Court Organization and Management March 1, 2012 Unnecessary Court Delays

1. Court Organization and ManagementMarch 1, 2012Unnecessary Court Delays Ian Greene

2. Geoff Gallas,“Local Legal Culture: More Than Court Culture” • Thomas Church et al, Justice Delayed: The Pace of Litigation in Urban Trial Courts (Nat Centre for State Courts, 1978): landmark study about causes of delay • Data (quantitative & qualitative) collected from 21 state trial courts and federal courts in same locations. • “…both speed and backlog are determined in large part by established expectations, practices, and informal rules ofbehavior of judges and lawyers. For want of a better term, we have called this cluster of factors the “local legal culture.” (p. 54) • Courts with excellent caseflow plans sometimes were slow and inefficient, and courts with poor caseflow plans sometimes had little backlog and quick dispositions. • In locations where state courts were slow, so were the federal courts • Study limited to lawyer and judge behaviour; but “local legal culture” is much broader – includes police, court staff, probation officers, prisons, etc.

3. “Court Culture” • Problem: “local legal culture” lacked a clear definition • 2005: Ostram et al in Court Manager argued that “local legal culture” be replaced by “court culture”, defined as “the expectations and beliefs that judges and court administrators have about the way work gets done.” • Gallas argues for caution: causes of delays are complex and explanations need more than “court culture;” lawyers and others in the system cannot be ignored. • Ostram et al measured lawyers’ perceptions of judges & court admins along 2 dimensions: solidarity (high or low) and sociability (high or low) [reminds me of studies of small group behaviour]. • Gallas: must also consider adjudicatory processes: prodecural (eg superior courts – rule-oriented), decisional (high volume courts like Ont Court of Justice), and diagnostic (eg. family courts). • Gallas: “local legal culture conditions the timing of requests for calendar rests, the reasons given, and realistic expectations that continuance requests [adjournments] will be granted.”

4. Judge Kevin Burke and Frank Broccolina, “Another View of Local Legal Culture: More Than Court Culture” • “Leadership is the single most important variable in court performance.” “The only important things leaders do may well be constructing culture.” • “Courts are no different from other organizations.” eg. how goals are operationalized, strategic and operational planning issues [maintenance and enhancement needs]. • Courts [i.e. judges] need not only to assert control over case management, but also their internal culture. To do so they must first understand it. • The court culture assessment tool may be useful. “In some courthouses, the judges are equals among firsts.” In others – problems in relation between judges and staff. [judgitis: http://leeakazaki.com/2011/11/16/dealing-with-judgitis/]

5. Greene, Ch 4Responsiveness of Courts to Public Expectations • Independence & Impartiality • Impartiality essential for the rule of law; independence promotes impartiality • Direct breaches: eg. bribery, threats. 1976 - 3 fed cab min’s contacted judges; Trudeau issued guidelines to prohibit cab ministers from contacting judges about cases before the courts. • Indirect: pressure applied to judiciary – eg salary reduction, criticism of judges (Conservative AGs in 1990s, Jason Kenney ridiculed 3 indiv judges in 2011 (no action taken by Harper), media campaigns, demonstrations, administrative pressure (BC 1979). What about “tough on crime” legislation?

6. Threats to Judicial Independence • Early 1980s: interviews with 130 judges in ON and AB – no threats to independence • Mid 1990s: interviews with 101 appellate court judges: 2/3 preceived serious threats to indep (intgp pressures, Conservative AGs, sensational reporting, “political correctness”, judicial salaries, cuts to administrative support)

7. American Model • Montesquieu (~1750): Gov’t in UK protects liberty because of a separation of powers: executive, legislature, judiciary. (Really not the case). Separation of powers enshrined in US constitution. • What does a “separate” court system mean? Early 1900s: judges in federal courts won the power to administer courts. Didn’t spread to many state & local courts. • Arguments for judicial control in Canada based more on case management.

8. Canadian situation • S. 99: appointment of sup ct judges during good behaviour • S. 100: salaries extablished by Parliament • S. 101: superior court judges appointed by federal executive. What is a superior court? Roughly what superior court judges did in 1867; limits prov transfer of jurisdiction to Provincially-app’d judges • Inferior courts: troubled until McRuer Report (1968). Still troubled for many JPs

9. JPs, Tribunals and Independence • Presiding and non-presiding • Many JPs (esp non-presiding) court clerks or patronage appointments • Very few presiding JPs are lawyers (except in Alberta and some in Ontario), and many have no more than high school education • Administrative Tribunals (federal & provincial): lab relations appointees generally competent (lawyers with experience); other tribunals – a mixed bag. • See Society of Ontario Adjudicators and Regulators web site (https://www.soar.on.ca/) for suggested standards for appointment, training and independence

10. Court Administration & Independence • 1972: Ont Law Reform Commission Report on courts • 1976: AG Roy McMurtry proposed a judicial committee to oversee court administration (premature) • 1977: Supreme Court became a separate gov’t agency with its own registrar supervised by CJ • 1981 Deschenes/Baar report (premature) • 1986: Court Administration Advisory Committees proposed as recommended by Justice Zuber • Friedland (1995): control of courts by a body like a university Senate • 2002: BC gov’t announced closure of court houses with no consultation with judiciary. Backed down. • Can Jud Council “Models” report, 2005

