Lack of Jails Threatens Trials and BCNDP vs Constitutional Requirements

A court system can have the best rules on paper and still grind to a halt when there is nowhere to hold people. We start with a fresh BC Supreme Court practice direction aimed at a problem that’s been building quietly across the province: accused people denied bail in communities with no correctional facility close enough to support a long trial. When daily transport is impossible and police detachments refuse to function as ad hoc jails, judges are left making hard calls that affect fairness, public safety and the Charter right to a trial within a reasonable time. 

From chartered flights to the limits of small-town holding cells, we talk through why this is happening and what the court is now requiring through pretrial hearings. We also break down the real-world outcomes on the table: adjournments that risk delay arguments, moving trials away from the community where allegations arose, or releasing an accused from custody simply so the trial can proceed without collapsing under logistics. If you care about access to justice in British Columbia, this is where policy meets reality. 

Then we turn to one of the biggest legal governance fights in BC right now: the constitutional challenge to the Legal Professions Act and the future of the Law Society of British Columbia. We dig into the idea of an independent bar as an unwritten constitutional principle, why that independence gives meaning to an independent judiciary, and what it could mean when legislation steers a legal regulator toward government priorities like UNDRIP while adding new approval structures and expanding appointment power. The trial decision lets the law stand for now, but the stakes are high and the next stop is likely the Court of Appeal. 

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Follow this link for a transcript of the show and links to the cases discussed.

Transcript

A New Court Practice Direction

Adam Stirling 0:13

We're going to start today with a practice direction. What practice direction and what is this latest one about?

