Introduction to the Rule of Law transcript

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode one, Introduction to the Rule of Law. In this pilot episode, we will be introducing you to why the rule of law is so important and why we are creating this podcast. This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host. 

Jon Festinger

I'm your host, John Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee and have been for quite a few years. I am also a lawyer and I teach at UBC's Allard School of Law and the TRU Faculty of Law. Today, we are very honored to have Craig Ferris QC here joining us for this chat. Craig is the president of the Law Society in this very challenging 2020 year. He is a litigator with Lawson Lundell LLP and he was called to the bar in 1991. He also clerked for the BC Court of Appeal before that. The rule of law is a topic that is very dear to Craig's heart and to mine. Craig previously chaired the Rule of Law and Lawyer Independence Advisory Committee and as chair, he launched the annual lecture series and the high school essay contest. We do those things to engage the public and stimulate dialogue about the rule of law. That's the same reason we do this podcast. Today, we are going to be talking about why we created this podcast, what you can expect, some of the basic principles of the rule of law, why we care so much about it, and why we think you should as well. Let's start our conversation with Craig. Craig, you've expressed a fair bit of passion for this subject of the rule of law over the years. Let's talk about your personal connection. Why is the rule of law important to you, what drew you to it in the first place, and did that have anything to do with why you went to law school?

Craig Ferris

Thanks Jon and thanks for having me here today. The rule of law today is it's the fundamental concept of, of why I'm a lawyer. The idea that everyone is equal before the law and everybody has the same chance to make sure that the law is working for them is, is fundamental to what I am as a lawyer. But how I originally came to it, so there's a, there's a short answer and a longer answer. The short answer is my dad was a first generation lawyer and in my family, it was a question of when not if you went to law school. The longer answer is I always, I was a bit of a not very well behaved teenager and I had a healthy question of authority and that authority always needed to sort of be within proper bounds. And the idea that you could challenge authority was always attractive to me and it sort went all the way back to my elementary school days when I was being disciplined one day and the principal was disciplining me for some conduct that happened after school. And I was very strongly of the view that the principal no longer had authority over me at that point in time and so as about a 10-year-old, we had a nice debate reviewing the School Act which detailed the outlines of the principal's authority and, and yes, he was able to discipline me at that time.

Jon Festinger

Wow, I have to say I take some comfort as a member of the Law Society that our president has a deeper understanding and a deeper questioning of discipline. That's sort of the help…helpful and healthy concept for us. Let me ask you a question, and, and maybe I'll give you my answer and then ask you the same question. And the question is do you have an image, when you think of the rule of law, does something in particular come to mind for you? For me, I'll say that if you remember when President Trump in the United States did sort of this on the fly immigration reform and lawyers just sort of flew out of their offices and went to airports to help people, just you know just by the by almost, they, they, they just started doing it and all the law faculties in the United States and even many in Canada starting doing research projects around immigration and, and the immediate issues that had been raised. And I, I just remember seeing that and that to me was such a rule of law image. Do you have any image that you associate with the rule of law past or present?

Craig Ferris

Yeah, so you may think I was a really weird child so I'm going to take you back a long ways until, to about 1971 when the then Prime Minister Trudeau implemented the War Measures Act in Canada and I remember as a child discussing that with my dad about how you know how can you suspend the law? How can you, how can you just sort of, sort of put in place martial law and that's always stuck with me and frankly it stuck with me all the way to the present day, and when we're dealing with COVID and the fact that we're now in the longest emergency that the provincial government has ever had and the question there about whether those emergency powers still remain active or should remain active at this present time. So you know that sense of government being able to take away your individual rights and you having nothing to do with it, that, that stuck with my whole life.

Jon Festinger

Well with that as background, why is it important for the Law Society, under your leadership in particular, to promote understanding of the rule of law?

