It’s much easier to admire the wit in Rahm Emanuel’s famous dictum to "never let a serious crisis go to waste” than it is actually to take it to heart and act on it. And yet that, surely, is what the BC government is doing – or at least starting - with its justice system reform initiatives announced today.
It has been distressing to watch over the past few months as the voices calling for justice system reform have been increasingly drowned out by the noise of those claiming that the answer to what ails the justice system is simply money: more and/or better paid judges, sheriffs, legal aid lawyers, and so on. The analysis in today’s Green Paper demonstrates that there are problems with our justice system that money alone will not repair. The process announced today holds real promise for a desperately-needed dialogue about how to create a justice system that actually works for the benefit of those it serves, and not just those it employs.
As someone who has had first hand experience of the wrath of defenders of the institutional status quo, I was fascinated to read a government report that actually states – oh heresy of heresies - that “there are significant issues of culture and tradition within the [justice] system that may impede real understanding and change.” Of all the nerve! These cultures and traditions - think, for example, of judicial independence, prosecutorial independence, and defence counsel independence – are usually invoked as reasons to oppose change rather than invite it.
And yet we simply must find a way to move from the near perfect solitudes of institutional independence to a truly collaborative system. It must surely be possible for each justice system official – judge, lawyer, police officer, bureaucrat – to have both the independence needed to do their job without inappropriate political interference, and the obligation and capacity to work constructively, cooperatively and efficiently towards the real goals of the justice system, namely, timely accountability for criminal wrong-doing, and efficient and impartial dispute resolution. Without meaningful change, public confidence in the justice system will decline, no matter how much money is spent on it.
The Green Paper acknowledges that the solutions to these complex problems are not obvious. But if they could at least be examined from a perspective that included real system, process and business thinking and discipline, there is some prospect that good solutions will be found. That is why the focus in the paper on these issues is particularly welcome. There are lots of good lawyers and judges, but they are trained in the law, not in process or systems analysis, and yet they sometimes achieve positions of great influence in the justice system without any experience or expertise in how to run anything bigger than a small law office.
In my volunteer world as a director on the board of a health organization I have learned a great deal over the last couple of years about Toyota’s famous “lean” process improvement methodology. I started out as a skeptic. After all, a health care patient is surely not the same as a car. But when it comes to process improvement, they are more alike than not. And there’s no good reason why a court case is any different. Unfortunately, discussions about process improvement are often anathema to legal purists who argue that courts ought only to be concerned with the protection and enforcement of legal rights, and that fairness should always trump efficiency. The justice system is simply too complex and expensive to allow such thinking to dominate any longer.
When I was Attorney General, I once spent a long hour in a debate with officials over the question whether it was too ambitious to update one of our performance indicators by reducing the average number of court appearances by an accused person from 5.6 to 5.4. I was asked to consider how burdensome it would be for lawyers and judges and schedulers to achieve this goal. 5.6 to 5.4. I kept thinking to myself, who among the public really cares about lawyer scheduling convenience? Why is this so obviously the first consideration, rather than the last? Perhaps more to the point, why does anyone ever need to appear more than twice in a criminal case? (once to plead, and a second time, if necessary for the trial and, if convicted, sentencing.)
All this, anyway, after a first read of a Green Paper that deserves to be carefully studied and debated. It does not address every issue faced by the justice system (for example, there is not enough said, in my view, about the transformational impact of technology as a disintermediating force in improving access to law and justice, and it is silent on the urgent need for formally recognized judicial and lawyer specialization), but it is a very welcome step towards real and meaningful reform.