Court Organization and Court Organization and ManagementManagement

March 1, 2012March 1, 2012 Unnecessary Court DelaysUnnecessary Court Delays

Ian Greene

Geoff Gallas,Geoff Gallas, “Local Legal Culture: “Local Legal Culture: More Than Court Culture”More Than Court Culture”

Thomas Church et al, Justice Delayed: The Pace of Litigation in Urban Thomas Church et al, Justice Delayed: The Pace of Litigation in Urban Trial Courts (Nat Centre for State Courts, 1978): landmark study Trial Courts (Nat Centre for State Courts, 1978): landmark study about causes of delayabout causes of delay

Data (quantitative & qualitative) collected from 21 state trial courts Data (quantitative & qualitative) collected from 21 state trial courts and federal courts in same locations.and federal courts in same locations.

“…“…both speed and backlog are determined in large part by established both speed and backlog are determined in large part by established expectations, practices, and informal rules ofbehavior of judges and expectations, practices, and informal rules ofbehavior of judges and lawyers. For want of a better term, we have called this cluster of lawyers. For want of a better term, we have called this cluster of factors the “local legal culture.” (p. 54)factors the “local legal culture.” (p. 54)

Courts with excellent caseflow plans sometimes were slow and Courts with excellent caseflow plans sometimes were slow and inefficient, and courts with poor caseflow plans sometimes had little inefficient, and courts with poor caseflow plans sometimes had little backlog and quick dispositions.backlog and quick dispositions.

In locations where state courts were slow, so were the federal courtsIn locations where state courts were slow, so were the federal courts Study limited to lawyer and judge behaviour; but “local legal culture” Study limited to lawyer and judge behaviour; but “local legal culture”

is much broader – includes police, court staff, probation officers, is much broader – includes police, court staff, probation officers, prisons, etc.prisons, etc.

““Court Culture”Court Culture” Problem: “local legal culture” lacked a clear definitionProblem: “local legal culture” lacked a clear definition 2005: Ostram et al in 2005: Ostram et al in Court Manager Court Manager argued that “local legal argued that “local legal

culture” be replaced by “court culture”, defined as “the culture” be replaced by “court culture”, defined as “the expectations and beliefs that judges and court administrators expectations and beliefs that judges and court administrators have about the way work gets done.”have about the way work gets done.”

Gallas argues for caution: causes of delays are complex and Gallas argues for caution: causes of delays are complex and explanations need more than “court culture;” lawyers and others explanations need more than “court culture;” lawyers and others in the system cannot be ignored.in the system cannot be ignored.

Ostram et al measured lawyers’ perceptions of judges & court Ostram et al measured lawyers’ perceptions of judges & court admins along 2 dimensions: solidarity (high or low) and admins along 2 dimensions: solidarity (high or low) and sociability (high or low) [reminds me of studies of small group sociability (high or low) [reminds me of studies of small group behaviour].behaviour].

Gallas: must also consider adjudicatory processes: prodecural Gallas: must also consider adjudicatory processes: prodecural (eg superior courts – rule-oriented), decisional (high volume (eg superior courts – rule-oriented), decisional (high volume courts like Ont Court of Justice), and diagnostic (eg. family courts like Ont Court of Justice), and diagnostic (eg. family courts).courts).

Gallas: “local legal culture conditions the timing of requests for Gallas: “local legal culture conditions the timing of requests for calendar rests, the reasons given, and realistic expectations that calendar rests, the reasons given, and realistic expectations that continuance requests [adjournments] will be granted.”continuance requests [adjournments] will be granted.”

Judge Kevin Burke and Frank Broccolina, “Another Judge Kevin Burke and Frank Broccolina, “Another View of Local Legal Culture: More Than Court Culture”View of Local Legal Culture: More Than Court Culture” ““Leadership is the single most important variable in Leadership is the single most important variable in

court performance.” “The only important things leaders court performance.” “The only important things leaders do may well be constructing culture.”do may well be constructing culture.”

““Courts are no different from other organizations.” eg. Courts are no different from other organizations.” eg. how goals are operationalized, strategic and operational how goals are operationalized, strategic and operational planning issues [maintenance and enhancement needs].planning issues [maintenance and enhancement needs].

Courts [i.e. judges] need not only to assert control over Courts [i.e. judges] need not only to assert control over case management, but also their internal culture. To do case management, but also their internal culture. To do so they must first understand it.so they must first understand it.