Craig Ferris

So the rule of law is something which is, is core and fundamental to our society. It's core and fundamental to the economic wellbeing of our society and so it's something unfortunately we don’t learn a lot about. We don’t have a citizenship class in high schools. Not everybody takes sort of political science or law in universities or have the opportunity to learn about it and so it's important that somebody who has a mandate to make sure that it's upheld, make sure that people know about the rule of law and how important it is. And so at the Law Society, we've made it a fundamental part of our strategic plan to protect those rights and freedoms of all persons and one of the ways to do that is to make sure that the public has a confidence in our justice system and that they know their rights and that you have confidence in our institutions that they'll act correctly. And part of that is making sure people understand what the rule of law means and how it impacts them. You know I've always seen the rule of law as the great leveler of our society, that the fact that the most powerful can be held to account by the least powerful and that everybody who stands in front of the court or other body should have the same rights and be entitled to the same representation. And that equality I think is really key and it's important to keep reminding people that. Policy issues come up all the time. We see them all the time and we look at them through a rule of law perspective and try to make sure that the public understands them from that respect.

Jon Festinger

Well, I agree with all of that. I'm going to add one factor that I think is critical and that's fairness. And I know fairness embodies all the things that you talked about but that you know we talk a lot about justice but the most clear sign post of justice is when people feel like they've been treated fairly and, and equality is part of that, having institutions we can feel confident in but also feeling like we're treated fairly by those institutions is incredibly complex and that kind of takes me to the next part of what you and I'll weigh in after you, hope people will take away from this podcast, what we hope they will think about, and maybe even if we could be so bold, what we hope they will do with this knowledge.

Craig Ferris

Right. So obviously the key is a better understanding of the rule of law but the why is that important. In my mind, it's important because it applies every day in people's lives, how they deal with government, how they deal with authority and knowing that people have to deal with them fairly, have to deal with it on an equal footing and they have the right to independent advice. All of those are sort of fundamental concepts that people should remember and understand and especially in these days of social media where there's a lot of almost yelling at each other in social media to come back down to sort of the core principles and people can recognize this and hopefully have a more reasoned understanding of the issues. And frankly, I'm hopeful that you know one of the things that people will look at is you know stop just associating people, you know recognize that the rule of law means people should be able to have representation and the representation should be you know independent representation, zealous representation but the person who is doing the representation shouldn't be tarred or have their reputation taken down because they happen to represent somebody who you don't think is the most savory individual. 

Jon Festinger

You know you've touched on something that I want to amplify a little bit because it just feels really important and that is you know it doesn't take an anthropological genius to point out that we are living in very divided times. We know that, we see that every day, and as you were speaking, it really came to me that you know the rule of law provides some basic unifying principles that even if we disagree on everything else, we should be able to agree to, we all should be able to agree to. And if we can agree to those principles and we'll talk about them next, but if we can agree to those principles, then we have something to build on, we have something to analyze with. We have a lens through which to look at a series of problems. And I know it's a lot to ask that we could stop the shouting but I think the rule of law may provide a bit of a short cut if people understand it to at least do a basic analysis before the volume goes up and do an analysis of what they agree on. You know I was always very jealous, you know this because I've mentioned it in our committee at various times, but I was always jealous of the doctors because doctors had the Hippocratic oath, the public understood what the Hippocratic oath was, and lawyers, and I'm talking six, seven years ago when I started on the committee, we didn't have that, by and large, until recent events in the United States. The rule of law was not a popular term even in the media. And unfortunately, it's become a sort of divisive term itself but there's nothing divisive about the rule of law. It really is a basic set of principles. Do you want take us through the main pillars and sort of give us your perspective on any or all of them?

