Judicial Administration in Canada 9780773593398

Table of contents :
Cover
Title
Copyright
Dedication
Contents
Tables
Figures
Foreword by Nathan T. Nemetz, Chief Justice of British Columbia
Preface
Part One: The Context of Judicial Administration
1. The Need for Administrative Reform in Canadian Courts
2. Thinking About Courts: Organization Theory and Judicial Distinctiveness
3. The Constitutional Setting for Judicial Administration
4. Court Organization and Federal-Provincial Relations
5. The Function and Role of the Court Administrator
Part Two: The Technology of Judicial Administration
Introduction
6. Personnel Systems and Functions in Courts
7. Budgeting and Planning
8. Caseflow Management
9. Records and Space Management
10. Information Systems and Computer Technology
11. Systems Implementation
Part Three: Judicial Administration and Social Change
Introduction
12. Theories of Change
13. The Change Agent
14. The Future of the Courts
Appendices
A. Daily Provincial Court List
B. Worksheet for Information Required: Criminal Court Model
C. Forms Analysis Checklist
D. Administration of Justice Act (British Columbia)
Notes
Index

Citation preview

Judicial Administration in Canada Perry S. Millar and Carl Baar

The Institute of Public Administration of Canada L'Institut d'administration publique du Canada McGill—Queen's University Press Kingston and Montreal

© The Institute of Public Administration of Canada/ L'Institut d'administration publique du Canada 1981 Printed and bound in Canada by T. H. Best Printing Company Limited ISBN 0-7735-0367-6 (cloth) ISBN 0-7735-0368-4 (paper) Legal deposit 3rd quarter 1981 Bibliotheque Nationale du Quebec

Canadian Cataloguing in Publication Data Millar, Perry S., 1916— Judicial administration in Canada (Canadian public administration series — Collection Administration publique canadienne) Includes index. ISBN 0-7735-0367-6 (bound). — ISBN 0-7735-0368-4 (pbk.) 1. Justice, Administration of — Canada. 2. Court administration — Canada. I. Baar, Carl. II. Title. III. Series: Canadian public administration series. KE8200.M54 347.71'013 C81-094925-3

To Marda and To David and Keith

Contents

TABLES FIGURES

Nathan T. Nemetz, Chief Justice of British Columbia

xi XII'

FOREWORD by

PREFACE

Part One: The Context of Judicial Administration 1. The Need for Administrative Reform in Canadian Courts

xv xvii 1 3

2. Thinking About Courts: Organization Theory and Judicial Distinctiveness

21

3. The Constitutional Setting for Judicial Administration

43

4. Court Organization and Federal-Provincial Relations

75

5. The Function and Role of the Court Administrator Part Two: The Technology of Judicial Administration Introduction

107 133 135

6. Personnel Systems and Functions in Courts

139

7. Budgeting and Planning

169

8. Caseflow Management

195

9. Records and Space Management

235

10. Information Systems and Computer Technology

257

11. Systems Implementation

297

Part Three: Judicial Administration and Social Change Introduction

321 323

ix

CONTENTS

12. Theories of Change

325

13. The Change Agent 14. The Future of the Courts

345 381

APPENDIXES

400 A. Daily Provincial Court List B. Worksheet for Information Required: Criminal Court Model 404 C. Forms Analysis Checklist 407 D. Administration of Justice Act (British Columbia) 408

x

NOTES

413

INDEX

437

Tables 1 Number of Federally Appointed and Provincially Appointed Judges as of November 22, 1978, by Province 2 Number of Communities Served by Section 96 Courts and Provincial Courts, 1977-78, by Province 3 Provincial Trial Courts Staffed by Federally Appointed Judges 4 Models of Trial Court Organization in Federal Systems 5 Characteristics of Chief Court Administrators, by Province 6 Court Staff, 1977-78, by Province 7 Judges' Salaries, Staff Salaries and Other Expenses, as Percentages of Total Court Expenditures, 1977-78, by Province 8 Provincial and Federal Government Departmental Employees Classified by Type of Engagement, December 1971 9 Court Personnel, Classified by Type of Engagement, Provincial Governments, 1977 10 Effectiveness of Public Service Commissions in Establishing Merit System for Court Personnel, by Province 11 Justice Expenditures and Personnel in Canada, 1977-78 12 Per Capita Expenditures on Courts, 1977-78, by Province 13 Per Capita Expenditures on Justice Services, 1977-78, by Province 14 Expenditures on Courts as a Percentage of Total Spending on Justice Services, 1977-78, by Province 15 Sources of Court Funding, 1977-78, by Province

80 80 82 99 110 140 141 144 145 146 171 172 173 174 176

xi

TABLES

16 The Chief Court Administrator's Role in Court Budgeting, 1977, by Province 17 Locus of Fiscal Control over Court Administration, 1977, by Province 18 Computerized Court Information Systems, by Province 19 Future Courts and Their Alternatives

xii

178 181 292 382

Figures

1 Models of Court Administration 56 2 Link Function (Individual Court) 119 3 Link Function (Province) 122 4 Organization Chart Reflecting Division of Authority and Levels of Communication between Executive and Judiciary 125 (Ontario Law Reform Commission) 5 Organization Chart Reflecting Division of Authority and Levels of Communication between Executive and Judiciary (British Columbia) 126 6 Organization Chart Based on Judicial Control of Court Services 127 7 Maslow's Hierarchy of Needs 160 161 8 Likert's Linking Pin Concept 9 Blake and Mouton's Managerial Grid 162 197 10 Individual Calendaring Model 198 11 Master Calendaring Model 200 12 Hybrid Calendaring Model 268 13 Schematic of Criminal Case Processing (Provincial Court) 14 Vancouver Supreme/County Court Registry Overview of 269 Existing Criminal Case Processing System 15 Vancouver Supreme/County Court Registry Document 271 Flow—Civil Cases 279 16 Data Flow Chart 289 17 Dallas County Criminal Justice Information System 300 18 Exercise

PIGUØS

19 Exercise Solution 20 General Planning Process Model 21 Integrated Justice System Model 22 The Justice Development Commission

xiv

302 303 348 350

Foreword This is the first comprehensive study of judicial administration in Canada. The authors are to be congratulated for their landmark work which will prove to be an invaluable aid in assessing the distance we have travelled in the past few years and the length of the road ahead. It is only seven short years ago that Judge Millar came into my chambers to tell me that he had been appointed this province's first court administrator. Shortly afterwards I had the pleasure of meeting Professor Baar. At the very outset I found them to be kindred spirits believing that there was a binding nexus between judicial administration and judicial independence. Their collaboration in writing this book is a fortunate event for the courts of our country. I am proud of the fact that their work started in British Columbia, where, with the assistance of three sympathetic attorneys general, we were able to make progress in achieving some of the objectives stated in these pages. We now have in this province a division of court services. And most important of all, we have a trained staff of informed young people who understand the historical functions and separate jurisdictions of the courts, the legislature, and the executive council. In large measure these achievements, well known to my colleagues in other parts of Canada, can be attributed to the dedicated work of Perry Millar and Carl Baar, not only through their writing, but also through the practical implementation of the theories they have espoused. Their book is, indeed, the beginning of the systematic study of judicial administration in Canada. I predict that it will become a handbook for all persons interested in judicial administration and thus a foundation stone in the strengthening of judicial independence under the rule of law in our country. NATHAN T. NEMETZ Chief Justice of British Columbia xv

Preface Novelist and playwright Gene Fowler once said, "A book is never finished, it is abandoned." That line captures the frame of mind of the present authors as well. They offer their work to support two immediately critical needs: a text for the training and development of Canadian court administrators; and an introductory overview for judges, lawyers, researchers, policy makers, and the concerned public of the problems, risks —and indeed the adventures—of judicial administration in our country. The authors' interest in judicial administration developed before the writing of this book, and will not be abandoned with its completion. Millar practised Iaw for many years in British Columbia, both in Vancouver and in the interior, handling civil and criminal matters both as defence and as crown counsel. Appointed to the Provincial Court bench in 1971, he was asked in 1974 to become B.C.'s first province-wide court administrator, a position he held until returning to the bench on a full-time basis in 1976. Baar's research since 1966 has focused on issues surrounding the organization and administration of courts and court systems; his book on court budgeting was published in 1975. Three underlying concerns or assumptions have motivated each of the authors, and stimulated their continuing collaboration over a sevenyear period. First is their belief in the growing importance of the administrative side of court work. Important as the substantive law and formal legal procedures are, they become hollow comfort to the public when it encounters unnecessary cost and delay in the judicial process. The development of streamlined administration and management is an essential step to flesh out the institutional skeleton of the judiciary— to make it a living and functioning organism in society. The 1966 assertion of a prominent English law reformer reinforces this view: xvii

PREFACE

[I]n the civilized world the substantive criminal law does not greatly differ from one legal system to another.... But how does society set about proving its case and punishing the guilty? Here is the rub: for justice and liberty depend not so much on the definition of the crime as on the nature of the process, administrative as well as judicial, designed to bring the alleged offender to justice.' The authors' second assumption is that court administration and management (as distinct from the purely legal procedures taught in conventional law school curricula), although it has emerged as a field of study in the United States,2 has not yet been adequately defined or understood by the Canadian legal profession or by public administrators. The authors' third assumption, however, is that court administration in Canada requires different treatment from its counterparts in the United States, Britain, or any other country. A substantial transformation task would be needed to convert much of the existing literature from an American to an appropriately Canadian idiom and context. Though the two legal systems share common origins, they differ significantly in legal culture, procedural complexities, root sources of administrative authority, and judicial heritage. Hence the necessity for a text specifically tailored to the Canadian scene. To read American material without insights into the contrasting idiosyncrasies which identify the Canadian legal and political system carries the risk of taking either too much or too little from the words of those authors. At the same time, the growing literature of American court administration is a rich source of worthwhile background reading for those in other countries; comparison of our institutions and practices with their foreign counterparts can make us more conscious of the nature of the familiar features that we take for granted in our own institutions. In their long period of collaboration, the authors have accumulated more than the usual array of intellectual, material, and psychic debts that accompany the production of a book. A brief history of the authors' joint effort will provide a context for acknowledging, to the extent that a few words can, some of those debts. By 1974, the government of British Columbia was committed to a massive restructuring of court administration which would for the first time give public officials wide authority over the management of court support services. A large number of newly appointed and newly upgraded officials would require training. Much of it would inevitably take place on the job; to the extent that their training could also take place in seminars and other training sessions, and through the development of written materials, these new court administrators could do their work all the more effectively. Therefore, in June 1974, Millar went to Aspen, Coloxviii

PREFACE

rado, to attend seminars and workshops that made up part of the Court Executive Development Program of the Institute for Court Management (ICM), intending to adapt the material and teaching techniques used by ICM to the needs of his home province. There he met Baar, who had come from Ontario to teach in the ICM program. The two realized the value of preparing a manual or text for practitioners in British Columbia, but realized that such an effort would constitute only a first step in the development of a book on court administration in Canada. The larger work would of necessity go beyond simple adaptation of foreign experience, and would require a long-term collaboration. Within a year Millar had completed the manual for British Columbia. His original work, drawn largely from British Columbia's experience and the ICM program, still provides the base for the present book. The authors wanted to retain the material of special value to practitioners and of interest to those outside B.C., while adding more information on court administrative practices throughout the country, and fuller consideration of major issues in the field. Therefore, in the first half of 1977, the authors constructed and distributed a questionnaire to the chief administrator in each province. In the summer of 1977, Baar incorporated the questionnaire findings and new theoretical material into the manuscript. The following summer, the expanded manuscript was substantially reorganized by the authors, and extensive revisions were then made to a number of chapters. After the invaluable review and criticism of two external referees, a number of additional changes were made by the authors in December 1979. An initial debt must therefore be acknowledged to the Institute for Court Management. The work of its leaders and teachers is reflected at many points, especially in Part II of the book. Chapters 5 to 12 all contain specific acknowledgements to instructors in the ICM course, but these brief citations do not adequately convey the Institute's importance. Indeed, were it not for ICM, it is unlikely that this book would have been written at all. Ernest C. Friesen, the Institute's founding director, provided not only a vehicle for the authors' collaboration, but an approach and set of insights that have indelibly altered the art (one dare not say the science) of court administration on this continent. Other members of the Institute staff, including Geoff Gallas, Ted Rubin, and Harvey Solomon, not only shared their ideas in formal seminars, but have also been sources of continuing encouragement. The next organization that played a critical role in the evolution of this book was the Institute of Public Administration of Canada (IPAC). Through its Research Committee, IPAC provided a research grant in November 1974 to cover the expenses of the authors' collaboration, and a supplementary grant early in 1978 to allow the project to come to xix

PREFACE

fruition. At the same time, the Institute's grant was more important than the dollars at stake, for it also constituted recognition by the public administration community in Canada that judicial administration was a field deserving study. That recognition was personified in the time, patience, criticism, and encouragement provided by Professor J. E. Hodgetts of the University of Toronto, who as editor of the Canadian Public Administration Series read the 1977 draft, the 1978 reorganized chapters, and the final draft—far more than any authors could rightfully demand of an editor or a mentor or a friend. As the complexities of publication grew, Maurice Demers of the IPAC staff spent long hours moving the manuscript through its final stages. A number of court administrators and judges have supported the authors' work, as have organizations in which the judiciary and court administrators play key roles. The Association of Canadian Court Administrators, founded in Winnipeg in 1975, has grown in size and importance over the years and has continued to involve the authors in its activities. The Association's members have always been willing to give their time to answer formal questionnaires or informal inquiries, keep us abreast of their work, dispute our viewpoints with firmness and energy, and reinforce the sense that Canada's provinces are blessed with a set of public servants sincerely committed to improving the ability of the courts to do justice and serve the public. Many of these officials will see their words and their views both reflected and contested throughout the pages of this volume. David Warren and his pioneering colleagues in British Columbia's court administration should be singled out for their combination of patience and curiosity about what the authors would eventually produce. The Canadian Institute for the Administration of Justice (CIAJ), established in 1974, has touched the authors' work on a number of important occasions. The CIAJ designated Baar as a visiting research fellow in the summer of 1975, allowing him to work with Professor Garry Watson of the Osgoode Hall Law School of York University on research focusing on the judiciary's role in court administration. With the research assistance of law student Peter Ross, and the cooperation of Harold R. Poultney, then registrar of the Supreme Court of Ontario, interviews were conducted with judges and court officials in Ontario and material was assembled from a number of provinces. The Institute's first executive director, Allen M. Linden, now a justice of the Ontario Supreme Court, and its current executive director, Gerald L. Gall of Edmonton, have provided support and encouragement throughout the project. A special acknowledgement should go to Chief Justice Nathan Nemetz of British Columbia. His interest in both the broad issues and the daily practice of judicial administration provided the authors with invaluable xx

PREFACE

opportunities for critical discussion of the central issues raised in this volume. Whether he agreed or disagreed with our views, he always made us feel that the work was worth doing. In recent years, many other members of the judiciary, both federally and provincially appointed, have increasingly emphasized the commitment to improving the administrative side of court work, a development that increases our optimism about the future of the courts. Many colleagues voluntarily took on the task of reading and criticizing draft chapters in their areas of expertise. Professor Peter Russell of the University of Toronto made suggestions for chapter 3 which helped expand and clarify the constitutional issues in court administration. Professor Tony Turrittin of York University provided detailed criticism of chapter 14, and David Mead of the British Columbia Systems Corporation meticulously did the same for chapters 10 and 11. Russell's invitation to the authors to present a paper in June 1978 to a joint meeting of the Canadian Political Science Association and the Canadian Association of Law Teachers in London, Ontario, provided the first public forum for our work; furthermore, his continued faith in and prodding of the authors was of immeasurable value. Professor Ellen Baar of York University provided critical assistance in reorganizing key chapters in 1978 and helped design the national questionnaire. Professor Stuart Ryan of Queen's University Law School and Bernard Hofley, registrar of the Supreme Court of Canada and former director of research for the federal solicitor general, provided timely commentary, and Ryan's voluminous knowledge and comments provided an education for the authors far beyond the revisions reflected in the manuscript. Both authors are also indebted to the institutions for which they worked during the time this book was written. Millar's initial writing benefited from his close working relationship with Chief Judge Lawrence Brahan of the British Columbia Provincial Court. Brahan's successor, Chief Judge Lawrence Goulet, along with Judge Darrell Jones, allowed Millar to adjust his schedule when necessary to complete work on the manuscript. The opportunity for Millar to test ideas on caseflow management while teaching at seminars for B.C. Provincial Court judges enriched chapter 8. By granting Baar a sabbatical leave in 1978-79 in Ottawa, Brock University made a large block of time available to the authors so that extensive reworking of individual chapters was possible. A paper Baar prepared for the attorney general of Alberta on issues surrounding the reorganization of that province's court system allowed the authors to improve markedly the timeliness and accuracy of chapter 4. In the fall of 1980, the first students in Brock University's master's program in judicial administration read the draft manuscript and added their comments and criticisms. xxi

PREFACE

Neither Millar's first draft manuscript, nor his subsequent revisions, could have taken shape without the support and aid of his wife Marda. Her superior literary criticism, encouragement, and patient sacrifice of successive holidays given over to authorship, stand invisibly behind the pages that follow. The arduous tasks of typing and retyping the manuscript fell at various times to Rosemarie McClay, Lois Smith, and Anne Marie Anderson in Vancouver; Marilyn Koop and Wendy Cook at Brock University in St. Catharines; and Lynne Lefebvre in Ottawa. Gary Johnston of Brock University prepared final copies of the most complex figures, and Heather Probert of Toronto compiled the index. The authors' wide array of acknowledgements is more than balanced by the broad range of disclaimers that accompany this book. The authors' views are their own personal views, and not necessarily those of any government department, court, or group of judges. None of those whose ideas, views, or expertise were sought or used need share any responsibility for what is contained in the pages that follow. The authors' own views changed and evolved as they worked on the book, and no doubt will continue to do so once their present views are set in cold type and recorded on the printed page. One technical note is essential, because readers steeped in the legal tradition will observe, possibly with distaste, that the various levels of courts, and the justices, judges, and officials of those courts, are frequently named without capitalizing. In the course of editing it grew apparent that some attempt would have to be made to diminish an otherwise glut of capitalized words—a feature unattractive to the modern reader. It will be appreciated that no disrespect is intended. At the same time that the authors' opinions have changed, so has the field of court administration and our understanding of the boundaries of the field. While the present authors have made a disparately greater number of references to the British Columbia experience, future writers should be able to provide a more balanced view of adminstrative developments in all provinces, and examine new areas as well. For example, this book ignores jury management, in part because juries play a smaller role in the Canadian legal process than they do in the United States, where jury management has become a specialized administrative art; and in part because the assembling of jury panels in Canadian courts is a responsibility of the sheriff rather than the court clerk or registrar, and when Millar served as chief court administrator in British Columbia, his office had no supervisory authority over the province's sheriffs. Since then, sheriffs' services in B.C. have come under the central director of court services, and the administration of juries ought properly to be included in a future work on court administration. In another example, this book

PREFACE

does not discuss the development and design of court facilities, a central question for judges and court administrators, but a traditional responsibility of provincial public works departments rather than justice departments or judges. Exciting work on courtroom design has been done over the past decade, much of which would be instructive for court administrators. The B.C. Justice Development Commission, described in detail in chapter 13, included architects on its staff who attempted to incorporate administrative reforms into the design of court buildings, but they never succeeded in wresting control of court facilities from other provincial departments. As a final example, this book does not discuss caseflow management in appellate courts; it was ignored primarily because the crisis in caseloads has been at the trial level, and the most complex problems of coordination are there as well. Yet, while appellate court caseloads are not yet as great, they are growing; furthermore, the practice of appellate review of sentences in criminal cases means that Canadian appellate courts are likely to hold a higher proportion of hearings followed by decisions from the bench than are appellate courts in the United States. Both of these characteristics suggest the need to consider the administrative problems surrounding the processing of appellate cases. The authors regret these omissions, but do not apologize for them. They are proof of the authors' view that this book is not finished. The authors' greatest satisfaction will come from a sense that their work might mark only the beginning of the systematic study of judicial administration in Canada. PERRY S. 1MILLAR CARL BAAR

GENERAL ACKNOWLEDGEMENT

The authors and the Institute of Public Administration of Canada wish to acknowledge the generous contributions in support of the publication of this volume: a substantial initial subvention from the Department of Justice of Canada and a subsequent additional subvention from the Law Foundation of Ontario. The financial assistance provided by these agencies is a recognition of the importance they attach to ensuring this volume becomes accessible to students and practitioners of judicial administration, and we are pleased to acknowledge our indebtedness to them. J. E. HODGETTS R. BOLDUC

General Editors CPA Series

Part One

The Context of Judicial Administration

Chapter One The Need for Administrative Reform in Canadian Courts THE OPERATIONAL CRISIS IN THE COURTS

Ten years ago, an able and perceptive judge in rural western Canada, commenting on the remarkable changes in values and institutions during this generation, stated, "The only institution which has withstood the ravages of this upheaval is the judicial system and its courts. It stands unshaken." More recently, a provincial supreme court justice told an assembled after-dinner audience, "The Anglo-Saxon system of justice, which has stood for so many centuries, is breaking down today from the stresses and massive urban workloads thrust upon it in this decade." These quotations, true within their time and context, illustrate both the astonishing dynamics of the present age and the apparent abruptness with which operational crises have fallen upon the Canadian courts, especially in larger and growing urban centres. We say "apparent," for the seeds of the crises were dimly discerned as early as the turn of the century and have in the main been left to grow unchecked and unmonitored. The result is that Canadian courts are now faced with the prospect of attempting to solve, within a permissible span of ten years, problems which have been festering beneath the surface of society for the past seventy-five years and have now taken on the proportions of a malignant growth. A number of germinal causes for the present crises have now come to light and are not difficult to identify. Many of them relate to accelerating urban growth and industrialization, with the consequent disorganization of social life and its inevitable train of increased crime, drug and alcohol abuse, and juvenile delinquency. Family breakdown has burdened domestic relations courts with matrimonial suits, destitution and support claims, assault charges, and custody actions. The intricacies of modern business have spawned a growing number of trials of formidable com3

CHAPTER ONE

plexity and length, some of which are so protracted that they take months and even years of uninterrupted court hearing time.1 The ubiquitous automobile has produced thousands of new motor vehicle accident claims each year. With the initiation of provincial legal aid systems in the criminal courts, legal counsel is now provided to thousands of accused parties who hitherto were unrepresented in the courts. Consequently, greater percentages of criminal cases are contested; defences are more competent, intricate, and therefore time-consuming; and the criminal courts are struggling against ever-mounting backlogs. By way of example, the case inventory in the Vancouver Provincial Court increased from 900 to 5,400 cases between 1971 and 1975. Extensive remedial measures reduced the current inventory to 3,500 cases.2 Large case backlogs are self-feeding; more backlog requires more court time devoted to adjournments, fixing of trial dates, and other court time which is unproductive in the sense that it is not expended in actual trial time. Thus, backlog begets backlog.3 Massive case volume, by its sheer weight, first distorts and then subtly transforms the nature of justice. Under the weight of case overloads, summary criminal courts especially tend to degenerate into "symbolic" courts—harassed and busied tribunals which respond passively to the proposals of counsel; courts which drift without dynamic attempts at administrative reform in the face of mounting backlogs and adjournments; courts which tend generally to be non-participative, falling into set rituals, customary penalties, and perfunctory dispositions to supply the deficiency of time required for individual justice in individual cases .4 Traffic courts are frequently the first victim of this malaise. The effects of volume are well known in the United States; in the city of New York, the backlog of cases in the criminal courts is such that the court trial, as we know it, is said to have become almost obsolete, with one case in a thousand going to trial.° The object of the system has been transformed; it is no longer the dispensing of justice through the hearing of trials in the time-honoured manner, but simply the reduction of the case list to tolerable dimensions (or at least the deceleration of its increase). This reduction or deceleration can only be achieved by a systematic process of disposing of cases by plea bargaining. The trial process has been displaced in favour of one in which the accused pleads guilty to a lesser charge in exchange for a lesser or suspended sentence.° Massive backlogs also lead to demands to divert whole categories of offences out of the courts (for example, traffic cases). These changes illustrate a phenomenon known to organization theorists as "goal displacement": an organization begins with a certain goal, but through changing circumstances it is lost sight of, and the organization continues to function

4

The Need for Administrative Reform in Canadian Courts through its own internally evolved goals which have nothing to do with the original intent. The threat of goal displacement in Canadian courts is not an empty one. While plea bargaining is anathema to many in the Canadian justice system, it does exist and probably has always existed in various disguised forms. Certainly, plea bargaining is increasingly present in large urban centres, although in a form somewhat different from that seen in the United States. Canadian judges traditionally do not participate in the plea bargaining process, though they frequently condone it in accepting pleas of guilty to a lesser offence, or to fewer charges, or with the patent absence of crown opposition to a disposition sought by the defence. Indeed, there are reported precedents allowing its use, subject to somewhat austere restrictions. Growing case volume will exert strong pressures in the direction of plea bargaining, a phenomenon which should be further observed and thoughtfully studied before it saturates the criminal system. This is the perspective as seen by the judiciary, but it represents only the face of the coin. On the reverse, largely hidden from view and little understood, is the administrative side of the courts, with a reinforcing set of problems. For not only the judiciary, but also court staffs, have struggled against mounting backlogs while facing a variety of other constraints, such as those arising from provincial personnel administration. In some provinces, court staff positions remain forms of political patronage; the quality of court personnel varies with the attention— or inattention— given to it by local politicians. In other provinces, court employees have become civil servants within a larger merit system. With the passage of time, however, stratified clerical and administrative classifications, and overloads within civil service commissions themselves, have resulted in excessive delays in the hiring of urgently needed court personnel. In addition, inadequate and mismatched pay categories become uncompetitive with industry. Consequently, many court registries and court clerk's offices are understaffed by underpaid personnel whose functions do not easily lend themselves to rigid and stereotyped civil service classifications. Administrative inefficiencies are reinforced by confusion and disagreements as to where the line is to be drawn dividing judicial from administrative responsibility and authority. Not infrequently it is done at a point which reflects the unique personalities of individual judges and court clerks, rather than on any basis of principle. This is the fault neither of judges nor of court clerks and administrators. It is the result of a system, or rather of a fractured mosaic of individual fiefdoms, which has grown historically in response to immediate needs, short-term planning, political and budgetary expediencies, federal, provincial, county, and municipal

5

CHAPTER ONE

political structures, and from the inexpressible mores of a legal subculture bequeathed over the centuries and unconsciously imprinted on modern attitudes. In short, the process known in Canada as court administration is a somewhat ramshackle and outmoded conglomerate of diverse systems, the legacy of an unsophisticated social era. It is unschooled in modern management methods, lacking in modern business technology and equipment, and unalerted to the task of administering a highly complex and self-contradicting organization. Courts now face the burden of effecting large-scale organizational reforms in a relatively short period of time in order to preserve the patterns of justice at the core of their being: the day-to-day operations in the courtroom itself. If these developments are to be deplored, the way out does not lie in simplistic condemnation of judges, or lawyers, or administrators. We are witnessing a phenomenon which has deeper implications and invites a more profound analysis. What has happened is that the social and technological wave of the twentieth century has now fully engulfed the courts, the last lonely bastion of a departing age. This engulfment brings problems unique in their nature as well as in their volume. Solutions require a new conception of basic goals, as well as revised strategies in operational techniques. But the reformer must be wary. He is not in an area where enthusiasm is a substitute for depth of understanding. For example, the problems of court administration are not reducible solely to problems of case volume. They are not simply quantitative problems; a numbers game cannot adequately deal with them. They are qualitative as well, deriving from the twin commitments of courts: first, to provide necessary service to the public in the resolution of conflict, the settlement of claims, the adjustment of family and business relationships; and second, to preserve the values of a legal order in a free society by defending the rule of law against the arbitrary actions of government. Courts must be modernized in order to play a significant and viable role in modem society. But they must be modernized in a way that is consistent with their distinctive role as an instrument for preservation of the rule of law. Courts are part of modern society, and their organization and management must reflect the needs of the present time. Courts; however, are not just another department of government to which principles of administration applicable to executive departments and agencies can be applied willy-nilly. THE WINDS OF REFORM

Fresh winds of reform are now blowing through the justice system. One of the issues for debate is the precise direction in which these winds 6

The Need for Administrative Reform in Canadian Courts should blow. Traditionally, law reform commissions busied themselves with examining and amending existing legislation. This accorded with the traditional thought patterns of the legal mind, disciplined as it is to reason in terms of the written word. It was necessary housekeeping. There will always be room for endeavour on this level. But it is not the stuff of which dynamic law reform movements are made.? It would appear that the main reform thrusts now lie in three quite different directions and that the main action and practical consequences will be found in these new-found paths. One direction is sociological and philosophical, as reflected in the federal Law Reform Commission and the British Columbia Justice Development Commission. This approach seeks substantive changes in the law and legal process, not merely of a technical or procedural nature, but having their roots in newly emerging philosophical or sociological attitudes. For example, the development of legal aid and of native court workers reflects the view that legal processes should be accessible to a broader spectrum of society. Another manifestation of the social/philosophical approach to reform is the perceivable trend to what is currently called decriminalization. Decriminalization means removal of certain broad areas of offences from the status of criminal acts, thus screening out and diverting large numbers of cases from the court process, and reducing present crushing court caseloads. It is a process which involves basic value judgments upon which there is naturally an absence of agreement since its concepts are controversial, groping, and as yet formative and experimental. It seems evident, however, that the next ten to fifteen years will witness a determined thrust in this direction, and that it will include experimentation in screening and diverting from the normal criminal process such parties as traffic and certain by-law offenders (perhaps better dealt with before traffic commissioners, justices of the peace, or administrative bodies) as well as chronic problem cases carrying medical overtones, such as drug addiction, and persons guilty of minor shoplifting, petty fraud offences, and non-violent sexual deviance. It is outside the purpose of this text to attempt to assess the arguments for and against such programs save to say that whether successful or not, they will not relieve the court system of heavy burdens, or of its need for additional reform. The second reform thrust is structural and involves changing the way courts and court administration are organized. Structural reorganization has been reflected in changes in the number and jurisdiction of courts, as new courts are created, old ones are consolidated, and cases are shifted between them. Changes are also under way in the authority structure of court systems, as governments begin to shift authority over court administration from executive officials to the judiciary. These structural reforms, like the philosophical ones, are responses to social and economic 7

CHAPTER ONE

change. Thus, one British Columbia lawyer recalled that in the late 1960s he would have brought a $600 claim before the province's supreme court. Now, similar actions would be heard in a provincial small claims court; and in Ontario, tort or contract actions involving tens of thousands of dollars are often brought by consent of both parties in county or district courts rather than in the superior court of the province. As a result of high case volume, inflation, and motor vehicle accident claims, the historical functional differences between a province's central trial court and its far-flung county courts have diminished, and four of the nine provinces with county or district courts have abolished those courts in the last decade. The third reform thrust is managerial. It centres on administrative reform: the application of modern management techniques and technologies to judicial administration, with all that these terms convey— systems analysis, paperfiow studies, management information, monitoring of operations, case processing strategies, modern equipment, goal rationalization—all designed to cope with increasing case volume at least in part through increased operating efficiencies. While this book will discuss all three reform thrusts, it is primarily concerned with administrative reform. The present challenge is not a modest one. Nor can it be said that there are any simple or prescriptive remedies. ADMINISTRATIVE REFORM DELAYED

One may well ask why the Canadian courts are a generation behind the private sector in responding to the need, challenge, and advantages of modern management techniques. Sluggish response time is, of course, a general feature of common law judicial systems, though it may be said that both England and the United States now have a five- to ten-year time lead on this country. There are two dominant causes of delay in judicial administration reform. The first is the absence of a profit motive to generate a drive toward increased processing efficiency and lower costs through the application of modem techniques. (Increased efficiency and lower costs may be two different things. A modernized way of processing a case may be just as expensive—but faster.) Because justice administration does not generate a profit (nor, for that matter, electoral votes), historically it operates with a beggarly budget. The axiom that "you cannot put a price on justice" is an excellent point of departure for debating purposes. Few would disagree that, when a citizen's liberty or life is at stake, the dollar cost of adjudication is not to be matched in importance with the quality of the adjudication itself. Unhappily, life allows us few such clear-cut 8

The Need for Administrative Reform in Canadian Courts choices. In practical terms, the cost of justice as a whole is measured in the budget room, not the courtroom; and in terms of gross statistics, not individual cases. Not unexpectedly, considerations of cost rather than of quality have dominated the development of many courts. In this setting efficiencies cannot emerge, because there are never sufficient funds to develop the sophisticated techniques which produce long-term reductions in the cost of processing individual cases. Paradoxically, the debate between efficiency and quality has been misconstrued from the beginning. The two are not necessarily in opposition if the problem is analysed in management terms. Improved administrative efficiencies can reduce operating costs by increasing manpower productivity at both the judicial and staff levels, while at the same time improving the quality of justice by reducing trial delays. The consonance rather than opposition which exists between efficient administration and quality of justice, however, is only now gaining recognition. It must also be stated that judicial administration has in large measure been dominated by the legal profession. The imprint of the legal mind and its particular discipline pervades the courts through the influence of judges, legally trained registrars exercising quasi-judicial functions, and the bar. Attorneys general departments, heavily staffed as they are with lawyers at the top and middle management levels, historically have not created the material out of which administrators are usually moulded. Indeed, legal discipline and practice tend to vitiate administrative, clerical, financial, and accounting capacities.8 The legal mind bears down with an intense concentration and narrow focus upon a single event, or a set of facts and issues, from an adversarial perspective. It is not by training managerial; its discipline is to analyse a single fact situation, to dismantle it into its discrete parts, and to extract therefrom inferences and conclusions. Also, under conditions of modern complexity, few sitting judges and practising lawyers have had time to master the intricacies of modern management—especially management of one of the most complex organizations known to modern society, namely the urban court. The effective administrator, clerk, or accountant, on the other hand, must think in terms of systems as a whole. He must assume a systems approach to his work, as opposed to an adversarial approach with its sharp but narrow focus. It is not therefore surprising that little pressure has come from the legal profession to introduce modern management techniques in the dayto-day running of the courts. Allied to this is the understandable concern of members of the bar in the conduct of their own cases. Expediting trials involves a many-faceted approach, including pre-trial conferences, disclosures of evidence before trial in both civil and criminal cases, monitoring the caseflow from the moment of issuance of the writ or swearing of the information, adminis9

