Court Organization and Management January 12, 2012

Court Organization and ManagementJanuary 12, 2012 Ian Greene

Class Organizational Matters • Group Presentations (class web page) • Final essay: see Justice on Target Statistics (class web page) • Internships • Students requiring internship for grad diploma: Ahmed, Ahmadi, K., Ahmadi, N., Barakat, Cabral, Harvey, Kanagasabapathy, Karmali, Khan, Mloka, Motavalli, Segal, Sihra, Stone, Zamir (15) • Criminal Justice Inventory: indicate over what period you wish to do the internship.

Greene: section on “Judges” in Ch 3, The Courts • To what extent are judges representative of the larger population? • Depends on representativeness of lawyers (discussed next week), and appointment procedures • 18% of judges “supernumerary” • Judges currently earn between $150K & $300K • Fewer partisan appointments than in past, though likely about 50% of judges have partisan experience • Is political experience helpful? • Should patronage in apppointments be entirely eliminated?

Gender • 1990: 6% judges women; 2001: 25% • Likely closer to 30% today; may not rise higher • How willing are women to accept judgships? • Varies across jurisdictions: p. 61 • Do women judges make a difference? • Bertha Wilson talk at York, 1990 • Depends on the area of law. Contract – no. Areas where presuppositions make a difference – yes (crim) • Justice Abella: women judges serve as examples

Aboriginal Judges • 1988: 2 aboriginal judges. 2001: 18 (.8%), mostly at inferior court level • Inuktitut word for lawyers means “the one who lies for you.” Anglo-Canadian justice system iss seen as a colonial imposition. Not “their” justice system. • Aboriginal justice generally emphasizes rehabilitation over proof of guilt & punishment • Sentencing circles; restorative justice

Visible Minority Judges • Not much data, but visible minority judges are under-represented • Justice Tulloch is the only black Superior Court judge in Canada; one judge of south Asian descent on Ont Superior Court (out of about 300 judges) • Most visible minority judges on the lower courts. • Part of issue: persuade visible minorities to go to law school when it may not be part of family tradition

Judges as High Achievers • It’s hard to get into law school • 90% of appellate judges have received academic awards or honours • 17% of appellate judges have an MA; 9% have a PhD • Judges’ parents set the example • Half of judges have other family members who are lawyers • The higher the education, the more supportive of minority rights, and more tolerance of difference (eg same sex marriage) • May explain some of the Supreme Court decisions critical of Harper gov’t, such as Insite & Khadr, including Harper appointments to Court • Is it a problem that judges are high achievers? • Can they empathize with ordinary Canadians? • Are they transferring their own values, derived from family and higher education, to the rest of the population? If so, is this a problem?

Baar: The Emergence of the Judiciary as an Institution • All judicial systems have certain goals in common: • As state actors, they try to enhance the credibility of the state, and police government • Value independence and impartiality • Promote the rule of law • Desire for institutional effectiveness

Courts as State Actors • Unless citizens have faith in courts as impartial dispute resolution institutions: • The regime’s legitimacy is eroded (eg. Egypt today) • No confidence by internal or external investors, so standard of living is diminished, further discrediting the regime • But if courts are seen as to integrated with the state, they lose credibility (eg. Michael Mandel’s critique of court systems in capitalist countries; critical legal studies) • Baar’s point: judges in every country (democratic, authoritarian, Marxist) want their courts to be seen as credible (eg. Cuba, Ethiopia, former Czeckoslovakia) • Issue of resources or all Courts, especially in non-Western countries

Independence & Impartiality • Courts need independence from political branches of government in order for judges to be as impartial as possible. • Baar’s observation: judges everywhere strive to maximize independence & impartiality (eg. Cuba, Pakistan, Ethiopia) • Baar: independence & impartiality recognized in continental Europe & US only for past 2-300 years • My observation: struggle for independence & impartiality in England is at least 1000 years old. • Concepts of adequate ind/imp vary in jurisdictions. Civil law countries: OK for senior judges to “supervise” lower court judges. US: elections for judges the norm in some states. US: administrative independence is essential; not so in Canada

Judges everywhere struggle with threats to courts’ legitimacy • Ronald Regan’s efforts to influence a judge while California governor • Jean Chretien telephoning judges: disciplined by Trudeau. Jean Charest I disciplined by Mulroney. • Jason Kenney: last February in a speech at U Western Ont, ridiculed individual judicial decisions! No discipline by Harper • Not just in authoritarian regimes where there is sometimes interference with jud independence • Baar’s point: judges worldwide generally strive for independence and impartiality

The rule of law • Individual rights can only be limited if authorized by law: a generally accepted principle world-wide. • Thus, we have judicial review on constitutional grounds in many countries • Even without a constitutional bill of rights, courts can and do try to protect the Rule of Law: Roncarelli case in Quebec (1959)

Rule of law audit • Can police search and seize court files? • Can prosecutors set trial dates without judicial supervision? • Are search warrants required? • Are search warrants authorized by a judicial officer on a fixed salary, or does payment vary according to # of warrants approved? • Are judges competent, and do they have independence? • Is a bail hearing available to all those in custody? • Do courts rely on police for personnel, administration, facilities or security?

