Tuesday, 28 February 2012

Three ideas for citizen-centred justice reform

The BC government’s recently announced justice reform project is largely focused on process – in essence, its goal is to identify and implement system efficiencies that will reduce delay.  This is important work, and could yield real improvements, even though the solutions will probably look more like fine tuning than full scale re-design.  What I have observed in my discussions with lawyers, judges and officials over the last couple of weeks is that there is no shortage of good will and good ideas, and I believe there is reason for optimism that this project will make a difference in improving timely access to justice.
Today I want to put on the table some other ideas for justice reform.  They are not likely to get considered in the current process.  But they might helpfully illustrate why the current process is – or at least ought to be – just the start of a journey that could lead to much more significant re-thinking.  There are parts of our justice system that we have come to take for granted that are just the way things are.  What if we were to re-imagine it rebuilt from the ground up, with citizen needs as the organizing principle? 
We might conclude that the justice system should be based on (at least) the following principles:
  • it should be comprehensible to the ordinary citizen;
  • its decision-makers should have subject matter experience and expertise; and
  • its work should be efficient and timely.
To a considerable extent, these principles are not evident in the justice system today.  Accordingly, here are three suggestions for reform.  They don’t represent the only proposals that would support these principles, and I am offering them mainly just to illustrate the kinds of things that ought to be thought about, rather than to set out an exhaustive list of what should be done.  But here goes:

1. Simplify the system
The way our court system is organized is the result of the constitutional deal made when Canada was created in 1867, as refined over a century and a half of judicial and administrative decisions.  The deal made sense at the time, but its legacy is a system that is not well organized to meet citizen needs in the 21st century.  Let me give just two examples:
  • If you want a monthly maintenance cheque from your former spouse, you can go to the Provincial Court, but if you are having a fight over who should get the matrimonial home, you have to go to Supreme Court.
  • The question of how much money can be claimed in provincial small claims court is an arithmetic calculation that involves adjusting to 21st century dollars the monetary limits of certain magistrates courts in southern Ontario in 1867. 
Of course, achieving constitutional reform is always difficult.  Achieving constitutional reform of our judicial institutions would be a project of nightmarish proportions, given the powerful forces that would align in support of the status quo.   I should know.  In 2002, when I was Attorney General of British Columbia, the government decided for reasons of fiscal prudence to close 24 mostly underutilized rural courthouses, only to discover there were at least some judges who were prepared to sue the government to make the point that, in their view, government should not be allowed to close a courthouse without judicial permission.
But if structural change is impractical, perhaps it is still possible to fix the problem, or do something close to it.  Why not design a single web portal?  Call it “BCJustice.ca”.  Program a computer so it will tell you where to take your case, and even take you there.  (The system’s complexity would lie behind the portal.)  Standardize the forms for the commencement of legal proceedings in all courts.  And so on.  
As I said, this is not about the details, it’s about imagining a different discussion.

2. Formalize judicial specialization
Lawyers appointed to the bench have often spent their whole careers in specialized areas of practice: family law, say, or tax planning.  And yet the moment they become judges it is entirely possible they will find themselves presiding over a criminal jury trial or a complex insolvency proceeding.  Not only will they have little or no expertise in the area of law at issue; they may have never read the Criminal Code, run a jury trial, or understand how issues outside their area of specialization are litigated.  
I’m not going to advocate that judicial appointments should be limited to generalists, because that would wrongly eliminate from eligibility for appointment a host of highly qualified lawyers.  But I do suggest it is time we recognize that expertise means that trials will be more efficient (among other things, the time needed to educate the judge about the law will be significantly reduced), and produce better results.  You’re just more likely to make a mistake if you are doing something difficult for the first time.  
A certain amount of specialization is recognized informally in B.C. through the process of case assignment.  The administrative judges who set the rota will often try to match cases with expertise.  But there is no requirement to do so, and no guarantee that this practice is applied to all cases.  The stated rationale for this informal approach to specialization is administrative convenience.  It’s easier to assign judges to cases when you can draw upon the whole pool.  The unstated and probably more important reason is judicial morale management.  Judges like variety in their work, and so are happier when their caseload has a range of different kinds of issues.  
Both of these reasons make perfect sense if you are administering the system for the convenience of judges.  Neither makes much sense if you are designing the system for the citizens it is supposed to serve.  
Some litigants can choose how their disputes will be resolved.  The declining volume of commercial litigation in the BC Supreme Court has occurred because parties to commercial contracts increasingly choose to arbitrate their disputes.  Arbitration has long been the process of choice in international disputes because parties want certainty ahead of time about how and where their disputes will be resolved.  But arbitration is also increasingly the preferred method of dispute resolution for domestic commercial disputes; one reason is because parties want to know that if they have a dispute, it will be adjudicated by someone with commercial law experience and expertise.  In a very real sense, arbitration “competes” with the court for adjudicative business.  Given the opportunity to choose, litigants often prefer the certainty of expertise that comes with arbitration.  
If courts want to restore public confidence in their ability to decide cases efficiently and competently, isn’t it time for judges to specialize?
3.  Time limits for judicial decisions.
Imagine going to a car lot, picking the car of your choice, paying for it, and then being told that the dealer really has no idea when the car will be delivered to you.
Something like that happens every day in our courts.  Litigants hire and pay lawyers to prepare their case, they attend court, give evidence, watch their lawyers argue and then hear the words “judgement will be reserved”, meaning that the judge has to go away and think about the case before writing a decision.
Many cases are decided right then and there.  But I venture to think that happens less often now than it used to.  In part, that is because cases are more complex, or at least they are made more complex by the way they are litigated.  Getting the facts sorted out has become much more burdensome.  Boxes and boxes of photocopied documents and emails, most of only marginal significance, are handed to the judge, who has to read and make sense of them long after everyone else has gone home.  And because there is more and more disclosure of facts before trial, lawyers have much more fuel for the fire of cross-examinations.  Daily transcripts - now readily available - encourage extraordinary scrutiny of every word of testimony. 
And the law which must be applied to the facts is increasingly complex and uncertain.  Concepts of fairness, and fiduciary obligation, and the test of “reasonableness” increasingly infuse every aspect of law, all in the name of justice, of course, but with the result that the outcome of a case is much more a matter of judicial discretion and much less a matter of the application of a hard and fast rule to the facts. 
And judges take their job seriously.  They want to make the best decision possible for the litigants who have brought an important question to them, the answer to which may be life-changing.  Judges also want to avoid the kind of mistakes that appeal courts pounce on, which lead to orders for a new trial so that everything has to be done all over again.

So it is hardly surprising that judges want to take time for their decisions.  And it needs to be said that in many cases the time taken is not long - judges will often say at the end of a day in court that they need the evening to think about it, and that reasons for judgement will be delivered the following day.
Unfortunately, sometimes, decisions take a very long time.  And delay in delivering a decision is just as corrosive of public confidence in the judicial system as is delay in getting to trial.  
This is one of those areas where the principle of judicial independence rears its head.  Judges claim that while they understand the need for timely decisions, any attempt to impose deadlines would represent an unjustifiable interference in their ability to decide cases fairly.
I understand that perspective.  But I’m not suggesting unreasonably short deadlines.  I’m just suggesting deadlines.  The kind of deadlines that we all face in our work and lives.  The absence of deadlines for the delivery of judicial decisions exemplifies a system that is designed and administered for the benefit of those who work in it, rather than those it serves.  
Citizens deserve to know when their cases will be decided.  Isn’t it time for courts to agree?

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