Helping or hindering?

Written by  Posted Date: August 6, 2012
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Judicial independence is one of the cornerstones of Canada’s justice system, but some observers warn it could also be among the biggest obstacles to reforming the way it works.

Within a month of its launch in February, British Columbia’s Justice Reform Initiative had received two public submissions from the unlikeliest of sources: the normally silent chief justices of the province’s three courts. The chiefs teamed up to issue an immediate reaction to the initiative, followed up several weeks later with a five-page essay entitled “Judicial Independence (And What Everyone Should Know About It).” In both cases, B.C. Court of Appeal Chief Justice Lance Finch, B.C. Supreme Court Chief Justice Robert Bauman, and Provincial Court Chief Justice Thomas Crabtree stressed the judiciary’s willingness to talk about improvements to the administration of justice. “In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality,” they wrote.

It’s hardly the most provocative language, but in the context of judicial statements, it sounded to some like a sabre-rattling, play-by-our-rules warning to the provincial government. Former B.C. attorney general Geoff Plant was less than impressed with what he saw as an elbows-up defence of the court’s territory with the potential to undermine the reform initiative before it had even begun. “I think it was a time when the public needed a constructive signal from the judiciary about their willingness to engage in justice reform, and instead what we got was a lecture on judicial independence,” he says. “I think that notion has become an entitlement to be defended, rather than a privilege to be earned. It’s become a concept that justice system actors use as a kind of wall to protect themselves from the project of figuring out how to rebuild public confidence in the justice system.”

The province hired Vancouver litigator Geoffrey Cowper to head up the review, tasked with addressing challenges identified in its green paper “Modernizing British Columbia’s Justice System.” The paper highlights the steady decline in crime rates, which have fallen by about one-third since 2004, and a sharp reduction in cases coming into the courts, with 13,000 fewer provincial criminal matters heard in 2011 compared to 2001. Despite the apparently reduced workload, the report says costs and delays have consistently risen, and the province has found itself under fire for the increasing number of criminal charges stayed due to delays, a number that topped 100 in 2011.

Among the challenges identified by the report were “overbroad concepts of independence” that can limit accountability and make it harder to understand why inefficiencies occur. “Independence should not be used as a shield against scrutiny on issues related to public administration,” the report warns, urging Cowper to “establish a clear understanding of the scope and limits of operational independence of police, the judiciary, corrections, and Crown counsel in a way that respects that independence while enabling a meaningful capacity to plan, implement, and analyze justice system services.”

In an interview, Bauman bristles at the suggestion that the judges’ statement was obstructive. “On the contrary, rather than putting our heads in the sand, we’ve entered the debate by explaining what judicial independence means, and how it might, not constrain, but define, how reform is implemented. Some have suggested it was a shot across the bow, but that was not our intention at all, and I was very distressed to see that some had interpreted it that way,” he says. “Judicial independence is a term that gets thrown around a lot, and it seemed to us that it was important to go back to first principles, not only for politicians, but for the public and for ourselves as well, to revisit what it means. I know you’re supposed to have a thick skin with these things, but when you get criticism that you’re a dinosaur, I’m not so good at it.”

Lorne Sossin, the dean of Osgoode Hall Law School, says the rareness of the judges’ actions may have provoked an overreaction. When you focus on the content of the statement, he says the court is, “very appropriately, asserting a guardianship role over the public interest in the provision of public services. We can forget that judicial independence as a constitutional value in Canada is not a right of judges. It’s a right of those who come before judges, and preserving that sense of guardianship is critical.”

Adam Dodek, a professor on the University of Ottawa’s common law faculty, says the episode could have been avoided had the provincial government consulted with the judiciary earlier in its process. “To me, it looked like the judges were taken by surprise, which indicates poor stakeholder relations on the part of the B.C. government,” he says. “It’s not like in other areas, where the government can just enact reforms, and then a ministry or line officer just implements them. That’s not the way things work under our Constitution.”