Craig Ferris

Sure, I'm happy to do that. So rule of law means a lot of different things but they're all, the core is, is that the law applies to everyone and so that's really the first principle. The law applies to everyone, the most powerful, the weakest, we should all be equal before the law. And you know I think you've mentioned in these, in these troubled times with you know governments around the world acting in various ways, you know the idea that, that governments are held accountable by the rule of law is more essential than ever. You know following on that, the law shouldn't be secret or arbitrary, and you touched on fairness, you know the idea that, that it's not just sort of well we're going to apply this to you and not to you, you know laws are applied fairly, and you have a fair opportunity to meet the law and to talk about them and that's important. The third one is law is enforced fairly, you know as I said, we're not going pick one person out of a crowd and enforce the law against them and let everybody else go free. The justice system is supposed to be accessible and fair. It's not much use to have a great justice system if nobody can use it other than the powerful few. And so you know justice is supposed to be open to everyone. I think there was a book or a movie years ago called "And Justice for All" and that's really a core principle. Economic stability, you know it's often overlooked, people don't realize this but people come to Canada, they come to British Columbia, they come to Vancouver to invest, to do business because they understand that their commerce will be conducted fairly and you know we don't have bribery, we don’t have people sort of giving favoritism in contracts and the law constrains that. And that's an important fundamental for our economic prosperity in Canada. And finally safety, you know the idea that, that there's a sort of a public pact here where we keep each other safe and that's enforced through the rule of law that so not only some people get protections and other people get persecuted, you know we all have a right to safety and that's upheld through the application of the rule of law.

Jon Festinger

I will add one small note, "And Justice for All" starring Al Pacino, one of my absolute favorite movies of all time, I recommend it to everybody. It has some interesting sections about the Law Society in that movie which you may or may not like on revisiting, but a fabulous film that actually does get to, you know, it's very satiric so you have to take it with a grain of salt but does get to some important issues and by the time I was in law school, I certainly watched a whole bunch of times. So we've talked about the principles; do you think we do a good job in British Columbia in upholding those principles? What might we do better? How do you see our current problems with COVID and without COVID?

Craig Ferris

So there are actually people that measure, measure these things and, and there is a, a rule of law index out there that they give people scores every year. In Canada, you know, BC within Canada, always scores very well. You know we score well on independence of our judiciary, we score well on the fairness of our laws and the application of our laws. And so we have an exceptional justice system in Canada and we have good protections for the independence of the judiciary, the judges, and lawyers, and that's all fantastic. But there is one area, a couple areas where we don't score very well and that's on accessibility and efficiency and so we have an access to justice problem or an access to legal advice problem in Canada, where it's hard for people, real people to get legal advice and there's various reasons for that but that's something we need to work on and hopefully you know understanding the rule of law will help people think that that's of a higher priority to address that problem. We also have an efficiency problem. Often things take too long and we don't score all that well on that as well, and again, you know the fairness of a rule being upheld for a problem today three or four years from now is, is sort of meaningless at times. And so we need to increase the efficiency of the justice system. So you know I'd give us a good ranking, but there's still improvements and it's, you know it's a constant, it's a constant battle to make sure that people understand the importance of the justice system, how it affects the rule of law, and frankly how it affects their daily lives.

Jon Festinger

Well you know I'll chime in with one hope and I trust it's more than a hope. And that is that these difficult times which have made us more reliant on technology to communicate, when we come out of them, we will be better versed in tools that will allow for efficiency and access to the justice system, that we are going through a digital revolution in communications, in education, and I think it will affect law as well. And I think that we are going through experiments now and some of them may not be ideal but we're going to learn so much from them that the system will improve. Call me an optimist if you must, but I really am hopeful of that and I know you are too.

Craig Ferris

I'll just say this that you know COVID's obviously a horrible thing but, but the opportunities that it's presented to us to learn, the technology to teach people about technology, to, to sort of you know get people who were very resistant to technology forced to use it, I think opens up a whole bunch of opportunities. And you know you think about the ability to how that can impact access to justice, I think it's a real opportunity and, and I hope we don't lose it, really working hard to make sure we don’t lose it and that can only benefit the rule of law.

Jon Festinger

Thanks Craig. This has been wonderful. I'm going to bring in kind of one last personal aspect, and that is that I know, and we both are huge sports fans and so let's talk about that in the context of what the rule of law is and what the rule of law isn't. You know when you watch a Canucks game and the refs are going against us, like how much are you wearing your lawyer hat and saying you know this is an affront to basic principles of justice and how much of you understand as a fan that this is the game and it's imperfect and refs are imperfect and human and maybe take us through what you take from that and apply to law and to your understanding of the courts and what you go hey, that's just sports and that's just fun?

