Chris Pengilly: Justice no longer part of the judicial
Restoring equity and fairness to courts should be a
Pengilly, Special to Times ColonistSeptember 5, 2010
I am not Saint Christopher, but I do try to
pay my taxes on time, keep to the speed limit and
generally fit unobtrusively into society.
Recently, however, I came as close to having to go
to prison as I ever want to.
I was required to appear as a witness in a
civil litigation which had been going on for 10
years. I was given 10 days notice. Failure to
appear, I was warned, would be viewed as "contempt
of court" punishable by incarceration.
This is a daunting power in a free and
democratic society -- but it does not stop there.
- The administrative decision by the
University of Victoria concerning a solution for
the rabbit problem.
- The local authority resolution concerning
the fate of the Vantreight Lands.
- The democratically conducted petition
concerning the HST.
What do these have in common?
All were at risk of being usurped by the
courts, with the decisions being made by unelected
members of the judiciary.
In this new millennium, the court system (I
cannot refer to it as the justice system) seems to
bear resemblance to the role of organized religion
in medieval times.
It is autonomous. Judicial decisions carry
the same aura as papal infallibility.
An authority figure wearing fancy dress
sits front-and-centre overlooking a convoluted
ceremony conducted by other members of the
profession wearing similar but less elaborate
When the judge/minister enters, all
attendees are required to stand.
I allow that a judge is a senior and
knowledgeable person, but so is a proctologist. I
have never seen all the staff in the operating
room stand when my colleague, Dr. William Orrom,
enters to undertake some of the most difficult
surgical procedures I have ever witnessed in my
years in the operating room.
To speak against the court system is still,
in 2010, regarded as heresy. To my surprise and
disquiet, when I have casually mentioned my
intention to write this essay, more than one
person has expressed concern -- asking me if I am
not nervous to do so.
When I did appear as a witness I was
questioned for about two hours with attempts being
made to interpret my 10-year-old hospital report
in a different way from its clear original intent.
Answers were cut off, one lawyer accusing the
other of "leading questions" -- it had nothing at
all to do with the real world, and the real people
involved and the real pain a wrong decision will
There has been much criticism laid against
the police concerning the delay in apprehending
Willie Pickton. I suggest that if the judicial
system was less complex with fewer technical
loopholes the police may well have proceeded
Defenders of the current system say it is
to protect the public again the potential tyranny
of the police. It is also argued that it is better
that three guilty persons go free than that one
should be imprisoned incorrectly. In this regard
the system has sadly failed, as Donald Marshall
Jr., David Milgaard and Guy Paul Morin would
Nurses, midwives, physicians and nurse
practitioners make many, and occasionally
life-and-death decisions every day. These
decisions do not take days, weeks or even months.
With the abolition of the death penalty a
judge no longer has to make any life-and-death
decisions. The civil case in which I was a witness
was scheduled to last three days. I am sure that,
with a well motivated mediator, it could have been
settled in three hours.
I wonder if there will ever be a government
brave enough and strong enough to restore the
judicial system to a justice system. That is to
say one that will quickly and efficiently
administer the laws of the land, and arbitrate in
matters of civil dispute -- while eschewing
matters that have been decided by a democratic
and/or expert process.
Judgments should depend on all the facts of
a case with nothing relevant being omitted as
In other words, where verdicts depend on
the merits of a case and not on the results of
cunning manoeuvres and devious word games.
Dr. Chris Pengilly is in general practice