In its 1997 reference on the remuneration of provincial judges, the Supreme Court of Canada effectively read the core requirements of judicial independence into the Constitution by recognizing it as an unwritten principle that extends beyond its explicit mentions in the preamble to the 1867 Constitution Act and in s. 11(d) of the Charter. Those three core characteristics, repeated in the B.C. judges’ statement, are: security of tenure, financial security, and administrative independence.

Lorne Neudorf, an Ontario lawyer currently at the University of Cambridge completing a PhD examining judicial independence, says the SCC’s decision has been “a bit of a disaster, frankly. The Supreme Court in this case really imposed tremendous constraints on how the judicial system can be reformed going forward.” According to Neudorf, it’s common for judiciaries around the world to invoke the concept in order to push back against reforms they see as going against their interests. The difference in Canada, he says, is that the judges get the final say on what is constitutional. “The judges are saying, you can come up with the reforms you want, as long as it is within the confines of the Constitution,” says Neudorf. “In most countries, that’s a rhetorical discussion, but in Canada, it’s perceived as legal. The judges are also the ones interpreting and applying the Constitution, so it really opens the door to a virtually unlimited veto power over reform.”

The elevated status of judicial independence in this country has made Canada a world leader when it comes to the rights of an accused, says Neudorf, but the flipside is increased delay and administrative bureaucracy.

Ironically, the criminal justice system in the U.K., to which the Supreme Court decision traced its concept of judicial independence, would never pass constitutional muster in Canada. Around 97 per cent of criminal matters in England and Wales are dispensed with by an army of 28,000 lay magistrates. They are unpaid volunteers, serve for about five years, and have no control over their schedules. When large-scale riots broke out in London last summer, the flexibility and speed of the system meant magistrates were hearing cases and sentencing offenders in all-night sittings within days of the trouble. That stands in stark contrast to the situation in Vancouver, where the first sentences were handed out close to a year after the Stanley Cup riots.

Allan Seckel, a former deputy attorney general in British Columbia, says he couldn’t help agreeing with the late chief justice Hugh Stansfield when he told him that “all successful change was judge-led.” Seckel says: “It’s very difficult to institute any kind of reform without judicial engagement. It’s too easy for them to revert to the status quo. Ultimately, if it’s a process thing, they get to manage their own courtrooms, and how they actually operate is probably in many respects more telling than what the official rules are.”

Still, the idea rankled with him. “I didn’t think that we could always wait for judges to get around to leading reform. They would see the system in a very different way than I would in the administrative role that I had.”

Even when there is an element of judicial buy-in to a reform effort, Seckel says results can be mixed. During his time at the ministry, he was involved in the process to change the rules of the B.C. Supreme Court. The amended rules, which injected the concept of proportionality into the process, and dramatically cut the scope and time allowed for discovery, were intended to make the civil and family justice systems more accessible and efficient. The court’s chief justice signed off on the new rules before they were implemented in 2010.

“I’m not sure the judiciary as a culture has yet embraced that rule change, and I think that inhibits the degree to which the principles behind the change are brought to bear. I’m not saying their concerns are illegitimate, but at what point do people move on and implement the rules that have been enacted,” he says. “Culture eats policy for breakfast, and unless you have the culture aligned with those rules, you have a very suboptimal state. Judges are more definitive of the culture in which the system operates than any other player in it.”

In Ontario, government-led reform of the justice system has also run into its problems with judicial buy-in. Then-attorney general Chris Bentley launched Justice on Target in June 2008, aiming for a 30-per-cent reduction in the average number of days and court appearances needed to complete a criminal case by June 2012. Using 2007 numbers as the baseline, that would cut the average number of days to deal with a case to 144 from 205. At the same time, the average number of appearances would fall to 6.4 from 9.2. In fact, according to the most recent available statistics, in 2011, the average number of appearances to disposition was 8.6 days, a seven-per-cent reduction. The average number of days to disposition actually increased over the same period to 210, up by just over two per cent.

A post-implementation review performed for the ministry by auditors Deloitte, and obtained by Law Times, showed stakeholders at a number of court locations were concerned about the lack of funding and communication from the ministry, as well as judicial skepticism. In Brampton, Ont., the review said judges approached the program “with caution, with a view to not creating unintended consequences.” Other participants interviewed wanted to see “increased judicial leadership for the process to be effective.”