CHAPTER ONE

trative pressure towards early and mandatory trial dates, pressures towards early settlement of conflicting claims, and elimination of lastminute guilty pleas or stays by the crown. However, most of these represent restrictions on the manoeuvrability of counsel, and it is little comfort to the practising lawyer to reflect that such measures can or will reduce mounting congestion in the court process. Consequently, the bar has tended to resist such changes despite increased earnings brought to litigation practice by speedier trial-processing practices. In the absence therefore of any drives for reform, either through profit motive or professional demand, modernization has had to wait until the present crisis of urban court volume which arose in the 1960s and 1970s made change imperative. But it is a crisis waiting for a leader. THE HISTORICAL PERSPECTIVE

The problem as we have stated it cannot be fully appreciated save in the historical perspective of events on this continent since the first decade of the twentieth century. Only in this light can we begin to perceive where we have been, where we are, and where we may be going in terms of judicial administration. If American legal history is woven into this perspective, it is because the Canadian administrative reform movement, which is now evident, has been largely influenced by its counterpart in the United States. Canadian legalism is culturally British, not American. But Canadian administration is the reverse. It is possible occasionally to point to a specific date in history to mark a change of direction. For this continent, and this subject, such a watershed date can be identified. In 1906 Roscoe Pound, later dean of Harvard Law School, addressed the American Bar Association on "the causes of popular dissatisfaction with the administration of justice." His paper was coolly received. But over the next three or four years the validity of his seminal statement became apparent. Its impact has been felt and measured ever since, and is now being felt in Canada. What did Pound say that was so dynamic? He pointed to five defects. The first was the mechanical operation of legal rules (what we now call legal technicalities) which frustrated equitable decisions in the courts. The second was the difference in rates of progress between law and public opinion; legal rules had failed to keep pace with social changes and the image of justice was suffering because of it. The third was the individualistic spirit of the common law; 150 years of ruthless laissez-faire economics had moulded the philosophy of the common law to its ends and was using the law as its tool; as a result, common law rules were not geared to the twentieth century, an age of rising economic democracy. Fourth 10

The Need for Administrative Reform in Canadian Courts was what Pound referred to as "the doctrine of contentious procedure" (what we now call the adversary process), which it has become fashionable to attack in Canada in the last ten to fifteen years. All four of these defects suggested the need for profound sociological/ philosophical reform. The fifth defect singled out by Pound, the deficiencies of judicial organization and administration, including the waste of judicial manpower, suggested the importance of structural and managerial reform. We begin to understand the penetrating power of Pound's statement when we reflect that it was made over seventy years ago, while his criticisms have only surfaced as major concerns in Canada within the last ten to fifteen years. The reason for this will shortly become apparent. Meanwhile, the issues raised by Pound led to continuing efforts in the United States throughout this century to attack what had become five real problems. Despite the delays and hesitations inherent in anything so cumbersome as a judicial system, considerable change ensued. Certainly the American judiciary is acutely sensitive to public opinion, reflecting perhaps the result of the prevalence of popularly elected judges in the state courts of that country. The New Deal legislation of the 1930s reflected a shift in emphasis to public welfare as opposed to raw individualism. The virtues and vices of welfare legislation are obvious and, it appears, politically irrelevant. Social legislation is a fact of the twentieth century and has transformed the law, not only in terms of specific statutes, but in terms of the spirit in which contract and property law are interpreted by the courts on this continent. For our purposes, significant advances in the area of court administration occurred not in Canada but in the United States. It is important to recognize that these advances ultimately required the direct leadership of the judiciary. Notable strides have been made in eliminating an irrational, cumbersome, unscientific, particularist administration that causes enormous wastage of judicial manpower; wasteful rolling over of cases set for trial; cynical disregard of the public, called back time and again as witnesses; the dissipation of public funds through calling police witnesses who never give evidence; court delays; mounting backlogs; and the squandering of time of private and crown counsel. These reforms constituted an attempted answer to the realities of what history has called the progressive era in the United States—the transition from a rural to an urban society which had imposed increasing strains on an antiquated model of a justice delivery machine.° These strains were further reflected in the increasing failure of that model to work (in some large cities, cases were delayed for years in coming to trial). A vigorous attack on the administrative deficiencies in the courts resulted at its worst in failures, at its best in the emergence in many areas of a new model 11

CHAPTER ONE

adjusted to the requirements of a new urban society. In short, backlogs and delays were brought under control. Problems remain, and will always remain. But in the main it may be said that the American justice mechanism met the challenge to accommodate rather than collapse under the caseloads. To repeat, the critical point which must be made is that this accommodation, jurisprudential and administrative, was led by the judiciary. Over the years, it was the judiciary—even in the teeth of opposition from within its own ranks—that identified the historical challenge, recognized that no improvements were possible without its leadership, and accepted responsibility for a management as well as a judicial role. It is exceedingly difficult to sell change. Yet the American judiciary in the main bought the idea of change, and made it work. This is evident for all to see in some American cities whose courts are models deserving of study. These courts are proof that excessive backlogs and delays need not be tolerated. REFORM AND NON-REFORM IN CANADA

The situation of Canadian courts can be seen most clearly against the perspective of American developments. What has happened is that within the last five, ten, or fifteen years, some of the waves of Pound's ideas and concerns have washed up on Canadian shores. It is evident in growing reform movements in most of the provinces, particularly in the more urbanized provinces of Ontario, Quebec, and British Columbia. This again reflects a response to a society shifting from a rural to an urban life style. It is both interesting and important to pause at this point to consider what is meant by "urban life style." It is not limited to large concentrated populations. Urban life style is characterized by three factors: television, motor vehicles, and spending money. These three forces have created a new culture. And since all three are as easily available to citizens of the small community as to the large city, this new sophisticated culture has transformed the life style of inhabitants of small towns as well as of large cities. The result is that small communities are now also caught up in the problems of drugs, drunken driving, shoplifting, juvenile delinquency, petty crime, litigation, and all the other conflicts which hitherto have been identified with large city courts. Today, therefore, judges in small communities are wrestling with court lists as long as those facing their counterparts in metropolitan centres. This explains why the case backlog now looms as a critical problem in all courts of the country. In Canada, however, response to the challenge has assumed a different form from that in the United States. This is because Canada has a dif-

12

The Need for Administrative Reform in Canadian Courts ferent justice system model, which vests administration of the courts in the executive branch of government rather than in the judiciary. The American constitution is silent as to which branch of government should control court administration, and consequently the American courts developed the doctrine of judicial necessity which justified their seizing control of court administration. This vested the American judiciary with a strong power base. Freed of inhibitions and any sense of insecurity, the American courts moved out from this power base to control not only court administration but court reporters, probation officers, investigators, social workers, counsellors, and even such professionals as psychologists and psychiatrists, with the result that some American courts have almost become social agencies. This was possible because these expansions could take place under the control of the judiciary, and therefore did not represent a threat to judicial independence. The position in Canada is reversed. Because the Canadian constitution seemed to strip the courts of the right to control their own administration, the Canadian judiciary has developed a policy of self-encapsulation.10 Lacking an administrative power base, the Canadian courts have looked first to the various bar associations to defend them in the face of public criticisms, and secondly to the federal minister of justice and the attorneys general of the provinces to bespeak their financial needs to cabinet. Neither strategy has been an unqualified success. This has deepened the judiciary's preoccupation with its last remaining defence against absorption, namely the doctrine of judicial independence. But emphasis on this doctrine has caused the judiciary to withdraw in upon itself. Hence its reluctance to deal on a basis of equal status with agencies such as sheriffs, probation officers, professional counsellors, and administrators. It has held fast to the more narrow function of legal adjudication. This insecure position has led the judiciary for the most part alternately to ignore court administration and to demand control of it without actually managing it. We say "for the most part," because there are notable exceptions. The enormous pressures now burdening the courts have produced new groups of reform-minded judges who are providing leadership in pressing for increased efficiency and effectiveness in the courts. But in the main this contradiction between the judiciary's desire to control its administration on the one hand and its neglect of administrative skills on the other, has existed, largely unnoted, for a century. It became apparent during the reform of the British Columbia court administration system that began in 1973. That reform movement was driven by executive initiative, planning, and resources—magnifying the gap between judiciary and administration, and frustrating efforts toward change. In the course of the debate, however, one signal point has been missed:

13

CHAPTER ONE

without the support of the judiciary, court administration could only do half its job. It could hire and discharge personnel, train staff, outfit courts, manage budgets. But it could not contribute to the proper running of the courts per se, which is the end goal of court administrative reform. THE NEED FOR A JUDICIAL MANAGEMENT PHILOSOPHY

The necessity for a coherent judicial management philosophy is apparent. The constitutional model under which we work very properly vests responsibility for the management of all courtroom activity in the judiciary. This includes caseflow management. The judge's control over this area is undisputed. The difficulty is that caseflow management requires just that—management. This brings us back full circle to the inherent difficulty. Being focused almost exclusively on legal adjudication, the Canadian judiciary is unaware of the fact it has developed no management philosophy or skills. While the judiciary insists on control of caseflow management, it brings no training or expertise to the task. An analysis of this problem leads us from one inner coil to another. The public blames the courts for trial congestion; that is to say, it ultimately blames the judiciary, which it regards as lacking in initiative and energy. The judiciary responds by heightening its concern for judicial independence, for it regards criticism as an attack on that independence. The executive branch of government, which controls all peripheral aspects of court administration, and which is sensitive to public clamour for reform, uses its administrative apparatus as a base from which to attack the problem of court congestion. Once again, this is treated as an inroad on judicial independence. Insofar as the executive has intervened in matters of case backlog, it has undoubtedly invaded judicial territory, and such instances are not unknown. But the obverse has not been recognized, namely, that at bottom the real threat to judicial independence is the judiciary's failure to assume an active and informed management role in its own house. We use the term "informed management."11 When on the bench a judge is scrupulous in hearing all aspects of an issue before reaching a decision, which is then an informed one. The regrettable human tendency persists, however, that when a judge leaves the bench and is faced with a management decision he will too often make it summarily, and without disciplined examination of the facts. This is no longer adequate to the demands of the times. It is for the judiciary to recognize the fact and to take the first steps towards building management expertise into its ranks. In creating this management philosophy, there must be a recognition that judicial independence does not import administrative autonomy. The independent discretion of the judge when sitting in court must remain 14

The Need for Administrative Reform in Canadian Courts inviolable. The intricacies of modern courts, however, are now so advanced, and judicial manpower has increased in large court complexes to such an extent, that the judge of today must operate under self-imposed administrative constraints, affecting, for example, the times of court sittings and places of residence. The satisfactory working out of these arrangements is a precondition for the delivery of justice. A final reflection must be that just as court administration can fulfil only half its role without the support of the judges, so the judges will in the end be unable to solve caseflow problems single-handed. They lack the necessary time and resources. The willing support of a loyal court administration, ready to perform a full range of management tasks, is required. Many court administrators are in fact anxiously waiting for the judiciary to take the lead in this field; and having done so, to delegate work to administrators. Success will lie in this cooperative approach; an evolving consensus of a concept of judicial management must include a formula for exploiting the special resources already being fashioned and developed within court administration. This is an age of accountability from which the courts cannot escape. If they do not control their own process in terms of eliminating backlogs, delays, and adjournments to the unnecessary inconvenience of and injustice to citizens, then sooner or later the body politic will be forced to attack these problems. The need for judicial leadership has never been so acute. RESTRUCTURING FOR REFORM

Since the Canadian courts were created, judicial and administrative functions have been treated as two separate activities. This treatment reflects an oversimplification of the facts and a distortion of reality. Although it is true that many functions are clearly judicial, and others clearly administrative, in the critical area of caseflow management the two functions merge; the line of distinction is blurred and lost. The result is an operational area where divided authority and responsibility exist. This ambiguous situation frustrates present management and complicates future reform. To remove this fundamental flaw, a basic change is required in the lines of authority and responsibility for court administration. Pressures resulting from modern caseloads and the complexity of court administration now demand the evolution of a single over-arching authority combining casefiow management with related administrative matters such as personnel, budgeting, management of records, and management information systems. To accept this proposition, however, poses the question of which is to assume overall control, the executive or the judiciary. The 15

CHAPTER ONE

answer is predetermined. Since caseflow involves fixing trial dates and dealing with adjournments (some of which are contested), this is a judicial function which may not be performed by executive branch personnel. Therefore, if the whole field of administration is to be welded together under one authority, that authority must be the judiciary. It follows that the present requirement, from a practical point of view, is a judiciary informed of and sensitive to management needs, supported by competent and trusted administrators. Not everyone feels comfortable with the concept of transferring administrative authority to the judiciary. Events, however, are forcing such a change upon us. To say that court administration must be the responsibility of the judges themselves is not a radical proposition. It merely reflects existing practice in England, the United States, and many other countries.12 And it acknowledges the principle, too long ignored, that no house can have two masters and be strong. As courts have grown in size and complexity, administrative staff has swollen and now commands substantial physical and financial resources. Judges find that court support personnel are part of an ever-growing executive establishment that reports to officials and ministers of the government of the day. This has created in the minds of some judges a distrust of court administration, and in the minds of many a legitimate concern that acceptance by them of administrative control and techniques will compromise the independence of the judiciary. Yet, transforming the courts into an effective system of justice requires judges to work within an administrative framework. For the system to operate effectively, provincial legislation is therefore required to gather control of that administrative framework under one authority—that is, the judiciary. The two preconditions of this transfer have already been stated. First, judges must develop a philosophy of informed and sensitive management. Second, the judiciary must recognize that if it is to manage its own affairs, it cannot do so single-handedly. It must accept the principle of delegation of operational tasks to professionally trained court administrators. Default in either of these areas will prolong the administrative crisis, erode the image of the courts in the eyes of the public, and seriously threaten the independence of the judiciary. Public concern over a chronically unsolved problem in the area of public order would ultimately force the executive branch of government to invade the field of judicial administration; the executive is highly sensitive to public opinion and would be unable to resist public demands for action. New formulas must be conceived and considered to accomplish these ends. For example, the board room or cabinet model might emerge, pro16

The Need for Administrative Reform in Canadian Courts viding for a committee of judges concerned with an evolving general policy, but working in close concert with a chief administrator appointed or approved by the committee. This administrator and his staff would possess the resources to produce and organize the complex statistical and other information necessary for evaluation and intelligent planning by the committee. He would then be charged with implementing the judicial committee's policy decisions, and reporting back on the progress and impact of the implementation. The critical advantage to be found in this formula, and the one now absent, is the welding together of two separate and sometimes conflicting systems into one rational and effective mechanism based on mutual trust. It is crucial that we be clear as to the real issue because it is frequently misunderstood and misstated. The issue is not administrative reform versus judicial independence. This is so superficial an interpretation as to be misleading, resulting in the wrong questions being pursued. The real issue is not whether we should seek administrative reforms in the courts at the cost of judicial independence, or whether we should preserve judicial independence at the cost of administrative reform. The issue in fact is how we can preserve judicial independence through administrative reform. Judicial control of court administration per se will not be a magic solution to the problems of the courts. It can, however, provide a framework for dealing with problems when combined with an understanding and commitment by the judiciary to work for solutions, and an appreciation of the need for reliance on, and trust in, trained administrators to advance rational policies. The transfer of power is not a gift, but a burden to be shouldered in a professional way. THE CONTEXT OF COURT MANAGEMENT

For clarity of thought, a signal distinction must be borne in mind throughout this text between two phrases, "judicial administration" and "court administration." The term "court administration" has traditionally carried a narrow connotation in Canada. It refers to the administrative component supplied to judges by the executive branch of government (the federal Department of Justice and the provincial ministries of the attorneys general), and can be concisely thought of as "court services" or "support services." "Judicial administration" carries a larger connotation. It includes the operations of the court services component, but widens to include all those functions of the judiciary in ordering and expediting the flow of cases through the courts, and determining the strategic policies of the courts as an independent and self-determining organ of the state. The critical issues articulated in later chapters will not be 17

CHAPTER ONE

grasped if this distinction is not held constantly in the forefront of the reader's mind.13 For example, Part I deals largely with issues of judicial administration. In this chapter, we have discussed the practical problems that draw attention to judicial administration. Chapter 2 provides the conceptual basis for discussing these problems: a synthesis of organization and systems theory and the distinctive role and history of courts. Chapters 3 and 4 treat the two major areas of structural reform; first, the relationship between executive and judicial authority over court administration, and second, the organization and jurisdiction of the courts. Both of these areas raise fundamental constitutional and policy questions that go beyond court services but are central to the shape and development of judicial administration. Chapter 5 defines the role of the professional court administrator in terms of this larger concept of judicial administration. The six chapters in Part II are more technical in nature. They fall into the category of managerial reform, beginning with traditional administrative functions of personnel management and budgeting, and then moving to caseflow management, records and space management, information systems and computer technology, and systems implementation. This managerial thrust is primarily focused on court services. However, the central operational process, caseflow management, encompasses principles and problems that go beyond the narrow confines of support services and involve the judiciary directly. It would distort both the central importance of caseflow management and its necessary connection with other management processes to consider it separately. However, once the managerial reform thrust is developed in broader terms than support services imply, and is linked to judicial administration, caseflow management can be considered along with budget, personnel, records, and other administrative activities within the courts. Chapters 6 to 11 are both prescriptive and descriptive. They suggest the directions that judicial administrative reform should take, and the principles that should be considered by judges and court administrators. They also describe and analyse existing patterns of court administration, since management functions have often developed differently from province to province. Part III focuses on the process of change, supplementing the previous discussions of structural and managerial reform with a consideration of the efforts toward sociological and philosophical reform. Chapter 12 will outline theories of change, and chapter 13 will present a case study of a single change agent, the Justice Development Commission of British Columbia. Chapter 14 will consider the present and future role of the courts in society, with particular emphasis on the impact of policies that 18

The Need for Administrative Reform in Canadian Courts divert cases from courts to other institutions in government and society. Part III should remind judges and court administrators that structural and managerial reform are not ends in themselves, but means to improve the way justice is done in our courts, and to ensure that courts can retain their central role of rendering justice for individuals in society.

19

Chapter Two Thinking About Courts: Organization Theory and Judicial Distinctiveness Any book or study is accompanied by its authors' baggage of concepts, opinions, and concerns. The present authors' concerns and biases have been presented in chapter 1. In this chapter, we outline the concepts and theories that form the basis for our thinking about courts. This task will require two distinct approaches. One reflects a recognition that the courts of this country have a history and embody a philosophy of life and government that transcend the boundaries of a single nation's space and time. Therefore, court administration can be studied and practised properly only with an understanding of what makes courts distinctive—their role as an independent institution preserving the rule of law through the interpretation and application of specific laws and legal principles. The second approach recognizes that modern courts are complex organizations, and can be analysed in terms of the characteristics they share with other complex work-processing organizations. Therefore, the study of court administration also requires that we draw on concepts and models from organization theory. This chapter will set out these two contrasting approaches, and also attempt to synthesize them. ORGANIC GROWTH OF THE ENGLISH COURTS

The popular notion of the law and courts resembles a photograph—a picture of something static, unmoving, traditional, formalized as an icon. But the growth of the legal system more truly resembles a film of a man, at first crawling, then walking slowly, then quickening his pace until he is seen moving as a hundred-metre sprinter. An even more valid analogy would be the development of a small organism or cluster of primitive organisms that gradually coalesce and expand through a process of cel21

CHAPTER TWO

lular growth to its present massive proportions and state of rapidly changing hues and delineations. In short the legal system—every legal system—is a moving, dynamic, organic, and ever-changing creature which grows and undergoes transformation in a manner that reflects and parallels the growth and transformation of the social matrix it serves. Modern developments in the justice system can never be understood or appreciated save in the historical context of this growth. Nor can we design realistic approaches to administrative problems without an understanding of the distinctive nature of the courts and of the legal profession. For this too an historical perspective is essential. Our discussion, therefore, begins with the earliest developments of the British common law judicial system. The reader should however remember that courts and similar institutions for resolving conflict may be universal.' An early example not only of courts but of court management may be found in chapter 18 of the Book of Exodus, which contains an interesting account of the development of the court system in ancient Israel—and of how Moses trained paraprofessionals to deal with caseload congestion. The intellectual discipline which stamps the modem lawyer's speech and attitudes is the result of training and working within a system which reaches down from the ancient dawns of Anglo-Saxon culture. Examples of this living tradition are legion. Consider the office of justice of the peace. Historians debate the age of this noble office, but it reaches back at least six hundred years, and some see its misty beginnings seven or even eight hundred years ago. Today's sheriff is the descendent in office of the sheriff (or "shire reeve") who, together with the bishop and an ealdorman, presided over the shire court in Anglo-Saxon times. Today we continue to speak of a breach of the Queen's or King's peace—as people did before the Norman Conquest in 1066 of what is now England. Levying a fine today for a wrongdoing continues a judicial custom familiar before the conquest, as is the awarding of compensation to a victim. Even procedural complexities which so baffle and exasperate the layman, likewise baffled and exasperated the litigant of London, Sussex, and Wessex in the tenth and eleventh centuries. Much of Anglo-Saxon law was uncodified, as is our law today. All this is alive to the modem lawyer. The Norman Conquest did not abruptly disturb the legal development of previous centuries. The Norman kings—William I, William II, Henry I, and Stephen—largely accepted the existing set of laws and merely superimposed what concepts were necessary to accommodate the new feudal system. The established courts of the "shires" and the "hundreds," as well as other local courts, were preserved for a century after the invasion. Anglo-Saxon elements of the law were only gradually eroded by 22

Thinking about Courts

royal decrees and instructions, writs, statutes, and court rules of practice. Henry II (1154-89) , the first of the Plantagenet kings, set in motion the series of events which gave us the great common law courts whose names are current today. As the phrase implies, these courts developed laws which were uniform, or "common," to all subjects of the realm. As a strategy for controlling the shire, hundred, and manorial courts, Henry began appointing the local sheriffs, and then sending out trusted members of the King's Council as travelling justices to supervise the sheriffs, ensure the punishment of those guilty of offences under pleas of the Crown (criminal cases), supersede sheriffs in presiding over the shire courts, and act as Justices of Gaol Delivery (minor criminal cases). The king's representatives also sat as Commissioners of Oyer and Terminer (literally, "to hear and decide" important criminal cases). These itinerant justices and commissioners later evolved into circuit judges. As these functions expanded over the succeeding centuries, the King's Council, or members of his council sitting as the King's Court (Curia Regis), spawned an array of specialized courts which gradually strengthened their own power to exercise discretionary powers without direction from the parent body, the Curia Regis itself. One of the first of these was the Court of Common Pleas, which dealt with civil disputes, and which freed itself from control of the King's Council in the thirteenth century. The Court of King's Bench, initially created to hear criminal cases and act on prerogative writs, disengaged from the Curia Regis by the fourteenth century and ultimately acquired civil jurisdiction. Other offspring of the fertile Curia Regis were the Court of Exchequer of Pleas, created to collect the king's taxes, but later to acquire civil and a measure of equity jurisdiction; the Court of Chancery, the chancellor's court, created to exercise a kind of appeal or review jurisdiction over the other courts, and ultimately to create and exercise the full range of equity law in matters such as trusts, fraud, and specific performance (it acquired independent status by 1474) ; the High Court of Parliament, a court of the House of Lords which sat in appeal from Courts of King's Bench and Exchequer of Pleas; the Court of Admiralty, with jurisdiction in shipping cases; the Church Courts, with jurisdiction in matrimonial affairs and probate, abolished only in 1857; and the Judicial Committee of the Privy Council, which reviewed—and still reviews—decisions of colonial courts. The extraordinary power and vitality vested in these courts can be sensed in the fact that their titles and functions are still in use today. Courts of common pleas and circuit courts still sit in the United States. Canada has courts of queen's bench, which may have matrimonial, probate, or admiralty divisions. The Judicial Committee of the Privy Council heard appeals from the Supreme Court of Canada until 1949, and the 23

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present Federal Court of Canada was entitled the Exchequer Court until the early 1970s. Finally, to understand the mores of the court system properly, it is necessary to consider, however briefly, the origins of lawyers and judges —the "bar" and the "bench"—and the close relationship between them. By Henry II's time it was possible for litigants to retain someone (a "responsalis") to do one's technical pleading in order to initiate and maintain an action. "Attorneys" (the term still used commonly in the United States and occasionally in Canada) were a recognized profession by the thirteenth century. Their modern descendent in Canada is the solicitor, the term substituted in England in the eighteenth century. Paid court advocates, called narrators or pleaders, who represented litigants before the court at trial, were also a recognized profession by the thirteenth century. The latter were later superseded by the famed sergeantsat-law, the forerunners of the present banisters and the first of the truly skilled courtroom advocates. Whether representing the client in or out of court, the legal profession established a monopoly of their services by the end of the thirteenth century. They took their training in London while living together in "inns of court" whose names are now famous— Lincoln's Inn, Inner Temple, Outer Temple, Gray's Inn, and others. Education was controlled by the courts. Judges lectured attorneys and "learners." Thus the modern lawyer is the keeper of a 700-year tradition, with its select customs and collegiality. Initially acting under the exclusive direction and instructions of the king and his Curia Regis, the judges' role gradually shifted over the centuries until it, together with that of lawyers, assumed its present function as protector of the lone citizen against the immense power of the state. Hence the unceasing preoccupation of judges with the sanctity of judicial independence, a principle which they laboured for centuries to establish. Initially drawn largely from members of clerical orders, judges had, again by the thirteenth century, attained a status of permanence and professionalism, and ceased to recruit from clerical ranks. Their robes, as do those of barristers, still silently convey the ancient origins of their office and power. From 1292 on, judges were entrusted with the education of members of the bar, and this persisted for centuries, indeed into the twentieth century. Today, at least on this continent, academic legal education is increasingly the preserve of the universities, so this nexus is weakening. But even law faculties recruit judges and practising lawyers as lecturers and tutors. It has long been evident that this centuries-old system of training has produced a mind which is sharply analytical and critical, yet possessing a breadth and wide-ranging understanding of human affairs. But, at the same time, it carries the risk of creating a conservative—dare 24

Thinking about Courts one suggest inbred?—mindset which can be resistant to change and the new concepts which are messengers or vehicles of change. This inertia (or appearance of inertia) must be understood in terms of its origins and history, and not simply dismissed as irrelevant. Although less ancient than the Catholic Church, the English court system ranks with that venerable institution and with the civil law system of continental Europe in stamina and durability. In dealing with such an edifice it would be wrong to ignore its distinctive characteristics, both dynamic and inertial. To do so would be to guarantee disaster. Its organizational behaviour is a function of the structure and procedures arising out of its long history. SOME MASTER CONCEPTS OF THE COMMON LAW

Aside from their structure and membership, our courts embrace certain distinctive concepts. One of these expresses a spirit which may be summed up in the word "particularity." The common law courts have cleaved to the principle that each case must be decided on its particular facts; facts are only "correlative" (that is, they must co-relate to the facts of a previous case if the principle of that previous case is to be applied to the present case); and a decision in a particular case stands as authority only with respect to the facts of the case itself or of a similar set of facts. The pragmatism of the common law is marked by a delight in robust common sense, an abhorrence of generalization, and what Anson described as "the rejection of the dictates of logic in the face of the exigencies of affairs."2 This philosophy combines adherence to precedent with a flexibility bred of a multiplicity of precedents applicable to an infinitely varied array of fact situations. Nevertheless, the flexibility of the common law has from time to time been threatened; for example, by the rigid insistence on the use of one of an endless variety of common law writs to match the specific cause of action which was alleged. These many writs were ultimately reduced to a single writ not requiring any prescriptive set of words; thus, in the main, plasticity was preserved. At no time in its long history has the common law system so needed this plasticity as it does today in order to adjust to the swiftly changing social environment. If a system of justice fails to adjust, it is threatened with disintegration and collapse. One final historic reference might be offered—to the Magna Carta, an astonishing document hammered out between King John and his restive barons when they confronted one another at what is now Runnymede on June 15, 1215. As Anson puts it "Many things have been read into it of which its framers never dreamed."8 This in truth was its power: its 25

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provisions, though dealing with immediate grievances limited to its time, were susceptible of continued expansion of interpretation, thus enablng it to embody the principles of constitutional freedom at issue during each unfolding century. It is still relevant today. The Magna Carta was a resurrection in that it was based substantially on the Saxon common law, which flourished before the Norman kings a century and a half earlier. It dealt with a diversity of matters—even the rights of tenants and widows. But for our purposes it cut through to the fundamentals of jurisprudence to establish three basic principles: 1. The rule of law. ("The law of the land" stands above any ruler, preventing despotism.) 2. Trial before one's peers. ("No freeman shall be taken or imprisoned ... nor will we ... condemn him ... but by lawful judgment of his peers, or by the law of the land.") 3. Fair and expeditious administration of justice. ("To no man will we sell, to no man deny, to no man delay, right or justice.") The third principle is the major concern of this book. These principles, of course, were asserted by the barons for the sake of themselves and the freemen, not by or for the peasants. And it is important to understand that trial by one's peers did not at that time mean trial by jury; rather it meant trial in the King's Court by barons and others of that court; trial in the shire and hundreds courts by freeholders; in borough courts by burgesses (citizens of the borough) ; and in manor courts by freehold tenants and even villeins. But the doctrine of due process of law gradually filtered downward, first through the realm of property law, and then through lower and yet lower social grades of commoners. This levelling process was reinforced through the development of the jury system, which began to emerge in the thirteenth century and reached its maturity early in the eighteenth century. Due process is still broadening today. As late as the 1960s, for instance, it widened in Canada to encompass those who could not afford the expense of litigation. Yet due process of law is still unattained in some areas of the social and economic matrix. Today we are witnessing yet another impulse of this evolution in which the claim for its extension to the lowest reaches and smallest corners of society is being asserted. Legal aid, legal clinics, native court workers, civil collection of fines, bail reform legislation, forensic and counselling clinics, are all material extensions of this philosophy. It is as though the givers and enforcers of law are on trial before the court of history. This impulse imposes new demands on the courts, which demands are ignored at the courts' peril. 26

Thinking about Courts THE GOALS OF COURTS Contemporary management training stresses the importance of defining goals and objectives. Our brief historical survey has drawn attention to the necessity of such an exercise in any reform of the court system. How can the distinctive role and character of the courts be maintained, save in terms of the evolving goals that the courts share? What are these goals? If asked, most of us would state with little hesitation that the purpose of the court system is to do justice. But if we reflect further, it becomes apparent that this breaks down into a number of other goals or subgoals necessary to the attainment of the principal end.' Taken together, this list of ingredients could include: 1. To do justice. This is self-evident, although the concept must still be defined. 2. To appear to do justice. "Justice must not only be done, but must manifestly be seen to be done," to quote the ubiquitous but discerning remark of Lord Hewart, C.J.5 3. To protect individuals from despotism. Under the rule of law, it is the function of the courts to stand between the citizen and the overwhelming power of the state, in defence of the former. 4. To recognize legal status formally. This, in fact, occupies a substantial portion of court and administrative time. It includes establishing the status of partners, of committees for the mentally impaired, of executors of wills in probate, of administrators, of parties to a divorce, and of parents and children in adoption. Vast records are maintained in court houses to preserve these status certifications. The integrity of these records must be beyond question, and this requires a high grade of administrative personnel. 5. To dispose finally of legal controversies. Sometimes it is more practical in human affairs that a controversy simply be put to an end, whatever the result. Sometimes the result is not regarded as consonant with justice, but it puts the matter to rest and enables citizens to proceed with more important affairs of life. This is transparently so in the motor vehicle field, for example, where controversies usually regarded as trivial in any event are terminated, however reluctantly, by the payment of a fine rather than prolonging a dispute. Child custody cases offer another example where swift determination of the issue may be paramount in the interest of the child. Thus the goal of justice in these cases is traded off to achieve the other goal of final determination. 27

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This list is far from exhaustive. Certain goals of modern courts reflect their role in the larger criminal justice process, especially in sentencing convicted offenders: to rehabilitate offenders, to deter the public from committing offences, and to separate chronic offenders from society. Other goals reflect additional manifestations of the court's role in preserving and renewing the law: to define and protect legally approved interests, to define legal wrongs and provide for compensation, to assert legally approved moral principles, and to assert and support the legal order. These varied goals interact—and sometimes compete—with one another. They are also subject to what organization theorists term "goal displacement" or "goal drift," when the purpose of an organization changes under environmental stress. Goal displacement in courts can occur when the stress of heavy caseloads shifts concern from justice to production. Goal drift occurs with the pursuit of efficiency for efficiency's sake. It must never be forgotten that the liberty of the subject, and his rights, are sacrosanct. The goal is not efficiency; however, inefficiency can obstruct the larger goals of the courts. The central aspiration is efficiency consonant with the preservation of justice and such other goals as the court and the legal system may define. To summarize, the goals and objectives of the court system are several, and sometimes conflicting. But taken together, they may not be sacrificed or degraded on the altar of bureaucratic efficiency. THEORIES OF JURISPRUDENCE

There is another distinctive way of looking at the justice system; namely, to view it not in terms of system goals but in terms of legal theory, or jurisprudence. Jurisprudence asks about the definition and basis of law: What is the nature of law? What are its origins? On what grounds can individuals legitimately be asked to obey legal authorities? How can justice be achieved in a society based upon legal rules? Over the centuries, legal thinkers have developed a number of approaches to these questions. We will consider four major approaches or theories particularly relevant to the evolving role of the courts today.° The first is the natural law theory. Classical Greek natural law theorists perceived a divine element in the universe; what might today be described as an impersonal divinity. They associated natural law with the working out of that impersonal ultimate principle. Judeo-Christian natural law theorists linked the concept of natural law to the will of God, more usually perceived as a personal deity. A third modern school of natural law theorists dismisses the aspect of divine authority, but nevertheless per28