The court culture assessment tool may be useful. “In The court culture assessment tool may be useful. “In some courthouses, the judges are equals among firsts.” some courthouses, the judges are equals among firsts.” In others – problems in relation between judges and In others – problems in relation between judges and staff. [judgitis: staff. [judgitis: http://leeakazaki.com/2011/11/16/dealing-http://leeakazaki.com/2011/11/16/dealing-with-judgitis/] with-judgitis/]

Greene, Ch 4Greene, Ch 4Responsiveness of Courts to Public ExpectationsResponsiveness of Courts to Public Expectations

Independence & ImpartialityIndependence & Impartiality Impartiality essential for the rule of law; Impartiality essential for the rule of law;

independence promotes impartialityindependence promotes impartiality Direct breaches: eg. bribery, threats. 1976 - 3 Direct breaches: eg. bribery, threats. 1976 - 3

fed cab min’s contacted judges; Trudeau issued fed cab min’s contacted judges; Trudeau issued guidelines to prohibit cab ministers from guidelines to prohibit cab ministers from contacting judges about cases before the courts. contacting judges about cases before the courts.

Indirect: pressure applied to judiciary – eg salary Indirect: pressure applied to judiciary – eg salary reduction, criticism of judges (Conservative AGs reduction, criticism of judges (Conservative AGs in 1990s, Jason Kenney ridiculed 3 indiv judges in in 1990s, Jason Kenney ridiculed 3 indiv judges in 2011 (no action taken by Harper), media 2011 (no action taken by Harper), media campaigns, demonstrations, administrative campaigns, demonstrations, administrative pressure (BC 1979). What about “tough on pressure (BC 1979). What about “tough on crime” legislation?crime” legislation?

Threats to Judicial IndependenceThreats to Judicial Independence Early 1980s: interviews with 130 Early 1980s: interviews with 130

judges in ON and AB – no threats to judges in ON and AB – no threats to independenceindependence

Mid 1990s: interviews with 101 Mid 1990s: interviews with 101 appellate court judges: 2/3 appellate court judges: 2/3 preceived serious threats to indep preceived serious threats to indep (int gp pressures, Conservative AGs, (int gp pressures, Conservative AGs, sensational reporting, “political sensational reporting, “political correctness”, judicial salaries, cuts to correctness”, judicial salaries, cuts to administrative support)administrative support)

American ModelAmerican Model Montesquieu (~1750): Gov’t in UK Montesquieu (~1750): Gov’t in UK

protects liberty because of a separation of protects liberty because of a separation of powers: executive, legislature, judiciary. powers: executive, legislature, judiciary. (Really not the case). Separation of (Really not the case). Separation of powers enshrined in US constitution. powers enshrined in US constitution.

What does a “separate” court system What does a “separate” court system mean? Early 1900s: judges in federal mean? Early 1900s: judges in federal courts won the power to administer courts. courts won the power to administer courts. Didn’t spread to many state & local Didn’t spread to many state & local courts. courts.

Arguments for judicial control in Canada Arguments for judicial control in Canada based more on case management.based more on case management.

Canadian situationCanadian situation S. 99: appointment of sup ct judges during S. 99: appointment of sup ct judges during

good behaviourgood behaviour S. 100: salaries extablished by ParliamentS. 100: salaries extablished by Parliament S. 101: superior court judges appointed by S. 101: superior court judges appointed by

federal executive. What is a superior court? federal executive. What is a superior court? Roughly what superior court judges did in Roughly what superior court judges did in 1867; limits prov transfer of jurisdiction to 1867; limits prov transfer of jurisdiction to Provincially-app’d judgesProvincially-app’d judges

Inferior courts: troubled until McRuer Inferior courts: troubled until McRuer Report (1968). Still troubled for many JPsReport (1968). Still troubled for many JPs

JPs, Tribunals and JPs, Tribunals and IndependenceIndependence

Presiding and non-presidingPresiding and non-presiding Many JPs (esp non-presiding) court clerks or patronage Many JPs (esp non-presiding) court clerks or patronage

appointmentsappointments Very few presiding JPs are lawyers (except in Alberta Very few presiding JPs are lawyers (except in Alberta

and some in Ontario), and many have no more than and some in Ontario), and many have no more than high school educationhigh school education

Administrative Tribunals (federal & provincial): lab Administrative Tribunals (federal & provincial): lab relations appointees generally competent (lawyers with relations appointees generally competent (lawyers with experience); other tribunals – a mixed bag.experience); other tribunals – a mixed bag.