No Local Jail For In-Custody Trials

Why Police Cells Cannot Cope

Charter Flights For Daily Transport

Judges Weigh Trial Survival Options

Michael Mulligan 0:23

Sure. So the uh courts, the Supreme Court, Court of Appeal, Provincial Court, the uh kind of the administrative uh judges can issue uh directions about things, sort of procedural things and rules about how things are to be conducted, when and how things should be scheduled, uh that sort of thing. And this was one of those, and it just came out today, and it's one that looks like it's gonna have a pretty significant impact around the province. The background of it, as explained in the notice, is that it uh uh is uh it involves the issue of uh what is to be done uh with people who are in custody for their trial. They've been denied bail, they've been detained uh in communities where there is no correctional facility for them to be housed in uh for the purpose of their trial. Uh and that issue becomes particularly acute for longer trials, which are often the case in the BC Supreme Court dealing with more serious matters, murder and so on there. Uh and the uh in the past, what's happened in these uh sm locations, and there's a whole list of them here, eleven of them, Cranbrook, Dawson Creek, Fort St. John, Nelson, Powell River, Prince Rupert, Revelstoke, Roslyn, Smithers, Terrace, and Williams Lake, is that uh they would, when it was the nearest correctional facility, is so far away that you can't drive there and back every day, um, particularly being an issue when you have trials that go on for weeks on end. Um and in the past, what they did is they uh had arrangements to have uh people who are in custody housed in like local RCMP detachments or local police detachments, um, and that has been discontinued because the simply those local police forces are just not equipped to do that. Um, and so that's been terminated. Um that's been an issue, by the way, in uh Victoria in the region uh as well, and it arises here in the case of prisoners who are female uh because they we do not have a a correctional facility for women uh in Greater Victoria or on the island, they have to go over to the lower mainland, uh, or for children. Uh the youth custody center here was shut down. Uh and so um you've got uh the police department saying, look, we can't manage this. Uh and so what the practice directive details is that the court sheriffs who are responsible for people who are in custody for their trial um have been chartering airplanes and flying the accused person back and forth to the pretrial facility daily. Um and the as the court points out, that's not always available. Uh and so there have been efforts to try to fix this, uh including as detailed in the this uh notice, for several months there's been a quote working group, close quote, uh made up of the provincial government officials and police uh departments and so on trying to find uh some solution to this, and it just hasn't come together at this point. And so what the court has said is that there are going to need to be these uh uh pretrial hearings with judges uh to determine can they manage the trial for people who are in custody when there's nowhere to house the person that you can drive to and back uh every day uh in relation to where the courthouse is. Uh and so the court has pointed out that at those hearings, the judge trying to manage that will need to decide whether and how that should be approached. And the various solutions listed here are that the trial could be adjourned. Uh that could have an impact on in some cases about whether there ever will be a trial, because a person has a right to a trial within a reasonable period of time. Another possibility they raised is moving trials to other locations. Sometimes that can happen, but it has other knock-on effects like witnesses that have to be transported all over the place. Uh, and there's a legal presumption that trials are supposed to be in the community where the allegation is from, um, so that has problems. Or another possibility is that the accused will be released from custody in order to allow the trial to proceed uh in that location and not with additional delay. Um and so this just came out this morning, um, and we'll have to wait and see how it plays out, but it's clearly a problem. Um uh and uh in these communities it's uh you know it's uh just very logistically difficult when there's no proper facility there. Um and uh the police just aren't in the business of acting as jails uh for people who are you know maybe uh in there for weeks. Police departments often have sort of uh basic like how holding cells where you could like hold somebody overnight, you know, for the purpose of a bail hearing the next day or you know, that sort of thing. Uh but they're not equipped uh to operate as like a long-term jail. Like many of them don't have things like no shower facility and no proper way to feed the people uh and so on. Uh and so that's gonna be, I mean, that's been an issue here locally, but um, you know, asking some small RCMP detachment with one cell in the back room or something to manage uh somebody in custody for weeks on end while they have a trial and no facilities for them is just really not uh workable. It also means for the people, I think, in some circumstances, like let's say you had two cells in some small community, and one of them's taken up by a person who was having a uh a long trial, uh, it can also mean things like, you know, the other cell is uh somebody who's in there for being drunk in public or something, and so you end up with an accused person who's um got no shower facilities, can never go outside, and every night during their trial, they've got somebody who's you know sitting next to it, throwing up or yelling or whatever, and so really not uh a great facility for them. And the police detachments have just decided, sorry, that we're we're just cannot be the uh you know the last resort, which is often how frankly police are treated, you know, when you don't have other uh proper services in place that sort of leave it to the police. Uh and uh I think they've it looks like they've just had enough of that. So that's the latest uh from the BC Supreme Court. Uh and we'll have to wait and see which of those choices judges take up to make sure that uh these trials can proceed uh when there's just no adequate facilities to have the uh person in in custody.

Adam Stirling 6:46

All right, let's take a break. How does all of that work and what is the latest on that?