The initiatives at College Park and Old City Hall courthouses in Toronto were handicapped by inconsistent implementation and judicial skepticism, according to the report. “Some feel that the judges were awaiting signs of progress and change driven by the ministry to support what was viewed as a high amount of initial fanfare surrounding the initiative. When progress was slow to come, the skepticism remained and participation in JOT among judges was low,” reads the Deloitte review.

Lee Akazaki, a former president of the Ontario Bar Association, says judicial skepticism has also partly frustrated an earlier attempt at justice reform on the civil side. In his 2007 Civil Justice Reform Project, Ontario’s former associate chief justice Coulter Osborne said summary judgment was an underused tool that should be made more available through rule changes. But Akazaki says the province’s judiciary has historically opposed summary judgment, and never changed its judicial allocation to meet the higher demand as a result of the new rule. “There has not been, for example, a specialized summary judgment motions court. You would have thought that if you were going to encourage the bringing of summary judgment motions to have more efficient judicial determinations for people who are litigating, you would actually divert judges away from short trials,” he says. Instead, he says a recent decision of the province’s appeal court has limited the role of summary judgment even further by making it difficult to obtain prior to discoveries.

Akazaki says an infusion of young blood is needed in the judiciary to challenge the modern problems in the system. “At a very basic level there has to be a generational change. It’s an occupational group that is distinctively middle aged,” he says. “It’s difficult in any occupational setting to get people to adopt to new ways of thinking, especially when their success is borne out of yesterday’s ways of doing things. That’s what has got them to this prestigious position in the first place.”

In B.C., Seckel says a culture change is a necessity in the judiciary. He says a genuine focus on proportionality and timeliness would have a huge impact on the efficiency of the system, by cutting out unnecessary adjournments and focusing attention on the relevant material in each case. “I think there’s a degree to which it’s all about the convenience of the parties, and not the timeliness,” he says. “Judges have to be prepared to manage their courtrooms so that they are dealing with cases in a way that’s fair and appropriate to the case, and ensuring cases don’t turn into huge inquiries into issues that aren’t particularly germane to the case.”

Part of that culture change needs to be driven from leaders in the judiciary, according to Plant, which may mean altering criteria for judicial appointments. “It’s ambitious to expect it to change quickly, partly because one way to change the culture over time is by appointing judges who appear to have more interest or aptitude around their responsibilities as managers, and not just as adjudicators,” he says. “I really don’t think we’re going to get, or deserve, public confidence in the justice system until we get all of the players participating constructively in joint problem solving.”

Since the provincial judges’ reference, a well-defined system has developed around disputes over judicial compensation, involving recommendations by independent commissions that can be overridden by provincial governments. However, a large proportion of those have resulted in litigation between provincial judges associations and provincial governments. B.C.’s provincial court judges are currently awaiting a decision in an application for judicial review of the government’s decision to ignore a commission’s recommendation of a six-per-cent wage rise, in line with its wage freeze for civil servants. At the same time, a Manitoba Court of Queen’s Bench judge recently ordered the province to pay the provincial judges’ association costs on a solicitor-client basis after finding the government showed “demonstrable bad faith” in its dealings over salaries and benefits.

Such cases contribute to an “erosion of mutual trust” between the parties when it comes to administrative issues, says Sossin. But he says he hopes Cowper’s review and the judges’ reaction could represent a new model for discussion on judicial independence, particularly on administrative issues. “There’s not any obvious roadmap as to how courts and government are supposed to collaborate with one another in the current model. I think this is an experiment in a different way to approach that,” he says. “Because we focus more on judicial salaries, we tend to forget about the role of courts in our society and how they ought to be made accountable in a way that also supports independence and the rule of law. If this puts our attention in this area, that’s got to be a good thing.”

Bauman says he and his judicial colleagues have been active in Cowper’s review since issuing their statements. “It is a reflection of the fact that we want to be open, we want to enter the debate. We welcome discussion, and we welcome the opportunity to explain ourselves to public. That’s something we haven’t done a good job of in the past,” he says.

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