See Society of Ontario Adjudicators and Regulators See Society of Ontario Adjudicators and Regulators web site (web site (https://www.soar.on.ca/) for suggested ) for suggested standards for appointment, training and independencestandards for appointment, training and independence

Court Administration & IndependenceCourt Administration & Independence

1972: Ont Law Reform Commission Report on courts1972: Ont Law Reform Commission Report on courts 1976: AG Roy McMurtry proposed a judicial committee to 1976: AG Roy McMurtry proposed a judicial committee to

oversee court administration (premature)oversee court administration (premature) 1977: Supreme Court became a separate gov’t agency 1977: Supreme Court became a separate gov’t agency

with its own registrar supervised with its own registrar supervised by CJby CJ 1981 Deschenes/Baar report (premature)1981 Deschenes/Baar report (premature) 1986: Court Administration Advisory Committees proposed 1986: Court Administration Advisory Committees proposed

as recommended by Justice Zuberas recommended by Justice Zuber Friedland (1995): control of courts by a body like a Friedland (1995): control of courts by a body like a

university Senateuniversity Senate 2002: BC gov’t announced closure of court houses with no 2002: BC gov’t announced closure of court houses with no

consultation with judiciary. Backed down.consultation with judiciary. Backed down. Can Jud Council “Models” report, 2005Can Jud Council “Models” report, 2005

Impact of Charter of RightsImpact of Charter of Rights Valente case (1985): Valente charged with “dangerous driving” Valente case (1985): Valente charged with “dangerous driving”

in St. Catherines in 1982; asked his lawyers to keep him out of in St. Catherines in 1982; asked his lawyers to keep him out of court for as long as possible.court for as long as possible.

His lawyers knew that provincially-appointed judges in the area His lawyers knew that provincially-appointed judges in the area were angry that they did not have the same constitutional were angry that they did not have the same constitutional guarantees of independence as Superior Court judges. Shortly guarantees of independence as Superior Court judges. Shortly after Charter became law, challenged jurisdiction of a after Charter became law, challenged jurisdiction of a provincially-appointed judge as violating 11(d) of Charter (right provincially-appointed judge as violating 11(d) of Charter (right to hearing by “independent & impartial tribunal)to hearing by “independent & impartial tribunal)

Provincially-appointed judge accepted argument and stayed all Provincially-appointed judge accepted argument and stayed all hearings until issue determined by Ont Court of Appealhearings until issue determined by Ont Court of Appeal

““Judges strike”Judges strike” Ont CA: Provincially appointed judges independent if certain Ont CA: Provincially appointed judges independent if certain

conditions met. Appealed to SCCconditions met. Appealed to SCC

SCC decision in ValenteSCC decision in Valente

Three “essential conditions” for judicial Three “essential conditions” for judicial independence:independence: Security of tenure: judges can only be Security of tenure: judges can only be

removed after recommendation by removed after recommendation by independent inquiryindependent inquiry

Financial security: right to a salary high Financial security: right to a salary high enough to discourage briberyenough to discourage bribery

Institutional independence: judges must Institutional independence: judges must control those aspects of court administration control those aspects of court administration “directly affecting adjudication”“directly affecting adjudication”

Beauregard (1986)Beauregard (1986) Beauregard appointed to Que Sup Ct in 1975Beauregard appointed to Que Sup Ct in 1975 Same year that feds created a pension plan for S Same year that feds created a pension plan for S

96 & S 101 judges (generous plan, but reduced 96 & S 101 judges (generous plan, but reduced their salaries)their salaries)

Beauregard sued for violation of judicial Beauregard sued for violation of judicial independenceindependence

SCC: judges have “collective” as well as SCC: judges have “collective” as well as “individual” independence because they are the “individual” independence because they are the constitutional arbitrators.constitutional arbitrators.

Dickson: The pension legislation does not violate Dickson: The pension legislation does not violate either individual or collective independence.either individual or collective independence.