11. Impact of Charter of Rights • Valente case (1985): Valente charged with “dangerous driving” in St. Catherines in 1982; asked his lawyers to keep him out of court for as long as possible. • His lawyers knew that provincially-appointed judges in the area were angry that they did not have the same constitutional guarantees of independence as Superior Court judges. Shortly after Charter became law, challenged jurisdiction of a provincially-appointed judge as violating 11(d) of Charter (right to hearing by “independent & impartial tribunal) • Provincially-appointed judge accepted argument and stayed all hearings until issue determined by Ont Court of Appeal • “Judges strike” • Ont CA: Provincially appointed judges independent if certain conditions met. Appealed to SCC

12. SCC decision in Valente • Three “essential conditions” for judicial independence: • Security of tenure: judges can only be removed after recommendation by independent inquiry • Financial security: right to a salary high enough to discourage bribery • Institutional independence: judges must control those aspects of court administration “directly affecting adjudication”

13. Beauregard (1986) • Beauregard appointed to Que Sup Ct in 1975 • Same year that feds created a pension plan for S 96 & S 101 judges (generous plan, but reduced their salaries) • Beauregard sued for violation of judicial independence • SCC: judges have “collective” as well as “individual” independence because they are the constitutional arbitrators. • Dickson: The pension legislation does not violate either individual or collective independence. • The creation of the notion of “collective independence” is important

14. MacKeigan v. Hickman (1989) • Nova Scotia: Donald Marshall, Jr, convicted of murder in 1971. Shortly after conviction, several witnesses recanted their testimony. Prosecutors and AG knew, but did not tell Marshall’s lawyer. • 1982: AG had been appointed to NS Ct of Appeal, which on review found Marshall innocent. However, the court claimed that Marshall was mostly responsible for his own conviction because part of his testimony was a lie. • The explosive CA decision led to a royal commission inquiry, which wanted to interview CA judges to find out why the AG ended up on the panel. CA Judges objected, leading to this case • SCC: Judges cannot be compelled to testify about reasons for decisions. However, majority concluded that judges must testify about “administrative issues” before a “properly constituted judicial council.”

15. Remuneration Reference (1997) • Early 1990s: serious recession • Govt’s of AB, PEI and Manitoba reduced salaries of PC judges the same as public servant reductions (usually 5%) • Some jurisdictions had Judicial Compensation Commissions – like labour relations boards composed of a rep of the judiciary, a rep of the government, and a third appointed by the first two. • These 3 salary reductions had not gone through JCCs. • Judges sued for violation of Judicial Independence • Supreme Court decision: JCCs are constitutionally required to preserve Judicial Independence. Reference to S. 11(d) of Charter of Rights, and preamble of CA, 1867 • Subsequent litigation

16. Judicial Discipline - fed • How are judges accused of “bad judgment” disciplined? • Can’t be disciplined for bad decisions; only bad behaviour • Federal and Provincial Judicial Councils (dating from 1971); Federal Judicial Council a reaction to the Landreville case. • CJC gets ~ 170 complaints a year; one or two merit warrant further investigation by the Judicial Conduct committee. Then there is an investigation by an outside counsel that reports to a panel of 3 to 5 judges, which may recommend a full investigation by an inquiry committee (at least one member of CJC & possibly one or more members of the bar in the judge’s home province). • Only about 10 full inquiries have been held: Berger (1981-83, criticized and later resigned); NS Ct Appeal (Marshall case, 1989, legal error but no removal); infirm judge (1994, resigned); Bienvenue (biased remarks, 1996, resigned); Flahiff (did not report conviction,1999, resigned); Flynn (2002, political stance over property – inappropriate but no removal); Boilard (2002, Hell’s Angels trial aborted – no removal). • Judicial Conduct Committee finds lack of evidence so no full inquiry: Wilson (1990); Buzz McClung (L’Heureux-Dubé ,1999 - apology); L’Heureux-Dubé (1999 – Ted Morton); Bastarache (2001 – Lawyer’s Weekly remarks, Ont Crim Lawyers Assoc complaint); Clyde Wells (2002- Marshall in Nfld Pub Employees decision; Globe & Mail, Crosbie complaint).

17. Discipline of Prov-appointed judges • Under control of Provincial Judicial Councils. Can often recommend a reprimand or treatment – not just removal • Since Valente, can only be removed after an independent inquiry. Before – more than a handful of judges removed by AG • 1993: inquiry by Madam Justice MacFarland into complaints against Judge Walter Hryciuk • 2001: inquiry in Quebec recommended Judge Therrien be removed; had lied about conviction for protecting terrorists during 1970 October crisis. Recommendation supported by SCC on judicial review • 2004: Judge Ramsay (BC) resigned after being convicted of sexual assault of several girls under 16

18. Evaluation of Discipline • Judicial discipline procedures have improved greatly since the early 1970s • Better to improve judicial appointment procedures than to “mop up” afterwards • Too few Canadians know about complaint procedures • Lay persons need to be involved in judicial discipline process to discourage “circling the wagons.”

19. Responsiveness of courts to litigants, witnesses, access to justice and expeditious justice • 40% of Canadians (Stats Can) think the criminal courts do a “good” job of providing fair trials; 30% an “average” job • Poor job of fairness: 7% recent immigrants, 9% visible minorities, 13% Aboriginals, & 14% of those with disabilities • Providing justice quickly: 40% say courts do poor job; 15% say they do a “good” job. Poor job of quick justice: 48% disabled, 42% Aboriginal, 39% women, 25% visible minorities, 12% recent immigrants • 90% think that the justice system needs to be more “sensitive and compassionate,” though 2/3 think justice system treats people with respect • 1996 – 2001: court budgets increased 13% • Primary causes of unnecessary delay: “local legal culture,” defence counsel taking on too many cases, disclosure issues, unnecessary adjournments, & delay as a defence strategy.