Thinking about Courts

ceives some set of transcendent legal principles. Secular natural law theory, presumably the product of a rationalist age, is the basis for the constitution of the United States and a growing number of international declarations of human rights. Differences notwithstanding, all adherents ground their doctrine on the proposition that there exists a higher law, a set of principles, which transcends the laws existing within a state at any single point in time. Existing laws and statutes may or may not approximate the central principles of this higher law. The common law was not based upon natural law theory. Rather its sources are, as previously indicated, Anglo-Saxon law, royal proclamations, instructions to early justices and commissioners, statutes, Norman feudal law, mechanical legal process involving the use of writs and "forms of action," and, later, judge-made law. Lawyers speak of "natural justice," but in a rather different sense, meaning it to be interchangeable with the concept of due process. A special set of "equitable" rules of law, which developed in the Court of Chancery to relieve some of the comon law's then rigidities, were however grounded on the principles of natural law. The emergence of these rules could be explained by the fact that the early chancellors were churchmen who, because of their ecclesiastical training, felt comfortable reasoning their way through to a legal conclusion based on an acceptable philosophical principle. The equitable stream of rules was merged into the common law stream in the nineteenth century. Positive law is a second theory of justice. Formulated by Jeremy Bentham and expounded by his jurisprudential follower John Austin, it rejects the notion of natural law (which Bentham described as "nonsense upon stilts"). Instead, legal positivists insist that the law is simply what the government of the day wills. The law is to be obeyed because it is the law. More recent theorists suggest that the early sharp distinction between law and morality is not uniformly helpful to legal reasoning. Positive law theory has nevertheless made a considerable contribution to the understanding of justice and of the need for reforms, through its critical analysis of existing laws and legal concepts in an increasingly complex and artificial society. It has been said that contemporary criminal law is positivistic, or coloured by positivism. Sociological jurisprudence is a third theory, but one difficult to summarize because each of its exponents—all relatively modern—place individual stress at different points. It regards law as being derived from the social realities of the day, ultimately depending not on state authority but on social compulsion. In the perception of this school, the true sources of the law are not statutes or judge-made law as found in the reported cases, but the activities of society itself; sociological forces gen29

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erate legal systems and determine their development. It favours factual research aimed at identifying the links between social events and laws, and discredits analytical theorizing. Starting from this position, it is a relatively simple logical exercise to reverse direction and conclude that social conditions can likewise be governed by new laws; in other words, social progress can be accelerated through the legislative process. This view of the law as a dynamic form of social control resulting in "social engineering" has suited the prevailing mood of the twentieth century, with its expressed faith in the law as an instrument serving the needs of human society. One of this school's leading exponents was the celebrated legal scholar Roscoe Pound, who, as mentioned earlier, championed legal reform with ideas far in advance of his time. A current reaction against expanding government intervention in the affairs of society and its economy suggests that this trend of thought may have reached its high water mark. A fourth and recent theory, legal realism, argues that the law is the sum total of what the courts do from day to day. For example, if prosecutors refuse to lay charges for possession of marijuana, then in reality such possession is not prohibited by operation of law. Legal realism examines the minutiae of the justice process, while scrutinizing, formalizing, and taking into account the biases of individual judges which are consciously or unconsciously rationalized or concealed. Law thus becomes a prediction about the behaviour of those who enforce and apply it. Legal realism can also provide a theoretical framework for evaluating the impact of court administration upon judicial decision making. A realistic view of the law would require an analysis not only of a judge's psychological predispositions, but also of the courtroom environment. How much are the judge's decisions affected by the personnel in the courtroom, or the pressure of heavy caseloads?7 How is the judicial process perceived-by those caught up in it?8 What is the impact of adjudication itself, if it comes after long delays, or without adequate enforcement machinery?9 Although the thrust of current literature stresses sociological jurisprudence and legal realism, we believe that there is room in a balanced view for the inclusion of all four concepts. Critics have argued that they are all based on manipulation of the individual, and that what is required is the emergence of a new theory, based upon non-manipulation. Some natural law theory has become highly authoritarian in its expression and function (heaven and hell). But ours is a permissive, not an authoritarian, age. The mood of the age will probably find expression in the emergence of revised natural law concepts, based upon consensus and free will rather than on authoritarianism, while stressing a positive rather than a negative principle (such as work service in the community, and compensation 30

Thinking about Courts to the victims rather than punishment to the offender). Indeed, a number of the reforms attempted by the British Columbia Justice Development Commission (see chapter 13) reflect this movement. MODELS OF ORGANIZATION Legal philosophy and legal history can suggest certain goals and processes that identify courts, and must be maintained and strengthened by judicial administration. Court administrators—those professionals whose task is not to adjudicate but to provide the management expertise necessary for effective adjudication—do not substitute their goals of efficiency and productivity for the traditional goal of justice. Instead, they use their expertise in the context of the judiciary's distinctive responsibilities, so that productivity and efficiency become means toward developing and maintaining a viable court system. In developing management expertise, court administrators, like other managers, can draw on the conceptions of modern organization theorists. Organization theory is one focus within the social sciences, and is based on a way of thinking common to the physical and social sciences. For example, organization theorists, like other scientists, often speak of models. A model may be physical (such as a model airplane or a planetarium). Or it may be abstract (a verbal description of a system, such as the Ptolemaic model of the solar system which regards the earth as its centre, or the Copernican model, with the sun as its centre). A still higher level of abstraction in designing models is seen in mathematical models of modern science (the Newtonian model of the universe, constructed on the basis of a few elegantly simple mathematical propositions; the relativity model of Einstein, likewise based on the elegantly simple formula, E = mc2; and the quantum models of the modern physicist). Each of these models rises in its turn, dominates its field for a time, then disintegrates under the pressures of the unanswered questions it fails to satisfy and is supplanted by yet another model. These great dominating models, such as those of Ptolemy, Copernicus, Newton, and Einstein in the physical sciences, have been called paradigms. A paradigm is a pattern that is more or less universally acknowledged and used as the basis for further speculative thought.10 Certain scientific disciplines are presently in a paradigmatic crisis, from which new and revolutionary paradigms may emerge to meet the needs of a new age. Similarly, it may be said that the justice system is in a paradigmatic crisis because the received values of prior generations and decades are no longer operative in the 1980s, with the result that all the components of the justice system, whether police, prosecutors, judges, litigants, probation officers, or whatever, have arrived at a state of poised uncertainty 31

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as to how to deal with the root causes, let alone the symptoms, of what they perceive to be social disintegration. Concepts of punishment as a deterrent gave way to concepts of rehabilitation, which in turn are now under critical attack. As we shall see, this phenomenon will continue to exercise a direct and perhaps revolutionary impact on justice organization models, and on the form and operation of courts in particular. Organizations have been viewed, like the physical universe, in certain characteristic ways. Some writers have used organic analogies, seeing the state in terms of the human body (as in Thomas Hobbes' Leviathan in the seventeenth century and Karl Deutsch's more recent Nerves of Government), or the legal system as a cellular growth (as in the beginning of this chapter). Many administrators, influenced by theories of bureaucracy, see organizations in architectural terms. Thus, the organization chart with its multi-layered pyramidal structure provides a physical model that allows the administrator to locate his position in relation to other officials. While this structural model often dominates our view of government departments, it is an inadequate paradigm; it is static rather than dynamic, and it focuses on internal relationships rather than relationships between organization and environment. For the first half of this century, production-oriented organizations replaced structural models with mechanical models that emphasized the flow of work, allowing theorists to conceptualize the production lines of modern industry. In the years since World War II, these mechanical models have gradually given way to systems models that draw on general systems theory (cybernetics) and the operation of computers. Systems models allow analysts to focus on how the flow of work affects and is affected by the world outside the organization (for instance, other organizations, the economy, the society). This systems approach has transfigured the entire field of organization theory, emerging as a new dominant paradigm. Let us therefore look more closely at organizations (including courts) as systems, so that we can apply the systems model or approach to the study and practice of court administration. THE COURT AS AN ORGANIZATIONAL SYSTEM

A system has been defined as "a set of objects together with relationships between the objects and between their attributes."11 The objects may be roles and offices or departments of the organization. The attributes are the properties of the official positions or departments which are tied together into a system by the relationships between them. A system never exists in a vacuum. It exists in an environment. Therefore in "a given system, the environment is the set of all objects, a change in whose attributes affect the system, and also those objects whose attri32

Thinking about Courts butes are changed by the behaviour of the system."'Z In other words, a system exists within an environment and there is continual interaction between the two, such that the environment affects the system and the system in turn affects the environment. All of the above will become quite clear when we consider courts. The court system is a set (a set is a mathematical term denoting an array or grouping) of offices and roles and departments; for example, a group of courts arrayed at different levels of jurisdiction or in different geographical areas. The behaviour of the court system, both judicial and administrative, is manifestly affected by the upheavals of the environment; for example, increases in crime will add to the courts' workloads while new federal or provincial statutes may increase the time necessary to process the existing cases. In turn, the court system affects its environment by using deterrent or rehabilitative edicts to change the behaviour of the people who pass through the system. We can study systems by observing the macrocosmic or universal behaviour of the system as a whole (as did Hegel, Marx, and Weber). Or on the other hand, we can study it by observing the detailed behaviour within and between the complex subsystems of the main system (as exemplified by Taylor, Sayles, and the human relations theorists). The boundaries which separate the subsystems or departments are called "interfaces" (a term borrowed from geology, indicating the plane separating two mineral formations where separation and slippage occurs) . It is at these interfaces between the subsystems that the many problems arise. Thus, in analysing courts, one might regard judges, prosecutors, defence counsel, police, probation officers, and sheriffs as subsystems of varying dominance within a larger justice system, separated not physically but by differences in norms and roles, lines of authority, and perhaps attitudes. Another example of an interface within the court system would be that separating two levels of trial courts. Thus, considerable delay (aside from the time required for preparation of transcripts) can develop in transferring a case involving a preliminary hearing in provincial court across the boundary into county or superior court for trial. It is this interface type of delay that leads to the argument in favour of a unified criminal court system to enable all tiers of criminal courts to operate within one facility, administered by one court administrative system—thus erasing the administrative interface and hence eliminating one cause of delay. From these examples, one may begin to discern the practical advantages of pausing in mid-flight to examine and reflect upon the broad general theories of complex organizations. Reflection leads to new ideas for reform. These ideas, in turn, lead to implementation of reforms, resulting, one hopes, in increased effectiveness and efficiency. 33

CHAPTER TWO SYSTEMS CONCEPTS BORROWED FROM THE PHYSICAL SCIENCES

Organization theory often borrows concepts and draws analogies from the general systems theory that developed out of the physical sciences. The reader may be familiar with the concept of entropy, the measure of the available energy in a thermodynamic system, measured in terms of its changes (that is, its availability for conversion into mechanical work). This concept has been applied to organization theory as a measure of the degree of disorder of a system. It may imply the tendency of every organization to disintegrate, either into individual compartments, as a result of subordinates competing for control of work areas, for instance, or through enforced task specialization. Alternatively, it may imply a tendency to disintegrate because of a buildup of inefficiency resulting from the absence of feedback mechanisms, in which case critical information necessary to top management in making adjustments and reforms does not reach them. One of the inherent and endless problems in an organization is the tendency for information to be filtered out as it moves up the echelons by inadequate articulation, motives of self-protection, or the sycophantic attitudes of subordinates. This results in the proliferation of activities which are unknown to management, and therefore uncontrolled. If left uncontrolled, inefficiency, dry rot, and ultimate decline inevitably ensue. A different type of compartmentalization is the natural result of growth, similar to cellular growth. This can of course be healthy and necessary. As an organization grows, one sees increasing division into subsystems and differentiation of functions. This is creative, evolutionary, and developmental. An opposite force is progressive systemization, a growth leading towards wholeness. This may be witnessed in the unification of courts, either with respect to the judicial or the administrative function. Unification is usually accompanied by attempts to standardize and mould the subsystems into a consistent and rational whole. Progressive segregation (compartmentalization) and systemization can occur simultaneously and may also be accompanied by increased centralization (analogous to a brain emerging as the controlling and unifying component of an organism) . Man-made systems are frequently copies of the many natural systems found in nature. Systems may be either open or closed, though they are usually open. For example, organic systems are open in that they exchange food, energy, and communication with the environment. Closed systems, on the other hand, neither export nor import energies, materials, or signals. The court system is a highly open one, and is therefore sensitive and responsive to impacts from the surrounding social environment.'. Some systems are more adaptable than others; that is, they possess the 34

Thinking about Courts capacity to react to their environment in a way that ensures their survival. The entire theory of evolution is of course based largely on the concept of adaptation. Sometimes systems become so involved in mere survival that their original goal or purpose is forgotten. If a system so loses its sense of purpose that it ceases to exercise any useful function, it is doomed. This may apply both to natural and man-made systems. In chapter 1 we referred to "symbolic courts" which are caught in a high volume of relatively minor criminal or quasi-criminal matters. The tendency is to lose sight of any substantial goal because of the unending pressure to cope with the volume of cases—with the result that proceedings become perfunctory, ritualistic, assembly-line, unthinking, and, ultimately, without social significance, either in terms of deterrence, rehabilitation, social discipline, or any court-oriented goal. Sooner or later such a court must be transformed, overhauled, and replaced, because its original function has been lost in the fight for survival. Every system is subject to internal and external variables, but if these stay within certain defined limits, the system remains stable. A refinement of this concept is that stability may be preserved through a dynamic tension involving constant readjustments in order to adapt to the external environment and to undulating internal forces. In other words, stability is preserved through the process of constant change. One of the built-in mechanisms of both natural and artificial systems that has been a central analytical focus of the last two decades is the feedback or "loop" mechanism, whereby a portion of the output or behaviour is fed back to the input aperture at the front end of the system, which new input further alters succeeding outputs. The Maxim machine gun, which revolutionized the classical mass attack theory of warfare evolved by Napoleon, involved the feedback principle whereby the next round was forced into the breech by the energy created by the explosion of the previous round in the chamber. Feedback loop theory was developed to a high state by the mathematical child prodigy Norbert Wiener, under the term cybernetics. The cybernetic concept was adapted to engineering problems and subsequently transposed to the field of neurology, which enabled neurologists to recognize the existence of feedback mechanisms in the human brain. Physiologists then adapted the concept to the human body, which possesses some thirty such feedback loops. These mechanisms bear a close relationship to computer technology; it is now recognized, for example, that the human eye would observe any moving object as a mere blur if it did not operate according to computer principles, embracing specific mathematical rules to enable it to project a series of static images to the brain rather than a blur. These examples, although superficially irrelevant, serve once again to illustrate that general systems theory studies, when transposed from one field of human knowl35

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edge to another, provide a sharp and penetrating heuristic (learning) tool to enable us to understand the system in which we are working. One of the problems facing the courts has been the absence of built-in feedback mechanisms to provide the court system with the necessary information to allow it to make adjustments on both the judicial and administrative levels in the fact of a constantly changing set of variables, both internal and external. Succeeding chapters will describe ways in which administrative feedback mechanisms may be developed. For example, chapter 9 will discuss how data can be captured and fed into the court record system, retained in its "memory" either in the form of ordinary files, microfiche, or computer files), and then retrieved in both individual case form and batch form, and fed back to the judiciary and the administration, thus enabling the system to react more quickly to changing conditions and to operate at a higher level of internal efficiency. The obvious correspondence between man-made and natural systems found in physics and biology has encouraged the application of mathematical analysis to organization theory with varying results. Attempts have been made to apply such esoterica as queuing theory and Poisson distributions to trial scheduling problems, thus far with scant success. Similarly, justice system simulation models have been developed, opening the way to attempts to reproduce, with computer assistance, trial court systems, using specified and defined statistical variables.14 By altering these variables, one is able to observe the spin-off effects through the rest of the system. If one increases one variable (for example, the number of police on the beat) to various predetermined levels, the computer will then calculate and feed back the impact of these policing increases in terms of increased arrests, prosecutions, adjournments, judicial and administrative manpower needs, and probation caseloads. These increases in turn will feed back to create augmented police manpower demands. Such exercises are stimulating and replete with promise for the future of analytical research, but there are those who question the practicality of any attempt to reduce an organization so complex as the court system to a worthwhile simulation model. Court systems are so intricate, and contain so many human and psychological variables, that the full complex of interrelating variables is not readily captured by this analytical technique. The day will never arrive when we can operate courts without reliance on intuitive guesswork, seasoned judgment, reflection, and improvisation. It is a matter of striking the proper balance. In the past there has been too much reliance on the latter and insufficient trust in systems analysis. We should not bend too far in the opposite direction in redressing this balance, but systems analysis does help us in the thinking pro36

Thinking about Courts cess, and no doubt valuable research will continue, using mathematical models of the justice system. In summary, we can usefully examine courts as a system, or as a subsystem of a more inclusive field of justice. The operation of the court system is affected by its physical and organizational environment, and this is constantly changing, resulting in feedback which alters the volume and variety of inputs. The interdependence of courts and their environment, including the organizations which interface with the courts, must be recognized so that planning can occur and management can be made more effective. BUREAUCRACY AND THE ORGANIZATION OF ROUTINE TASKS

Tasks to be performed by systems may be recurring or non-recurring, routine or non-routine. Less discretion is demanded for routine work than for non-routine, non-recurring jobs. Tasks requiring little discretion can be routinized, or bureaucratized; that is, a highly specific set of rules and procedures can be evolved to spell out how decisions are to be made. This explicit set of rules and procedures is designed to assure consistency in decision-making among different employees engaged in the same work. Complex organizations, such as courts, may be highly bureaucratized, or their degree of bureaucratization may be quite low. Court systems have a mix of bureaucratic and non-bureaucratic characteristics. Adjudication is usually an activity in which discretion is high, although legislators and appellate courts often attempt to limit the discretion of trial judges. Routine tasks are common in trial court adjudication, but there is a reluctance to develop written rules and procedures; as a result, although individual judges can be predictable in their behaviour, there can be great variation in the way they deal with the same matters. Court administration involves many activities that should be bureaucratized—made subject to specific written rules and procedures —but often are not. As court management develops, many support activities essential for adjudication may be increasingly bureaucratized. Therefore, it may be useful to consider the theory underlying this particular view of organizations. Modern writing on organizations began with the eminent German sociologist Max Weber in the early decades of this century.15 It was he who described the origins and structure of modern bureaucracy, which he regarded as being based on legal-rational principles of authority. The term "bureaucracy" is usually used today in the pejorative sense. We talk of bureaucratic red tape, the narrow bureaucratic mind, and so forth. Weber did not so regard bureaucracy. Indeed he regarded it as an indispensable organizational model without which modern civilization 37

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could not have reached its present level of sophistication, or, having reached it, preserved it. More than that, the bureaucratic form of organization has been adopted by modern business and industry as the vehicle for the pursuit of their goals. The mercantile world inveighs against bureaucracy, while occupying its body as a vehicle to move forward toward the profit goal. Emerging silently and almost unnoticed out of the inchoate society of the middle ages, bureaucracy slowly blossomed into the variegated forms seen today in government and industry. Many writers have catalogued what they observe as the principal hallmarks by which a bureaucracy may be recognized. Common to the variety of definitions are two characteristics. First, hierarchy; a bureaucratic organization stresses superiorsubordinate relationships, and arranges its offices or positions so that order-giving and reporting roles are clearly defined. Second, a set of written rules that attempt to spell out all possible behaviour of employees; a bureaucratic organization minimizes the discretion of its members. Other characteristics of bureaucracies may be derived from comparison with organizations in different settings, eras, and cultures— clans, religious orders, family businesses, social clubs. Thus, many authors cite impersonality, large size, or membership defined by employment, as characteristics of bureaucracy. One typical inventory is listed by Charles Perrow in Complex Organizations.18 The features he identifies are as follows: 1. Equal treatment for all employees. 2. A reliance on expertise, skills, and experience relevant to the position. 3. No extra organizational prerogatives of the position; that is, the position is seen to belong to the organization, not to the person. The employee may not use it for his personal ends. 4. Th8 introduction of specific standards of work and output. 5. The keeping of complete records and files dealing with the work and output. 6. The setting up and enforcing of rules and regulations that serve the interests of the organization. 7. A recognition that rules and regulations are binding on managers as well as upon employees; thus employees can hold management to the terms of the employment contract. Bureaucracy strives to achieve these principles. But being composed of human beings, it inevitably falls short of the ideal; first, because the employees who operate the organization are in varying degrees limited in intelligence and motivation; second, because bureaucracy tends to depress initiative and a sense of self-realization in its employees (even 38

Thinking about Courts if not to the extent that is caricatured); and finally—and this is perhaps its cardinal weakness in a dynamic and fluid generation—it is ponderous, rigid, inflexible, and unresponsive to rapid change. This phrase "rapid change" should be particularly noted, for the unprecedented velocity of change is forcing society to evolve new approaches to, and forms of, organization in order to invest bureaucracies with the adaptability essential to their survival. A final and recurrent criticism of bureaucracy is that in both the private and the public sector it permits the growth of giant powers which, operating in largely unseen ways, exercise surveillance and control over the insect-like citizen. The wedding of the bureaucracy to the computer during the 1970s created a threat of a new dimension so enlarged as to become almost a difference, not of degree, but of kind. Although largely unarticulated, this threat has been recognized by the operators of bureaucratic organizations, as well as by legislators. With all its vices and risks, bureaucracy is here to stay. It does attempt to establish equitable treatment for all employees. It does build specific skills to a high level of sophistication. It does exercise controls over manipulation for personal gain. It does strive to set up specific standards of performance and output. It does maintain records, and thus continuity, bridging the past and the future. It does formulate and pursue what are thought to be acceptable goals for the preservation and development of the state and the economy. In short, it constitutes the brick and mortar —or perhaps the steel and concrete skeleton—of the edifice of modern society. The job of the administrator is to construct and reconstruct bureaucratic organizations so that the efficient arrangements of tasks is not undermined by the impersonal and even inhumane character of bureaucracies and production lines. Those who have discussed the pathologies of bureaucratic organization" have observed the lack of initiative of employees and the tendency for rules to persist when they no longer serve their original purposes. Modern managers have found that when these pathologies are recognized, routines can be altered and rules changed without jeopardizing uniform standards of enforcement and efficient operation. For example, both industrial and governmental departments (including courts) have adopted principles of team management, where assembly line workers or clerical staff work together in small groups of three to five members on a specific product (or a specific set of court cases) so that they can see the results and importance of their work.1e In the past, administrators used the bureaucratic form of organization to mould both tasks and people. Modern administration has recognized that, although jobs can be designed, people cannot and should not be; furthermore, it is possible to design tasks so that they can be carried out 39

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in predictable and workable patterns by people who are still able to maintain their individuality and their interest. CAN COURTS SURVIVE THE DEMANDS OF COMPLEX ORGANIZATIONS? Our discussion of two major approaches to the study of organizations— systems theory and the concept of bureaucracy—has been relevant to the courts and judicial administration at many points. These and other approaches in organization theory can provide new and penetrating perspectives, and quicken and refine our judgment so that we are better able to recognize the significance of day-to-day emergencies which arise in the course of managing a complex organization such as the court, and to make right and rightly timed decisions. However, are either systems models or bureaucratic principles compatible with the distinctive needs and goals of adjudication? Can judges be placed within a bureaucratic framework, and judging be viewed as an open system replete with interfaces and feedbacks? The answer to the second question is yes. Application of organization theory to courts is more than an intellectual exercise; it reflects the reality and needs of contemporary courts. Courts are open systems: they are linked to other organizations; their input depends on outsiders (police, creditors, accident victims); and their output affects outsiders (correctional staff, insurance companies). A court that approximated a closed system would be in the final stages of decay and disintegration—few people would use its services, its orders would be ignored, its opinions would be unpublished and unread. Furthermore, courts rely on a bureaucratic apparatus for performing many essential (albeit routine) tasks that support adjudication. As these tasks increase in volume, they cannot be attended to on an informal or ad hoc basis and still be completed expeditiously. Staff must increase and procedural patterns must be established. The question is not whether these bureaucratic elements are desirable or relevant, but whether they operate in response to court needs or not, whether they are directed by the courts or not, and whether they will complement rather than conflict with the traditional and distinctive goals of courts. Thus the answer to our first question—are bureaucratic organizational approaches and a systems approach compatible with the distinctive needs and goals of adjudication?—is neither yes nor no. The answer depends upon how a systems approach is implemented, and how necessary bureaucratic characteristics are balanced against the non-bureaucratic traits of the judging process. Max Weber's writing on authority can help clarify the differences between courts and other complex organizations that are more highly bureaucratic. Any discussion of authority begins with the question: why 40

Thinking about Courts should people obey? Weber argued that obedience can be justified or based on three grounds: (1) Tradition. One obeys a certain authority because people always have done so. Thus the head of a family, or a council of elders, or an hereditary ruler is obeyed by reason of uncodified tradition. (2) Law. One obeys a certain authority because that authority is acting pursuant to law. Weber calls this legal-rational authority, and it is from this authority that bureaucracy derives. A bureaucrat is not obeyed out of respect for the official as a person, but out of respect for the office; a bureaucrat's authority is impersonal. Clearly written rules are important to bureaucracy because they assure the public that the official is deriving his authority from law and therefore not overstepping legal bounds. (3) Charisma. One obeys a certain authority because of the force of his personality—literally, because of his spiritual "grace" or proximity to the divine. Weber used the concept of charismatic authority to explain the power of religious leaders.'9 The authority of courts and judges is based upon a combination of legal-rational and traditional grounds. If judicial authority derived solely from law, then judges would be expected to behave like bureaucrats. It would be more rational to limit their discretion, and spell out with maximum precision what their decisions should be. But judicial authority is also derived from tradition, and as a result adjudication is governed by non-bureaucratic principles. Discretion is maintained so that legal rules can legitimately be tempered with justice and mercy. Collegiality, rather than hierarchy, is emphasized. Traditional symbolism—the robe, the raised bench, the ceremony—is used to reinforce the notion that the roots of judicial authority go deeper than the last election, or even the constitution, to a basic sense that legal authority should not be exercised by governments or private citizens against any person without that person having his day in court, a chance to present his side before an impartial arbiter. That notion transcends countries and regimes; it also transcends legal-rational (bureaucratic) authority alone. Even if judges are inefficient and irrational by bureaucratic criteria (if, for example, they deliberate rather than use a rule book), they retain their authority because of our traditional ideas of what a just society should be. At the same time, however, their authority is grounded in the positive law—in statutes and precedents—and in their official position. The job of the court administrator in applying management principles to the court system is therefore to reinforce both the traditional and legalrational authority of the judiciary. A management philosophy in the courts should do just that. If the legitimacy of the judiciary derives from the public's belief that a person deserves a day in court, a system so inefficient that it makes people wait months and years for their day to arrive cannot continue to claim legitimacy. Fortunately, current developments in organization theory emphasize 41

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principles of management relevant to complex non-bureaucratic organizations, such as courts. John D. Millett has written about the administration of universities as the need to preserve the role and values of various "communities" within the university (faculty, students, alumni) without establishing a hierarchical relationship among them, or forcing conformity to rigid rules.20 Victor Thompson, Leonard Sayles, and James Webb have written about the administration of organizations with large numbers of scientists whose work cannot be forced into a bureaucratic mould.2' What courts have in common with scientific research organizations, universities, and hospitals is that each is dominated by a corps of professionals whose training and values are initially acquired outside the organization. Professionals cannot work effectively in highly bureaucratic organizations. The systems model provides clues for the operation of highly professionalized organizations such as hospitals, universities, and courts. The court administrator does not give orders or make rules for the judges, but works at the interface between the bureaucratic and non-bureaucratic subsystems of the courts, working with the judges to spell out administrative procedures, and with court staff to implement them. Procedures are not followed for their own sake, but to support system goals. Data gathering, monitoring, and planning are thought of in terms of an inputthroughput-output view of courts, generating information that can provide a basis for the development of administrative policy by administrators and judges. This chapter has suggested some ways in which organization theory can be used to reinforce and strengthen the judiciary's performance of its traditional and distinctive responsibilities, while ensuring that judges preserve their traditional role, despite the need for larger and more efficient bureaucratic machinery to meet increased volume. There is no guarantee that administrators will use their knowledge of management in this way. But those who do will have provided essential support for the judicial function, and retarded the forces of entropy at work today. With this background, we can proceed to examine the particular context of the Canadian courts. Under what constitutional and organizational principles do they operate? Are the present models of judicial administration—and particularly the allocation of responsibilities between judiciary and executive—the best way to assure that court administrators serve the distinctive needs of adjudication? By what principles can the existing divisions of jurisdiction among the courts be defined? Chapters 3 and 4 will consider these questions. Chapter 5 will then define the role of the court administrator in non-bureaucratic terms—as a link, not a boss. Only then will we proceed, in Part II, to a discussion of the technology of judicial administration. 42

Chapter Three The Constitutional Setting for Judicial Administration The sources of administrative power within the courts of each of the provinces of Canada flow from sections 91 and 92 of the British North America Act of 1867, and are remarkable in their practical implications in that they appear at first glance to threaten if not breach the principle of independence of the judiciary, a principle regarded as the very foundation and underpinning of the British system of justice, with its insistence on the rule of law. THE RULE OF LAW AND JUDICIAL INDEPENDENCE

The doctrine of the rule of law is one of the two great gifts of England to modern political practice, the other being the institution of parliamentary government. These primal endowments are reflected in the politicallegal structures, evolved by many self-governing countries, that divide government into three separate and distinctive branches, namely: (a) the legislative branch (parliament, which creates laws); (b) the executive branch (the cabinet with its ministries, which administers laws through the machinery of a civil service bucreaucracy); (c) the judiciary (the courts of law, which apply and interpret laws in private disputes or disputes between government and the people). These three branches are popularly regarded as separate and distinct in Canada as well. A careful reading of constitutional theory, however, does not support this perception. British and Canadian constitutional theory does not draw the sharp lines between branches that are seen in American theory. In Canada and England, for example, members of cabinet (the executive branch) are drawn from sitting members of parlia43

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ment (the legislative branch). As well, British and Canadian constitutional structures have never developed a judiciary as a third branch of government independent of parliament, save for security of tenure and salary. Nevertheless, in a pragmatic sense the three powers are seen as standing in positions of mutual equipoise, each with its sacrosanct preserve. Thus, the legislature enacts laws which the executive administers. It is, however, the solemn and sacred function of the courts to ensure that such laws are administered in a fair and equitable manner toward all citizens. In safeguarding individual rights the law stands supreme, above the partisan will or whim of the executive branch of government. Law, as interpreted and enforced by the courts, rules over the individual dictates of governmental officials, however powerful. The acts of the executive branch are subject to legal safeguards, which are preserved and enforced by the courts. Our courts likewise may nullify parliamentary or legislative enactments which are ultra vires the British North America Act (which serves as the Canadian constitution). It therefore follows that the courts, not the ruling government of the day, or in a qualified sense even parliament or the legislature, stand as the ultimate arbiters of existing law. In other words, we have a "rule of law' rather than a rule by an individual or individuals possessing arbitrary powers. Development of the parliamentary system of government should not be confused with emergence of the concept of liberty. The concept of the "rule of law," as developed by Anglo-Saxon courts, ensured individual liberties only insofar as they were granted by parliament. The British parliamentary system in its inception did not confer political liberty on the average citizen, but was used as a device to retain political power in the hands of a small oligarchy. Only through the gradual widening of enfranchisement down to the twentieth century did the British parliamentary system grant full political liberty to its subjects, including women. We owe the concept of political liberty for all subjects to the French nation, which embodied the concept in its revolutionary slogan "liberty, equality, fraternity." Although Napoleon is seen as a monstrous titan of blood, war, and personal aggrandizement, it may equally be argued that he was one of the great benefactors of the western world in that it was his historic mission, however unintended, to consolidate and fix in the mind of the western world this concept of universal liberty and equality. The American colonies' preoccupation with resistance to the British government left its legacy in a heightened emphasis on the independence of the judiciary as the bastion and fortress of the individual citizen's liberties. This heightened emphasis is reflected in the constitution of the United States; in the Federalist Papers, a collection of political essays by 44

The Constitutional Setting for Judicial Administration Alexander Hamilton, James Madison, and John Jay, which hammered out the basic philosophical concepts underlying that constitution;' and in the adoption of a bill of rights with constitutional status. Thus, the American constitution establishes the ideal of judicial independence in even more forceful terms than is seen in British constitutional theory. It draws sharper lines between branches, providing a firmer basis for the judiciary's status as an independent third branch, rather than merely a collection of independent adjudicators. Furthermore, it links the existence of an independent third branch to both the rule of law and the preservation of basic liberties. American constitutional theory is also reflected in a unique nineteenthcentury American legal invention, the "inherent powers" doctrine, which vests in the courts an inherent right to direct and control their own administration. This doctrine has generated a fascinating line of judicial decisions establishing the ancillary doctrine of judicial necessity, which asserts that the duty imposed upon the courts by federal and state constitutions to dispense justice, imposes a responsibility on municipal, county, and state governments to supply the courts with the necessary funds and equipment to carry out their constitutional mandate, thereby conferring on the courts the inherent right in law to "necessities" which are deemed essential to their proper functioning. The forms of action adopted to enforce the courts' inherent right to necessities vary, and include mandamus (a writ issued by a court compelling some person or body to perform a public duty), declaratory judgment combined with a mandamus action, ex parte order (a court order made in the absence of an interested party) enforced by contempt proceedings, action for debt brought by a court clerk or by a third party who seeks to collect for goods and services rendered the courts, sheriff's suit for refusal to reimburse for services supplied the court, injunction against a board's interference with the operations of the court, and sheriff's order to evict for needed space.2 Among common law systems, the doctrines of judicial independence and inherent administrative powers appear to have reached their highest point of development in the American legal culture. Thus, there persists in the United States the historically developed and accepted view that loss of internal administrative control spells for the courts both loss of inherent integrity, and jeopardy to the rule of law.a British and Canadian constitution theory stops short of actually defining the judiciary as a third branch of government (although many judges assume it has been so defined). Consequently, the American doctrine of inherent powers has no counterpart in Canadian case law. Indeed, Canadian constitutional development has pursued a diametrically opposite course by vesting the administration of the courts in the executive branch of government. In so doing, it borrowed from and applied 45