The creation of the notion of “collective The creation of the notion of “collective independence” is importantindependence” is important

MacKeigan v. Hickman (1989)MacKeigan v. Hickman (1989)

Nova Scotia: Donald Marshall, Jr, convicted of murder in 1971. Nova Scotia: Donald Marshall, Jr, convicted of murder in 1971. Shortly after conviction, several witnesses recanted their Shortly after conviction, several witnesses recanted their testimony. Prosecutors and AG knew, but did not tell Marshall’s testimony. Prosecutors and AG knew, but did not tell Marshall’s lawyer.lawyer.

1982: AG had been appointed to NS Ct of Appeal, which on 1982: AG had been appointed to NS Ct of Appeal, which on review found Marshall innocent. However, the court claimed that review found Marshall innocent. However, the court claimed that Marshall was mostly responsible for his own conviction because Marshall was mostly responsible for his own conviction because part of his testimony was a lie.part of his testimony was a lie.

The explosive CA decision led to a royal commission inquiry, The explosive CA decision led to a royal commission inquiry, which wanted to interview CA judges to find out why the AG which wanted to interview CA judges to find out why the AG ended up on the panel. CA Judges objected, leading to this caseended up on the panel. CA Judges objected, leading to this case

SCC: Judges cannot be compelled to testify about reasons for SCC: Judges cannot be compelled to testify about reasons for decisions. However, majority concluded that judges must testify decisions. However, majority concluded that judges must testify about “administrative issues” before a “properly constituted about “administrative issues” before a “properly constituted judicial council.”judicial council.”

Remuneration Reference (1997)Remuneration Reference (1997) Early 1990s: serious recessionEarly 1990s: serious recession Govt’s of AB, PEI and Manitoba reduced salaries of PC Govt’s of AB, PEI and Manitoba reduced salaries of PC

judges the same as public servant reductions (usually 5%)judges the same as public servant reductions (usually 5%) Some jurisdictions had Judicial Compensation Commissions Some jurisdictions had Judicial Compensation Commissions

– like labour relations boards composed of a rep of the – like labour relations boards composed of a rep of the judiciary, a rep of the government, and a third appointed by judiciary, a rep of the government, and a third appointed by the first two.the first two.

These 3 salary reductions had not gone through JCCs.These 3 salary reductions had not gone through JCCs. Judges sued for violation of Judicial IndependenceJudges sued for violation of Judicial Independence Supreme Court decision: JCCs are constitutionally required Supreme Court decision: JCCs are constitutionally required

to preserve Judicial Independence. Reference to S. 11(d) of to preserve Judicial Independence. Reference to S. 11(d) of Charter of Rights, and preamble of CA, 1867Charter of Rights, and preamble of CA, 1867

Subsequent litigationSubsequent litigation

Judicial Discipline - fedJudicial Discipline - fed How are judges accused of “bad judgment” disciplined?How are judges accused of “bad judgment” disciplined? Can’t be disciplined for bad decisions; only bad behaviourCan’t be disciplined for bad decisions; only bad behaviour Federal and Provincial Judicial Councils (dating from 1971); Federal Federal and Provincial Judicial Councils (dating from 1971); Federal

Judicial Council a reaction to the Landreville case.Judicial Council a reaction to the Landreville case. CJC gets ~ 170 complaints a year; one or two merit warrant further CJC gets ~ 170 complaints a year; one or two merit warrant further

investigation by the Judicial Conduct committee. Then there is an investigation by the Judicial Conduct committee. Then there is an investigation by an outside counsel that reports to a panel of 3 to 5 investigation by an outside counsel that reports to a panel of 3 to 5 judges, which may recommend a full investigation by an inquiry judges, which may recommend a full investigation by an inquiry committee (at least one member of CJC & possibly one or more members committee (at least one member of CJC & possibly one or more members of the bar in the judge’s home province).of the bar in the judge’s home province).

Only about 10 full inquiries have been held: Berger (1981-83, criticized 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 and later resigned); NS Ct Appeal (Marshall case, 1989, legal error but no removal); infirm judge (1994, resigned); Bienvenue (biased remarks, removal); infirm judge (1994, resigned); Bienvenue (biased remarks, 1996, resigned); Flahiff (did not report conviction,1999, resigned); Flynn 1996, resigned); Flahiff (did not report conviction,1999, resigned); Flynn (2002, political stance over property – inappropriate but no removal); (2002, political stance over property – inappropriate but no removal); Boilard (2002, Hell’s Angels trial aborted – no removal).Boilard (2002, Hell’s Angels trial aborted – no removal).

