Premier David Eby’s attempt when he was attorney general to change how bail hearings are dealt with violated a labour agreement with B.C.’s prosecutors, the B.C. Supreme Court has found.
The change related to the wages and working conditions of almost 500 Crown counsels in B.C. but were imposed without negotiating through the association that represents them.
The B.C. Crown Counsel Association grieved the move, filed for arbitration and won the case this year. The province then asked for a judicial review, warning that the ruling would have a “significant detrimental impact” and cause “irreparable harm.”
But on Friday the B.C. Supreme Court dismissed all the government’s objections and said the ruling is “clear, intelligible and justified.”
The issue developed from a new requirement that Crown counsel handle all bail hearings after hours and on weekends. Police often previously represented the Crown during bail hearings outside standard work hours.
The government decided to end that practice after a ruling in Alberta that only Crown counsel have the legal authority to represent the prosecution in indictable cases.
The argument about how the change was made developed in the midst of a wave of public concern about repeat violent offenders and the “catch and release” criminal justice system.
Part of the government’s attempt to respond was a drive to hire more prosecutors. The move to staff all hearings with Crown counsels came as that hiring was underway.
The Crown Counsel Act authorizes the B.C. Crown Counsel Association to enter into agreements with the government on “all matters affecting wages or salary, hours of work and other working conditions.”
The law bars the government from making any employment or contractual relationships that conflict with that agreement.
Matters about “organization, establishment or administration” are exempted from that requirement.
Under that premise, the government in April 2022 ordered the comprehensive bail program. The Supreme Court said the government imposed it by “entering into agreements directly with individual Crown counsel, bypassing the collective bargaining process.”
The direct impact of Friday’s decision is unclear.
It’s an embarrassing loss for the union-friendly NDP government, and for Eby personally, a former civil rights lawyer. The government bypassed the designated bargaining agent and a signed contract in order to load more work onto their employees.
Four days before the 2022 directive on bail hearings was issued, the Opposition said in the legislature that prosecutors’ morale was deplorable and that the association had been without a contract for years.
Eby, then attorney general, told the house he was “incredibly grateful” for the work they do, but bargaining takes place at the bargaining table and he was sure a mutual agreement would happen. He said he had confidence in the Crown Counsel Association.
But 19 months on, 12 of which he was premier, the association is still without a contract and is running radio ads as recently as three weeks ago describing how under-staffed and burned-out their members are.
Lawyers leading the group said they are “fighting with one hand behind their backs,” and need more staff and better technology.
Association vice-president Jennifer Johnston said they’ve been working under the same contract for 16 years. It’s been rolled over multiple times. The prosecution branch averages a 25 per cent turnover and members are working under frustrating conditions, she told CKNW last month.
“That puts public safety at risk,” association president Adam Dalrymple says in one ad.
It’s a different picture in a key part of the justice system than the one the NDP paints of a government that took action to tackle widespread concern about repeat violent offenders continually being released.
The situation also contrasts with NDP rhetoric two years ago on a labour bill that made certification of unions easier. Numerous MLAs then spoke about the importance of union rights.
Also, last May, the government started a separate argument with a different group of 300 lawyers, those working for the government handling matters outside the criminal courts.
The B.C. Government Lawyers Association wanted to be recognized as a union, but the NDP outlawed the idea and forced them to join the broader Professional Employees Association.
That case is in court as well.
The NDP convention is in Victoria this weekend. If any member raises the dismal record Eby is building with the members of his own profession working in his own government, it would make for an interesting exchange.
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