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wholesale a more tightly circumscribed English tradition, developed with characteristic pragmatism and indifference to rigid logic, which allowed the executive branch of government to administer its magistrate's courts. This is not to imply that the doctrine of judicial independence is less vibrant or alive in Canada,4 but that it has been defined with a different emphasis. "The principle of judicial independence," in the words of Chief Justice Bora Laskin, secures "the individual responsibility of each judge ... as against subservience to any fellow judge and as against external interference by others."5 The emphasis is on the independence of adjudicatory rather than judicial administrative functions, and the link between the two has not been clearly articulated or understood. The principle of independence was brought from England: the Act of Settlement of 1701 provided that judges' commissions be made quamdiu se bene gesserint (for life, during good behaviour) and established their salaries; but stated that, upon address to both houses of parliament, it may be lawful to remove them. These are pregnant words, and attest to the deprivation of office (and even banishment) of a line of noble lawyers and judges who risked all in their defiance of a despotic royalty, in order that judges be placed in a position manifestly removed from extra-legal pressures of a political or other nature in the dispensing of justice; save only this, that they might be removed for conduct calculated to bring discredit or dishonour upon the judicial offices to which they had been appointed. Further, it opened the door to the establishment of judges' permanent remuneration by parliament, to remove them from the threat of loss of livelihood by a despotic government of the day. Thus, they were left free to dispense justice according to law and conscience, subject only to impeachment by both houses of parliament for lapse of "good behaviour."ß The Act of Settlement of 1701 remains the secure foundation of the rule of laW and the independence of the judiciary. The vigour of its tradition has not diminished with time, but in fact has been expanded. The paradox before us is the vigour of judicial independence under the Canadian system, despite control of court administration by the executive branch of government, with which branch the judiciary from time to time finds itself in conflict in upholding the rule of law. Thus, after setting forth the relevant constitutional provisions, we will need to explain this paradox, and examine the prospects for future growth of the independence concept. THE BRITISH NORTH AMERICA ACT

For our purposes, the BNA Act's court provisions deal with two sets of issues: first, the distribution of legislative power over court administration and procedure; and second, the provision for judicial appointment 46

The Constitutional Setting for Judicial Administration and tenure. The distribution of powers provisions of the 1867 Act increased the likelihood that the English model with respect to magistrate's courts would be followed in the new provinces which were to become the Dominion of Canada. By virtue of section 129, the courts of the existing provinces were to be perpetuated. Section 92(14), however, reads as follows: 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. Thus section 92 (14) grants to the provinces exclusive legislative power over the administration of justice in the provinces. In that subsection, the term "Provincial Courts" means all courts sitting in the provinces, including those known as Courts of Appeal, Superior Courts, Supreme Courts, or Courts of Queen's Bench, and County or District Courts, all of which are presided over by federally appointed judges. It also includes those known as Provincial Courts or Magistrate's Courts, which are presided over by provincially appointed judges or magistrates (almost all Magistrate's Courts have been replaced by Provincial Courts) . Because of this ambiguity, we will normally use the term "provincial courts" only in its narrow sense: to refer to courts staffed by provincially appointed judges. The reader should bear in mind, however, that courts staffed by federally appointed judges are also organized and maintained by the provinces.' One notable and conflicting section (91 [27]) confers on the federal government substantive and procedural powers in the area of criminal law as follows: 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 47

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27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Cases. The granting to Ottawa of procedural jurisdiction in criminal cases has far-reaching administrative and organizational consequences, as will be observed in due course. Sections 96-101 focus specifically on the judiciary. Section 96 provides for federal government appointment of superior, district, and county court judges to sit in the provincially administered and organized courts authorized in 92 (14) . Sections 97 and 98 set out their qualifications. Section 99 provides for tenure during good behaviour for superior court (but not county and district court) judges. Section 100 provides for federal government payment of judicial salaries, and 101 establishes general authority for federal initiatives in court organization. To quote the relevant sections: 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99. The Judges of the Superior Courts shall hold office during good Behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons. 100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick) and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time, provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. The act makes no reference to courts presided over by magistrates (now entitled provincial courts in most provinces) or justices of the peace. 48

The Constitutional Setting for Judicial Administration These are created, administered, and staffed entirely by the provinces, and are governed by standards of appointment and tenure determined by each province. From an administrative point of view, the dominant sections of the BNA Act are 91(27) and 92(14), which confer on the provinces administrative powers over all courts which sit within the provinces save in matters relating to procedure in criminal cases (and excluding purely federal courts created under section 101). The provincial legislatures have not delegated these administrative powers to the courts, but to the executive arm of government. For example, section 3(c) of the Attorney General Act of British Columbia states that the attorney general "shall superintend all matters connected with the administration of justice in the Province not within the jurisdiction of the Government of Canada." Beyond this point, however, administrative powers within the various provinces remain ambiguous and ill defined. In each province they are described differently, if at all, for magistrate's and provincial courts than for county or district courts, and the latter are described differently than for superior courts. Indeed, the spelling out of powers is so inchoate, partial, and inadequate as to no longer serve the demands placed upon the court administrative function in the twentieth century. The reasons are of course historic. The Ontario Law Reform Commission reflected the Ontario scene in stating "the lack of definition of administrative responsibility appears to be the result of the evolutionary nature of the present court administrative structure and a failure to attempt to define responsibility for the various aspects of a system as unique as the courts of justice.... If we are to have maximum efficiency in the administration of justice, an earnest attempt must be made to find satisfactory solutions to the relevant problems."8 This accurately reflects the situation in all ten provinces. PROBLEMS OF EXECUTIVE-CENTRED COURT ADMINISTRATION

The greatest fear of the judiciary and of court reformers is that executive control of court administration would militate against judicial independence. Until quite recently, for example, many provincially appointed magistrates carried a status not unlike that of a provincial public servant. Early in the century, it was not uncommon for judicial authority in the west to be exercised by a commanding officer of the Mounted Police, who would handle preliminary criminal proceedings against defendants brought to "court" by his subordinate officers.° While the tenure of superior court justices is given constitutional status in section 96 of the BNA Act, the guarantee of tenure during good behaviour for county and 49

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district court judges, and for provincial court judges and magistrates, lacks explicit constitutional provision. In this context, executive control of court administration can take on implications that stretch beyond the provision of support services. The picture recounted by one observer, of a deputy attorney general speaking before a provincial judges' association meeting, stands out. The deputy stated the government's position on law enforcement, including stiffer sentencing of criminals—then explained what the department was doing to obtain pay raises and improved conditions for the province's criminal court judges. It is not here suggested that a tacit message was being conveyed, or if conveyed, accepted. But such improprieties illustrate the delicacy required to preserve judicial independence from even the appearance of executive intrusion. If any trend is visible in recent years, it is toward the gradual strengthening of the independence of judges in adjudicating matters before them. Constitutional conventions now assure that county and district court judges as well as provincial court judges serve "good behaviour.'" Furthermore, the gradual replacement of lay magistrates by legally trained provincial court judges has removed another potential source of concern. As court administration grows more complex, however, new issues can arise that rekindle the judiciary's fear of executive control. As courts increase in size, the authority to decide which judge is to hear a given case becomes more important. If an official responsible to the executive held that authority—and there have been such instances—he could effectively shift cases to a court or a judge more sympathetic to the government's, or a litigant's, or a counsel's, position. Individual judges would not be subject to interference of any kind, but the court calendar could be manipulated consciously or unconsciously to produce a desired result. We are not here prepared to introduce direct evidence of any such practices, but can point to the real concern of judges that the potential for abuse exists if administrative controls increase. The Ontario Department of the Attorney General has conceded that a major reason for its difficulties in implementing the Central West Region pilot project was judicial resistance to innovations in casefiow management that, whatever their intent, were viewed as threatening by the judges." A formidable argument favouring executive control is based on timing, and runs as follows. In the present era of needed reform, executive power offers one supreme advantage: it provides an opportunity for each province to unify court administration, and thus effect standardization of forms, procedures, and administrative techniques on the largest possible scale. The attorney general's department of each province possesses the power, should it choose to exercise it, of effecting vast reforms in the 50

The Constitutional Setting for Judicial Administration shortest possible time through legislation that would create a central administration. Without this legislative and executive action, reforms and standardization would fall before a conflicting melange of municipal, county, and provincial authorities. The courts are divided by the very terms of their structure. They lack the unity to impose administrative uniformity, even when it becomes necessary to improve the quality and accessibility of justice. Only the central authority is capable of stimulating, developing, and implementing reform. In practice, however, this latter potential has too often been unrealized. The best explanation for this failure is neither in the intransigence of the bench nor in the indifference of executive policy-makers. In fact, there may be quite opposite reasons. Regard for the independence of the judiciary has tended to make judges hesitant to participate in executive department reform efforts, and executive departments wary of intervening in judicial administrative affairs. A mutual reluctance to tread in the noman's-land between the ill-defined boundaries separating executive and judicial authority12 has retarded initiative, reform, and modernization of court administration. When courts were dispersed and coordination rare, the power of a central headquarters office was seldom felt; province-wide chief judges and administrators either did not exist or exercised no real control. Judges generally accepted the staff and facilities provided by the province; they might have grumbled about the poor quality of the clerical staff, the lack of agility of the courtroom attendants, or the condition of the facilities, but felt that these were largely uncontrollable. In turn, department headquarters would generally leave decisions related to personnel and administrative practices to the local courts. In the 1970s, however, Canada entered a new era. Heavy demands on the court system precipitated the development of the professional court administrator. The emergence of this new professional brought into sharp relief the cleavage between the judiciary and the executive (initially discussed in chapter 1), forcing an examination of the latent but fundamental schism that has slumbered unnoticed in the BNA Act for over 100 years. It is not improved administrative procedures that create unease within the ranks of the judiciary; rather, it is the perceived threat of executive intrusion, as disguised in the garb of the court administrator. This judicial disquiet is as yet partial and ill defined, but it is not entirely absent. Not unnaturally, it adds to the problems of both judges and administrators. Because court administration lacks any authority in the core area of caseflow management, it remains like Richard III Deform'd, unfinish'd, sent before my time Into this breathing world, scarce half made up.13 51

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All its labours lead to, but stop at, the door of trial coordination, and here it faces another master, understandably jealous of its preserve. Here all ends in stalemate, questioning of motives, and the touchstone of administrative failure—divided authority. The fault lies neither with administration nor with the judiciary. The origin of this nonplus, to restate the issue, lies in the division of responsibility historically seeded by the conferring of administrative authority to the provinces under section 92(14) of the BNA Act and brought to,fruition through the delegation of that authority by each and every provincial legislature to the executive branch of government, rather than to the courts. Thus, the fuller possibilities and larger movement of court administration remain unfulfilled. THE SEARCH FOR ALTERNATE SOLUTIONS TO THE DIVISION OF AUTHORITY

Are more fundamental solutions to be sought? The American concept avoids the Canadian anomaly, but only at the cost of a clash between the judiciary and the executive branches of federal, state, county, and municipal governments over money supply. When it comes to the budget, the judiciary finds itself invading the political and legislative process, sometimes in a manner so direct as to be repugnant to judicial temperament and status. Given the full development of court administration in Canada, the complex and sometimes acrimonious process of bargaining for funds can at least be carried out by the court administrator on behalf of the judiciary. The court administrative machine must be fully structured to perform this role; otherwise the judiciary will be left with the unpalatable task of soliciting for budgetary funds. Is a solution to be found in the English model? We stated previously that the delegation of court administration to the executive branch reflects a partial English tradition— but it does not reflect the greater part. With its genius for compromise, England merged both executive and judicial branches in the office of the lord chancellor, who is at once the presiding chief judge of England and a cabinet minister as well. Put bluntly, he is both judge and politician. The centuries-old development of this office is at once an affront to traditional dogma, which isolates judges from politics, and a tribute to adroit improvisation elevated to the heights of pragmatism. The point is, it works, and appears to work very well, for in addition to being the supreme head of the judiciary and its representative in the cabinet, the lord chancellor is the chief administrator of all the courts as well, save for magistrate's courts, which are administered by the home secretary. Thus all conflicting principles are harmonized in a pragmatic compromise. Could or should this principle be adopted in Canada? Should each 52

The Constitutional Setting for Judicial Administration province appoint a judge as provincial lord chancellor, with whatever title, to represent the courts in the deliberations of cabinet, and to act as the chief court administrator as well? Canadian constitutional concepts and traditions weigh heavily against this development because of an accepted and unquestioned bias against the involvement of judges in politics. On the other hand, if a seat in the cabinet is eliminated, there would appear to be no impediment to delegating purely administrative powers to a federally appointed judge. In his constitutional law casebook Supreme Court of Canada Chief Justice Bora Laskin asserted: "It has already been noted that the interdictment of delegation between Dominion and province touched only legislative power; and permitted resort to delegation of executive and administrative power by Parliament or a provincial Legislature to agencies of the other, has provided a means for effective cooperation at that level, although resting in truth on political consensus."14 If we read Chief Justice Laskin rightly, he appears to be asserting that it would ba constitutionally acceptable for provincial legislatures to delegate executive and administrative powers to an appointee of the federal government. Meanwhile, this newly emerging constitutional problem disturbs judges and inhibits court administrators. In the absence of some resolution of this tension, the existing concept of court administration can survive, but its work will remain stunted, without the fullness of success, and always falling short of its potential. MODELS OF COURT ADMINISTRATION The major constitutional issue in court administration is, therefore, the role and authority of the judges themselves. Does it follow from the principle of judicial independence that judges must have authority over administrative matters incidental to the proper administration of justice?'5 Or do the principles of parliamentary supremacy and cabinet responsibility require that administrative matters be the domain of a minister of the crown who is answerable in the legislature? Indeed, are principles of parliamentary government and the independence of the judiciary compatible with one another? We will here outline a number of models of or approaches to court administration. They fall into two broad categories: executive-centred systems of courts administration and judge-controlled systems of administration. The models vary in the degree to which the executive or the judiciary exercises control. Executive-centred systems have dominated court administrative practice throughout Canadian history. Until the mid 1970s, the provision of administrative services and court personnel by an executive department 53

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responsible to parliament was unquestioned. Judges have largely been confined to the clearly defined role of adjudicators. Ironically, those systems featuring a low degree of judicial control have been justified in terms of the principle of an independent judiciary. By this logic, judicial independence is a characteristic of the process of adjudication. It allows judges to be free from pressures that might inhibit impartiality. If judges are given responsibility for or control over administration, their decisions might be based in part on administrative feasibility. However, if the executive is responsible for administration, judicial decisions can be made without regard to their consequences for court administration. The 1975 Quebec White Paper on justice states the argument in these words: Purely in terms of judicial organization, the judge discharges his duties by the act of judgment. However, in order to ensure the orderly exercise of this judicial function, judges need an administrative framework. It is the responsibility of the Department of Justice to provide them with the human and physical resources they require in order to carry out their duties. Judges are therefore not involved in administration, which is the responsibility of the executive side of government. This is one of the principal features of the independence of the judiciary. The judge is thus relieved of administrative burdens and is able to devote himself entirely to the role assigned to him.'° The philosophy behind executive-centred approaches to court administration contrasts with the philosophy of court administration articulated in the United States. There, judicial independence is a characteristic not only of the independent judge, but also of the judicial branch. The judge is not -regarded as independent unless he is part of an institution with authority over those human and physical resources incidental to (necessary for) performing judicial functions. Judges, therefore, should direct the work of court administrators. And while the judiciary should be subject to statutory and fiscal restrictions of federal, state, and local legislative bodies, it retains an inherent power (frequently exercised at the local level) to mandate by court order the expenditure of funds "reasonably necessary" for the operation of the courts. What explains the Canadian reliance on executive-centred administration, especially in light of a contrasting approach to court administration in the United States? One factor, noted at the beginning of this chapter, may be the constitutional differences between the two political systems. In Canada the parliamentary system joins the legislative and executive through the cabinet, requiring that lines of administrative responsibility run through cabinet ministers. In the United States the principle of sep54

The Constitutional Setting for Judicial Administration aration of powers carries with it the notion that the judiciary is part of a separate (third) branch of government that can appeal to the legislative branch for funds, without going through the executive.l 7 A further explanation may be drawn from the writings of James Bryce. Lord Bryce wrote a classic nineteenth century work on the government of the United States, The American Commonwealth. In 1921, thirty-two years after its publication, Bryce wrote an essay entitled Canada: An Actual Democracy.18 Writing of the Canadian judiciary and the Mounted Police, he drew an implicit contrast with the United States: Nothing has been more creditable to Canada than the maintenance of so high a standard of law and order over its vast territory. Here, as in Australia, the people are not jealous of executive authority, because Englishmen [sic] have been long accustomed to see it exercised under parliamentary supervision."Ø Thus, the parliamentary system, Bryce argued, engendered more trust in executive authority in Canada than in the United States. This trust would allow executive officials to administer courts even if Americans would argue doing so would compromise the judiciary's independence.2o A third explanation minimizes the importance of contrasting principles of constitutional government, and attributes Canadian-American differences to the stages of historical development in the two countries. In fact, forms of executive-centred court administration were the rule in the United States for most of its history. It was not until 1939 that administration of the federal courts was largely removed from the United States Department of Justice and placed in a newly created Administrative Office of the United States Courts, responsible to the Judicial Conference of the United States, a body of judges. While many state court systems have developed judicially controlled administrative offices, much of contemporary American court administration is the responsibility of county government officials who do not answer to the judiciary. Judge-controlled court administration is thus a product of relatively recent times, and its development can be attributed to the work of a small number of judges who seized the initiative over court administration during the 1920s, thirties and forties.21 Figure 1 arranges a number of possible models of court administration along a single continuum: on one end are the models with the highest degree of executive direction and lowest degree of judicial control; on the other are the models with the highest degree of judicial control and the lowest degree of executive direction. The list is not all-inclusive. The fertile imagination of governments and their policy makers is certain to generate further forms. What are shown here are those that have had analogies in the practice of Canadian provinces and other governments. 55

CHAPTER THREE FIGURE 1 MODELS OF COURT ADMINISTRATION

Administration fragmented among executive departments and/or local governments. Courts administered as part of the law enforcement responsibilities of the law-centred executive department (i.e., attorney general or minister of justice).

Administration by executive department(s) with regular judicial consultation. Most administrative responsibilities belong to the law-centred executive department, but specified responsibilities are designated for judges. Administration by a separate office or cabinet department with regular judicial consultation or limited judicial supervision. Administration is the responsibility of judges who direct an office or department that reports to parliament through the attorney general (the Ontario White Paper proposal). Administration by a separate cabinet department headed by a judge (the lord chancellor model). Administration is the responsibility of judges who direct an office or department responsible to the legislature through a minister, but not subject to executive management controls (the crown agency model). Administration is the responsibility of judges who direct an office or department responsible directly to the legislature (the ombudsman model).

3

.°a

56

t oo m

The judiciary operates on a self-sufficient basis in which individual judges generate revenue and personnel resources.

Judge-con trolled models

Judicial control of court administration

Executive direction of court administration

Courts administered by a division or branch of the law-centred executive department.

Executive-centred models

Administration by a central non-legal executive department.

The Constitutional Setting for Judicial Administration Executive-centred models may be differentiated on the basis of the role of the attorney general's department (or the department or ministry of justice) in court administration. While most court administrative functions today are handled by the department headed by the provincial attorney general, they have historically been shared with other executive departments and officials. It is likely that court administration centred first in treasury or finance departments.22 In a number of provinces, the involvement of finance departments has persisted into quite recent times. Until 1975, thirty-six of forty-one supreme and county court registries in British Columbia were administered by the provincial Department of Finance. Former finance department government agents still dominate many courthouses throughout the province. In Saskatchewan during the 1960s, a treasury official performed audits of local courts, a function usually performed by the inspector of legal offices in the department of the attorney general'2" Newfoundland did not even have an inspector of legal offices until 1968. That province's treasury board still dominates court administration—and perhaps the courts as well. Consider what occurred in 1977 when a judge ordered a bank account opened to hold disputed funds in trust pending the outcome of litigation. Provincial rules require that no bank account be opened by provincial officials without permission of the treasury board. That board refused to allow the judge's order to be carried out.24 Court administrative functions have typically been fragmented among a number of government offices. Until the last decade, magistrate's courts were predominantly local in administration. Magistrate's court office space and clerical personnel were provided by municipal governments. Provincial takeovers of the administration of provincial courts from municipal governments occurred as late as 1968 in Ontario, and 1974 in British Columbia. Today, only Nova Scotia, Quebec, and Saskatchewan report any local government involvement in court administration, and even that is limited primarily to providing court facilities. Other ministries at the provincial level often share administrative responsibility for the courts in ways which never appear on organization charts. As noted above, treasury boards have been important. While they no longer have line (operational) responsibilities, their retention of authority over budget review and fiscal administration provides a tight control over attorneys general and court administration in many provinces.25 Public service commissions often dominate court personnel policies and procedures. Public works departments often deal with court facilities. Thus, the Alberta Public Works Department has been involved in the delicate task of designing new provincial court facilities in Edmonton and Red Deer to the satisfaction of a wide spectrum of future tenants. The Ontario Ministry of Government Services provides management con57

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sulting services to court administrative staff of the attorney general's department. The new independent British Columbia Systems Corporation has taken over design and integration of court information systems. Figure 1 places these administrative arrangements on the high end of the executive direction continuum and the low end of the judicial control continuum. When court administration becomes the primary responsibility of the attorney general, executive direction remains. But the distinctive position of the attorney general makes it more likely that he will act as a spokesman and advocate for court needs in cabinet and before the public. The attorney general is a member of the cabinet, but is in theory more independent of the collective will of cabinet than are his fellow ministers. Former Ontario Chief Justice James C. McRuer set out the principle: ... [T]he Attorney General must of necessity occupy a different position politically from all other Ministers of the Crown. As the Queen's Attorney, he occupies an office of judicial attributes and in that office is responsible to the Queen and not responsible to the Government. He must decide when to prosecute, when to discontinue a prosecution. In making such decisions, he is not under the jurisdiction of the Cabinet, nor should such decisions be influenced by political considerations. They are decisions made as the Queen's Attorney and not as a member of the Government of the day.26 This principle recognizes that the distinctive role of the attorney general derives from his relationship to the judiciary. All lawyers are in theory officers of the courts, and the attorney general is customarily (but not always) a lawyer. The judiciary is thus more likely to seek and obtain access to the attorney general's department than to other executive departments. On the other hand, an increased role for the attorney general may in fact increase executive department input and pressure on the courts because of the frequent and continuous interaction between judges and crown attorneys during the course of litigation. Unlike American states, where judges are paid by state governments but prosecutors are normally local officials paid by local governments, crown prosecutors are generally provincial public servants on the staff of the provincial attorney general. Thus, a special and sensitive role is given to departments of the attorney general, as each is asked to serve the government of the day, the needs of the judiciary, and the rule of law. These roles may be balanced differently, depending upon how the attorney general and his department are organized to administer the courts. Thus, executive direction may be greater when the attorney general's administration of courts is integrated into general departmental 58

The Constitutional Setting for Judicial Administration administration than when it is placed in a separate division or branch of his department. In an integrated administrative setting, budgeting is done by the department's budget officer, with little direction or even involvement of the department official who deals primarily with court services. Policy development is pursued by the department's top officials; management information systems are designed to provide data for all law enforcement officials, and are not tailored to the specific needs of the courts or supervised by an official from a court services branch. Officials developing management information routines report to a deputy or assistant deputy minister, not to a court administrator. Thus, court administration is fragmented even when it is located largely within a single, law-centred government department. It is recognized as a distinct function only in the narrowest sense. For example, the Ontario inspector of legal offices operated for many years as a trouble-shooter and communication link between judges and the department, without performing management functions (budgeting, personnel, management information, research and development) associated with modern court administration. In recent years the jurisdiction of Ontario's court administrator has grown, and the province is approaching a different model of administration: one in which the court administrator performs a wider range of functions and becomes the focus of the department's court management activity. This pattern has developed in British Columbia since 1974, with the court administration section of the attorney general's department becoming more involved in personnel matters, budget preparation, and research and development activities. Manitoba is moving in this direction. Quebec is already there. New Brunswick has outlined this model of administration, but its department has not been allowed to fill the position of court administrator. In that province, court administration remains the responsibility of the executive director of program administration for the department as a whole; court research and development functions remain the responsibility of the department's director of research and planning. Creation of a separate division or branch for court administration within the larger attorney general's department provides a focus for considering distinctive court problems, and for advocating higher priority for court needs as against competing demands of other programs within the department. Although this focus traditionally has been lacking in court administration, the trend in this direction is more apparent today. The next point on the continuum is executive-centred court administration conducted with regular judicial consultation. Judicial consultation may be present—or absent—in any of the models of executive department administration outlined thus far. When it does exist, judicial consultation implies an increased degree of judicial influence although court administration remains under executive direction, since government 59

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officials retain authority to reject judicial advice. Judicial consultation may be observed in three stages. At the most rudimentary stage are the sporadic complaints (or perhaps frustrated outbursts) of judges seeking adequate court facilities or staff personnel, or the informal efforts of a magistrate to obtain support for court needs in a local community. At a more developed stage, judicial consultation is a more formal response to executive officials who actively seek out judicial views prior to development of specific policies. It occurs, for example, when a public works department hires consultants to interview judges about the construction of a new courthouse (as in Alberta); or when a provincial court judge is invited to appear at a city council meeting in an effort to retain court services in the community (as in British Columbia). At a third stage, consultation becomes more organized and routinized—it emerges as part of an ongoing process in which the judiciary contributes its views on a wide range of administrative issues. Ontario has reached this stage with the attorney general's appointment of a judicial advisory committee consisting of six judges (five of whom are the chief judges of each of the province's courts). Judicial consultation does not free the courts from administrative direction by the executive, but increases the likelihood that directions will reflect the wishes of the judiciary. (Observe, however, the flexibility retained by the executive to decide which judges it wishes to consult!) Two models of court administration are labelled "transitional" in Figure 1, because they are the first instances in which executive power over court administration is either explicitly shared with the judiciary, or separated from existing departmental structures. In the former case, the attorney general's department continues most of its administrative functions, but concedes others to the judges. This is the model that has developed in British Columbia since the 1975 return to power of the Social Credit Party. At that time, Chief Justice Nathan T. Nemetz negotiated with the incoming attorney general to designate certain administrative areas as under the authority of the judges. The areas of chief concern fell within caseflow management, but others included courtroom allocation and security.27 The chief justice also asked that part of the court budget be broken out and placed under the direction of the judges rather than executive officials, as had already been done for the provincial court. Some elements of the negotiations were included in new legislation.28 The B.C. chief justice continued to press for other concessions by the provincial government in hopes of expanding the area of judicial control. This strategy of articulating specific administrative functions and enlarging the number controlled by the judiciary may be a viable and important technique. It also has obvious disadvantages, in that during the transition period, when power is shared, priorities may be distorted 60

The Constitutional Setting for Judicial Administration to reflect preferred lines of authority. For example, if the judiciary directs court reporters and the executive develops new technology, judges may reject worthwhile new court recording and transcribing technology rather than revert to a system with greater executive control. If the judges' budget includes courtroom deputies, and the executive budget includes clerks to handle paperwork in the registry, interchange of tasks could be more difficult, and judges might press for more courtroom assistance, even if it is less essential to the court than obtaining more staff to handle paper flow. In short, judicial control is separated from administrative unification; since their objectives are different, judges may support the former but oppose the latter. The second transitional model involves setting up a separate executive office or cabinet department to handle court administration. The new office or department would still report to a cabinet minister answerable in parliament for its conduct. However, courts would no longer be administered by the same career officials responsible for managing prosecution and other government litigation. This model does not concede a specific grant of authority to the judges, but assumes that a separate office or department, with a formal reporting relationship to a cabinet minister, will establish routine lines of communication with (and perhaps direction or supervision from) the judiciary. The new commissioner for federal judicial affairs, created by 1977 amendments to the federal Judges Act, most closely approximates this model. The then Justice Minister Ronald Basford explained his proposal to the House as follows: Since I became Minister of Justice I have been deeply concerned about the degree of my department's involvement in the administration of judicial affairs. I believe that since the Department of Justice is responsible for the conduct of the government's litigation, it is preferable that the courts should not have to rely on the department for handling its administrative affairs. Again, it is a question of the principle of independence of the judiciary. To remove the anomaly which currently exists—the anomaly of my department and my counsel often being the principal litigants before a court and also handling the administrative affairs of that court—I am recommending in this bill measures that will transfer from my department its administrative responsibilities for the federal courts and federally appointed judges. At the same time, we will preserve the principle of ministerial responsibility to parliament for the expenditure of public funds. Under the proposed new regime there will be a commissioner for federal judicial affairs who will assume responsibility for all adminis61

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trative affairs in respect of federally appointed judges; that is, the district, county and superior court judges and the federally constituted courts, the Federal Court of Canada and the Canadian Judicial Council, but excluding the Supreme Court of Canada. Under the Minister of Justice, the commissioner will have responsibility for the administration of judges' salaries, allowances and annuities, and for the budgetary, financial, personnel and operational requirements for the Federal Court and the Canadian Judicial Council.2a The new commissioner would still be an executive official responsible to a cabinet minister, but would have an ongoing relationship with the judiciary, and would not report to the deputy minister of justice or to any other career officials in the Justice Department. This apparatus, of course, would not relieve the provinces of the duty of administering superior, county, and district courts; it would deal only with those judicial salaries and court operations funded by the federal government. A variant of this relationship was also proposed for the Supreme Court of Canada: Given its unique status at the apex of the judicial system, the Supreme Court of Canada will have its registrar designated to perform these same functions as the commissioner in relation to that court and its members. At the same time, the registrar will be placed under the supervision of the chief justice, rather than the minister of justice, in carrying out the day to day administrative management of the court.3° In practice, the registrar is subject to a higher degree of judicial control than is the commissioner, in that the registrar is supervised by a judge but the commissioner is not. This difference may reflect the realities of judicial organization. The Supreme Court of Canada, located in Ottawa, is in a position to supervise the registrar's work. However, it is unclear to what court, judge, or group of judges the commissioner should report on a regular basis. The most obvious body, the Canadian Judicial Council, meets but once a year; the council's executive committee meets more frequently, but remains only advisory.31 The commissioner could also report to the chief justice of the Supreme Court of Canada (who chairs the council), but it is likely that the chief justice would be reluctant to take on that task. There is no Canadian precedent for a federal chief justice to become administrative leader of the entire judiciary, such as the role established by Chief Justice William Howard Taft in the United States during the 1920s, and expanded by Chief Justice Warren Burger in the 1970s. The commissioner consults periodically w;th the chief justice, but is not supervised by him, as is the registrar. No provincial government is presently moving to set up either a separate office or a department for court administration. The number of 62

The Constitutional Setting for Judicial Administration cabinet ministers in most provinces is too small to break off judicial functions as effectively as Basford planned. For example, British Columbia's attorney general directs police and corrections as well as court administration and prosecution. In contrast, Ontario has separated police and corrections from other justice functions and placed them in distinct cabinet departments; it might thus be possible for court administration to be similarly situated. Quebec separated court administration from other justice functions in 1975, after Jerome Choquette left the Justice Ministry. At that time Premier Bourassa named Fernand Lalonde as solicitor general, and transferred to him all justice functions relating to law enforcement. That left Justice Minister Gerard Levesque largely with court administrative functions and the task of implementing the White Paper on Justice. However, the division of law-related functions was short-lived; the Parti Quebecois cabinet organization recombined court administration with prosecution and police functions under a single minister of justice. The final cluster of models consists of those in which judges are given general responsibility for a wide range of court administrative functions. These are often labelled American models, after federal and state practice in the United States. There, court administration is often vested in an office created within the judicial branch, with administrators reporting to judges and not to executive officials. Ironically, this is the recommended, not the operating, model in the United States.32 In most state court systems, administration is still highly fragmented, with elected county officials exercising a variety of administrative functions.33 Furthermore, these models also approximate British practice (under the lord chancellor) and that in many other countries. Canada and Australia may be among the few common law countries in which some model of administration that is higher in judicial control is not in operation. One model that is high in judicial control while retaining a substantial degree of executive involvement, is embodied in the Ontario White Paper on Courts Administration (released in October 1976), in which the provincial attorney general proposed the creation of a judicial council, composed of six judges (including five chief judges).$' Serving as a policy board or board of directors, the council would direct the operation of a new Ontario Office of Courts Administration, headed by a provincial director of courts administration, with deputy minister status. The White Paper proposal is the most far-reaching step proposed by any province to increase judicial control over court administration. After operating in a traditional executive-centred framework, officials in the Ontario attorney general's department gave the proposal enthusiastic support. It also received the general support of the province's judges. Over the next two years, however, enthusiasm for the White Paper 63