Judicial Conduct Committee finds lack of evidence so no full inquiry: Judicial Conduct Committee finds lack of evidence so no full inquiry: Wilson (1990); Buzz McClung (L’Heureux-Dubé ,1999 - apology); Wilson (1990); Buzz McClung (L’Heureux-Dubé ,1999 - apology); L’Heureux-Dubé (1999 – Ted Morton); Bastarache (2001 – Lawyer’s L’Heureux-Dubé (1999 – Ted Morton); Bastarache (2001 – Lawyer’s Weekly remarks, Ont Crim Lawyers Assoc complaint); Clyde Wells (2002- Weekly remarks, Ont Crim Lawyers Assoc complaint); Clyde Wells (2002- Marshall in Nfld Pub Employees decision; Globe & Mail, Crosbie Marshall in Nfld Pub Employees decision; Globe & Mail, Crosbie complaint).complaint).

Discipline of Prov-appointed judgesDiscipline of Prov-appointed judges Under control of Provincial Judicial Councils. Can often Under control of Provincial Judicial Councils. Can often

recommend a reprimand or treatment – not just recommend a reprimand or treatment – not just removalremoval

Since Valente, can only be removed after an Since Valente, can only be removed after an independent inquiry. Before – more than a handful of independent inquiry. Before – more than a handful of judges removed by AGjudges removed by AG

1993: inquiry by Madam Justice MacFarland into 1993: inquiry by Madam Justice MacFarland into complaints against Judge Walter Hryciukcomplaints against Judge Walter Hryciuk

2001: inquiry in Quebec recommended Judge Therrien 2001: inquiry in Quebec recommended Judge Therrien be removed; had lied about conviction for protecting be removed; had lied about conviction for protecting terrorists during 1970 October crisis. terrorists during 1970 October crisis. Recommendation supported by SCC on judicial reviewRecommendation supported by SCC on judicial review

2004: Judge Ramsay (BC) resigned after being 2004: Judge Ramsay (BC) resigned after being convicted of sexual assault of several girls under 16convicted of sexual assault of several girls under 16

Evaluation of DisciplineEvaluation of Discipline

Judicial discipline procedures have Judicial discipline procedures have improved greatly since the early 1970simproved greatly since the early 1970s

Better to improve judicial appointment Better to improve judicial appointment procedures than to “mop up” afterwardsprocedures than to “mop up” afterwards

Too few Canadians know about Too few Canadians know about complaint procedurescomplaint procedures

Lay persons need to be involved in Lay persons need to be involved in judicial discipline process to discourage judicial discipline process to discourage “circling the wagons.”“circling the wagons.”

Responsiveness of courts to litigants, witnesses, Responsiveness of courts to litigants, witnesses, access to justice and expeditious justiceaccess to justice and expeditious justice

40% of Canadians (Stats Can) think the criminal courts do a 40% of Canadians (Stats Can) think the criminal courts do a “good” job of providing fair trials; 30% an “average” job“good” job of providing fair trials; 30% an “average” job

Poor job of fairness: 7% recent immigrants, 9% visible Poor job of fairness: 7% recent immigrants, 9% visible minorities, 13% Aboriginals, & 14% of those with disabilitiesminorities, 13% Aboriginals, & 14% of those with disabilities

Providing justice quickly: 40% say courts do poor job; 15% Providing justice quickly: 40% say courts do poor job; 15% say they do a “good” job. Poor job of quick justice: 48% say they do a “good” job. Poor job of quick justice: 48% disabled, 42% Aboriginal, 39% women, 25% visible disabled, 42% Aboriginal, 39% women, 25% visible minorities, 12% recent immigrantsminorities, 12% recent immigrants

90% think that the justice system needs to be more 90% think that the justice system needs to be more “sensitive and compassionate,” though 2/3 think justice “sensitive and compassionate,” though 2/3 think justice system treats people with respectsystem treats people with respect

1996 – 2001: court budgets increased 13%1996 – 2001: court budgets increased 13% Primary causes of unnecessary delay: “local legal culture,” Primary causes of unnecessary delay: “local legal culture,”

defence counsel taking on too many cases, disclosure issues, defence counsel taking on too many cases, disclosure issues, unnecessary adjournments, & delay as a defence strategy.unnecessary adjournments, & delay as a defence strategy.