What Robert Bauman thinks about courtrooms of the future, public access to the courts and how COVID and the internet changed the justice system
By Susan Lazaruk for The Vancouver Sun
B.C. Chief Justice Robert Bauman retired at the end of September, leaving behind a court system that has made strides to bring more women to the bench but still faces challenges reflecting the diversity of the population.
In his 27 years as a judge, the last 10 as the province’s top judge, Bauman, 73, presided over many high-profile cases. Among them was a 2011 decision upholding Canada’s law against polygamy. The 335-page ruling found the law violated the religious freedoms of fundamentalist Mormons, but the harm against women and children outweighed that right.
In 2005, Bauman presided over the third trial against Kelly Ellard, who was found guilty of what he called the “senseless, barbaric” murder of 14-year-old Reena Virk.
And in 2004, Bauman found striking health care workers in contempt of court and ordered more than 43,000 provincial health workers back to work, saying unions weren’t above the law.
On Sept. 30., his last day on the job, a relaxed Bauman — who was chief justice of the appeal courts in B.C. and Yukon — met with a Postmedia News reporter in his office at the Vancouver Law Courts.
His office was decorated with framed mementoes of his long career and keepsakes that included Waterman pens and a journal from one of his trips to Ukraine where he has lent his expertise to the judiciary.
During an hour-long interview, he discussed efforts to modernize the justice system and explained why he drops the occasional literary reference into a judgment, as he did in a 2008 ruling when he quoted Charles Dickens.
“I’m confident that it’s the right time (for me to retire) and there’s a new generation of judges and lawyers who deserve to take over,” he said.
This interview has been edited for length and clarity:
Q: During your 27-year career, what has changed the most?
A: The maturing of the charter of rights and freedoms. The diversity of British Columbia’s population. The rise of organized crime. The drug scene, the opioid crisis — it’s led to a plethora of social problems in legal terms. The accelerating pace of technology and the development of technology changed the face of the practice of law in many ways. It seems that the ’50s and ’60s were a kindler, gentler time and we’ve been hell bent for leather since then.
Q: The slow wheels of justice — is that a big problem?
A: The volume of work in the provincial and supreme courts has increased dramatically over the years, as well as the complexity. Is there a crisis of delay? No. Are there delays we should address? Yes. So I think you have to take the cries of ‘the justice system is broken’ with a grain of salt. There are some delays. And they are a reflection of workload and sometimes the tardiness of the (judge) appointment process and many other reasons.
Q: What about the shortage of judges right now?
A: In Supreme Court, (the vacancy rate is) 11 or 12 per cent. In our (appeal) court, they’re down two judges out of a complement of 15. There has been a shortage of (judge) applications, strangely, in B.C. Why aren’t people applying? Is it rumours that the workload and the stress are too much? Is it the compensation or benefits package, which I’ve always found adequate, others may not.
Q: The baby boomers are retiring, could it just be a reflection of that?
A: Sure. The boomers have much to explain and be responsible for, being one of them. We may have well overstayed our welcome.
Q: The B.C. Court of Appeal allowed details of a trial and anything that would identify the participants to remain secret, in Named Persons v. the Attorney General. Are you concerned?
A: I believe fervently in the open court principle. Openness and broadcasting our appellate proceedings, for example, is the best way of showing the public who we are and what we do. But in the reasons for Named Persons, we set out the tension between that objective and certain other values in the system. Sometimes one has to give way to the others. Saying ‘trust us,’ I know, is just not good enough. You know, life’s not perfect, there are exceptions to every rule and some values trump others, in this case, the open court principle. We’ll see what the Supreme Court of Canada says.
Q: Why is there a resistance to cameras in court?
A: In trial courts, there are huge privacy issues. Witnesses fairly object to the public watching them go through the crisis they’re going through on television. It’s not judges afraid of being seen or having their words exposed on television, it’s a concern for litigants appearing and, frankly, the circus atmosphere you see in some U.S. examples. There are times where it can be done safely. I encourage it and believe in it.