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proposals waned. Rather than seek statutory changes, the attorney general established an advisory committee of judges with the identical composition of the proposed judicial council, but with no supervisory or policy-making responsibilities for court administration. There is at present no clear understanding of whether the White Paper is dead, or whether the conception it enunciated is being gradually unfolded by the Ontario attorney general sa Figure 1 above allows us to understand these developments in terms of an overall trend. Before the White Paper was issued, Ontario had only recently moved from integrated executive department administration of courts and other justice functions to administration by a division of the attorney general's department. Had the White Paper been adopted, Ontario would have shifted sharply to the judicial control end of the continuum. By establishing an advisory, non-statutory council of judges, Ontario has shifted only one notch closer to the transitional models. Thus, Figure 1, while not conceived as a set of developmental stages, may in fact be useful in predicting future shifts of executive and judicial roles in court administration. The final shape that Ontario's scheme would take, if adopted, remains unclear on some points and appears to leave many management functions with both the attorney general and the government. For example, appointment of a wide range of court administrative officials would remain with the lieutenant-governor-in-council; management information systems would be developed by the ministry and not under judicial council supervision; budgeting would be a judicial council responsibility, but the judicial budget would then be submitted to cabinet and parliament by the attorney general; monitoring of the court system would be the responsibility of a new courts administration advisory committee, with only one judge among seven members. Thus, while Ontario's proposal is a major innovation in Canadian court administration, it leaves major areas open for continued dispute between judges and executive officials. It also creates problems of internal judicial relationships, as will be discussed later. The judicial council, as a vehicle for judicial control of court administration, would provide, in essence, a buffer between the judiciary and the government. In that sense, it is analogous to university councils that operate in Ontario and British Columbia as buffers between the independent universities and the government of the day. The "buffer" body facilitates a system of arm's length financing, in which universities receive lump sums from the government and the buffer organization presents overall fiscal demands to the appropriate ministers and treasury boards. Efforts to integrate judges into court administration in a manner consistent with the independence of the judiciary and the supremacy of parliament have been attempted in other countries as well. Judges in Italy, 64

The Constitutional Setting for Judicial Administration for example, are heavily involved in administration despite that country's parliamentary framework." In Sri Lanka (formerly Ceylon) the courts are administered by high court justices in nine zones, who supervise all court operations in their region—from the high court to the local magistrates. They report to the minister of justice, as do career prosecutors and law enforcement officials, but court administration is a separate department.37 The most familiar example is the lord chancellor in England, who is, as previously stated, simultaneously a cabinet minister, a law lord, and an administrator. He possesses both judicial office and political office. His department administers the courts (save, in part, for magistrate's courts), but has no responsibility for public prosecution or other law enforcement functions. He is appointed by the government in power, normally before elevation to the House of Lords; but once a lord, he can be removed from his cabinet position, but not be stripped of his peerage. The lord chancellorship is thus a unique office that has no analogy in Canada (or Australia, or the United States). It simultaneously preserves the independence of the judiciary and the supremacy of parliament through cabinet. It is likely to have major limitations, but has provided a remarkably effective solution to the dilemma of executive direction versus judicial control. What is important is that while this unique office may not be applicable elsewhere, it demonstrates that other political systems may also evolve their own distinctive and workable approaches to judicial involvement. Canadian provinces lack lord chancellors, but that need not result in executive direction of court administration. The Ontario White Paper outlined one approach. There are others as well. For example, courts could be administered in a manner analogous to a crown agency. In such a case, the courts would be independent of existing management controls —such as public service commissions and treasury boards. They could be required by statute to follow certain fiscal control procedures, but these would be carried out and monitored entirely by officials within the court administration office. Presumably, such an office would be directed by a single judge, a council, or a board of judges. The court administration office would be answerable to parliament through a responsible minister, as a crown agency is. But the office would be far more self-sufficient and independent than that proposed in the Ontario White Paper. It is ironic that a model as well established as the crown agency and crown corporation has not been considered for the courts: the crown agency device, after all, is designed to remove certain sensitive functions from control or improper influence by the government of the day, and the judicial function is certainly as sensitive as many of the functions of existing crown agencies. As another alternative, the courts' relationships with cabinet and 65

CHAPTER THREE parliament could be analogous to that of an ombudsman's office. The ombudsman is authorized to investigate complaints about government (for example, the commissioner of official languages in Ottawa functions as a language ombudsman, while a number of provinces have ombudsmen with general jurisdiction over citizen complaints). By 1976, Ontario's first ombudsman had established the notion that his office ought to report directly to the legislature, not to the cabinet, which has a vested interest in reducing criticism of government. The ombudsman's office, therefore, does not submit its budget for screening by management board, but goes directly to the provincial legislature for hearing.38 These practices establish the ombudsman's responsibility to parliament, but his independence of cabinet. An argument could be made that, although court administration must also be responsible to parliament, it should rightly be exempt from administrative supervision of cabinet. All of these models offer a concept of the judiciary in relatively unified terms. Modern management requires that judicial control of administration be organized rather than fragmented, so that court needs can be identified and dealt with. But modern conditions should not obscure the fact that historically it was possible for court administration to be far more independent of executive direction than it is today. In past centuries, in some jurisdictions, courts were virtually self-sufficient, living on fees collected from parties in litigation.99 Judges relied on attorneys, as officers of the court, to handle many matters that might today be dealt with by court administrators. This provided judges with high individual autonomy, low executive direction, and a relatively high degree of control over administration. That today the complexity and cost of modern justice precludes this system is obvious. The self-sufficient judge has not existed for at least a century, and may never have existed in the superior courts, where individual cases are more prolonged and complex. What has not been obvious is that the self-sufficient judge, with his high degree of administrative independence and personal autonomy, has been replaced by a system in which executive officials have ultimate responsibility. The executive role has insensibly increased as court administration has grown more important. Proposals for increasing judicial control are, therefore, an inevitable recognition of the need to make court administration consonant with principles of independent adjudication. ORGANIZATIONAL DIFFICULTIES OF JUDGE-CONTROLLED ADMINISTRATION We have already observed the difficulties in the existing practices of executive-directed administration, and suggested that Canadian courts are likely to, and should, move toward greater judicial control of adminis66

The Constitutional Setting for Judicial Administration tration. It is therefore appropriate to outline some of the difficulties that will be faced by provinces, even after they have adopted various models of judge-controlled administration. These difficulties are of two main types, deriving from the two main needs of current judicial administration, and the organizational hindrances to meeting them. The first need is to develop an internal system of accountability within the court systems of the provinces; if judge control is to be substituted for executive direction, new systems of administrative accountability are necessary, and they must be consistent with principles of parliamentary government and the distinctive nature of the judicial process. The second need is to develop and implement reforms within judicial administration. Building a system of judicial administrative accountability will be difficult because no fully unified system of courts exists in any provinces. With few exceptions, the separate courts at each level have few contacts with one another. This balkanization has deep historical roots, traceable in part to the transfer of English judicial structures to this country, and partly to the constitutional distinction between courts with federally appointed judges and courts with provincially appointed judges. However, if judges in a province are given the authority to direct court administration, they will need to build communication links between the different courts. Court systems must evolve from the present nonsystems40 In some jurisdictions the major contact between superior, county, and provincial court judges may occur when a superior court judge pre-empts the town's most impressive courtroom, and the dislocated county court judge then takes over provincial court space, thus pre-empting the judge of that court. Administratively, there has sometimes been more unification, as the county court clerk may serve as local registrar of the superior court and perhaps (but more rarely) clerk of the provincial court as well. One means of increasing integration and coordination of provincial court systems is to merge existing courts—to increase the unification of court structure. Current provincial efforts in this direction have focused on merging the superior court with the county and district courts. Advocates of such a move point to the advantages of providing a higher level of service to the public and a more equitable distribution of judicial work. However, merger has been difficult to achieve. British Columbia passed the relevant legislation over a decade ago, and then abandoned the proposal. Prince Edward Island merged its supreme and county courts in 1973, a step that, given the province's small number of judges, was long overdue. The momentum increased in 1978, when both New Brunswick and Alberta passed necessary legislation; Saskatchewan followed suit in 1980. But merger has, in some cases, been accompanied by 67

CHAPTER THREE

a residue of bitterness. And in Ontario, where support for merger has existed for many years, the provincial Law Reform Commission rejected the proposal, which appears to have sunk without a trace. The chief block to merger is said to be the need for consistency of quality.41 Superior court judges, it is alleged, are better qualified in the law than are county court judges, and the quality of the higher bench would be diluted by merger.42 It appears that in the past decade, however, federal appointing authorities have made a determined effort to obtain persons of equally proven competence for both superior and county courts;43 thus, the quality issue is arguably less relevant today than formerly. It appears that at least two major forces retarding merger do not derive from considerations of the quality of justice, but from special interest drives within the legal system. The first consists of the superior court judges, whose prestige and work patterns would be upset by the enlargement of their bench and the residence of their colleagues in other court centres.44 The second constitutes the reluctance of the practising bar. Under a system of overlapping courts, some lawyers in the criminal law field favour a two or three tiered court system, which enables their clients to elect to proceed in one court and then re-elect for trial in a higher court—and then sometimes re-elect back down. These procedures, however, may not contribute to the likelihood of a just outcome of the case. Merger could also increase judicial control over the work of litigation lawyers, reducing their flexibility. The continuing conflict over merger reflects a split in perspectives and interests between superior and county court judges. This split belies any attempt to speak of "judicial control of court administration," as if judges were of one opinion on how the courts should be organized and managed. As long as this balkanization exists, the development of administrative accountability will be slow and laborious. In short, there is no unified court system to which a unified administration could account.45 The present structure of the courts frustrates not only the need for administrative accountability to the judiciary but also the attainment of internal administrative reform. Reform proposals are hindered by conflicts of priority; these conflicts arise directly from divisions which now separate the courts, and which, it is suspected, would be perpetuated under judge controlled court administration. For example, even if merger of superior and county/district courts occurred, a split would tend to remain between the courts staffed by section 96 judges and those staffed by provincial appointees. We say "tend to" only; the attorney general's department in British Columbia is committed to the concept of merger of all court administrations, and this policy has been carried out 68

The Constitutional Setting for Judicial Administration in most localities where a court facility is used jointly by two or more courts. Nevertheless, the most common experience is the reverse. Experience in most court systems suggests that traditional divisions of jurisdiction have serious consequences for implementing needed reforms in court administration. Most lower courts tend to carry a high volume of repetitive, often perfunctory, matters. It is precisely these courts that are often most in need of management, and could benefit from a modern approach to organization and caseflow. However, judge-controlled administration is often dominated by the most powerful and prestigious judges in a court system, and those are usually appellate court and general jurisdiction trial court judges. Those judges often perceive the problems closest to them as the most important and, therefore, as demanding highest priority in the system. Section 96 judges, resting at the upper levels of the judicial hierarchy, would wield greatest influence over court administration as well. Provincial court judges are already sensitive to this problem. Some were unappreciative when the 1975 Kirby Commission Report in Alberta recommended a judicial council that would oversee administration of the Provincial Court but would include the chief justice of the Trial Division of the Supreme Court and the chief judge of the District Court or his designee.48 This was regarded as paternalistic. And some are nervous about the impact of the judicial council model embodied in Ontario's White Paper. The apprehension exists that such a system would produce more and grander superior court sitting facilities while some Provincial Court judges continue to abide in the humblest of surroundings. A chief court administrator may implement a management information system, or support improved caseflow management, first in the general trial court, next in the limited jurisdiction trial court, and last in the local traffic or by-law court, even though volume of business is highest in the last-named court, and lowest in the general trial court. The membership of the proposed Ontario judicial council could reinforce this tendency: four of the six judges on the seven-person council are section 96 judges, reflecting the need for representation of both the supreme court (two justices) and the county and district courts (two judges). The high volume provincial criminal courts have one member on the council; the provincial family courts, focus of the most widespread public concern and reform efforts, have one member. While merger of superior and county courts could reduce the imbalance of representation on the council, the council's composition is still fraught with the possibility that priorities will focus on the top of the system rather than on the lowest levels of the judicial hierarchy. This order of priority has been observed in American state courts, and 69

CHAPTER THREE

the mentality is apparently universal. In Sri Lanka, one high court justice who served as a zone administrator refused to authorize a local magistrate to purchase a new bicycle to travel from village to village. The magistrate took the matter to the press and only received the needed transportation funds after intervention by the country's minister of justice. This example differs in technological complexity, but cuts to the heart of the matter. Major developments in the province of Quebec raise a unique but important variant of the conflict between federally appointed and provincially appointed judges. The official program of the Parti Quebecois has endorsed "independent management" of judicial business." As part of the process of implementing that position, a conseil de la magistrature was created by a 1978 statute, made up of the chief judges of the provincial courts. Quebec Justice Minister Marc-Andre Bedard later termed the conseil "the cornerstone of the reform of the courts and the foundation stone of the independence of the judiciary."48 Yet no section 96 judges serve on the conseil. Superior Court Chief Justice Jules Deschenes has spoken out against the new Iegislation in vigorous fashion: it is. he argues, "an undisguised rebuff to some 140 judges appointed by the federal authority, and a real gesture of segregation imposed by the political authority on the judicial world."48 Deschenes is concerned because the new conseil's powers extend beyond the provincial court bench to include functions that "affect and concern all those who dispense justice in Quebec, regardless of the court in which they do so:... to organize continuing education programmes for judges, to adopt a code of ethics, to promote the efficiency and the uniformization of procedure before the courts, to study suggestions regarding the administration of justice and to make appropriate recommendations. Can the exclusion of the judges of the Court of Appeal and the Superior Court from this work be tolerated?"60 Even if the Quebec government follows Deschenes' urgings and revises the constitution of the conseil, its creation once again illustrates the internal cleavages that limit the opportunity for judicial control of administration. The Quebec case goes a step further, demonstrating how the actions of the government of the day can exacerbate those cleayages rather than minimize their impact—even to the point of turning the traditional upper court bias on its head. Along with the two main difficulties discussed in this section, the Ontario judicial council proposal illustrates other difficulties that judgecontrolled administration will inherit from the court organization of the past. For example, all six judges on the proposed judicial council would be externally appointed by executive authorities in the federal and provincial government. Not one would receive his position by action of an70

The Constitutional Setting for Judicial Administration other judge. Five of the six judges would be appointed ex officio, by virtue of being chief justices or chief judges of specific courts. The sixth member would be a county or district court judge appointed by the lieutenantgovernor-in-council—that is, the provincial cabinet. Thus, the judicial council, intended to insulate court administration from executive control, would draw its members from judges selected by executive officials. This contradiction should be mitigated by the fact that chief judgeship appointments are for good behaviour rather than for a fixed term. However, if increased administrative responsibilities are given to the five chief judges, those offices may turn over more frequently, giving executive officials greater opportunity to appoint individuals who might administer the courts in accordance with executive policies and standards. The underlying rationale of judicial independence would be part of a charade. Thus, if judge-controlled court administration is developed, should provision be made for selection of chief judges by the judges themselves? Appointments to the various courts could be made by the executive without the designation of a specific chief judge. The judges in each court could then designate one of their colleagues to serve as chief judge and to represent their court on the judicial council. This could be a term appointment, of perhaps from three to five or seven years, so that the position could rotate among members of the court. A judicial council should also consider the lessons suggested by the decline of the judicial council movement in the United States which spread throughout that country in the 1920s. In the ensuing decades, councils were adopted by the federal and many state courts. But many councils have only paper existence today; very few make substantive contributions to the administration of the courts.6' They were unable to establish any sort of accountability or develop adequate planning and policy development functions. This was the result partly of their advisory nature, and partly of the absence of permanent administrative staff during the early period—problems that would not exist for Ontario if the proposed judicial council were given statutory life. However, there would be similarities to the Judicial Conference of the United States, the counciltype organization in the federal system that includes two judges from each of the eleven circuits. And the retarded development of federal judicial administration reflects, at least in part, the conference's tendency to compromise its internal conflicts and avoid reform and innovation. Development of an administrative system for the courts, with internal lines of accountability, could take two directions. It could be a regional system, with administration of the trial courts integrated in each major geographical area. This is the British Columbia system; here, where possible, there is a common court registry for the three levels of trial courts, 71

CHAPTER THREE

and the development of management skills in five (formerly nine) regional offices. A regional system of court administration was recommended for Ontario by that province's Law Reform Commission, but was abandoned after the expiration of a three-year pilot project centred in Hamilton.b2 Accountability could also be implemented by focusing administrative responsibility in each level of the court system. This is the "New England model," so labelled by Ernest Friesen and his associates because of its prevalence in the northeastern United States.03 This model concedes the continued strength of separate levels of courts; it would divide administration between local clerk's and registry offices. It was advocated by Chief Justice James C. McRuer in dissenting from the Ontario Law Reform Commission recommendations.64 No matter which approach is taken to developing an administrative system, it will supplant the past history of system fragmentation and executive department assumption of responsibility. Finally, court administrative reform and modernization in the area of caseflow management will be limited under either executive direction or judicial control until judges learn to rely less on lawyers for administrative support. Much of the work of trial and appellate courts is expedited only on initiative of counsel, not in response to judicial guidelines and court monitoring. Yet caseflow management is premised on judicial control of the flow of cases beginning from the filing of the writ.b5 Judicial control of court administration in the United States was premised not only on enhancing judicial branch authority vis-a-vis executive and legislative branches, but also vis-a-vis the practising bar. Court reform focused on changes in administration and procedure which lawyers did not support, but which judges found would increase the capacity of courts to do justice.66 Reformist judges did not wait for the sanction of the organized bar to implement administrative changes. An example of one such change is the promulgation of "speedy trial" rules in American courts, whereby a criminal case is dismissed if it has been pending beyond a fixed time period, usually 180 days. No court in Canada has promulgated such a rule. The deputy attorney general of British Columbia proposed such a rule for crown counsel, but this executive-sponsored move failed at the implementation stage through a lack of understanding on the part of crown counsel and police, and a consequent lack of support; and probably for the added reasons that it was premature in timing and lacked sufficient preparatory ground work. In summary, out of the constitutional and organizational setting of the Canadian courts, a pattern of executive-directed administration has emerged in the provinces. That pattern is for the first time being chalIenged by the development of new models of judge-controlled court 72

The Constitutional Setting for Judicial Administration administration. These new models are preferable, in principle, to meet the need for a new court management philosophy, but they are not without their own problems. They guarantee no development of a true system of administration, or implementation of worthwhile management innovations. One court administrator's reaction to the Ontario White Paper is revealing: "They are picking up the garbage can and moving it" from point A to point B. We would do well to pay heed to his words: judicial responsibility for the administrative problems of the courts would be futile unless those problems are, indeed, dealt with.

73

Chapter Four

Court Organization and Federal-Provincial Relations Chapter 1 indicated the need for the development of a management philosophy in the courts, chapter 2 argued that this should be based upon the contemporary systems approach used in other fields, and chapter 3 began our consideration of constitutional impediments to effective court management. That last chapter emphasized the conflict between executive officials and the judiciary over who should control court administration, and advocated a shift toward judge-controlled administration. The shift, it was argued, should reflect both the need to avoid fragmentation of authority over caseflow management (the central management activity in the courts) and the recognition that preserving the adjudicating independence of judges requires that necessary court support functions be accountable to the judiciary as well. The present chapter focuses on court organization and reorganization. It will describe the principal proposals for court reorganization—both the specialized proposals for change in civil, criminal, and family matters —and the more comprehensive proposals. In every case, proposals for reorganization have an impact on court administration. In many cases, the desire to improve administrative efficiency is a major reason behind the proposals—especially those that attempt to reduce the fragmentation and overlapping of different courts. Any attempt to unify court organization, however, is persistently hindered by current interpretation of the constitutional division of authority between federal and provincial governments. Federal-provincial divisions among courts do not generate everyday conflicts between administrators in the two Ievels of governments. Court management, as chapter 3 stated, is a provincial responsibility under section 92(14) of the BNA Act. While court administrators must be sensitive in their day-to-day relations with the judiciary, they have little or no 75

CHAPTER FOUR

contact with federal administrative officials. Where federal-provincial relations become important is in setting the stage for administration— that is, in defining the structure of the courts themselves. Provisions of the BNA Act have been used to raise constitutional questions about both comprehensive and partial reorganization of the courts. As a result, court reorganization has been hindered, requiring administrators and litigants to deal with an overly complex set of courts, and limiting the scope and impact of management innovations. To unravel the complexities of this subject, we will begin by setting out the present structure of the Canadian courts, in simplified and abbreviated form. Then we will consider how this structure has been preserved by the indirect impact of the BNA Act, and by the difficulty of developing reorganization proposals that are not only workable but politically and constitutionally feasible. THE STRUCTURE OF THE COURTS

When we speak of the Canadian courts, we speak almost entirely of courts established and administered by the ten provincial governments and the two territories. There are two exceptions. The Supreme Court of Canada, the country's highest court of appeal, was established by federal statute in 1875. Until 1949, appeals could be taken from the Supreme Court to the Judicial Committee of the Privy Council in England, but since that time the Supreme Court of Canada has served as the court of last resort in appeals from the provinces. An Exchequer Court also existed throughout this period; it was the only other court created by federal statute, with a jurisdiction limited chiefly to civil claims by and against the federal crown. In 1970, it was transformed by federal statute into the Federal Court of Canada, with trial and appellate divisions and a jurisdiction expanded to review matters handled by a wide variety of federal administrative agencies.' With these two exceptions, Canadian courts are courts of the several provinces and territories. Their organization is determined by the statutes of each province or territory, but their structural outlines are similar enough to be summarized together. In each province there is a final court of appeal, either a separate court or a division of the highest trial court (for instance, the Ontario Court of Appeal is a part of the Supreme Court of Ontario). Judges of the highest provincial appellate court are appointed by the federal government to those courts.2 Expanding the number of judges on appellate courts requires amendment of the federal Judges Act by the parliament of Canada. Such amendment is virtually automatic once the provincial attorney general makes a "firm request" for additional judgeships.$ 76

Court Organization and Federal-Provincial Relations Each province has a superior court, that is, a trial court of general and unlimited jurisdiction. Their names vary: Supreme Court (British Columbia, Prince Edward Island); Court of Queen's Bench (Alberta, Manitoba, New Brunswick, and Saskatchewan); Superior Court (Quebec); High Court of Justice (Ontario); and Trial Division of the Supreme Court (Newfoundland and Nova Scotia) .4 Judges are appointed to these courts by the federal government under provisions of the federal Judges Act. Their jurisdiction, organization, and administration, however, are in provincial hands. Five out of ten provinces have county or district courts. Their civil and criminal jurisdiction are both more limited than the superior courts, but county and district court judges exercise authority in a large number and variety of legal matters. British Columbia, Manitoba, and Nova Scotia have county courts, as did New Brunswick until 1979; Newfoundland has district courts, as did Alberta until 1979 and Saskatchewan until 1980; Ontario has both county and district courts; and Quebec and Prince Edward Island have neither. County and district court judges, like appellate and superior court judges, are appointed by the federal government under authority of section 96 of the BNA Act and the provisions of the federal Judges Act. Once again, their jurisdiction, organization, and administration are provincial matters. Each province also has a set of courts created by provincial statute, and staffed by provincially appointed magistrates or judges. Courts presided over by provincial appointees were traditionally known as magistrate's courts in most provinces, with jurisdiction over less serious criminal offences, family matters (including juvenile delinquency), and often small claims. Provincially appointed justices of the peace often presided in these courts. Over the years, their criminal work expanded to include all but the most serious indictable offences, and in the past decade many magistrate's courts have been renamed provincial courts, and staffed by legally trained officials with the title of judge rather than magistrate. A number of provinces also retain specialized courts, but these function, essentially, as divisions of the main courts noted above, and are staffed by judges of those courts. For example, Ontario created its Divisional Court in 1972 to hear appeals primarily from administrative tribunals, but the court consists of justices of the High Court sitting as members of the Divisional Court for purposes of the matter on appeal. Surrogate or probate courts in a number of provinces are made up of county or district court judges, so designated to sit a It might be supposed that the three "levels" of trial courts in the provinces are equivalent in the hierarchy to the levels traditionally associated with judiciaries—the superior courts on top by virtue of their unlimited 77

CHAPTER FOUR

trial jurisdiction, the county and district courts ranked below, and the provincial (formerly magistrate's) courts on the bottom. The appellate courts would be the capstone on the pyramid. However, this view fails to reflect actual practice in most Canadian provinces. The crucial differences between Canadian trial courts are not the scope of their jurisdictions but a combination of their geographical organization and their functional (or subject matter) specialization. Although superior courts still enjoy a clearly wider legal jurisdiction, in practice the basic difference between superior courts and county/district courts now lies in their organization and operation. The superior courts derived from the English model of the central court whose officers dispensed justice in the capital and during periodic tours on circuit (or on assize). Thus, to this day, superior court judges in Canada characteristically reside in the province's major city (or two major cities), holding court on a visiting rotation system in other court centres. The county and district courts, on the other hand, consist of resident judges who hold court in specific county towns or district centres (depending upon the province's terminology) . While in more recent years, limited authority has developed to allow the transfer of county and district court judges outside their home county (if their home caseload is light, they may, for example, be shifted to an overloaded court centre), it is their local geographical base which now chiefly distinguishes these judges from their colleagues on the superior courts. On the criminal side, county court judges can try virtually any criminal case that can be tried in a superior court save for homicide and a clutch of somewhat exotic offences, such as high treason, alarming her majesty, intimidating parliament, mutiny, sedition, piracy, and bribery of judicial officers. This erosion in recent years of exclusive jurisdiction of superior courts by both statute and practice is also evident on the civil side. Monetary jurisdiction of county courts, for example, is still limited by provincial statutes, so that suits over a certain amount—at present ranging from $2,000 to $25,000—may be brought only in superior court. However, in some provinces the county or district court may, by consent of all parties, hear claims in any proceeding triable in the superior court.° Concurrent jurisdiction is also specifically exercised in other civil matters in spite of apparent statutory limitations. For example, federal law requires that divorces be granted only by a superior court judge. Provincial law, however, may authorize a county or district judge to sit as a superior court judge for the purpose of hearing divorce actions. County or district judges also exercise superior court jurisdiction in a sweeping array of matters, including probate, bankruptcy, and interlocutory motions. For practical purposes, provisions of this kind render the jurisdiction of these two section 96 trial courts very nearly identical. And in practice, the geo78

Court Organization and Federal-Provincial Relations graphical proximity of county and district judges outside a province's major urban centres means that they carry the bulk of the cases in which they share jurisdiction with superior court judges who come only on quarterly assizes. The difference between these two levels of courts and the provincial courts are primarily functional. In most provinces, the provincial or magistrate's, courts are functionally differentiated from the other two trial whelming majority (over 90 percent) of indictable as well as summary offences.? Provincial courts cannot hold jury trials; as a result, criminal jury trials are found preponderantly in the county and district courts. However, jury trials are relatively uncommon in criminal cases. Guilty pleas, stays, and dismissals resolve approximately 80 percent of criminal matters. Prior to the advent of legal aid in British Columbia, guilty pleas alone averaged over 80 percent. Following the introduction of legal aid, the figure dropped to 49 percent,8 a matter for prolonged reflection. But even when cases are brought to trial, bench trials (trials by the judge alone) are much more common than jury trials. Thus the provincial, or magistrate's courts are functionally differentiated from the other two trial courts by virtue of their specialization in criminal matters. Superior courts may try any criminal offence of the most or least serious magnitude, but in practice their case loads are both light and declining.° Provincial courts also specialize exclusively in juvenile matters, as part of their general family jurisdiction. While divorce is a matter for superior or county/district courts, other consequences of connubial disharmony are usually matters for the provincial court: custody, support, supervision, delinquency. In six provinces, provincial court judges also have civil jurisdiction (ranging from $500 to $6000).1° Finally, as noted above, provincial courts differ from the other three levels in the source of judicial appointments. Appellate, superior, and county or district court judges are "section 96" judges; their appointments are made by the federal government pursuant to section 96 of the British North America Act.71 Provincial court judges and magistrates are appointed by the government of their province. The extent to which the Canadian courts have deviated from the BNA Act's original conception of provincially organized courts with federally appointed judges is revealed from another perspective in tables 1 and 2. Table 1 shows that only 602 of the country's 1,470 sitting judges are appointed pursuant to section 96; thus, 59 percent of all sitting judges are provincial rather than federal appointees. Table 2 indicates that provincially appointed judges sit in 600 more communities than do section 96 judges. Thus, the expanded functions of the provincial courts have been accompanied by a growth in numbers of provincially appointed judges, and communities served by provincial courts. 79

CHAPTER FOUR TABLE 1 NUMBER OF FEDERALLY APPOINTED AND PROVINCIALLY APPOINTED JUDGES AS OF NOVEMBER 22, 1978, BY PROVINCE

Province

Provincial/ Section 96 Court Territorial Section 96 Judges Court Judges Supernumeraries

Total Judiciary

48 Alberta 72 British Columbia 27 Manitoba 18 New Brunswick 16 Newfoundland 21 Nova Scotia Ontario 182 Prince Edward Island 7 Quebec 126 Saskatchewan 33 Yukon 1 Northwest Territories 1

5 7 2 1 1 1 10 0 22 1 0 0

87 108 47 25 35 34 203 3 279 43 1 3

140 187 76 44 52 56 395 10 427 77 2 4

TOTALS

50

868

1470

552

SOURCE: National Task Force on the Administration of Justice, Justice Serv-

ices in Canada 1977-78 (Vancouver, B.C., August 1979), p. 87. TABLE 2 NUMBER OF COMMUNITIES SERVED BY SECTION 96 COURTS AND PROVINCIAL COURTS, 1977-78, BY PROVINCE Province Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia Ontario Prince Edward Island Quebec Saskatchewan Yukon Northwest Territories TOTALS

Provincial Courts

Total

20 39 16 9 6 21 50 2 35 19 2 2

102 98 87 34 60 37 182 5 82 116 13 5b

102 98, 87 34 60 37 197a 5 82 117 13 5

221

821

837a

Section 96 Courts

SOURCE: Ibid. alncludes 128 small claims court locations. "Many other communities are served on an "as needed" basis and by justices of the peace hearing summary conviction matters. X292 are served by full-time court staff, 545 by part-time or visiting court staff. 80

Court Organization and Federal-Provincial Relations In summary, there are four dimensions that differentiate Canadian trial courts: resident vs. circuit judges, subject matter specialization, seriousness of offence or monetary value of lawsuit, and source of appointment. Each of these dimensions allows the interplay of federal and provincial levels of government, and has produced a high potential for federal-provincial stalemate. If provinces want to eliminate circuit judges by merging a resident-judge court (county or district court) with a circuit-judge court (superior or supreme court), they must obtain concurrent legislative changes in the federal Judges Act. Opposition to such a move by powerful federally appointed judges could prevent—and has prevented—merger even after a provincial government has approved the legislation. If provinces want to expand the civil jurisdiction of provincial court (provincially appointed) judges, the statutory change could unconstitutionally invade the traditional jurisdiction of section 96 (federally appointed) judges.12 Similarly, if provinces want to unify the criminal courts by bringing the remaining criminal business of superior courts into provincial courts, the federal parliament must first amend the criminal code. Finally, if provinces want to unify family matters by shifting divorce from superior to family courts, so that it may be considered along with questions of maintenance, custody, and support, the provinces' constitutional authority would again be suspect because they would be legislating on marriage and divorce, federal responsibilities under section 91(26) of the BNA Act.13 Thus, reorganizing resident-judge and circuit-judge courts, or making jurisdictional changes in civil, criminal, or family courts, often runs into constitutional impediments—even though each proposal deals only with part of the court system. Imagine the difficulties facing any full-scale reorganization! To unravel the string of proposals and counter-arguments, we turn now to the four most frequently discussed and occasionally successful reorganization proposals and to the views of the most vocal interests supporting and opposing these proposals. Then we will move to a discussion of proposals for full-scale reorganization. PARTIAL REORGANIZATION: MERGER For several years, discussion of court reorganization in legal circles focused on merging those trial courts within a province staffed by section 96 (federally appointed) judges. Merger would create a single trial court above the provincial court level, with a single set of judges with identical titles and equal salaries. In most proposals, the name of the lower-level county and district courts would be abolished, and judges of that court become justices of the existing supreme court, or a re-named queen's bench court. Merger developments are summarized in table 3. 81

Limited Jurisdiction Trial Court District Court

County Court County Court

County Court District Courts County Court

General Jurisdiction Trial Court (1978)

Trial Division of the Supreme Court

Supreme Court

Court of Queen's Bench

Queen's Bench Division of the Supreme Court

Trial Division of the Supreme Court

Trial Division of the Supreme Court

Province

Alberta

British Columbia

Manitoba

New Brunswick

Newfoundland

Nova Scotia

—

Court of Queen's Bench

—

Court of Queen's Bench

Merged Trial Court

PROVINCIAL TRIAL COURTS STAFFED BY FEDERALLY APPOINTED JUDGES

TABLE 3

None pending

None pending

Provincial approval 1978

None pending

Approved 1969, and repealed 1974; federal legislation never passed

Provincial approval 1978

Status of Merger Plans

Supreme Court Cour superteure

County Court of Judicature None District Court

Supreme Court

Cour superieure

Court of Queen's Bench

Ontario

Prince Edward Island

Quebec

Saskatchewan

Provincial approval 1980

In existence since confederation

Merger effective 1975

NOTE: This table and related material in the chapter has benefited from Peter Russell's unpublished material on statutory development of courts in each province, and Marek Debicki's excellent charts of the ten provinical court systems. Two of these charts have been published in M. Debicki, "Courts," a chapter in The Provincial Political Systems, ed. David J. Bellamy, Jon H. Pammett, and Donald C. Rowat (Toronto: Methuen, 1976), at pp. 374-77.

