experience is the expectations they come with. If people understand how the system really works and what it’s supposed to do, they won’t be frustrated when they come with their problem and see how it’s dealt with. Education of the public is critical.

Q: What are your thoughts on the judiciary advocating other branches of government for change?

Judges and in particular, Chief Justices, have a duty to speak out and engage appropriately, largely through the Attorney General. We’re seeing that on a national scale with Chief Justice Wagner and the work he’s doing with the Minister of Justice and the Action Committee on Court Operations in Response to COVID-19. That wouldn’t have happened in that way ten years ago.

There’s lots of room for appropriate collaboration without prejudicing the objectives of independence and impartiality. That kind of collaboration is critical. We don’t control the purse strings, we don’t even control the agenda so if we’re not going to collaborate, we’re not going to have any input.

Q: What lessons were learned from adapting court processes so quickly in response to the COVID-19 pandemic?

COVID was such a singular threat, that the “what if?” of using new processes disappeared. We didn’t have a choice. We immediately started proceedings by videoconference. We had no difficulty, the court embraced it, the Bar embraced it, and it gave confidence to people that the institution was still working.

It’s given us tremendous confidence to try new things and prove the value of technology. The court now continues to embrace the idea of, where appropriate, virtual hearings and hybrid hearings. We’ve also defaulted to broadcasting our hearings. What we learned from COVID was that we can adapt much more quickly than we thought we could.

Even though I can’t do an appeal electronically for the life of me — I’m a Tyrannosaurus Rex — the new judges are tremendously adept at the new reality. Our experience with the pandemic gave us confidence that we can change and that change does not necessarily compromise the traditional values we hold.

Q: Which innovations during your career had the most impact on the justice system?

You’re talking to the guy who in 1995 said email would never be a substitute for a legal letter. Got that one wrong! The adoption of technology is, of course, the most major change. It has made our jobs so much easier.

In the old days, we were totally wedded to writing letters to each other. When I used to go away as a young lawyer, I was on pins and needles the entire two weeks because I knew I was going to come back to a stack of letters. Writing a letter would give you two days or three days respite but when you got that confrontational letter from the other side, it was stressful. Now you get it instantly with email!

I sometimes am asked “what’s the worst innovation” in the legal profession. I’m not sure I can answer that, but maybe the worst innovation in the legal profession was the idea of timekeeping and the billable hour. Certainly, as a lousy timekeeper, I found it the worst.

I think that model is not serving us well these days. It puts stressors on lawyers that are quite unfortunate, and often misses the mark of what really is valuable. Time is valuable, but results are valuable, and knowledge is valuable. I’m not sure that’s measured adequately by time.

Q: How might artificial intelligence change the legal landscape?

My law clerk last year was Sancho McCann. He’s a Ph.D. in computer science — I get good law clerks. He spoke to the court about AI, and it’s interesting what uses it has in a constitutional case predicting what the court might do. I’m dubious, but it has some interesting potential.

Q: What would you say are your career highlights?

When I was in college, I never really thought I had the talent to be in certain positions. But I was thrust into doing work in front of the utilities commission on behalf of municipal clients who were purchasers of electricity from a local utility.

I’d never been a barrister before. I was entering a very sophisticated area of law and a tribunal that was extremely sophisticated with all the high-powered lawyers from Vancouver and Calgary. Suddenly, as a young lawyer, I realized I could hold my own.

Q: Can you speak about the decisions you’ve made during your career?

We deal with some of the most important issues our society faces and we deal with some of the most mundane issues citizens face. If you’re going to be a judge and enjoy the job you have got to find something interesting and important in both. I find them all interesting, from the fender bender to the most complicated constitutional case or high-profile criminal case. I think it’s important for the public to know that we find them all interesting and important, because they’re important to them.

Q: What do you think are the most important Moments of your career overall?

I’d like to say I plotted my career, but I absolutely did not. I’ve been lucky, I’ve always been in the right place at the right time, and I didn’t burn any bridges. That’s important. I wanted to be a judge and so I intentionally had that as an objective from early in my career.

I don’t think there are any bad career decisions you can make. Every experience is going to be helpful but you have to know when to make a move. You’ve got to think about where the profession is going and what areas are valuable in the future. Not from a mercenary’s point of view but from the point of view of satisfaction in the job.

Q: Do you think your experiences working in smaller communities before coming to vancouver informed your passion for access to justice and did focusing your experiences working in smaller communities inform your passion for access to justice?

Maybe. I’ve got a fairly common touch for a judge, and that might have helped.

As a lawyer, I was downtown. My clients were sophisticated and had the wherewithal to pay my fees. The times I acted for ordinary people were extremely rewarding but even then, I knew they couldn’t afford the services, as a result I didn’t charge many of them full rates.

So, I had an inkling then but I wouldn’t say I had a great understanding of the challenges ordinary people face. That was brought home to me as a judge sitting in family chambers where you see those challenges quite clearly. People completely at sea, files thick and no progress is being made even though you can tell they’ve expended thousands of dollars in legal fees and can no longer afford a lawyer.

Q: What do you plan to do in retirement?

I’m looking forward to retirement. I enjoy golf and watching Jackson, my grandson, play sports. The idea of road trips with my wife intrigues me and we have a few planned. I love to cook and bought a Yoder Smoker — the Rolls Royce of meat smokers I’m told — so I’ll spend some time mastering that.

I’ve spent 27 years as a judge and I’m looking forward to the new challenges and opportunities that retirement might bring.

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