Q: The Law Society of B.C.’s “innovation sandbox” invites non-lawyers to offer services to help those who can’t afford or are intimidated by the legal system. Is that needed?
A: I laud the society for that. It’s a reflection of the challenges the profession faces, that society faces, to ensure people have access to the courts. It calls for innovation and maybe some disruptive thinkers. I’m chair of Access to Justice B.C., (which is) really encouraging the social movement to resolving some of these issues. And not just judges and lawyers — maybe we’re the problem — but our academics, lay people, self-representative people, politicians, bureaucrats. We have a leadership group of close to 40 people.
Q: Did you imagine courthouses would go digital as quickly as they did during COVID-19?
A: I did not think it would happen this quickly. We’re pretty wedded to the idea that you come to the courtroom in person and make your submissions. Many lawyers and litigants believe it’s the most effective way to make their position known. But there’s many times when a virtual appearance can be just as good and way more convenient and efficient. The older judges, who you might have said are staid and Conservative, embraced it. It was also coupled with an increase of electronic filings. I want to emphasize that courthouses are still important. I don’t want people to think we’re going to get rid of courthouses because we’re not.
Q: Has the diversity of the courts kept up with the diversity of the population?
A: The gender balance on my court has been excellent, it’s almost 50-50, and in the Supreme Court of B.C., it’s improved dramatically. The representations of various ethnicities has been slower to increase. Diversity is the No. 1 consideration on all appointments now. I think that war has been won and you’re seeing it increasing every day.
Q: How has the #MeToo movement changed the justice system in B.C.?
A: With two people telling dramatically different stories, how do you decide? Once you take away some of the stereotypical thinking that we used to fall into in resolving who’s telling the truth, that changes the scenario. It allows us to remove a line of thinking that gave us a false sense of security in decision-making that had no business being part of the reasoning process. Mostly consent or how people behave after the incident. All those stereotypical things our society generally thought were true and coloured our way of reasoning, if you take that away — and we’re making great strides in judges being prohibited from falling into those traps — the better the decision about truth.
Q: How important was the 2011 Bountiful polygamy ruling?
A: What drove the decision in case of Bountiful was the findings of real physical and mental harm to women and children and young male adults as well. And that drove the decision and I think the same concerns would drive the decision today.
Q: Which ruling is most memorable or the one you’re most proud of?
A: No single one really stands out. That (Bountiful) decision was really interesting because of the development of the record. We read everything there was about polygamy and polyamory. And we read everything about fundamental Mormonism. Also, some of the criminal work I’ve done over the years. I was not a criminal lawyer, yet that was endlessly fascinating even though it dealt with tragic events.
Q: You were commenting at the beginning of our conversation about how B.C.’s judicial system is unique.
A: I think some of the issues that B.C. courts have dealt with are novel. First, we have a population of five million people, we are a port city, so that automatically creates issues others don’t have. We have a tremendously diverse population, creating some pressures and opportunities others don’t have. We have a large imaginative bar, and we have a judiciary that has not been reticent to advance the law. All of those things combine to make B.C. a pretty active legal landscape. We are a very important source of Canadian law. That’s why it’s important to have a B.C. jurist on the Supreme Court of Canada.
Q: You sometimes include literary references in your rulings.
A: Written reasons for judgment can be extremely boring and there’s nothing wrong with lightening them up a bit with a literary reference and a good turn of phrase. It’s important to make your work readable because people then may read it. But some of my colleagues roll their eyes. And another thing I always tell my judges: no poems.
Q: Your plans after retirement?
A: I have one (11-year-old) grandson, so I dote on him. I like to cook — I’m not very good at it — and I like to barbecue. I enjoy writing and I have some ideas there, about some of the cases I’ve seen over the years. I’m going to continue to do some work with Access to Justice B.C. I might continue to do international work as I did in Ukraine, and there are other countries where there is judicial outreach being done, in Mongolia, South America.
Q: Who’s going to replace you?
A: It’s the prime minister’s prerogative. I hope they do it soon. The candidates from our court are all good, you can’t go wrong.