Court of Queen's Bench

—

County and District Courts

High Court of Justice of the Supreme Court

None pending; rejected 4-1 by Ontario Law Reform Commission, 1973

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Merger discussion has been widespread, but until recently accomplishment has been limited. In 1975 Prince Edward Island succeeded first, merging its tiny supreme and county courts into a single Supreme Court of seven justices. After some delays and one near-miss, New Brunswick enacted merger legislation in 1978 and Alberta followed suit in the same year. Merger in Saskatchewan was considered a dead issue until the federal and provincial governments introduced the necessary legislation in 1979. British Columbia passed its legislation in 1969, but the federal government never amended the Judges Act to allow the merger to be implemented, and the B.C. statute was repealed in 1974. Despite opposition to merger in New Brunswick and Alberta, the necessary federal legislation was approved routinely in 1979. In Ontario, merger has had many strong advocates, but was rejected by a four-to-one majority of the province's Law Reform Commission in 1973, and is not likely to win cabinet support. No significant steps toward merger are taking place in Manitoba, Newfoundland, or Nova Scotia. Finally, Quebec has been exempt from this discussion, since it entered confederation with only one trial court, staffed by federally appointed judges. Arguments for merger have focused on the greater efficiencies that can be expected from a single court. Under-utilized judicial manpower in small county courts could be rotated into other areas of the province. Frequent circuit-riding by supreme court justices could be reduced in court centres with sufficient business for a full-time resident judge. Merger of court records and administrative staff, already a reality in some rural centres, could occur in larger urban centres as well. Jockeying by plaintiff and defendant for a favourable forum would be given narrower scope, and scheduling conflicts would be reduced. Beyond these administrative arguments, structural simplification is seen as valuable in itself in that it would create clearer public understanding of the court system." Opposition arguments have focused on the issues of quality and function. In spite of federal government efforts to appoint equally qualified judges to the courts of a province, the opponents of merger often point to more senior county or district judges whose qualifications are deemed less adequate. Even if appointments were considered of equally high calibre, however, opponents argue that merger would increase the numbers of superior court justices to such an extent that they would lose their character as guardians of the law. The late United States Supreme Court Justice Felix Frankfurter reflected this concern when he opposed increasing the number of federal district court judges lest a Gresham's Law demean the judicial currency." The rationale behind limiting the number of superior court justices stems from their function of providing for

84

Court Organization and Federal-Provincial Relations and maintaining a coherent body of law through central consultation with colleagues, and their need for adequate time for writing and reflecting on cases of province-wide significance. In contrast, the emphasis of county and district courts is of a local nature, in that they serve the community in adjudicating a wide variety of disputes, thus reflecting the principle of the county courts of England, "that `justice should be taken to every man's door, by constituting as many courts as there were manors in the kingdom'."16 The increased support for an adoption of merger that appeared in the 1970s may have represented the priority given to efficient administration at that time. It is equally likely, however, to indicate the decreased relevance of opposition arguments. The legal profession is increasingly of the view that the quality of judicial appointments to supreme and county courts has been relatively equal within each province. Furthermore, functional differences between the two court levels have broken down. For example, Ontario county court judges frequently try six-figure civil actions and months-long criminal jury cases, while Ontario supreme court judges often process routine motor vehicle liability cases and even uncontested divorces. In practice, the two court levels have never been as sharply differentiated or as true to their prescribed functions as theory might suggest. In New Brunswick, for example, county court judges resided in only three centres—St. John, Fredericton, and Moncton—the same three locations in which supreme court justices sat. While status differences have persisted, functional differences have grown less discernible. In Alberta, both supreme and district courts concentrate resident judges in Calgary and Edmonton, serving smaller centres by riding circuit. In Ontario, cases flow to the most accessible court without regard to functional theories about local or province-wide responsibility.'7 Thus, Toronto's uncontested divorces often go to a high court justice, while those in London or Ottawa or St. Catharines invariably proceed in the county court. A quarter-million dollar lawsuit may go before a county court judge in Peel; a $10,000 auto accident case may go before a high court justice in Toronto. The actual consequences of merger are more difficult to spell out. It does reduce fragmentation of the courts, not only by eliminating one of the two levels, but by limiting the autonomy often given to the county judge in his or her home district. A local county or district judge in the past could cite his terms of appointment in order to resist a provincial chief judge's request to sit on occasion in a busier court centre. That concept is unlikely to survive any merger, giving way to an increased emphasis on the coordinating role of the chief justice. However, at the 85

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same time that merger reduces fragmentation, it does not necessarily increase centralization. In Alberta, for example, merger is likely to promote decentralization of the section 96 judges. In conjunction with his merger proposal, the Alberta attorney general told the legislature that resident judges would sit not only in Edmonton and Calgary, but "in time" in Lethbridge and Red Deer (where district court judges already sit) as well as Medicine Hat and Grand Prairie (now served only on circuit).18 An early supporter of merger in Alberta wrote that "the twolevel system of justice leads to centralization—it tends to make justice remote from the day-to-day life of the people, and vice versa; and it reduces the effectiveness of the district courts."19 It is not clear that the Alberta pattern—merger leading to decentralization—would occur in other provinces. In Ontario it could disperse supreme court justices, all of whom are required by federal statute to reside in Toronto, so that new appointees (or presently sitting justices who express a preference) could sit in other urban centres. But Ontario county court judges, who now reside in counties where the caseload is insufficient to support even a single judge, might be moved to a busier nearby county except when workload requires being back home. The point is simple: merger reduces fragmentation and increases coordination; it can also result in either centralization or decentralization, depending upon the degree of centralization of the existing courts and the commitment of judges and policy-makers to take justice to every man's door. The likelihood of merger has increased in the past decade, but the political conflicts that it presupposes have led some governments to shy away from its adoption. Generally, superior court justices oppose merger and county and district court judges support it. The bar and the government are often reluctant to push for merger under those circumstances. The political situation remains much like that described by Justice J. H. (Jack) Sissons, who, in his memoirs, wrote of his years on the Alberta district court (1946-55) in terms that would be familiar to judges and lawyers in a number of provinces today: In Alberta the judiciary is divided into two levels. There is a Supreme Court, whose members are called Mr. Justice and are addressed as M'lord. Its jurisdiction is the entire province. There are also two district courts, one for the north and one for the south, whose members are called Judges and are addressed as Your Honour and are paid lower salaries. ... During my nine years in Lethbridge I waged a campaign unsuccessfully, to have the Supreme Court of Alberta merged with the district courts. We had support from important people, including Stuart 86

Court Organization and Federal-Provincial Relations Garson, the minister of justice, and Lucien Maynard, the attorney general of Alberta. In general the junior lawyers endorsed the idea but the senior lawyers were against it, and so was the Supreme Court of Alberta. During the campaign I had a letter from Premier Manning, to say that Chief Justice George O'Connor was opposing the change on behalf of the Supreme Court. I wrote back: "I do not think you should be concerned over such opposition which is mere traditionalism and perhaps snobbishness." George was a witty and relaxed fellow with whom one could disagree vigorously and still remain friends. When I was appointed to the Northwest Territories he sent a telegram at once and it said: "Congratulations, Jack. You are now one of the snobs."20 The political role of the federal government is important, but less emphasized. In order to effect merger, a provincial government must secure federal support in the form of amendments to the federal Judges Act changing the titles, numbers, and salaries of those federally appointed judges who would be affected. It has been federal practice for some years to concur in judgeship decisions made by provincial legislatures.21 However, the federal government's refusal to introduce amendments to the Judges Act that would allow for merger in British Columbia suggests that concurrence in reorganization proposals is not automatic. The federal government never laid before parliament any reason for refusing to concur with B.C. Presumably, federal officials were influenced in their denial by B.C. justices who, as federal appointees, maintained or retained contacts in Ottawa. New Brunswick and Alberta met no similar refusal, although Alberta Attorney General James Foster had still been cautious: "We have been in touch with federal Justice on this legislation," he told the provincial legislature, "and, to the latest point that I am aware, they're happy with it."22 A federal veto, thus, remains a constitutional and practical possibility that will ensure provincial consultation with officials in the federal Department of Justice and Office of the Commissioner for Federal Judicial Affairs. It is from other proposals for court reorganization that fundamental questions of federal and provincial constitutional authority arise. PARTIAL REORGANIZATION: UNIFIED FAMILY COURTS Perhaps the best-known court reorganization proposals focus on the family courts of the various provinces. The existing family courts usually operate as divisions of provincial courts, handling a combination of juvenile offences and matters relating to enforcement of alimony and 87

CHAPTER FOUR

child support. These family courts are already unified in an organizational sense in many provinces, in that they either have a chief judge with some overall coordinating authority, or are part of an overall provincial court. The existing family courts are not unified, however, in a functional sense, because all legal matters pertaining to the family unit are not adjudicated there. The major omission from family court jurisdiction is the authority over divorce. This authority is given to superior court justices under federal legislation, and it has been extended in most provinces to county and district court judges. Along with authority to grant divorces, section 96 judges may also divide marital property, award custody of dependent children, and establish terms of alimony and support. If these terms are later violated, as they so often are, family court judges can be asked to enforce the custody and support decisions of superior court judges. The proposals for a unified family court place all matters pertaining to divorce, custody, and support in a single court. Advocates believe that unification would improve the quality of justice in family matters, reduce confusion and delays in resolving family disputes or enforcing court orders, and permit the development of more adequate support services to assist families and young people. The unified family court has won widespread support from law reform commissions and interest groups in the legal profession and the social welfare field. The controversy surrounding the unified family court arises in its implementation. Merger of supreme with county and district courts is relatively simple, since both courts are staffed by federally appointed judges. Unification of family matters would combine the jurisdiction of federally appointed judges with the jurisdiction of provincially appointed judges and magistrates. How could this be done? First, all family matters could be shifted to a court with federally appointed judges, as recommended by the Law Reform Commission of Canada; preferably, these judges would be dispersed rather than concentrated in one or two cities. This would remove a great deal of adjudication from provincially appointed judges, and would in many cases require realignment of a wide range of provincially run social services. Second, all family matters could be shifted to a court with provincially appointed judges, as favoured by many provincial authorities. Few federally appointed judges would object to losing their divorce caseload, but the issues are more complex: first, the federal parliament would have to amend the Divorce Act to allow provincially appointed judges to hear divorce matters; second, and more difficult, the BNA Act would have to be amended to allow provincially appointed judges to be given authority over those matters arising out of separation and divorce that traditionally fall within the jurisdiction of sec88

Court Organization and Federal-Provincial Relations tion 96 judges. As now interpreted, section 96 prevents a provincial legislature from shifting the traditional jurisdiction of federally appointed judges over to any other judge, court, or tribunal. Given these difficulties, other approaches to unification have been tried or suggested. One has been to unify the family court physically and administratively, but not in jurisdictional terms. Thus, British Columbia began two pilot projects in Whalley and Richmond, B.C., in which all family adjudication and related services were provided within a single building. Provincially appointed judges handled the bulk of the adjudicative work, and federally appointed judges came on a regular basis to hear those matters outside the jurisdiction of the Provincial Court judges. A second suggestion has been to develop a method for appointing judges jointly by federal and provincial governments. However, while some discussion has been held along these lines, the prospect of creating a class of judges appointed by two different governments has often been seen as the sort of federal-provincial entanglement that ought to be avoided at all cost. The federal government in particular would object to dual appointments as a fetter on the appointing authority of the governor general. A third suggestion has involved amending the constitution so as to shift all relevant authority in family matters to a single level of government. If this occurs, family matters will likely devolve on the provinces, especially since a consensus on this issue was reached among all governments at the February 1979 constitutional conference. The actual mechanics of devolution is still problematic, however, given the basic federal-provincial divisions on other constitutional matters. The difficulties of implementing a unified family court, in spite of widespread agreement that the concept is worthwhile and necessary, have produced a pattern of cooperative incremental change. In 1977, federal legislation authorized the development of unified family courts in each province as three-year pilot projects. Since passage of that legislation, four provinces—Ontario, Saskatchewan, New Brunswick, and Newfoundland—have negotiated agreements with the federal government to set up pilot projects. Each one is organized somewhat differently, in order to evaluate the relative effectiveness of different approaches. In implementing the projects, both levels of government have made their constitutional positions more flexible. Participating provinces have agreed that the unified family courts shall operate with federally appointed judges, in spite of strong opposition from some provinces. In Ontario, the federal government agreed to elevate provincially appointed family court judges to the county court bench for the purposes of the project. (Presumably those appointees would retain county court judgeships on expiration of the project, thus ensuring the security of tenure required under the constitution.) 89

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The major problems in implementing a unified family court are not in fact constitutional, but administrative. To unify family matters in a court that is understaffed, poorly managed, or inefficiently operated will not resolve the public concerns that gave rise to the call for reorganization in the first place. To work, any unified family court must have effective support services, both social and clerical, so that judges can issue sensible and sensitive orders; and some mechanism to ensure that these orders are carried out, both in letter and in spirit. Attempts to reform family court processes and administration have been bogged down in federal-provincial questions that have not only delayed reorganization, but have deflected official attention from necessary managerial reforms. PARTIAL REORGANIZATION: ONE CRIMINAL COURT Proposals for reorganizing criminal courts—or to be more exact, criminal law jurisdiction—have also focused on functional unification. They recommend that all criminal matters be heard by a single trial court, rather than being distributed among superior, county and district, and provincial courts. The most thorough arguments for a single criminal court were marshalled by Vancouver lawyer Darrell Roberts in a 1973 report for the Law Reform Commission of Canada, "The Structure and Jurisdiction of the Courts and Classification of Offences." He concluded: What is needed is one criminal court in which all of the judges would have jurisdiction to try all criminal cases and in which they would enjoy equal status and equal pay. All of the different trial jurisdictions now exercised would be abolished, the complicated scheme of elections and re-elections would be eliminated, and the only trial option that might remain within the one criminal court is the choice of trial by judge alone or judge and jury. The court could be called the Canadian Criminal Court and named as such in each province. The judges of that court could be called judges or justices of the Criminal Court and for efficiency each province might be divided into judicial districts with administrative authority to be exercised by a senior judge in each district.23 Roberts condemned the existing system as inefficient and overly complex. "A criminal court system more complicated than ours," he wrote, "would be hard to imagine." The ability to shift from court to court with election and re-election procedures, the use of the preliminary hearing, transcript delays, and the assize system are all criticized. The use of trial de novo in summary conviction matters, while indictable offences may be appealed only on the record, has led to a system in which appellate review of minor offences is broader than appellate review of those of a more 90

Court Organization and Federal-Provincial Relations serious nature.24 The shifting of criminal cases to provincial magistrate's courts, traditionally the lowest-status trial courts, has meant that "our whole criminal process is debased" because "the most important court is looked upon as inferior and subordinate."25 The proposal for a single unified criminal trial court in each province has received support from many provincial court judges, and approval in principle by the Canadian Association of Provincial Court Judges. But the proposal still lacks a consensus similar to that of the unified family court. While some superior court justices may prefer to leave criminal work to county or provincial court judges, other justices lament the absence of criminal work at the superior court level; they would prefer a system in which criminal trials were distributed across all trial courts, and not concentrated so heavily in the provincial courts.28 The controversial nature of Roberts' recommendations is mirrored in the fact that while his report has never been released in any form by the Law Reform Commission, it has stirred sufficient interest that photocopies of a typed draft have been circulated throughout the country in the years since its preparation.27 The controversy surrounding proposals for a unified criminal court, like that surrounding the unified family court, stems in good part from constitutional and political problems in implementing unification. Most criminal cases (in fact, 93 percent of indictable offences) are disposed of at the provincial court level; however, provincial court judges have no authority to try jury cases. Thus, a defendant asking for a jury trial has to elect trial before a county court judge or superior court justice. To unify criminal jurisdiction in a single court would require either amending the federal criminal code to shift jury cases to a provincially appointed bench—a contradiction of the spirit of judicial interpretation of section 96 of the BNA Act—or shifting an enormous criminal caseload to a federally appointed bench—a move that might be constitutionally valid but so substantial a change that it is politically unfeasible. Roberts favoured "a gradual and orderly development of the Provincial and Magistrate Court as the one Criminal Trial Court." The evolution of provincial courts would apparently face no constitutional problems, because federal officials believe that section 96 limits provincial legislatures but not the federal parliament; thus, the federal parliament could amend the criminal code to place all criminal jurisdiction (including jury trials) in the provincial courts.28 Roberts saw evolution of the provincial court as "a course that would already seem to have been begun" and "a course of minimum friction and disruption. Indeed," he concluded, "in all respects it is a course of considerable promise."29 Federal-provincial conflict becomes more significant on issues of criminal law and procedure than on family matters, and it was probably 91

CHAPTER FOUR

this conflict that made the Law Reform Commission reticent to release the Roberts report. While the federal government has only a marginal stake in family matters, it has a major role in criminal matters. Both criminal law and procedure are under the exclusive authority of the federal government. To remove all criminal trials from federally appointed judges therefore removes an important element of federal authority from a field in which the federal government has a major role. On the other hand, provinces are apt to be reluctant to give up appointing power for a bench as large as that of the provincial court. And provincial court judges, generally supportive of a unified court, would be reluctant to support proposals for a federally appointed criminal court from which they might possibly be excluded. Roberts stressed the need to deal with the political and constitutional impediments to a unified criminal court. Thus, the largest section of his report developed four "possible models for reform." Each possessed its own advantages and disadvantages. The concurrent jurisdiction model, derived from earlier recommendations by Professor Martin Friedland, would confer general criminal jurisdiction on every trial court level in a province. The model aims at reducing inequalities between courts, but Roberts rejected it because it would fragment rather than unify criminal proceedings. The existing court model would simply shift to the provincial courts that last small percentage of criminal jurisdiction that they do not already share with section 96 courts, and then exclude section 96 courts from the trial of criminal cases. As noted above, Roberts saw this approach as most feasible. A third model, the consolidated court, would merge all trial court levels into a single court for the purpose of hearing criminal cases; while this would produce the desired unification, "the problems it raises are so overwhelming as to warrant its outright rejection."3° Consolidation would be technically impossible, Roberts believed, since it would involve merging courts whose judges were appointed by different governments. If the problem of appointment were resolved by having all members of consolidated courts appointed federally, then the court would no longer be a consolidation of existing courts, but an entirely new one. Roberts went on, therefore, to spell out the fourth alternative, a new court model, which seems best to fit his overall goals, but creates the most difficult constitutional dilemmas. The "new court" would be "a federal court, federally administered, and with a federally appointed judiciary" whose creation could be "much like [that] of the new Federal Court of Canada or indeed as a logical extension of it." With such a court, wrote Roberts, "there is every reason to expect that the criminal law of Canada would attain its zenith in equality of interpretation and application in every part of Canada."Ø1 However, an exclusively federal criminal 92

Court Organization and Federal-Provincial Relations court would not only involve "enormous expense and potential for disruption," but would also require reconciliation of conflicting constitutional language. Section 92(14) makes the administration of justice a provincial responsibility, while section 101 allows the federal parliament to establish "any additional Courts for the better administration of the Laws of Canada." Section 101 was the basis for creation of the Federal Court by the parliament of Canada, and would appear to take precedence over section 92(14) because it confers authority on parliament "notwithstanding anything" in the BNA Act. However, the federal power over criminal law in section 91(27) explicitly denies that the federal parliament may constitute courts of criminal jurisdiction. Thus, lawyers and lawmakers would confront a constitutional standoff. Proposals for implementing the concept of a unified criminal court thus raise a number of important political and constitutional issues. What might be gained by unification might not outweigh the political costs and constitutional impact. Indeed, because the concept raises issues that go beyond efficient court administration and effective court organization, its advocates are unlikely to agree on precisely what a unified criminal court should look like. For example, Roberts' emphasis on uniformity suggests the importance of federal administration of the criminal court. Roberts believes that a unified criminal court "would permit a common, uniform program of judicial training and education. In turn it would promote a standardization of judicial practice, [and] an equal application of the law. .. ."32 Other advocates of a unified criminal court emphasize the goal of efficiency over uniformity and temper the need for uniformity with the desire to avoid an overly monolithic criminal justice system. Those who emphasize upgrading of criminal matters might support federal appointment of criminal court judges and provincial administration of the criminal courts themselves. Because unification of criminal jurisdiction is supported for different reasons, reformers and scholars may have difficulty achieving any consensus about how best to implement the proposal so that a single criminal court is not only efficient but also embodies basic social and legal values. To further complicate matters, the same people who advocate criminal court unification frequently also espouse the creation of separate tribunals for the trial of minor offences. Consider the statement made by Darrell Roberts immediately following his endorsement of a unified criminal court: Since this court would be concerned with serious offences, very minor offences, not necessarily equivalent to the present class of summary conviction offences, could be excluded and tried by a minor offence tribunal. For these offences it might be feasible to have them tried by 93

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a magistracy without formal, professional, or legal qualifications. But in this event they should be carefully trained for the exercise of their jurisdiction and perhaps the jurisdiction should be limited by prohibiting them from imposing imprisonment.33 Many Ontario provincial court judges and departmental officials are sympathetic to proposals for a minor offences tribunal staffed by lay judges, following the success of a pilot project (the North York traffic tribunal), and substantial revision of provincial minor offence statutes.34 On the other hand, some advocates of one criminal court favour legally trained judges for minor as well as major offences. From a management perspective, any minor offences tribunal, whether staffed by lay magistrates or professional judges, should function as a division of the criminal court, not as a separate court. As a division, the minor offences tribunal could have its own jurisdiction and procedures, but would be administratively linked to the general criminal court, and the organizational fragmentation that concerns advocates of unification would not persist in a new form. In theory, a unified criminal court should enhance the ability of court administrators to implement effective court management. In practice, whether a unified criminal court leads to more effective management of court business depends upon what implementation model is chosen, and whether that model is consistent not only with administrative needs, but also with basic legal and political values (including equality under the law, fair trial, a proper balance between federal and provincial authority, and the recognition of regional differences across Canada). PARTIAL REORGANIZATION: BOOSTING CIVIL JURISDICTION

Unification of criminal jurisdiction may spawn minor offences tribunals, as judges of the general criminal court seek to discard the least important, least prestigious, and least interesting matters they are asked to consider. The same pattern can be seen on the civil side, in that two different, although related issues are debated by provincial governments: first, how high should the monetary jurisdiction of small claims courts be? second, should provincial courts exercise civil jurisdiction, and if so, how far should it extend? The small claims debate concerns how far more informal and less expensive "rough justice" can and should be extended. The provincial court debate reflects an effort to create a group of judges skilled in and committed to handling smaller civil suits; it is also a product of the upgrading and merger of county and district courts. Every province has a small claims court, whether it is staffed by federally appointed judges in the county and district courts (as in Ontario 94

Court Organization and Federal-Provincial Relations and Manitoba), by federally appointed judges in unified superior courts (as in Prince Edward Island, and as planned in New Brunswick), by provincially appointed judges as part of provincial court work (British Columbia, Saskatchewan, Quebec, Nova Scotia, and Newfoundland), or by both section 96 and provincial court judges (Alberta). Small claims jurisdiction ranges from $300 to $2,000; there is a general tendency to increase the limit, both to keep up with inflation and to make small claims courts, with their emphasis on informal procedures and parties presenting their own cases without legal assistance, available in more disputes. Ontario plans to go still further, by increasing small claims jurisdiction to $3,000.35 That proposal raises basic questions about the efficiency and proper scope of small claims procedures. For example, one of the basic notions underlying small claims courts is that litigants can appear without counsel. The judge then plays a more inquisitorial role to ensure that evidence and argument are fully developed. As long as small claims work is kept to a low dollar amount, it will be unprofitable for lawyers to participate in most cases. Once small claims jurisdiction is increased, lawyers will be much more prevalent, changing the character of the tribunal. One way to avoid this is to prohibit lawyers from appearing, as is done in the Quebec small claims procedure. However, a prohibition on lawyers is more likely to keep small claims jurisdiction at a lower level (in Quebec, it stands at $500), and does not necessarily make small claims courts more accessible or fair to the individual.86 A second basic concept in small claims is the importance of simplified procedure. Raising small claims jurisdiction to $3,000, however, would result in substantial numbers of personal injury cases coming under small claims, with the resulting need for discovery procedures to assess medical claims. The next step would be the introduction of pleadings. If discovery is allowed and pleadings omitted, a hybrid type of procedure would evolve, different from either small claims or a full-dress civil proceeding. Such a hybrid procedure may be worthwhile, but it will be different from established small claims court procedure. At some point, the necessity for maintaining a simplified procedure with more judge involvement prevents an increase in dollar jurisdiction—even though inflation makes it difficult to recommend a specific maximum amount. These considerations are premised on the use of small claims courts by private individuals of more modest means. Yet some writers have concluded that a small claims court is principally a court where people of small means are sued for small sums by large companies.S7 Whether they are dominated by a clientele of large creditors may vary from place to place, reflecting variations in the extent to which members of the general public are aware of the court and have easy access to its services. 95

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Furthermore, the extent to which small claims courts are converted into agents of large companies may depend on the rules and procedures established by judges of those courts. In British Columbia, one small claims judge has refused to hear professional bill collectors whose claims have been assigned by other companies; another judge held that a bill collector had engaged in the unauthorized practice of law by representing a creditor company in small claims court.38 Some B.C. small claims caseloads are now dominated by landlord-tenant matters, motor vehicle accident claims, debts arising from non-payment of fees, and claims for goods and services by small businesses—matters involving individuals rather than large corporations or financial institutions. Whether this is the result of the above decisions or a reflection of other forces is difficult to say. The civil jurisdiction of provincial courts need not stop at the small claims limit. At this time, Quebec is the only province whose provincial court judges exercise broader civil jurisdiction, but they may soon be joined by others. For a number of years, Quebec's provincial court had jurisdiction over civil matters up to $3,000, and on September 1, 1979, that amount rose to $6,000. Moreover, the Quebec provincial court entertains jurisdiction in by-law and other ancillary areas which may lead them to decide cases the consequences of which may be counted in hundreds of thousands of dollars. Provincial court jurisdiction over the Quebec income tax has generated suits in excess of a million dollars. Some Quebec provincial court jurisdiction has been declared an unconstitutional invasion of the traditional authority of section 96 courts,S9 but there is general agreement that increasing the dollar amount in minor civil matters is in keeping with the accepted constitutional standards enunciated by Chief Justice Duff in the 1938 Adoption Reference4° The extensive jurisdiction of the Quebec provincial court reflects the nationalism of that province, but cannot be explained solely in terms of the distinctive issues of Quebec politics. One pressure to expand civil jurisdiction of provincial courts derives from merger. When county or district courts, which have limited civil jurisdiction, are absorbed into a single section 96 court with general and unlimited civil jurisdiction, it is likely that minor matters will devolve from the new general jurisdiction court to the provincial court, the only remaining tribunal with limited civil jurisdiction. Quebec has had only one section 96 court; thus its provincial court has moved into the vacuum created by the absence of an "intermediate" civil trial court. A similar evolution is likely in Alberta. When that province's attorney general first proposed merger of supreme and district courts, he also proposed increasing provincial court civil jurisdiction to $3,000. That proposal was abandoned and merger alone was included in the statute enacted by the provincial legislature. How96

Court Organization and Federal-Provincial Relations ever, the attorney general made a commitment on the floor of the legislature to study further jurisdictional changes, and supported "a modest increase" in the provincial court's civil jurisdiction.41 A second source of pressure is from section 96 judges themselves. Regardless of nationalism or merger, federally appointed judges in courts with substantial or unlimited civil jurisdiction often prefer to focus their attention on major cases rather than those of smaller dollar amounts. They therefore often support proposals to transfer small claims and minor civil jurisdiction from section 96 courts to provincial courts. Ontario offers the best example of such an arrangement. While county and district courts have retained small claims jurisdiction in Ontario, many small claims are not heard by county court judges. In a number of counties, private lawyers are hired on three-month contracts and paid on a per diem basis to hear small claims. London, Ontario, has experimented with non-lawyer referees. Small claims are therefore already being diverted away from section 96 judges to other officials within the county courts. Furthermore, in larger centres the provincial attorney general has appointed full-time judges who sit in small claims courts that are not part of the provincial court apparatus. Pressure is therefore building to develop and rationalize the system by creating a civil division in the Ontario Provincial Court, staffed by provincially appointed small claims judges. However, in order to generate enough cases for a civil division, its jurisdiction may be set as high as $3,000. Not all provinces are opting for increased civil jurisdiction in their provincial courts. New Brunswick has elected to increase the small claims limit, but retain those matters in its newly merged Court of Queen's Bench. This step assures that the province's section 96 court will handle all civil matters, in keeping with New Brunswick's effort to rationalize court organization on functional or subject-matter lines. Other maritime provincial judges support this approach, feeling that their emphasis on criminal and family work prevents them from keeping up with legal developments on the civil side. In the larger provinces, it is possible for provincial court judges to specialize in small claims and civil matters, and thus develop and maintain their expertise, but this may be too difficult in the smaller provinces. CONSEQUENCES OF PARTIAL REORGANIZATION All four of these proposals and trends, taken together, can help us understand the direction that change in Canadian court organization is likely to take in the coming years. First, there would be a general upgrading of judges at each level of the judicial status hierarchy. Under merger, county and district court 97

CHAPTER FOUR

judges would become superior court justices, with more prestigious titles, higher salaries, and unlimited jurisdiction. In a unified family court, judges now handling family and delinquency matters would extend their jurisdiction to divorce proceedings that are now part of the domain of superior court justices. Under proposals for one criminal court, added criminal jurisdiction—specifically, the trial of jury cases and capital offences—would trickle down from federally appointed to provincial court judges. Under proposals to boost small claims and provincial court civil jurisdiction, an increased number of matters would again trickle down the judicial hierarchy. Under proposals for a minor offences tribunal, the provincial court judges who have gained general criminal jurisdiction would then shed their more routine and less serious cases to lay magistrates—representing a full cycle of change from the nineetenth and much of the twentieth century when provincial court judges were in fact local lay magistrates with limited criminal jurisdiction. As the status of provincial and county court judges rises, new officials are likely to take their place, handling the necessary but mundane cases that remain so important to individual litigants. Second, functional or subject-matter lines would be drawn more sharply and more explicitly. All family matters would be in the domain of a unified family court while all criminal matters would be in that of a single criminal court. Supreme and county/district courts would be merged, unifying their civil jurisdiction. With the transfer of criminal and divorce matters to provincial courts, the merged superior court would be the one major civil court in each province, with civil matters of a smaller dollar amount going to provincial courts or to enlarged small claims divisions of the superior courts. The functional differentiation of existing Canadian courts, especially in contrast to their American counterparts, would become even more pronounced. Beyond these obvious trends, there may develop a greater blurring of the original conception of the Canadian judicial system. The thrust of the BNA Act was a reaction against the dual system of state and federal courts in the United States. The fathers of Confederation viewed that as a poor solution to the problem of organizing courts in a federal state. They chose a unitary (actually a hybrid) model of court organization in which each province would organize and administer its own system of courts, but the judges of those courts would be federal appointees. That unitary approach remains the staple of government textbooks, but already diverges from reality. With the upgrading of magistrates to provincial court judges in the past two decades, and the transformation of magistrate's courts from local institutions to provincially funded and provincially administered courts of law, it is no longer possible to talk about the Canadian court system in traditional terms. Furthermore, with the 98

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transformation of the Exchequer Court to the Federal Court a decade ago, complete with separate trial and appellate divisions and an expanded mandate, even discussion about the provincial responsibility for court administration requires a new footnote. If recommendations to unify both family courts and criminal jurisdiction, and to increase the civil jurisdiction of provincial courts, are implemented, the provincial courts would grow even larger and more important. While merger of the section 96 court would give those new courts more flexibility to allocate resources throughout a province, merger would also emphasize the isolation of those courts—no longer the only true Canadian trial courts, they would share the stage with a small but potentially significant Federal Court, and a growing set of provincial courts. The original hybrid model for our trial courts (provincial administration of courts with federally appointed judges) would be joined by two others, purely federal and purely provincial trial courts. The current result—neither centralized nor decentralized, neither the American dual court system nor the Canadian "unitary" system—suggests that further evolution is likely. Table 4 outlines these various models. The blurring of the unitary Canadian judicial system need not follow from the reforms discussed in this chapter. Remember that the pilot TABLE 4 MODELS OF TRIAL COURT ORGANIZATION IN FEDERAL SYSTEMS Administrative Authority

Appointing Authority

Federal

Federal

Federal or Provincial

"Unitary" or hybrid system envisioned by BNA Act

Centralized (e.g., Federal Court of Canada)

Federal or Provincial Provincial Appropriate for country with diverse ethnic or regional groups and a single legal system

Provincial

Dual court system (as in United States system of separate federal and state courts)

Current Canadian system

Decentralized (e.g., exclusively provincial courts)

99

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projects for a unified family court have followed the original unitary conception, with federally appointed judges presiding in a provincially administered court. Furthermore, the development of one criminal court need not follow Roberts' "existing court model" but could evolve so that section 96 judges play a significant role. Increasing the jurisdiction of small claims courts need not subtract more cases from section 96 courts, since five provinces now use federally appointed judges for at least some small claims work. However, while the blurring of the unitary system is not a logical result of implementing currently discussed reforms, it remains a likely one. The federal government has not placed a high priority on defending its divorce jurisdiction. And if Darrell Roberts' arguments are valid, the main alternative to a fully provincial, unified criminal court is not a section 96 criminal court, but a fully federal criminal court, modelled after the existing Federal Court. What this discussion suggests is that the section 96 judges, especially the justices of superior courts, will need to give increased attention and priority to issues of court organization. Otherwise, they are likely to lose the central role they once occupied in a unitary judicial system. A decade ago, section 96 judges acquired a nationwide voice in the form of the Canadian Judicial Council, but that body has thus far been silent in reorganization debates. There are signs that justices in British Columbia and Ontario may seize the initiative and define a position on court reorganization that reflects their perspective, but the form that position might take is as yet unclear. What impact would current reorganization proposals have on court administration? According to reform advocates, all of the proposals aim to make courts more efficient—to improve the administration of justice. But these efficiencies are usually defined in terms of legal procedures, not management systems. Unification of family matters and criminal jurisdiction, along with merger of section 96 courts, should produce more expeditious procedures, by removing steps in the process that derive from currently overlapping jurisdictions. It is likely that these changes would also improve trial court management. Court administrators as well as judges would work in more clearly demarcated functional areas—civil, criminal, family—and thus be able to gain a better overview of their tasks and plan for future needs. Reorganization would thus provide a necessary condition for improved management at the courthouse level. Reorganization is not however sufficient to ensure more effective management. It does not, in itself, assure that judges and governments will be committed to developing managerial capabilities in the courts, nor does it resolve basic issues of executive versus judicial control of administration. Nevertheless, reorganization is consistent with a sensitivity to the courts as complex organizations; it carries within it the same perspective 100