Craig Ferris

So yeah, I am a big sports fan and so when you're, when you're watching a game, it's interesting you know because you again you do all the things that you say you shouldn't do. You start blaming the refs when they're simply you know enforcing the, the rules of the game and it's hard to separate your emotions from your knowledge that you know the refs really are there to be an arbiter to be fair. And so I think where it gets you, where the line gets you is that you know if you see, if you see the same rules being called both, both ways, you sort of, you don't mind those rules. You know you might think a certain referee calls hooking a little bit too, too easily than, than another referee but you have to understand that referees are people and we all come to problems a little bit different, not unlike judges. And so there's going to be a standard is not always going to be exactly the same but there's a fairness of process which, which allows you to respect it. I think the other interesting thing about sports and I, I go back a long time here again when the Houston Oilers when they were still the Houston Oilers were playing the Pittsburgh Steelers in the playoffs and a wide receiver named Mike Renfrew, I think he caught a pass from, from Kenny Stabler in the back corner of the end zone and he was called out of bounds. And they went back over that, it was before instant replay and that was really the impetus to instant replay, this idea that there should be perfection in all of the calls in a sporting game, and frankly I think where we've got to today is a lot of times it bogs down the game, these endless replays and you know you just want to get on with it. And I also think that's got a good lesson for you is that there's a balance here, there's a balance of efficiency and access and, and making sure that people can get through the system versus always trying to get the most perfect result possible because sometimes getting the most perfect result possible sort of ruins the whole process. And so you have to understand that, that no system is perfect, that there's a balancing involved but there is an inherent fairness and an inherent equal application of that process to everyone. And if you can then keep your emotions in check, you can watch a sporting game calmly, which I rarely do.  

Jon Festinger

And that theoretical perfection in both sports and law, I'll editorialize a bit, has a cost as you've said. And in, in law, it actually is a real life expense and could drive the cost of litigation for example beyond any reasonable means. In sports, it takes some of the heart away, you know too much instant replay and the heart of the game ends up being lost or at least feels compromised to a certain extent. So you know, appreciate everything that you've said. For the balance of our time on these podcasts as long as they go, I hope they go a long time, we are going be talking about real life examples of threats to the rule of law around the globe, in our own country, in our own province. We've done some of that today but that's the core concept that underlies this podcast. We want to talk about this stuff, we think the rule of law's important and we think that the more British Columbians reflect on it, the more important they will feel it is and the more they are likely to be able to use it. Any last words before we sum up the episode?

Craig Ferris

I just encourage, encourage the dialogue. I think it's important to talk about it, to educate ourselves and you know there's new policy implications every day, that you can look at it through a rule of law lens. There's the, you know there's the opening of the schools in a couple of weeks, there's emergency legislation, there's no fault auto insurance, all of these can be looked at through a rule of law lens and they should be. And that's what I'm really hoping this podcast will accomplish, to give people the tools and, and the education to let them do that.

Jon Festinger

Thank you Craig, thank you for joining us, very much appreciate your being willing to do this. I just want to sum up and speak directly to our audience. The Law Society launched this podcast to help you understand how the rule of law applies to real life, to your real life and to the real life of British Columbians. We want you to know about your rights and freedoms under the law and we want you to think about those. We want you to think about the pillars of the rule of law: that the law applies equally to everyone, that laws should never be secret or arbitrary, that laws must be enforced fairly and that the justice system must be accessible and fair. That's both, not either. We also will talk and have talked about current events and we will do that a lot more as these podcasts emerge on your player over the next episodes. We will do a deeper dive into what the rule of law means and how it applies. That's our promise to you. Thank you for listening. This show has been produced by Vinnie Yuen. If you want to find out more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. I'm John Festinger signing off for now.