Institutional effectiveness: a challenge for all courts • Courts must be organized and administered to ensure they can fulfill functions as state actor with independence & impartiality, and can defend the rule of law. • Who assigns judges to courts and to cases? • Are court orders & judgments enforced? • Marbury v. Madison: Madison (AG) refused to deliver commission to Marbury. CJ Marshall knew he couldn’t enforce. So claimed Court’s power to interpret the constitution, and said constitution did not give SC of US the power to hear Marbury’s case. • Manitoba “official language” act unconstitutional, but gov’t refused to comply with lower court decisions until 1980s. • Adequate financial resources • Adequate record keeping • Qualified court staff • Court governance • Measuring outcomes

Peter McCormick: Judicial Independence • 1701: Act of Settlement in UK • Judges appointed according to good behaviour • Salaries established • Judges not accountable to politicians or bureaucrats • Part of tradition: judges are lawyers with experience, and judges don’t challenge the supremacy of Parliament • Reform of judicial appointments in 70s & 80s enhanced independence • Valente decision of SCC (1985): 3 essential components of JI: a legislated right to a salary, judges can’t be removed unless recommened by an impartial inquiry, & judges must control those aspects of administration that affect caseflow

1990s & beyond • Beauregard (1986): judicial pensions. Addition to Valente: judges require “institutional independence” • MacKeigan v. Hickman: Judges can’t be forced to testify in an inquiry. • Remuneration Reference (1997): “the blockbuster.” Judicial independence requires “Judicial Compensation Commissions.” Govt’s must give recommendations “serious consideration.” Four decisions after that set the standard for “serious consideration” very high. Reliance on preamble to CA, 1867. Hogg: worst decision ever made by SCC. • Bodner (2004): SCC seems to set lower standards for “serious consideration,” perhaps in reaction to criticism. • Ell (2003): independence of sitting Justices of the Peace in Alberta not threatened by requiring them to be lawyers with 5 year experience, sitting for a fixed term of 5 years.

What is judicial independence? • From dissertation research: • No interference in adjudication outside proper procedures in court • Independence not absolute • Impartiality • Autonomy • Freedom from coercion • Aloofness

Canadian Jud Council:Models of Court Administration (2006) • Authors included Carl Baar, Lorne Sossin • Report a result of concern of perhaps a majority of judges about both independence, and institutional effectiveness • “Australian jurisdictions [after looking at Deschenes Report] feature different models of self-governing Courts with impressive records of improved effectiveness and efficiency. Canada, by contrast, now ranks as one of the last common law jurisdictions in which court administration continues to be controlled by the executive branch of government.”

Conclusions of Report (1) • Canada has fallen behind peer jurisdictions such as Australia in innovations in court administration. Although the trend in most Canadian provinces is toward an enhanced judicial role within the executive model, the deficiencies of the executive model continue to impair the ability of courts to fulfill court administration goals and objectives. • The analysis of the evidence indicates that there is a compelling constitutional rationale for changing the executive model of court administration in Canada to a model or models which feature a greater degree of judicial autonomy. • This change ensures judicial independence. • This change also enhances the accountability of the judiciary in court administration, as well as achieving improved effectiveness and efficiency in court administration.

Conclusions, cont’d • Although there are legitimate variations in viewpoints and the strengths of those positions on the issue, concerns about the shortcomings of the executive model of court administration are widely held among the judiciary and this view is shared by some executive officials. • There is significant support for a model of court administration based on limited autonomy for the judiciary within an overall budget for court administration set by the appropriate legislative authority. Support extends further to linking this limited autonomy to the use of an independent commission for the prevention and resolution of disputes related to the overall size of the budget allocated to the judiciary. • There is also a need for a professional court administration with a chief executive officer responsible to the Chief Justice. The existence of a CEO to handle day-to-day operations will be important in ensuring that the judiciary is not preoccupied with those matters and can focus on overall strategic direction of court administration. • This report concludes that an optimal model of court administration would be one which provides the judiciary with autonomy to manage the core areas of court administration while ensuring (by the carefully considered use of an independent commission) that the authority of the political branches over resource allocation is not used arbitrarily.

Court Organization and Management January 12, 2012