Court Organization and Federal-Provincial Relations that underlies informed court management. Where reorganization creates new challenges for court administration is at the system-wide or central headquarters level. Reorganization proposals would make each new court functionally self-sufficient—in civil, criminal, and family matters. This would be likely to create pressure for managerial self-sufficiency as well. Chief administrators of each of the unified and merger courts would be in the key positions of administrative leadership, while the province-wide court administrator would be likely to have central allocative responsibilities and technical assistance staff functions. Many of the central administrative functions (to be discussed in chapter 5) would be performed not by a single central administrative office but divided among the central administrative staffs of the various separately unified courts. GENERAL REORGANIZATION The above speculations are based upon enactment of all the partial reorganization proposals discussed earlier in this chapter. The implications discussed there are similar to those arising from general reorganization proposals, now becoming increasingly common Here, we will compare one such proposal, that of Queen's University law professor Noel Lyon, with those of the Provincial Judges Associations of Ontario and New Brunswick. Lyon emphasizes the opportunity to develop a model out of the "fluid" situation in all courts today. "Reform is in the air," he writes. "The situation is similar in many ways to that which existed in England during the period of reform that culminated in the Judicature Act of 1875. What we need to guide the current reform movement is a conception of the model we should be working toward over the next two or three decades." Lyon premises his model on the "dominant need ... to work toward an end to the deep division that exists in our courts between superior courts and so-called courts of inferior jurisdiction." This we can do, he suggests, "... by substituting for the hierarchical model now entrenched in our thinking a functional model in which all judges belong to an integrated judiciary but are specialized as to function and noted for their competence as judges rather than their position in a hierarchy of ascending power and importance."42 The functional model would build on the current divisions between civil, criminal, and family courts. Lyon thus proposes a "provincial trial court dispersed throughout the province and having three divisions: (a) criminal division with jurisdiction in all criminal matters. (b) civil division with unlimited monetary jurisdiction [and a special procedure for small claims]... 101

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(c) family division with comprehensive jurisdiction in family matters 's The Lyon proposal then adds a new feature: a central trial court "with substantial appellate functions and special functions like judicial review." The central trial court would not go on circuit, although it "might arrange to hear particular cases on location. "The central trial court's work," argues Lyon, "should consist mainly of cases in which there is real doubt as to the proper interpretation of the law." Thus, civil or family litigation "involving complex or important issues" would be heard "in the central trial court at the instance of parties or on the initiative of the trial judge." In this manner, the central trial court could perform the traditional function that justified its development in England and Canada, that is, one of maintaining "some consistency of interpretation of common law and statutes over time." This special role "has been lost" as judges of "a highly concentrated, collegial and informally-specialized superior court" sit on routine cases that entail no challenging legal issues'¢ By arguing for a distinctive central trial court in each province, with a distinctive legal role, Lyon rejects the results of merging superior courts with county and district courts. A central trial court should be "more compact" so as to perform its distinctive role more effectively. We should not, says Lyon, have the larger superior courts "that would result from merger."46 Thus, Lyon's model for general court reorganization has many of the same characteristics that would arise from incremental adoption of proposals for one criminal court, a unified family court, and merger of section 96 courts. The three partial reorganizations also emphasize functional specialization. Lyon takes that a step further and suggests a single general trial court with three divisions. Where Lyon's model diverges is in the reestablishment of a central superior trial court—a step which seems to maintain the hierarchical model he criticizes earlier. (He even suggests that the central trial court could be called "the provincial superior court.") Lyon could make his proposed central trial court consistent with his overall theme by emphasizing the functions rather than the status of the central court. For example, he retains a court of appeal in his model, but that court of appeal—while hierarchically superior to the trial courts— would be functionally distinctive, both in terms of hearing appeals and establishing overall legal principles. What are the functions of a central trial court? Lyon discusses these in general terms. However, the erosion of the distinctive quality of existing superior courts has meant that it is much 102

Court Organization and Federal-Provincial Relations harder for Lyon to make a case for a "central trial" function than for a civil, criminal, or family law function. Whatever the flaws in Lyon's model for court reorganization, it frames the issues and builds on past proposals for partial reorganization. Its main difficulty, as Lyon himself concludes, is constitutional. Under present law, all judges in the proposed court system "would have to be appointed by the Governor General." Yet "federal appointment of all judges is not acceptable or appropriate," leading Lyon to advocate a constitutional amendment incorporating some procedure for joint appointment.4° Efforts of judges in particular provinces to develop overall reorganization schemes have produced proposals similar to Lyon's. In Ontario, the Provincial Judges Association submitted to the federal minister of justice a proposal that is somewhat more elaborate, but similar in its emphasis on functional divisions in a more unified structure. The association proposed: 1. The Supreme Court of the Province—having jurisdiction in selected appeals on matters of law (comprised of the present Court of Appeal) . 2. The Provincial Court of Appeals—with a wide jurisdiction to hear and deal with appeals on matters of law or fact—sitting in panels in regions of the province (comprised of the present Trial Division of the Supreme Court of the Province). 3. The Provincial Court being the Trial Court and consisting of four divisions, viz.: (a) Civil Division

(b) Criminal Division

(c) Family Division (d) Appeal Division

jury and non-jury civil trials—surrogate and miscellaneous civil jurisdiction. (The present County and District Court with unlimited monetary and territorial jurisdiction.) jury and non-jury criminal trials with complete jurisdiction in all criminal matters. (The present Criminal Division of the Provincial Court. ) full jurisdiction in family matters, divorce, and juvenile matters. single judge sitting locally to hear appeals from Small Claims and Provincial Offences Courts.

4. Small Claims Court—having limited monetary jurisdiction in local area—presided over by trained assessors who are not necessarily lawyers. 103

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5. Provincial Offences Court—having summary jurisdiction in offences against Provincial Statutes—presided over by trained Justices of the Peace who are not necessarily lawyers.47 There are two chief differences between the Lyon model and the Ontario provincial judges' model. First, the Ontario model sets up two limited jurisdiction trial courts—a small claims court and a provincial offences court—both of which could be presided over by non-lawyers. These two "lower courts" maintain the hierarchical differences between trial courts that Lyon decried. (The hierarchical differences are further reinforced by including an appeal division within the unified general trial court and giving it authority to hear appeals from the two "lower courts.") Strong arguments can be made on functional grounds for the small claims and provincial offences courts. While these two courts would exercise civil and criminal jurisdiction, they would do so in matters for which fulldress court proceedings would be inappropriate. Perhaps a more effective compromise between the Lyon and the Ontario models would be to authorize appointment of lay magistrates or referees to hear small claims and minor offences within the appropriate trial court division. Thus, trained referees in the civil division could hear small claims, and trained magistrates in the criminal division could hear minor offences; appeals would then be processed internally within each division. The proposal that lay referees assess small claims has raised an additional concern; namely that lay adjudication of civil matters would be less successful in practice than lay adjudication of minor offences. Many civil claims, however petty in terms of the dollars involved, raise complex issues of law which require consideration by a legally trained individual—all the more reason both to train the small claims referees and to link them more closely with civil division judges. The second difference between the Lyon and Ontario models is the function assigned to the former superior court justices. In Lyon's model, they are part of a central trial court; in the Ontario proposal, they are part of a new intermediate court of appeal. In fact, the two proposals are quite close. Lyon includes many appellate functions in his central trial court, whose lawmaking role he emphasizes. The Ontario intermediate court of appeal would have similar functions. Lyon's proposal would be applicable in provinces other than Ontario, including those with insufficient case volume to justify an intermediate-level appellate court. While the Ontario proposal would be less widely transferable, it does make functional sense. It lays to rest the English model of an elite central trial court, and adopts the now-current American model of an intermediate court of appeal sitting in panels in different regions of the province. Against the concept of an intermediate appellate court are arguments of 104

Court Organization and Federal-Provincial Relations efficiency. The new court would add another step in the legal process, further drawing out litigation. It may be a necessity in a province as large as Ontario, but should be adopted only as a last resort. In June 1978, the New Brunswick Provincial Court Judges Association proposed a reorganization which again stressed functional differentiation of trial courts, but included neither a central trial court nor an intermediate appellate court. It recommended two senior courts in New Brunswick: the Supreme Court (trial and appeal divisions) and the Provincial Court (criminal and family divisions), and also a small claims and misdemeanors court. The trial division of the supreme court would be a general civil trial court; all criminal and family matters would fall within the appropriate division of the Provincial Court. Thus, the civil trial court would consist of the judges of the then-existing trial division and the county and district courts. While the Ontario proposal did not deal with whether federal or provincial governments would appoint the judges, the New Brunswick proposal suggested a solution close to the status quo: federal appointment to the Supreme Court and provincial appointment to the Provincial Court. The New Brunswick plan is closest to being a combination of the partial reorganization proposals spelled out earlier in this chapter. However, it shares with the Lyon model and the Ontario proposal a distaste for existing hierarchical divisions: ... [I]t is a sad commentary upon the Canadian way of life that we treasure our real and personal property so highly that we ensure that both are judicially safeguarded by a group of adequately compensated Judges, who are properly regarded as professional experts; ... [while] at the same time we hold our personal liberty in such low esteem that we regard a Judge of the Provincial Court as a person of somewhat lower quality and consider him little better than a tradesman, and pay him accordingly 48 Thus, the New Brunswick judges advocate a functional scheme for the trial courts almost identical to that of Ontario. Again, Lyon's notion of a central trial court is not incorporated. CONCLUSION Discussions of court reorganization and jurisdictional change in Canada over the past decade have appeared to be quite different from similar discussions in the United States. There, a generally agreed upon model for a unified court system, as propounded in the court organization standards of the American Bar Association, has guided reorganization efforts. Various states have applied variants to the ABA standards, but the direction 105

CHAPTER FOUR

has been the same: a single set of interconnected trial and appellate courts. In Canada, no such model has existed, and discussion of partial reorganization has been most common. Now an overall model is beginning to emerge in Canada, as reflected in the general reorganization plans, and in the implementation of the earlier partial reorganization proposals. Note, however, that the Canadian plans emphasize functional differences between courts, while the American standards emphasize the hierarchical relationships. The two countries are using quite different integrating principles. Hierarchical characteristics remain in the Canadian models, but the functional differences suppressed in American standards are emerging as a core value in Canadian proposals. One reason for this is that the general reorganization proposals discussed above have reflected a provincial court perspective. Since provincial court judges are at the bottom of the existing status hierarchy, they could be expected to favour functional rather than hierarchical differences. The United States standards have reflected a variety of views, including those of state and federal appellate and superior court judges. A similar consensus has not developed in Canada; section 96 judges are unlikely, for example, to support the proposal of Ontario's Provincial Judges Association. If section 96 judges begin to participate actively in reorganization efforts, a consensus may finally emerge, but whether that consensus would continue to stress functional rather than hierarchical differences is problematic. What makes court reorganization more complex and difficult in Canada than in the United States is that no provincial system of courts is independent of federal involvement, either through the appointment process or through federal authority over criminal law and procedure. Finding a method for appointment of trial court judges that would mesh with proposals for structural and jurisdictional changes has stymied Canadian court reformers. At this point, advocates of reform seem only to hope that complex federal-provincial negotiations already underway on the constitution will produce in their wake an appointment process that will allow individual provinces to organize a more efficient and 'inderstandable functionally based system of trial courts. In the meantime, however, emphasis has shifted from the integration or alteration of court jurisdictions to the development of professional administration as a tool for modernizing and coordinating court operations. This shifting emphasis is reflected in the pages that follow, particularly in the next chapter's focus on the linkage role played by the court administrator.

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Chapter Five

The Function and Role of the Court Administrator A new office to respond to the needs of the court as a complex organization is beginning to emerge—that of court administrator. Court administrators have diverse tasks and responsibilities. Province-wide, they may monitor the performance of essential court services, oversee distribution of financial and personnel resources from one region to another, or provide technical assistance to executive officials and local courts. Trial court administrators may be heavily involved in managing the flow of paper, or assisting judges in coordinating the flow of cases. Court administrators attached to a central court registry or regional administrative office may have still different sorts of responsibilities. But they all share certain fundamental characteristics. First, they operate under the constitutional and jurisdictional constraints outlined in chapters 3 and 4, constraints that add to the complexity of their tasks. Second, their role can best be conceived of as a link that coordinates the diverse actors in the legal process. Thus, a discussion of the court administrator will reflect these two common elements. We begin with a review of -the recent historical development of the court administrator's role in the Canadian provinces, with particular reference to the conflict over executive direction versus judicial control of administration. We will then develop and argue for a "linkage conception" of the role of a court administrator— a non-traditional view which sees the court administrator not as part of a hierarchical organization, but as a link between conflicting actors in the legal process and the surrounding political environment. EMERGENCE OF COURT ADMINISTRATION AS A SEPARATE FUNCTION

The discussion of models of court administration in chapter 3 not only distinguished executive-centred and judicially controlled administration, but also suggested that there are many different models within those two 107

CHAPTER FIVE

major categories. For example, executive-centred models were differentiated on the basis of whether officials who perform court administrative tasks are separated from officials who do other administrative tasks within ministries of justice and other executive departments. Yet it has only been possible to make this distinction within the last decade, because only within recent years have court administrative functions become disengaged from general management responsibilities of ministries of justice. It is this change in administrative organization, combined with judicial interest and the assertion of judicial power, that is likely to influence the direction court administration will take in years to come. In other words, advocacy of judge-controlled court administration is not intended as a criticism of court administrative staff within executive departments. Their efforts to define and meet the needs of the courts have created for the first time officials throughout the country who identify themselves as court administrators, and direct their energies to dealing as managers with court problems. It is the very split between the responsibilities of judges and the authority of executive departments that has made the court administrator's job more difficult, creating suspicion on the part of judges and a sense of superiority and disdain on the part of executive departments. Because the split is most obvious in the field of caseflow management, this central task of court administration may needlessly falter.' To be effective, court administrators must forge closer links with the judiciary; this in turn requires a necessary disengagement from executive branch authority. The first step in this direction has been taken in many provinces by pulling a number of court management functions together under the aegis of the court administrator. The next step is to change controllers at the top, so that the court administrator operates under judicial direction. Ontario illustrates the current trend. Many court administrative functions have been shifted since 1974 to the official designated as court administrator. Thus, if the White Paper proposal for a judicial council were enacted, a part of the Department of the Attorney General would easily be split off. Note, however, that a number of court administrative functions would stay with the attorney general, because they were not previously under the court administrator (as, for instance, information systems and policy development). If other provinces adopted a formula for judicial direction, it would therefore be effective only to the extent that a substantial number of court management functions are directed by the official currently designated as court administrator. Following that reasoning, British Columbia or Quebec could more effectively shift to judicial direction because their chief court administrators possess the widest range of management authority. Judicial control of court administration is therefore important not only 108

The Function and Role of the Court Administrator from the judges' perspective of maintaining the independence of the judiciary, but also because it allows court administrators to function independently of an existing attorney general's department. The effectiveness of court administrators will grow as the departmental constraints upon both them and the judiciary are reduced. The judiciary and the court administrators will be taking on significant responsibilities; they can do so, however, only when they adopt a management philosophy compatible with accountability and innovation. Once those commitments are made, both the judiciary and the court administrators will increase their effectiveness, and enhance the quality of justice and of its delivery. PROFESSIONAL COURT ADMINISTRATION

As chapters 3 and 4 suggest, judicial control of court administration will not end the difficulties of managing court systems. Deficiencies will remain. For example, one court management expert in the United States has expressed a typical problem in these terms: Deficiencies in court administrative policies and practices and dissatisfactions among court employees are rarely expressed from within the system, and at best infrequently from without. Indeed, both the users of the system ... and the court's own support staff are unlikely to be directly critical of the system's administrators because of judicial deference, fear of reprisal, patronage considerations, lack of employment security, or ignorance of the courts' administrative structure and mechanisms.2 Will court administrative personnel be hesitant to point out deficiencies because they are deferential to judicial authority or to that of superiors in administrative positions? Obviously, the possibility exists. Thus, it is important that an administrative apparatus be developed that will result in mature professional administrators (and judges) who will be able to accept and build on internal and external criticism. Effective court administration therefore involves not only a structure in which the judiciary directs the administration of courts and a willingness on the part of judges to assume responsibility and adopt a management philosophy, but also professional and skilled court administrators who will be able to provide the judiciary with a framework within which adjudication can be meaningful. As already stated, it is mismanagement or non-management of today's courts which constitutes the greatest menace to the independence upon which our system of justice rests. Thus, a basic purpose of court administration is to reinforce the independence of the judiciary and the authority of the courts. And the ability of court administrators to suc109

CHAPTER FIVE ceed depends upon the willingness of judges to accept their help and to draw upon their expertise. PRESENT STATUS OF PROVINCE-LEVEL COURT ADMINISTRATORS Before defining the environment within which court administrators currently work, and the role and functions they should assume, it may be useful to consider the present status of court administration, with particular emphasis on the officials identified as chief court administrators in each province. TABLE 5 CHARACTERISTICS OF CHIEF COURT ADMINISTRATORS, BY PROVINCE Province

Title

Year present Professional background office of officeholder (as of established Sept. 1, 1977)

Alberta

Director of Court Services Associate Deputy Attorney General and Director of Court Services Administrator of Court Services Director, Courts Administration

1975 (Dec. 1) Non-lawyer civil servant

British Columbia

Manitoba New Brunswick

1977

Lawyer in Dept. of Attorney General

1969

Lawyer/private practice

1976

Newfoundland Inspector of Legal Offices Nova Scotia Administrator of the Provincial Courts and Inspector of Legal & Registry Offices Director of Courts Ontario Administration

1968

No occupant appointed; functions performed by Executive Director of Programs Administration for Dept. of Justice, a non-lawyer with private business background Non-lawyer civil servant

1976

Non-lawyer civil servant

1974

Prince Edward Prothonotary Island Directeur G6n6rale Quebec des Greffes Saskatchewan Director of Court Services

1973

Lawyer (non-practising)/ formerly executive assistant to federal Leader of the Opposition Lawyer

110

1970 1974

Lawyer (non-practising)/ civil servant Non-lawyer civil servant

The Function and Role of the Court Administrator Table 5 identifies the office and office-holder functioning as chief court administrator in each province. The table indicates the flourishing variety of titles held by these public servants, the rather recent dates at which their offices were established, and the variety of backgrounds of current office-holders. Some interesting findings emerge from this table. First, office-holders are evenly divided between lawyers and nonlawyers (five of each). However, most share a strong background in government service: seven were recruited from the career public service, one from non-career public service, and only two came directly from the private sector. The lawyer/non-lawyer split reflects the ambiguity of the office of chief court administrator. Since it is a high position in many provincial ministries of justice, it is likely to be occupied by a lawyer. Furthermore, legal knowledge is an obvious asset in court administrators, who must understand legal processes.3 On the other hand, judicial reluctance to identify court administrators with caseflow management or other functions impinging directly on adjudication has led provinces to emphasize more purely administrative functions: budgeting, personnel administration, data collection, research, report writing. Thus, the most common title for provincial court administrator is that of director of court services. In British Columbia, the title was actually changed by statute from chief court administrator to director of court services after the then Chief Justice of the British Columbia Supreme Court supported the change as a way of making clear that an executive official may administer court services but not the courts themselves' Second, the very recent years in which the offices were established reflects the changing role of provincial-level officials in court administration. Almost every province-wide court administrator's office has historical antecedents, some going back many years. But those earlier officials had much more circumscribed functions, and were usually not administrators in the commonly understood sense of the word. HISTORICAL DEVELOPMENT OF PROVINCIAL ADMINISTRATION The earliest provincial officials with special responsibility for the courts were called inspectors of legal offices (or, as the term remains in Nova Scotia, inspector of legal and registry offices). Ontario's inspector position dates back to 1881. The inspectors began primarily as fiscal officers performing a post-audit function. The concept was analogous to that of a school inspector, whose role was justified as a central check on the expenditure of public funds. The school inspector's role then evolved into the qualitative assessment of the work of local school personnel. The role of the inspector of legal offices evolved somewhat differently, since his primary function was to check on the proper collection and retention 111

CHAPTER FIVE

of public funds in the form of court fees and fines. In many localities, inspectors were the only outside officials authorized to examine the books in local registries and clerks' offices. Little management advice was proffered by the inspectors, even though one inspector recalls a magistrate's desk drawer full of little pieces of paper and a substantial amount of cash. Another recalls a community where fines were collected and held in trust in the joint bank account of the magistrate and his wife. Some collection systems were more advanced but still highly idiosyncratic. Thus, one inspector would always call the magistrate in a small rural community the week before leaving the provincial capital on the annual or semi-annual visit to check the books. The advance call allowed the magistrate time to collect fines from all the townspeople who owed money to the court. ("Now, Sam, remember that fine you got four months ago? I let you have some extra time to pay, but you'd better do it by next Monday.") As a result, the inspector recalls, that magistrate had one of the province's highest collection rates.5 The inspector's activities gradually expanded to include trouble-shooting for local judges and court registries, and attempting to obtain improvements in facilities or increases in manpower. The Ontario and Saskatchewan inspectors of legal offices have performed those functions in the years since World War II. Cy Huggett of Saskatchewan recalled trying to make a case to the government services department for new furniture for the judges: Surely there is some period in time when an office should be redecorated. You take a politician.... The elections are every four to five years, and when a cabinet minister gets re-elected, he usually switches portfolios and there are some changes. I said we've got judges that are in for 35 years. Does that mean they get nothing until they retire? Well, the accpmmodations committee sat up and took notice and the judge on the committee was quite surprised to think that somebody other than himself was talking that way. I said, well gee whiz, you look in that courthouse in Moose Jaw where the district court judge retired and left. It looks like Joe's back pool hall now, with things all decrepit and the furniture—nothing matches anything. The chap that was the judge had a wooden leg, and would sit on his chair at an angle (he was injured in the first war and had lost a leg). So the new fellow was only 34 years old. He gets in there and he's sitting at a list on the same old chair. So finally when the crunch came I told the government services I figured a judge should at least have an office equivalent to the one he crawled out of from downtown somewhere when he was appointed as a judge.e More recently, provincial court administrators with technical assistance 112

The Function and Role of the Court Administrator capabilities and some supervisory responsibility have begun to emerge. The first was probably in the province of Quebec, whose first directeur generale des greffes, Pierre Dorion, was appointed in 1970. Dorion served under three different regimes (Union Nationale, Liberal, and Parti Quebecois), and supervised the introduction of a wide array of modern court services.? The next province to take such a step was British Columbia, with the creation of the Justice Development Commission in December 1973, and the appointment of Provincial Judge Perry S. Millar as chief court administrator. Millar was perhaps the only judge ever to serve as chief court administrator in any province.8 His office was responsible for the provincial takeover from the municipalities of provincial courthouses and registry offices, and the absorption of supreme and county court registries into a unified regionalized structure reporting directly to the central court administrator's office. Other provinces have been following suit, although some are only at the initial stages of development. For example, Newfoundland did not create an inspector of legal offices until 1968; in the 1970s, he operated out of the basement of a St. John's government building, without a secretary and without government support, frustrating his efforts to establish the position. In some provinces, the inspector's office has been integrated into a newer office with administrative responsibilities. Thus, Huggett in Saskatchewan became both inspector and director of court services. Nova Scotia has followed a similar line of development. Ontario has moved even further. First, career government lawyer Blenus Wright became both inspector and assistant deputy attorney general in 1974, and was given expanded authority over court related administrative services. Wright's successor, Graham Scott, also held both positions. Then, in 1978, when Brian McLoughlin, a non-lawyer, shifted from general manager of the attorney general's department to assistant deputy attorney general and director of courts administration, the inspector position was again split off—to satisfy Ontario statutory requirements that the inspector be a lawyer. This time, however, the inspector of legal offices was also designated deputy director of courts administration, making that official responsible for the first time to a non-lawyer court administrator. Ontario developments are in keeping with the evolution in other provinces, where an inspector still exists, but with reduced administrative authority and a diminished role. EMERGING PROFESSIONALISM The recognition that court administrators in different provinces have common interests has come quite recently. It can be traced back only as far as 1974, when two Manitoba officials, Thor Guttormsson, a practising 113

CHAPTER FIVE

attorney in Winnipeg who had recently become administrator of court services, and his new deputy, David W. Boyd, an accountant and management consultant, tried to learn about the experiences of their counterparts in other provinces. However, neither man knew whom to contact. General letters were sent to other provinces. Some found their way to the courts, others to attorneys general. By August 1974, Guttormsson and Boyd had compiled a list of contacts in each province, unsure in some cases whether the contact was in fact their counterpart in court administration. With encouragement from key court administrators outside Manitoba and the support of the Manitoba government, Guttormsson and Boyd convened the inaugural meeting of a Canadian Association of Court Administrators in Winnipeg in late September 1975. The three-day meeting was limited to one delegate per province, and was attended by representatives of eight provinces. Newfoundland and Prince Edward Island did not send a delegate; Alberta was the only province that sent a delegate who was not the province's chief court administrator. Outside speakers and participants were largely absent, and discussion focused on a province-by-province review of court administrative developments.° The group established an ongoing association, but emphasized its desire to avoid any formal structure. Boyd became convenor and corresponding secretary, and plans were made for future meetings. Since then, the group has met annually (February 1976 in Montreal, February 1977 in Toronto, February 1978 in Vancouver, and April 1980 in Banff). Its meetings have grown in size, so that fifty people, including thirty delegates representing all ten provinces, attended the Toronto conference, with sixty-five attending the conference in Banff. By 1980, federal and territorial officials had also joined the group. Professionalism is emerging slowly, but the signs are there. A viable professional association is one. Inter-provincial mobility would be another. Boyd himself became the first example, when he was recruited away from Manitoba by the Alberta attorney general's department, first as court administrator for Edmonton and later, in 1978, as executive manager-court services, the chief court administrative position in the province. Pressure for professional development would increase if provinces opted for judicial control of court administration. If court administration is separated from attorneys general departments and placed under the direction of the judiciary, the court administrator's status would be that of a deputy minister. In fact, this was an explicit recommendation of the Ontario White Paper. Such an elevation of the office would stress the substantial qualifications required of its occupant. As a result, the present corps of chief court administrators would have to demonstrate that their professional competence is sufficient for the office; otherwise, it would 114

The Function and Role of the Court Administrator be occupied by an outsider drawn from the government, the bar, or from deputy ministers in other departments. ADMINISTRATIVE PROBLEMS PECULIAR TO THE COURT ENVIRONMENTINTERNAL GOAL CONFLICT

To what extent is a court administrator's role unique? While the administrative position is analogous to that of a manager in other complex and professionalized organizations, it does have a character of its own. To understand its distinctive role requires a broader examination of the milieu within which court administrators (in provinces, regions, urban areas, and small towns) must operate and an understanding of the challenge they face and the parameters of their task. Accumulations of backlogs in urban centres, proliferation of courts, frustrations of staff replacement through public service commissions, constraints imposed by trade unions, self-feeding trial adjournments, overcrowded and inadequate court facilities, lack of financial support from government, and a host of other problems—these, taken en masse, threaten the very existence of the judicial system. "The challenges to our system of justice are colossal and immediate and we must assign priorities. I would begin," U.S. Chief Justice Warren Burger has said, "by giving priority to methods and machinery, to procedures and technique, to management and administration of judicial resources, even over the much needed re-examination of substantive legal institutions."10 The present dismaying condition is to a substantial degree due to an administrative system which grew, or rather failed to grow, on the basis of jurisdictional legal hierarchies separating the various levels of courts. When used as a basis for administrative structuring, jurisdictional distinctions can be a prime source of court disorganization. They create administrative fragmentation. On the other hand, the orthodox approaches based on modern business and public administration are likewise inadequate. Such systems are based on the concept of a unified organization which, although complex, consists of components which in large measure work harmoniously toward a common goal. But such systems are the antithesis of the traditional court system where the various components, by virtue of their varied roles, are expected to work in conflict rather than in harmony with one another in order to preserve their respective integrities." One of the distinguishing characteristics that singles out the court system as an uncommon organization is the accepted, condoned, and open ,conflict between its various components. The object of the presiding judge is to expedite the hearing of the trial and to do justice in adjudicating upon it. Defence counsel in a criminal case, on the other hand, 115

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may prefer extended adjournments rather than a swift determination of the case. His client may require time in order to settle his legal retainer. A key witness may be absent from the jurisdiction. The informant's or complainant's attitude may mollify with the passage of time, leaving him reluctant to pursue the case. Thus, in full duty to his client, defence counsel will find his strategies and objectives in conflict with those of the court. His role is not primarily to see justice done, but to advance in every ethical manner the evidence and arguments favourable to his client. The prosecutor (or crown counsel) may require an adjournment because of the absence or reluctance of key witnesses, delay in the receipt of a laboratory analysis, the outcome of another case presently on appeal before a higher court, or some other good reason. His role is or ought to be more neutral than that of defence counsel in the matter of presentation of evidence. The highest tradition of crown counsel requires resolute impartiality in the task of having all the relevant evidence presented to the court, whether favourable to the crown or not. Defence counsel sometimes question whether this noble standard is always met. But in either case, crown counsel's role and objective do not parallel those of the court. The same disparities of goals are evident in civil trials in which counsel for both plaintiff and defendant may find their clients' interests best served by lengthy adjournments, even though all the evidence, including medical evidence, has fully matured. Delay in coming to trial is frequently advantageous in terms of settlement or collapse of the opponent's case. It is likewise self-evident that opposing counsel in both civil and criminal cases find their roles in conflict, not only with the court, but with each other. Moreover, an accused party will frequently find himself a partner in a drama where his interests do not converge with those of his own counsel. The latter is constrained by his obligation as an officer of the court not to abuse his prerogatives in order to obtain unjustified delays. The accused, on the other hand, may devoutly pray the matter will never proceed to trial; or may desire a trial when counsel is pessimistic about its outcome. The accused's dismissal of his counsel on the morning of the trial, no rare occurrence in large urban courts, reflects these conflicts of interest. Civil litigants likewise find their interests do not always coincide with those of their counsel who, again for professional reasons, may set trials down for hearing in disregard of their clients' reluctance to proceed—or, conversely, delay a trial against a client's preference when their workload overflows. There is also the ever-present danger to all counsel of being innocently induced by their clients to lead false evidence in what the latter consider (usually wrongly) to be their best interests. The recital of internal conflicts within the court system does not end here. Members of the public who are subpoenaed as witnesses are fre116

The Function and Role of the Court Administrator quently reluctant guests at an unwelcome ceremony. The cost to them in terms of lost time, wages, and nervous energy is incalculable, and it is not unnatural that they should instinctively regard the court process as a threatening intrusion on their tranquillity of mind, if not their personal integrity; for, once they have committed themselves to a line of evidence, they may find themselves under aggressive verbal attack at the hands of an opposing counsel who appears to hold the weapons. Expert witnesses likewise find their professional integrity threatened by the court process. The first commitments of a licensed physician and surgeon are to his profession and to his patient's well-being. A summons to court may be viewed as a wasteful invasion upon his professional time, accompanied as he conceives it by the unseemly importunings of opposing counsel to yield to exaggerated medical opinions which could only wound his professional integrity. Understandably, his loyalty to the court stands second to his allegiance to his profession or to his personal value system. The traditional role of the police constable is to apprehend the wrongdoer and deliver him to a court of law for trial. To the arresting constable, the results which flow from the trial are frequently demoralizing and disillusioning. He witnesses the acquittal of a known miscreant who, to the constable's certain knowledge, committed the offence with which he was charged. The dispassionate calm with which members of the police force suffer these frustrations is at once a credit to the police and a cause for wonderment. In any event, the constable's role varies so significantly from that of court, counsel, accused, and witnesses, that he likewise finds his role in conflict with that of all the other actors in the courtroom drama. Other professionals also suffer a similar frustration with nearly all of the above actors, finding their roles in conflict. The probation officer, often with sociological training, may question the philosophical base on which the court system rests. His role is to rehabilitate the offender and, in all candour, it must be acknowledged that the rehabilitator can and does sometimes find himself viewing with repugnance the entire process of apprehension, charge, trial, and incarceration. At other times the probation officer may be convinced, from his background knowledge, that an accused has been dealt with in a manner so trivial as to frustrate a rehabilitation program which requires discipline rather than self-indulgence. The same considerations apply to a myriad of private agencies such as the Salvation Army, the John Howard Society, native court workers, and the Elizabeth Fry Society. Court reporters are subject to their own peculiar stresses, harassed as they are by demands in terms of extended hours in court and short deadlines for the delivery of transcripts. At the same time, extension of trade unions into the court administration field has caused court clerks to be117

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come increasingly sensitive to identical pressures in terms of overtime work and the general demands of a system to which, because of present fluid employment, they may feel a lesser degree of loyalty than in past years. Court interpreters also play a unique role. The techniques and practices of court interpreting are by no means settled. On occasion they find themselves in conflict with the court or counsel as to how much they should translate. For example, should every foreign word uttered by a confused witness be interpreted, when he is simply asking what the question means? Should the interpreter assist the witness? Skilled interpreters are able to preserve a sense of professional integrity, and yet be sensitive to counter-demands thrust on them by a judge or counsel who may view interpreting procedures in a different light from their own. Thus, the court system is complex, replete with protagonists of conflicting interests, opposing philosophies, irreconcilable standards, and warring attachments to professional and private concerns. To this must be added the ingredient referred to as the adversary system, accepted and acknowledged for centuries, which allows examination and cross-examination of witnesses and the presentation of opposing motions and arguments, thus heightening the conflict factor to the second and third power. TOWARD A NEW ADMINISTRATIVE MODEL

Taken together, the above factors render the court system a distinctive organization making past hierarchical or military management models, as well as modern business and governmental management models, inadequate. The hierarchy of courts, with their varying trial and appeal jurisdictions, are not structured for management purposes. It is evident that a new management model must be found. Economic and businessbased theories must be transposed into a justice-based environment where, as previously stated, the test of success is not profit, but effectiveness, in terms of rendering justice-related services to the public. Despite the melange of conflicting forces in the court environment, some characteristics of new management systems developed both in business and in government are transposable, if we re-evaluate them from an institutional and behavioural point of view. The new administrative pattern will nevertheless be atypical of those found in business or government, although it will embrace the concept of an organized and complex whole, an assemblage or combination of interacting susbsystems, all of which are interdependent, the operation of any one of which affects all others and the successful interaction of which determines survival—but none of which purposely act in concert. No single administrative concept can supply all the solutions, much 118

The Function and Role of the Court Administrator less offer the necessary implementation. It is not a matter of providing prescriptive solutions before which all difficulties will melt from view as the hordes of night before the advancing dawn. Rather it will be a matter of designing added support for both bench and bar in the expedition of trials, improvement of courthouses, provisions for courtrooms, speedy processing of the flow of litigious and non-litigious documents, and production of statistical data for operational and planning purposes, to the benefit of all concerned. There are no prescriptive solutions in any absolute sense. There are only alternative approaches. Problems and solutions vary in each and every courthouse across all ten provinces in Canada. What can be recommended is a comprehensive support system based on a common set of principles. THE LINK MECHANISM One successful administrative concept that has emerged is known as the "link" role; that is, the establishment of the court administrator, whose function is to draw together the disparate and conflicting parties who FIGURE 2 LINK FUNCTION (INDIVIDUAL COURT) JUDGE CROWN COUNSEL

ACCUSED'S COUNSEL JURY PANELS

COURT REPORTERS

SHERIFFS

COURT RECORDER

INTERPRETER

TRIAL COURT ADMINISTRATOR

WITNESSES ~ . .