Challenge To Lawyer Regulation Changes

The Independent Bar As Constitution

UNDRIP Duties And New Oversight Bodies

Political Pressure And Democratic Risks

Ruling Allows Law And Appeal Likely

Wrap Up And Sign Off

Michael Mulligan 7:12

So the latest on that is the decision, uh a trial decision uh brought challenging the constitutionality uh of changes the provincial government is trying to make to the uh how lawyers are regulated in the province. Uh and it's a really interesting decision that came out yesterday. Um and it it deals, first of all, with the sort of the one of the fundamental, the premise of this constitutional argument, uh, bearing in mind, of course, that when things are challenged in court, uh they are not a judge assessing whether what the government is doing is wise or a good idea or anything of the sort. Uh all that all judges have the authority to do is to determine whether laws passed by the government are constitutional, which is to say permitted at all, right? Sometimes the way I describe it is it's not a great way to make public policy by asking what you can possibly get away with and then doing just slightly less than what would be unlawful, right? It's sort of like you know, you don't figure out how much medicine you should take by determining the amount that will kill you and then recommending you take just a little less than that, right? We should uh do better. Yeah. Uh and so the premise of this litigation is brought by the Law Society of British Columbia and a host of other uh groups, including law societies from other places in the country and other groups that were interested in all of this. The first sort of fundamental premise of this constitutional challenge um was arguing that the idea of an independent bar uh is a unwritten constitutional principle. Um and that's a really interesting thing to think about, uh, because uh in Canada uh we have all kinds of const we have a written constitution, uh, but many of the things that we take for granted uh are not written down at all, right? If if you just read the Constitution uh Act, the written part of it, you would think that the uh you know in British Columbia, the Lieutenant Governor just kind of does whatever they want, uh, and the governor general kind of runs Canada uh and uh you know all these politicians, what what are they, right? Which is not how we operate. Um much of how we operate, the sort of the very premise of our uh uh uh govern governing system, right, are these principles that are not written down, right? You you don't have the lieutenant governor just disallowing legislation left, right, and center and doing whatever they want, right? Uh and so one of the first things that the judge had to deal with in this case is is this concept of an independent bar, an unwritten constitutional requirement. Um and to assess that, uh, the uh judge looked at sort of the history uh of that, pointing out things like, you know, for example, the law societies existed since 1874, shortly after the province came into force or came into existence, um, and looked at um things including like how has this been managed since, uh, and the the history of it, of course, goes back to even before uh British Columbia existed. Like in the UK, uh the way barristers are regulated are by these things which are called the inns of court. Over there we've got like Lincoln's Inn and the Inner Temple, the Middle Temple, and Gray's Inn, and they're these sort of organizations that um manage and discipline and set rules and uh so on for how barristers are to conduct themselves, and they're not a function of the government. Um and it's really interesting and important, of course, because the things like you know, you we take for granted the idea of things like an independent judiciary, right? You don't want the judge who's uh you know being told what to do by the government. Uh and for that to have any meaning, you also have to have an independent bar, uh, because judges don't just roam through the streets looking for problems to solve, right? Um and if you don't have an independent bar, the independent judiciary is pretty well meaningless. Uh and so the judge found that indeed that is a constitutional principle, which is a requirement, and that can act as a constraint on what government is allowed to do. It's not unfettered. Now the judge then had to sort out, having found that to be the case, whether what the government is trying to do here um uh violates that. Uh and some of the things which were pointed to by the law society include the fact that the uh government, in this legislation called the Legal Professions Act, they added an S to the legislation, um, does things like it removes the uh basic uh object of the law society uh which currently exists, which is to uphold and protect the public interest and the legal rights and freedoms of all people in British Columbia. And they've replaced that with things that are uh priorities for the current NDP government, like things like implementing UNDRIP, right? The UN Declaration on the Rights of Indigenous People, for example. And interestingly, on that score, uh it's not implementing the BC legislation, it's implementing directly the United Nations Declaration. And so that's interesting, even if uh the BC version of that gets repealed or suspended, well, the way this is worded that it would still exist. And then they've done other things like allowing them to uh appoint more of the people like the board of directors, they're called benchers that operate the law society, gives the government more authority to appoint more of them. And then they also looked at another thing which is interesting that may not have got a lot of attention, that they've uh introduced this uh thing called a indigenous council. Uh and the indigenous council and another thing called a transitional indigenous council uh has authority, approval powers over some of the rules that this uh the law society would be able make. Uh and so it's basically the the provincial government is trying to um modify the law society in order to have it carry out its political objectives, right? Um and uh broadly speaking, I must say one of the reasons why this is such a troubling piece of legislation um is it's uh indicative of a few other attempts along the same lines that we've seen in uh British Columbia, like for example, uh the effort to pass legislation uh in response to Trump to try to allow the uh uh government to pass