Court Organization & Management January 5, 2012

1. Court Organization & ManagementJanuary 5, 2012 Ian Greene

2. Topics for This Evening • Overview of course outline; guest speakers (Carl Baar, Justice Michael Tulloch, Lesley Jacobs) • Handouts • Presentations • Graduate Diploma in Justice System Administration • Introductions to each other • Introduction to the subject • Greene, Ch 1 • Greene & Baar, “Judicial Administration”

3. G.K. Chesterton, Tremendous Trifles (in Steve Bogira, Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse, Knopf, 2005) • “The horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”

4. Exodus Chapter 18, 13-27 • 13 Now on the day after, Moses took his seat to give decisions for the people: and the people were waiting before Moses from morning till evening. • 14 And when Moses' father-in-law saw all he was doing, he said, What is this you are doing for the people? why are you seated here by yourself, with all the people waiting before you from morning till evening? • 15 And Moses said to his father-in-law, Because the people come to me to get directions from God: • 16 And if they have any question between themselves, they come to me, and I am judge between a man and his neighbour, and I give them the orders and laws of God. • 17 And Moses' father-in-law said to him, What you are doing is not good.

5. 18 Your strength and that of the people will be completely used up: this work is more than you are able to do by yourself. • 19 Give ear now to my suggestion, and may God be with you: you are to be the people's representative before God, taking their causes to him: • 20 Teaching them his rules and his laws, guiding them in the way they have to go, and making clear to them the work they have to do. • 21 But for the rest, take from among the people able men, such as have the fear of God, true men hating profits wrongly made; and put such men over them, to be captains of thousands, captains of hundreds and of fifties and of tens; • 22 And let them be judges in the causes of the people at all times: and let them put before you all important questions, but in small things let them give decisions themselves: in this way, it will be less hard for you, and they will take the weight off you.

6. 23 If you do this, and God gives approval, then you will be able to go on without weariness, and all this people will go to their tents in peace. • 24 So Moses took note of the words of his father-in-law, and did as he had said. • 25 And he made selection of able men out of all Israel, and made them heads over the people, captains of thousands, captains of hundreds and of fifties and of tens. • 26 And they were judges in the causes of the people at all times: the hard questions they put before Moses; but on every small point they gave decisions themselves. • 27 And Moses let his father-in-law go away, and he went back to his land.

7. Roscoe Pound1870-1964 • “American jurist, botanist, and educator, chief advocate of “sociological jurisprudence” and a leader in the reform of court administration in the United States. After studying botany at the University of Nebraska and law at Harvard (1889–90), Pound was admitted to the Nebraska bar, and he practiced law while also teaching at Harvard.” (Encyclopedia Britannica). He became Dean of the Harvard Law School. He was a leader in the “judicial realist” movement (contrast to positivism & natural law) • 1906 article, “The Causes of Popular Dissatisfaction with the Administration of Justice,” led to the study of judicial administration in the U.S., and later in Canada

8. Dissatisfaction with any legal system • mechanical operation of the rules • friction between law and public opinion • perception that administration of justice is easy and anyone can do it • impatience of any restraint

9. Dissatisfaction with the Anglo-American system • individualist spirit • legal contest is a contentious procedure, which turns litigation into a game (& judge merely umpire) • political jealousy put on the system by principle of supremacy of law • no generally accepted school of jurisprudence, resulting in tinkering where comprehensive reform is needed • the bulk of the legal system is based on case law (rather than a code)

10. American judicial organization and procedure is archaic • multiplicity of courts • preservation of concurrent jurisdictions • waste of judicial power that all this involves • rigid districts of courts or jurisdictions • consuming time with pure practice • unnecessary re-trials

11. Environment of judicial administration • popular lack of interest in justice (jury duty a bore) • strain on law because it is also expected to teach morality • effect of transition to a period of (more intense and poorly-thought-out or worded) legislation (and programs). When the legislated policy doesn’t work, the courts get blamed. (eg. Insite decision in Vancouver) • putting courts into politics • legal profession is a trade: employer-employee relations replace real lawyer-client relations • public ignorance caused by inaccurate or sensational reporting

12. Conclusion • In spite of all this, courts are not corrupt. In fact, they are better than 200 years ago. Because our law schools are so good, and with assistance of social sciences, and active bar associations, “we may look forward to a near future when our courts will be swift and certain agents of justice, whose decisions will be acquiesced in a respected by all.”

13. Greene, ch. 1 • Canadian Democratic Audit • Purpose of courts: dispute resolution, fill in gaps in legislation, prevent abuse of power • History of courts; common law vs civil law systems • Judges as lawyers in common law world • Structure and function of Canadian courts • “integrated” system vs. dual system (as in US) • Indictable vs summary conviction & hybrid • High rates of settlement: 95% civil, 90% criminal • Judicial impartiality • Judicial appointment • Judicial education • Judicial discipline • Role of courts in democracy & judicial disretion

14. Canadian Court Structure ____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

15. Baar & Greene • Development of court/judicial administration as a discipline in Canada; Brock program and successor at York • Association of Canadian Court Administrators • Judicial Independence: tenure, financial, administrative (more detail next week) & relation to impartiality • Masters in Their Own House (1981): Deschenes • Adjudication vs mediation vs arbitration • Caseflow Management (Feb 16 with Carl Baar) • Restorative justice: eg sentencing circles, victim-offender rehabilitation programs • Integrated justice • New professionalism of court administrators