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 21^st 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?

A Friday night drive into the country

At about 4:30 on Friday afternoon, Janet and I left downtown Vancouver to drive to 100 Mile House for a family weekend in the Cariboo.  It was as foul as a late winter Friday afternoon can be.  Absolutely drenching rain, gloomy darkness, and occasional noisy gusts of wind blasting across the car windshield.  And traffic, traffic everywhere.  

At the freeway on-ramp we joined a long, slow-moving parking lot that stretched endlessly before and behind us.  We were tourists, in a sense, just driving through the city to get rid of it for a weekend out of town.  But everyone else was a commuter trying to get home after work.   For me, a car trip between home and office in Vancouver is usually about 15 minutes.  It involves only one bridge, which rarely backs up, and no freeways.  For most of those folks who shared the highway with us that evening, the drive to and from work is an hour and more each way on a good day, and on this night would have been an hour and a half of hands-clenched-to-the-steering-wheel-while-you-grind-your-teeth stress.  Hardly a relaxing start to the weekend.

I could lament the generations of poor planning decisions that have encouraged this lunacy, but really, on that evening, I was just filled with a sense of compassion for the people who spend so many wasted hours in their cars as they creep down Highway 1.  I also had a renewed appreciation for why those condemned to this daily fate could become strong supporters of a wider freeway and a new Port Mann Bridge, as they desperately look for some relief from the congestion, even though, to offer a medical analogy, the relief they seek might well be the wrong cure for the wrong disease.  The hard part is to explain to someone for whom this is their daily experience that what ails them is not, fundamentally, the constriction of our roads, but the cumulative impact of bad planning and the individual choices we each make every day to live and play and shop and work in places so far from each other.   

Of course, I understand the why of those decisions: seemingly more affordable housing (if you discount the cost of the lost quality of life from the hours spent behind the wheel); the convenience of travel by automobile; cheaper land for shopping malls; and so on.  And I also understand that the real business case for the Port Mann Bridge project is the need to ease congestion for the all-important truck traffic that is increasingly important to our gateway economy.  

But understanding these things, and living them, even if just for one Friday evening, are not the same.    When the traffic finally started to ease, somewhere east of the Abbotsford exits, I felt like my head was being released from a vise.  

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Beyond Hope, as they say, the road gave us cause to reflect on other things.  Growing up in Vancouver, the Fraser Canyon was our principal gateway to the rest of Canada.  We drove the road for any number of reasons, but mainly, I remember, for ski trips to the Okanagan - my father refused to drive the Whistler highway because he thought it too unsafe.  And so instead we skied as a family at Silver Star outside Vernon.  Among the many legacies of those holidays is the ability - even now - to remember, in order, the names of the seven tunnels of the Fraser Canyon.  In both directions.  I have this fear that when I am in my dotage, some kindly grandchild will stop by the care home to pay me a visit, and although the child’s name will completely escape me, I will smile and state with great confidence: “Yale, Saddle Rock, Sailor Bar, Alexandra, Hell’s Gate, Ferrabee and China Bar, but that’s south to north of course!”

The tunnels are still there, but the long economic decline caused by the construction of the Coquihalla continues, and is tangible even in the darkness.   Between Hope and Cache Creek we saw at most a dozen cars.  Whatever else was happening in Canada on that Friday night in February, almost no one was driving through the Fraser Canyon.  There were glimpses of brightly lit kitchens and TV sets in a few homes in villages along the highway, but the overall impression was that even though we were only a few hours from one of the country’s great cities, travelling its national highway, and following the course of two of its great rivers, we were driving through a place that has been largely forgotten.  Time is not kind to the towns and communities left behind when the gold has been mined, the trees harvested, and the tourists lured elsewhere.

Very little of this landscape has been improved by man.  This is not a point about the visual impact of logging, highway construction or transmission lines, or the other environmental costs of economic development.  This is about the built landscape of the towns and villages themselves.  Is there is a single attractive building visible from Highway 1 between Hope and Cache Creek?   Well, yes. Alexandra Lodge, Ashcroft Manor and the church at Spences Bridge, for example.  But those buildings were all there - and in much better repair - when I first travelled the highway as a child.  Nothing much that has been built since then has enhanced its surroundings.  (Please offer your suggestions if you disagree!)

I know that there are abandoned cars hidden deep in the farmyards of even the most charming countrysides of Europe.  But surely not so many, or at least not so visible, as in our otherwise spectacularly beautiful part of the world.  An abandoned car in the front yard is probably evidence of poverty and perhaps also the absence of a convenient local landfill.  But a hundred abandoned cars in a hundred front yards is also some evidence of a collective lack of respect for the land.  What, if anything, should be done about this?

The other day a developer acquaintance was lamenting that in West Vancouver there is (apparently) an unwritten policy that requires individually paned windows in newly constructed homes.  Listening to his story brought out the voice in the back of my head that occasionally worries about our seemingly insatiable appetite for more regulation.  But maybe some of these policies are needed to constrain our individual actions so that their collective impact is more to the good than the bad.  When we cycled in western Ireland last summer, we had a wonderful conversation with someone about local government restrictions that impose a colour code on country houses.  Yes, that’s right.  Apparently in County Clare there are only three or four (I forget how many) colours you can paint your house.  Quite a remarkable intrusion of the state into the lives of home owners, but the result is a landscape where the houses add to the beauty, rather than detract from it.  And that is most certainly not the case in the Fraser Canyon, or, for that matter, most of the country roads in British Columbia.

We can readily imagine the outrage if someone suggested passing and enforcing a law requiring rural land owners to remove rusted-out car carcasses from their front yards.  But maybe the Fraser Canyon highway would feel just a little bit less like a junkyard that time forgot?   

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We drove on into the dark, too late in the evening now for much except eyes on the road and old Beatles songs to keep us awake as Highway 97 climbed from Cache Creek onto the high interior plateau.  Just before 11pm, we finally reached our destination, a log house in the hills above Horse Lake.  There was snow on the driveway, and the firs and pines and poplars stood tall in the starlit yard.  The high country air was crisp and clean, with just a hint of woodsmoke.  A light glowed over the back porch.  And Vancouver, for a day or two anyway, lay somewhere far behind us in the night.

Are we ready for a real discussion about justice reform?

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.