rules without the going through the legislature, uh, or things that restrict property rights, uh, or uh efforts to change things like uh financing for uh political parties in a way that may advantage the current government, um, which uh and changes to other this and other um the sort of otherwise independent uh professional bodies that are uh sort of the the left-wing equivalent of what we've seen uh the right do in places like the United States or uh uh Hungary, for example, uh where, you know, for example, in the United States, again, they have all kinds of um sort of norms, they would call them there, in terms of things like you know how the president might conduct themselves, right? Um and uh the current president in the United States uh has become uh master at sort of doing things uh that are not in accordance with those things, like in the legal regime uh attacking, making uh uh putting rules in place to punish law firms that have uh taken cases that the uh president doesn't like. Uh or you see other things going on uh there in terms of uh things like um gerrymandering or redistricting, uh, or uh in places like Hungary over the past number of years, there were uh all kinds of changes made to uh advantage uh the uh right wing government that was in place there. And what uh those things seem to be is you wind up with a sort of a government that concludes that uh their policies are so uh important and in uh that it's uh worth undermining some of the things that would act as restraints uh on their ability to do what they want. Um and uh the Law Society in British Columbia is an example of that. Um you know, many, many times uh what lawyers are tasked with uh doing uh is opposing uh what the uh government is trying to do in terms of whether it's some individual prosecution of somebody or the challenging laws or whatever it might be. Uh and so uh this this piece of legislation that changes to the Legal Professions Act um is in that same vein uh of trying to uh constrain uh the uh sort of uh elements in society that might uh resist uh what uh the government is trying to do. Uh and so it's in that context that this case has come out, right? Um and uh indeed the judge found uh that uh there are constitutional restraints on what the government is permitted to do, uh but as is a judge's task, it's not to decide whether uh those uh uh to this legislation is a good idea or not. I think most people, if you ask them to think, should you have the regulator of lawyers tasked with implementing uh political goals of the current government? I think most people would think about that and say that's really not a very good idea. Um but you know, the the judge has to, as they're charged with doing, uh look at each of the various things uh that the uh provincial government is doing here, uh like uh trying to give themselves uh um more power to make rules, trying to give this uh indigenous transitional council uh authority to approve the initial rules that this law society would uh implement, um, or give, for example, this uh indigenous council the power to approve particular um things or the obligation to implement the UN undrip or each of those things individually, the judge here goes through and analyzes, well, does this seem to be um in violation of that uh constitutional obligation? Uh and despite the argument from the current law society, uh that this amounts to a sort of the language used was a waterfall effect of numerous measures uh in this piece of legislation, which collectively, in the view of the current law society, um undermines uh the its independence uh in a way intended to advantage uh the current government and to deprive ultimately people of their ability to um get independent legal assistance. And the judge concluded that ultimately, well, whether or not this is a good idea or not, it doesn't go so far as to be unconstitutional or unlawful. Um now, I rather suspect this won't be the it's almost certainly not to be the end of it. This will go on to the Court of Appeal and probably the Supreme Court of Canada, I guess just given how important uh those principles are. Uh but just reading this decision, it's both interesting because it gives that historical perspective on how we got here and you know how constitutional principles work in Canada uh and why it is important uh that you have an independent judiciary uh and bar. And of course, those things don't exist to advantage the judges, for example, right? It's not important that you have an independent judiciary because somehow uh that helps judges. Uh nor is it important that you have uh an independent bar because somehow that's good for lawyers. It's important that we have an independent judiciary and an independent bar so that uh people are able to get uh assistance, legal assistance, and have an impartial forum to have disputes resolved, many of which involve the government. Um and you know, the worry with these kinds of changes where you switch right into the legislation whatever the government of the day thinks is their most important priority, and you uh require a regulator of a legal profession to implement those things, just imagine being uh somebody who's on the other side of that, right? If you're let's say you're the property owner in Richmond whose property is at risk of uh you know you may lose it, right? And that may extend to other parts of the province. You may well want to be able to hire a lawyer who's going to vigorously uh oppose uh some of those things. What does that mean uh when the regulatory agency uh is charged with implementing uh the legislation that is at the core of that? You know, that is really seriously troubling. Uh and so this is a very bad piece of legislation, bad from the perspective of um living in a democratic and free society where you've got uh sort of independence of the uh legal profession and the judiciary so that people can have fair hearings into these things. This is a terrible piece of legislation. Uh but the at least the decision on the uh trial level is that uh whether it's good or bad, uh that uh it is allowed. Uh and so we'll have to wait and see what the next step is, likely an appeal. Uh but that's the latest out of the BC Supreme Court in terms of the uh provincial government's effort to change the law society to implement uh their priorities.

Adam Stirling 20:48

All right, that's all the time we have for now, legally speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here.