CIVIL DEFENCE COUNSEL

PLAINTIFF'S COUNSEL

NATIVE COURT WORKER LEGAL AID COUNSEL

PROBATION OFFICER THE GENERAL PUBLIC

LITIGANTS ACCUSED

119

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operate within the court system (see figure 2). Court administrators serve all parties by coordinating their attendance, thus enabling the judge to conduct the trial. To accomplish this they must work in concert with the judge, crown counsel, counsel for the accused, legal aid counsel, and plaintiffs and defence counsel in civil actions. They may, likewise, ensure the impaneling of juries and arrange facilities. They assist in the notification of witnesses and ensure their attendance. They also ensure the attendance of security police or sheriffs, and liaise with them to secure the delivery of accused parties held in custody. They arrange the attendance of qualified court reporters and recorders and retain and make available qualified interpreters, as required. As well, they liaise with probation officers with respect to pre-sentence reports, court attendance, and other related matters, and coordinate the efforts of private agencies working on behalf of accused parties. The court administrators cooperate with all of the above in supplying information and data required for operational and planning purposes. Needless to say, they perform these link functions, not single-handedly, but through trained staff. In this new model, thus, the court administrator assists the judiciary in coordinating, frequently in a multicourt situation, a complex and diversified operation involving a network of disparate players and protagonists, a network which cuts across specializations both professional and non-professional. His goal is to assist in achieving maximum efficiency (benefits per unit of cost) and maximum effectiveness (individual justice in individual cases). In this model, the court administrator is responsible to the judiciary, but is not subordinate in the traditional hierarchical sense. A superiorsubordinate relationship implies that the judiciary is delegating specific tasks to an administrator rather than performing them itself. In the link role that we conceive for the court administrator, the dynamic is essentially different. The court administrator's responsibility to the judiciary is fulfilled not by waiting for the judiciary to delegate pre-existing tasks, but by defining in concert with the judiciary a coordination role that responds creatively to judicial needs. In turn, the court administrator's relations with other actors in the court system is also not hierarchical in that he does not give orders in the sense implied by a superior-subordinate relationship. Thus, the link role should not be perceived as a centralization of functions; it is instead a communication mechanism facilitating the meshing of separate and diverse activities that occur in a court setting. Behind this massive coordination role lies the concept that the disposition of any given court case is not the result of an instant decision, but a process of a highly intricate and sensitive nature involving the confrontation, clash, and inevitable mix of roles, objectives, and philosophies. 120

The Function and Role of the Court Administrator Mismanagement or non-management of the coordinating function inevitably leads to congestion, delays, and financial waste on a large scale. Some delay is inevitable as the working out of the legal process leads to the ultimate decision in each case. The object of court administration is not to eliminate all delay (an unrealistic and inappropriate target) but to assist the judiciary in eliminating that which is unnecessary. Reductions in lapsed time between the initiation and conclusion of a case, whether civil or criminal, can be implemented and monitored through the proposed link mechanism. This mechanism, in turn, is dependent on the unremitting effort of an expert coordinator, namely, the court administrator. It is, of course, important to set this role in its proper perspective. To repeat, it is not suggested that the link mechanism, even though backed by the fullest resources in terms of modern technology, such as microfilm and computerized management information systems, will be able to solve single-handedly all the problems with which the courts are faced. Still less will it eliminate the need for increased numbers of judges and courtrooms, or the continued strenuous efforts of the judiciary to stave off mounting backlogs. Finally, it is critical, indeed crucial, to understand that the link model will not succeed without the understanding and cooperation of the bar, which is now taking its own lead in the mounting thrust for court reforms. Likewise, cooperation of court reporters, sheriffs, and all other agencies is essential if the crisis is to be confronted in full. Figure 2 focuses on the operational responsibilities of the court administrator at the courthouse level. As administration develops, and provincial government assumes responsibility for administering all the courts of a province, a different linkage emerges (see figure 3). The provincewide court administrator does not have direct responsibility for court operations in a given locality, but is responsible for the effective administration of the province's court system as a whole. To fulfil his responsibilities, then, the chief court administrator must coordinate his activities with other provincial departments and agencies: a public service commission on personnel matters, a treasury board or departmental budget officer on budget and fiscal matters, a department of finance on auditing, a public works ministry for courthouse construction or renovation. He must also coordinate policy with related units in attorneys general, solicitors general, or corrections departments, such as crown counsel, a police commission, sheriffs, the central court reporter agency (if not incorporated into the court administrative system), probation, and so forth. To understand the similarities and differences between the roles of province-wide and local court administrators requires the perception of certain distinctions. For example, while administrators at both levels 121

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FIGURE

3

LINK FUNCTION (PROVINCE)

CHIEF JUSTICES (Court Of Appeal and Supreme Court) CHIEF JUDGE(Provincial Court)

CHIEF JUDGE(County Court)

ATTORNEY GENERALS 4E PARTMENT(Personnel)

PUBLIC SERVICE 10~

TREASURY BOARD

NEY G GENERALS DEPARTMENT(Budget)

REGIONAL COURT ADMINISTRATORS

DEPARTMENT OF PUBLIC WORKS

JUSTICES OF THE PEACE

COURT REPORTERS

INTERPRETER SERVICES

ENFORCEMENT AGENCIES PUBLIC

must plan their operations, they engage in different types of planning. The central court administrator does strategic, or distributive, planning —his task is to allocate administrative resources equitably to court units throughout the province, so that local units will all have sufficient resources for effective operation. This requires not only the distribution of funds and the establishment of adequate numbers of support personnel, but also the use of central technical expertise. Central expertise can be used on a consultative basis to supply technical assistance, develop training programs to upgrade skills of local personnel, implement information systems, and analyse comparative data on court operations. The local court administrator does operational planning—his concern is the work flow in the local court. Hence, he must provide the informational and staff support to assist the judiciary in the coordination of flow of cases into the court, so that judges, jurors, and support personnel are available when necessary to the users of the courts—litigants, counsel, witnesses, and the public. He must monitor the work flow and evaluate its outcome. Both central and local court administrators must see their tasks and 122

The Function and Role of the Court Administrator their organization as part of a larger and complex whole. However, the court administrator for the province should focus primarily on the court system as a whole, while the local court administrator should concentrate primarily on the justice system in a smaller geographical location. The local administrator must think in terms of a system which includes participants whose actions must be coordinated with the court, but who, while in a sense responsible to the court, nevertheless enjoy their peculiar autonomies—counsel, police, sheriffs, probation officers. The provincial administrator must think not in terms of a specific court, but in terms of the interrelationships between all of the different trial and appellate courts in the province, and of how the operation of one court can affect the operation of others. The trial court administrator must devote his attention to relations with non-court personnel in the local justice system, while the central court administrator must relate to non-court personnel in provincial departments and agencies outside the court, whose decisions affect the resources available to the judiciary. The central administrator does not tell the local administrator what to do, but establishes guidelines and provides support resources on the basis of a set of system-wide priorities. In a few provinces, an intervening level of regional court administrators has also been established. Within the framework set out above, the regional court administrator, like his provincial counterpart, engages in strategic rather than operational planning. His focus is on the court system as a whole within the region. Thus, the regional administrator provides technical assistance to local court administrators within the region in such areas as staffing, training seminars, facilities, budgeting and records systems, rather than directly supervising the caseflow in a given court centre. The development of regional administration is thus an attempt to decentralize the functions and expertise of the central provincial office so that they are more readily available to local court administrators who can use technical assistance as an aid in operational planning. ORGANIZATIONAL MODELS-THREE EXAMPLES

The systems perspective elaborated here is more than a general statement of what everyone accepts as good administration. In fact it is inconsistent with some of the most entrenched principles of court organization and jurisdiction in Canada. In all ten provinces, the most important distinction between courts is not where they are located but first, whether they are served by federally or provincially appointed judges, and second, what their jurisdictional boundaries are. For example, Ontario and British Columbia both have a supreme court which operates throughout the province, but is separate from a set of county or district courts operating 123

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throughout the province, and a set of provincial courts operating throughout the province. The jurisdictions of these three courts overlap a great deal, yet they often share supporting personnel in local court registries. The concept of a central court administrator directing the administration for an entire province assumes that a single official should coordinate the activities of all of these separate, and to some degree competing, courts; strategic planning would extend to the allocation of resources between them. Furthermore, regional administration assumes that the regional court administrator will coordinate the administration of superior, county (or district), and provincial (or magistrate's) courts in a single region. The regional administrator's work cuts across the traditional boundaries between courts, which are based on legal jurisdiction rather than geography or administrative function. Again, the same is true of a local court administrator managing a registry office which serves two or more courts. Treating traditionally separate courts as part of a single system leads to an administrative structure that cuts across the boundaries of these traditionally separate courts. Consequently, such innovations in court administration have been slow to gain acceptance. For example, in 1973, the Ontario Law Reform Commission recommended, and the government accepted, a system of regional administration. In the following three years, only one region had been established on an experimental basis and without the appointment of a regional administrator. It was the comparative failure of this project that led to the Ontario White Paper. Adherence to traditional distinctions between courts was reflected by the dissent in the Ontario Law Reform Commission Report by former Ontario Supreme Court Chief Justice J. C. McRuer, who recommended that administrators be attached on a province-wide basis to the chief judge at each level of the court hierarchy.12 We suggest that such an administrative official is likely to become simply a staff assistant to the chief judge or justice, rather than an administrator with operational responsibility, and that such a structure would frustrate unification in any meaningful sense. One representation of the concept of provincial, regional, and local court administration, and its relationship to the judiciary, is set out in figure 4, derived from the above-cited Ontario Law Reform Commission Report.13 Note that it places registrars, as well as sheriffs, reporters, and interpreters under the direction of a provincial director of court administation.

124

The Function and Role of the Court Administrator FIGURE 4 ORGANIZATION CHART REFLECTING DIVISION OF AUTHORITY AND LEVELS OF COMMUNICATION BETWEEN EXECUTIVE AND JUDICIARY (ONTARIO LAW REFORM COMMISSION)

ADJUDICATION ADMINISTRATION

✓ CHIEF JUSTICE OF ONTARIO

ATTORNEY GENERAL

E ASSISTANT

PROVINCIAL DIRECTOR OF COURT ADMINISTRATION

J

1

CHIEF JUSTICE OF THE HIGH COURT

EXECUTIVE ASSISTANT

;OFF

REGIONAL DIRECTORS OF COURT ADMNISTRATION

CHIEF JUDGE OF THE COUNTY AND DISTRICT COURTS STAFF EXECUTIVE ASSISTANT

SENIOR CIRCUIT JUDGES

CHIEF JUDGE OF THE PROVNCIAL COURTS (Criminal Division/

EXECUTIVE

SHERIFFS

ASSISTANT

COURT REPORTERS

COURT INTERPRETERS

SENIOR JUDGES

CHIEF JUDGE OF FAMILY COURT and FAMILY COURT JUDGES

J

EXECUTIVE ASSISTANT

125

CHAPTER FIVE

FIGURE 5 ORGANIZATION CHART REFLECTING DIVISION OF AUTHORITY AND LEVELS OF COMMUNICATION BETWEEN EXECUTIVE AND JUDICIARY BRITISH COLUMBIA)

ADMINISTRATIVE

JUDICIAL

Chief Justice Court of Appeal

Chief Court Administrator

Chief Justice Supreme Court Chief Judge Provincial Court

Supreme Court Judges County Court Judges District Provincial Court Judges

>

Regional Court Administrators

Local Court Administrators Registrars

Figure 5 represents in somewhat primitive form a different concept that has been adopted in British Columbia. This schematic originally met with some judicial resistance. Observe that it conferred on the chief court administrator no jurisdiction over registrars, who were regarded as exercising quasi-judicial functions and therefore placed in the judicial column. Sheriffs and court reporters were likewise autonomous (though, in practice, some recorders are not, nor are interpreters). This concept was modified in 1976 by the creation of the office of director of court services, at associate deputy minister rank, with responsibility and control over court administration, sheriffs, and court reporters. Present thinking contemplates the inclusion of registrars within this grouping. If control of administration passes to the judiciary, the organizational chart might more closely resemble figure 6. There are several possible variants. 126

The Function and Role of the Court Administrator FIGURE 6 ORGANIZATION CHART BASED ON JUDICIAL CONTROL OF COURT SERVICES

JUDICIAL COUNCIL Chief Justice Appellate Court Chief Justice Supreme Court Chief Judge County Court Chief Judge Provincial Court Judge representing Family Court Judges

Charts are important in defining relationships. Equally important are the personal factors built into the equation—the philosophies, attitudes, and personalities of the individuals involved. Given a proper mix of personalities, a conceptually bad chart will function passably well. Without such a proper mix, a conceptually good chart can be a functional disaster. The requirement is a systems approach in both judiciary and administration, and a breadth of view which brings the intelligence and sensitivity of both to their shared problems. RANGE OF PROVINCIAL ADMINISTRATOR'S DUTIES

On the administrative side, the complexity and diversity of the task can perhaps best be brought home by reciting the requirements for a provincial director of court administration and his regional directors, as set out in Part I of the Ontario Law Reform Commission Report. That report was premised on a system of executive-centred court administration. Its 127

CHAPTER FIVE

recommendations are offered here to indicate, not necessarily ultimate lines of authority, but the range and depth of a chief court administrator's operational duties. The duties of the proposed provincial director of court administration would include the following: 1. He should develop, organize and direct administrative systems for each class of court in the province. 2. He should evaluate the administrative requirements in each class of court and after consultation with the Chief Justice or Chief Judge respectively of the Court affected make recommendations for change or improvements to the Attorney-General. 3. He should investigate all complaints regarding the administrative operations of each class of court. 4. He should consult on a regular basis with the Chief Justice or Chief Judge of each class of court with respect to such matters as the judicial manpower needs, changes in jurisdiction, and methods of scheduling and arranging sittings, and should transmit any recommendations the judges wish to make on these matters to the Attorney-General. 5. He should be responsible for court facilities, particularly courtrooms. 6. He should oversee the development and operation of a comprehensive statistical reporting system for each class of court throughout the province and ensure the availability of current management reports on both a province-wide and regional basis. 7. He should oversee the development, revision and distribution of instruction manuals for use of registrars, court clerks, court administrative clerks, special examiners, court reporters, court interpreters and court statisticians throughout the province, and should standardize and keep general oversight of all paper and manpower systems in court offices throughout the province. 8. He should develop training programs for local registrars, county court clerks, court administrative clerks and court reporters, and should arrange for the administration of these programs. 9. In consultation with the respective Chief Justices and Chief Judges he should develop policies and standards regarding hours of court sittings throughout the province. 10. He should prepare budgets for the operation and maintenance of the various classes of court in the province after consultation with the respective Chief Justices and Chief Judges, and should oversee the maintenance of budgetary and fiscal control. 11. He should conduct a continuing examination and evaluation of 128

The Function and Role of the Court Administrator

12. 13.

14. 15.

court facilities and equipment and stay abreast of technological improvements in court and office equipment for potential application of the system. He should develop a public information facility so that the public might be better informed about the operation of the courts. He should be responsible for court reporting in all courts throughout the province, directing the work of court reporters and keeping abreast of developments in electronic reporting techniques. He should oversee the hiring, employment and job assignment of all court personnel. He should evaluate on a continuous basis the administrative operations of the courts, and oversee the conduct of studies to project the likely impact on the courts of legislative changes, and develop new administrative procedures and keep abreast of developments in court administration in other jurisdictions.

The duties of [each of] the regional directors of court administration would, to a large extent, be delegated by the Provincial Director. In addition, however, there would be the following: 1. He should consult with the Chief Justice of the High Court and his staff with respect to providing all necessary facilities for High Court sittings in his region. 2. He should assist the Senior County Court Judges in his region in the rotation and reassignment of County Court Judges in the region, and consult with respect to providing all necessary facilities for County Court sittings in the region. 3. He should assist the Senior Provincial Court Judges in his region in the reassignment of judges in the region; and consult with respect to providing all necessary facilities for the Provincial Court sittings in the region. 4. He should investigate all complaints regarding the administrative operations of all courts in the region and report to the Provincial Director with recommendations. 5. He should attend periodic meetings with the Provincial Director to assist in the development, organization and coordination of administrative systems for the courts generally. 6. He should oversee the employment and job assignment of all court personnel in the region, but according to the procedures and standards determined by the Provincial Director of Court Administration and his staff... . The Provincial Director should, in addition to his other duties, prepare and submit to the Attorney-General quarterly reports on the operations of the court and his office. In addition he should prepare a corn129

CHAPTER FIVE

prehensive annual report to the Attorney-General which should by statute be required to be tabled in the Legislature. This annual report should include the following: (1) A survey of the work of each class of court in the preceding calendar year, including proceedings commenced, dispositions, backlog, delay and weighted caseloads. (2) A general report on the condition of the courts including a description of any recent changes or innovations, and any recommendations that the Director may have for improvements therein. (3) A survey of studies undertaken in the preceding year relative to the administration of the courts, and the results and implications of such studies. (4) Financial statements indicating the cost of operating the court system, taking into account both revenues and expenditures.14 QUALIFICATIONS

It is readily apparent from a superficial perusal of the above tasks that special expertise is required—one that lies quite outside the legal field. Moreover, it is apparent that the court administrator must excel in the quieter virtues of tact, patience, and breadth of understanding. The Ontario Law Reform Commission Report continues: 4. Qualifications By the nature of the above duties it should be apparent that the Provincial Director of Court Administration and his Regional Directors must possess extraordinary qualifications. By far the strongest and most heavily weighted factor should be their management experience in public administration or in the private sector. They should have experience in modern business and management techniques including the use of automatic data processing and should have a university degree in public administration or business, or equivalent discipline. They should have a demonstrated capability to plan and conduct management studies and to prepare recommendations and reports to appropriate higher authorities and to implement such recommendations when approved. Above all, they should possess a very high degree of judgment, understanding and tact so that they can maintain a proper relationship with the judges, members of the bar, court officials and the public. Detailed familiarity with court procedures and structures while useful should not be considered mandatory at the time of appointment. The applicants should be prepared to engage in an extensive training pro130

The Function and Role of the Court Administrator gram through both a formal course in professional court management and through field observation and experience. The salary for the Provincial Director of Court Administration should be at the level of a High Court judge and for the Regional Directors at the level of a County Court judge. The Directors chosen must have a high degree of professional stature so that they can command the respect of the judges. The Directors must have only the highest management qualifications and they must be compensated accordingly.15 The Ontario Law Reform Commission Report conceived of an organization headed by a provincial director for court administration, with regional directors working under his direction throughout the province. Experience has already proven the effectiveness of this model in British Columbia. This organizational system assumes in turn that each individual courthouse will be under the administrative supervision of a local court administrator. It goes without saying that the latter's qualifications, in terms of personality if not totally of expertise, will parallel those of the provincial director and regional directors. The Law Reform Commission's approach, that of recruiting individuals with general management background and knowledge, and then giving successful applicants specialized training on court procedures, is but one path to professional court administration. Others have suggested that the justice system is so complex that it may be easier to teach modern management techniques to those who already have court experience. The point is, however, that a combination of both is necessary; in what order the skills are acquired appears to be secondary. It follows from this discussion that the court administrator should not and cannot be treated as the personal assistant of individual judges. Such an approach would make it impossible to attract and hold men and women of the executive calibre required to drive the system. Court administrators must be regarded as senior management personnel if they are to do justice to the system as a whole. The qualifications for a court administrator tend to differ from those of a lawyer—we say "tend," for there are always exceptions. By temperament, training, and professional discipline, the lawyer is programmed to operate as a soloist, and as a protagonist on a sometimes sanguinary field of battle. He tends to seek solutions within the framework of legal literature and knowledge which he understands, but which is often inappropriate in the administrative or management field. The practice of law, especially in the litigation field, is an exercise in survival in the legal arena. It is a forcible moulding experience, tending to result in a yes-no, black-white, win-lose caste of thinking. 131

CHAPTER FIVE

The court administrator, by contrast, must first and foremost be a team player with a developed understanding and sensitivity to all sides of every question, and to the conflicting interests and roles which produce opinion clashes. He (often, she) must be deeply and instinctively serviceoriented. The lawyer, too, is service-oriented. But his role converts his service into that of the warrior defending the weak (or the strong) in an adversarial situation, whereas the court administrator's role requires a consensus, non-conflictual style. He is not the advocate defender, but the conciliator and consensus-seeker. This is not to suggest that the court administrator should possess a weaker personality, but rather one of a different stamp, requiring a high degree of tensile and torque strength and resilience. He must possess staying power in the face of frustrations and contradictions. Moreover, he must have an ever-expanding mind, a capacity continually to absorb new information, new facts, new approaches to old problems. In short, his mind must always be open. He must keep before him a developed theory of progress, an ability to visualize a better system, and a quiet faith in the coming of that better system. Present society is sufficiently dynamic that we may expect the current fluid condition to exist for some years to come. This means that we must expect increasing court loads, radical diversion programs, technological innovations, and changes, visible and invisible, in power structures both within and without the court system. This situation requires of the court administrator yet a further qualification. As a modern manager he must be a "problem-solving, dilemma-seeking person"—and he must thrive on it.16 He must show a high tolerance for ambiguity, because ambiguity is inherent in the unending stream of problems cast up each day in managing a court. He must be a learning person who seeks and gains stimulus and satisfaction through the sheer opportunity to learn. His work motivation must be internal; that is to say, its spring and source must be traceable to a goal-oriented personality. He must feel within him a strong need for collaboration and involvement with others and their efforts. Finally, he must understand that within a complex system, no one person can singly understand or manage the program; success lies in team effort. None of us can claim property to all of the above virtues with their accompanying tact, diplomacy, sensitivity, and delicacy in the face of interpersonal relations. We state them here in ideal or extreme terms to provide the guidelines that must accompany any formal training of court administrators. "The only universal quality shared by all good managers," argues Friesen, "is lack of satisfaction with their own performance!"

132

Part Two

The Technology of Judicial Administration

Introduction

The giant, supervening, historical movements of the eighteenth and nineteenth centuries, such as the French Revolution, the Napoleonic wars, and the American Revolution, created the first large management problems in the modern era. Napoleon's massing of armies on a scale hitherto unknown in history brought with it a horde of organizational and logistic problems; the failure of his logistic mechanism contributed to Napoleon's destruction at Moscow. On the other side of the Atlantic, the westward extension of European civilization saw Canada and the thirteen American colonies involved in a human migration across the vast sweeps of North America to the Pacific rim, a migration also unprecedented in modern history. This, in turn, created immediate problems in terms of political organization and the establishment of large bureaucracies. These organizational problems were exacerbated by the industrial dynamics of the nineteenth century which witnessed the application of modern science to industry, likewise for the first time in recorded history.' By the end of the nineteenth century, the problem of controlling the production of vast labour forces in large organizations had outstripped the untrained techniques of industrial and civil service managers. The management crisis grew to the point where it could only be solved, albeit temporarily, by the acceptance of a new management philosophy which was in turn based on scientific principles. In the early part of the twentieth century, an engineer, Frederick W. Taylor, developed the technique of breaking jobs down analytically into their smallest possible components; assigning separate workers to each component; and thereby developing, overnight, small-scale skills which multiplied production rates to hitherto unrealized limits. Taylor's scientific management approach was espoused by American progressives, such as Supreme Court Justice Louis Brandeis, because of its assumption that increased productivity would remove workers from the grinding poverty associated with the 135

INTRODUCTION

industrial revolution.2 The application of similar techniques by Henry Ford, however, spawned the soul-destroying assembly line of the large automotive and other industrial plants of the twentieth century. The attendant social evils and political repercussions were articulated through the trade union movement which grew in reaction to this "human machine" philosophy, and ultimately through the present day revulsion of all levels of society against a mechanistic life style. Although still with us, the scientific management age of Taylor, and of his disciples, including Gantt and the Gilbreths, gradually lost much of its force, and gave place to more humanistic philosophies. In the early 1920s, position classification and job analysis evaluation stressing the human dimension and individual attributes began to assume a more important aspect. Then in the late twenties, an experiment at the Hawthorne plant of Western Electric, a wholly owned subsidiary of AT&T at Cicero, near Chicago, ushered in a revolutionary new age in management philosophy. It was based on the more realistic perception . that human beings respond not merely to fear of insecurity or greed for wages, but to a whole range of other stimuli, including personal attention, peer group pressures, and a sense of personal worth as related to their work. This new "human relations" management philosophy, embodying as it did a sense of personal respect for the sanctity of the human personality, began to flower just before World War II. During this period management emphasis was on concern for the individual, even though that concern might be regarded as being a mere manipulative technique for preserving and increasing production. World War II elevated management techniques to a higher level of sophistication and spawned a new breed of technocrat, the systems analyst. Vast military operations created complex logistics problems in the shipping industry. In the face of mounting shipping losses, a new management approach known as operations research relied on applied mathematical models to get more supplies and material from the North American continent to Europe. After the war, operations research reinforced the impact of the computer on modern industry and government. Side by side with the computer there developed an elite group of management scientists operating at new levels of abstraction. Thus, systems theory has in recent years developed into a common, overarching theory offering solutions not only in mathematical and scientific fields, but in sociological and management fields as well. This is the point at which we stand today, and the foregoing is the backdrop against which we must view the problems of management technology in the courts. We now stand hip-deep in the swirling and changing tides of management philosophy, in an environment which serves up persisting traces of Taylorian scientific management, the humanistic approach of 136

Introduction the human relations school, and all shades of philosophy between the two poles of authoritarian and participative management styles. There are continuing, intensive examinations of group and individual behaviour, and a full spectrum of points of view urged upon us by various writers within the management field. The competing schools of thought tend to centre in different learning institutions: it is said that, in the United States, the University of California at Berkeley and Massachusetts Institute of Technology espouse the quantitative (scientific management) approach; while Harvard and the University of Southern California uphold the behavioural (human relations) approach. Organizational designs are also changing in this last quarter of the twentieth century, and time would appear to be on the side of the behaviouralists. The hierarchical style of management may be disappearing through the force of complexities developed by multiple interfaces between varying (and in the case of courts, competing) roles which exist in today's intricate organizations. If this is so, then operations will inevitably be driven to a predominantly horizontal rather than vertical type of organization with short-lived task force teams forming to solve immediate problems, only to dissolve themselves and disappear; and with the management function expressing itself in a more consultative, supportive, and coordinating role, rather than as an all-wise and all-seeing master mind directing the minute details of the organization's functions from some remote pinnacle. In short (or so the argument goes), the bureaucratic type of organization is slowly dying. In its place is rising a type of organization based not on authoritarian but upon coordinated teamwork, consultation, and consensus.8 Certainly the limitation of the individual human mind to understand and control the intricacies of the modern organization is forcing changes from the bureaucratic and hierarchical form to one more closely resembling a matrix of coordinating task forces and action by consensus. Nevertheless, the change is still one of degree, for organizations continue to have strong bureaucratic elements. Since judicial administration is part of this larger historical development, an understanding of modem organizational management and its practical applications in a court setting is essential. It is necessary for two audiences. First, the participants in the system—judges and court administrators—will require an understanding of management developments and their connection with the distinctive needs of the courts. Second, readers outside the court system should also realize the application and limits of modem management practices in the courts. The six chapters in Part II will therefore combine material on the courts with broader discussion of major areas of public management. The first two chapters will deal with personnel management and budget137

INTRODUCTION

ing, the two most prominent management functions in the public sector, and relate those areas to court personnel and court budgeting. Chapter 8 will discuss the central work process of the judiciary—managing the flow of cases. Chapter 9 will then consider the flow of paper—court records—that supports the caseflow process. Chapter 10 follows with a discussion of management information systems and computer technology, building on previous discussion of records management and budgetary planning. Chapter 11 outlines the process of implementing new management systems, closing the chapters on the technology of judicial administration with a discussion of how to implement operational changes, before shifting to Part III and its focus on broader social and administrative changes in the courts.

138

Chapter Six Personnel Systems and Functions in Courts One of the spinoffs of the historical development of modern bureaucracies and complex industrial concentrations has been the emergence of personnel management as a separate organizational activity and field of study. One may express the hope that the present struggle between contending management concepts—the mechanistic approach of the postTaylorian world and the group dynamics emphasis of the human relations movement—will produce some new unified management theory, to which all contending theories may make their due contribution. Until such a new unifying concept develops, the personnel manager will feel himself drawn to and fro in the ebb and flow of conflicting management philosophies briefly referred to in the introduction to Part II. The competent manager will view his operations within the context of this web of forces, and, indeed, must do so in order to maintain his personal integrity in the performance of his duties; for he owes a duty both to management and to labour. PERSONNEL MANAGEMENT IN COURT ADMINISTRATION

Court administrators operate at different levels of complexity but all must hire, pay, and discharge employees, and in most cases deal directly or indirectly with public service commissions and employee unions. Court staff across Canada now number well over 8,800, as the provincial breakdown in table 6 shows. It is vital therefore that administrators understand at least in broad outline the range and perspective of the personnel manager's function. The court administrator should apply personnel management techniques within the context of two related principles. The first is that a personnel manager must think of administration in terms of goals and objectives. Second, a personnel system demands an open system ap139

CHAPTER SIX

TABLE 6 1977-78, BY PROVINCE

COURT STAFF,

Province

Total Court Staff

Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia Ontario Prince Edward Island Quebec Saskatchewan Yukon Northwest Territories Federal governmenta

849 1,368 318 150 150 243 2,674 30 2,602 212 19 29 213

All governments

8,857

SOURCE: National Task Force on the Administration of Justice, Justice Serv-

ices in Canada 1977-78 (Vancouver, B.C., August 1979), p. 87. °Includes staff of the Supreme Court of Canada (55), Federal Court of Canada (141), Office of the Commissioner for Federal Judicial Affairs (14), and Canadian Judicial Council (3) . proach. To explain, a system has been defined as a set of interrelated and interdependent activities, components or parts, designed to achieve a certain set of goals or objectives. The demands and requirements of each of the interrelated components of the court system, including the judiciary, the bar, and the other sub-sets, must be accorded due weight. Therefore, in speaking of goals and objectives, we are referring to the goals of the justice system as a whole; the more immediate objectives of the courts; and finally, the yet more immediate objective of the court administrator. The objectives of the court administrator, insofar as he carries out personnel functions, must always be defined in terms related to the overall goals of the organization and its management objectives. He cannot operate in either theoretical or practical isolation from the other components of the system and their objectives. This chapter will attempt to set out specific principles of personnel management in the public sector, with special reference to the area of court administration. It will be evident as the discussion progresses, however, that many of these principles are not being applied, and that the various provinces are now at different levels of sophistication. It is hoped that the attempt to outline the principles will lend perspectives in assessing how each province should attack its unique set of needs in this field.' 140

Personnel Systems and Functions in Courts Every organization consists of four ingredients, namely, tasks, structures, tools and people. These four ingredients operate in a state of continuous flux. Organizational Tasks

Structure ____.—atc--........

Technical Tools

People In practice, every task involves an interaction between any or all of the above four ingredients. Since people are one of the four ingredients, administration of courts involves personnel problems. Salaries are the largest single cost item in the budget in any governmental service organization, running from 60 percent to even 90 percent of total operating expenses. The courts fall into this range, as the figures in table 7 illustrate. TABLE 7 JUDGES' SALARIES, STAFF SALARIES AND OTHER EXPENSES, AS PERCENTAGES OF TOTAL COURT EXPENDITURES, 1977-78, BY PROVINCE

Province

Percent Judges' Salariesb

Percent Percent Staff Salaries Other Expenses

Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotiaa Ontario Prince Edward Island Quebeca Saskatchewana Yukon Northwest Territories Federal government

32 22 30 34 40 39 21 48 30 47 15 17 23

49 57 51 47 35 49 52 36 57 30 43 38 51

19 21 19 19 25 12 27 16 13 23 42 45 26

All governments

27

52

21

SOURCE: National Task Force on the Administration of Justice, Justice Serv-

ices in Canada 1977-78 (Vancouver, B.C.: August 1979), p. 87. a Includes municipal expenditures. bincludes salaries and benefits for the judges appointed by the federal, provincial, and territorial governments. Does not include section 96 court judges' annuities and allowances to widows and dependents. Includes supreme and federal courts. Does not include expenditures for the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council. 141

CHAPTER SIX That table combines federal, provincial, and (where applicable) municipal expenditures on courts within each province, and then separates judges' salaries from staff salaries and other expenses. The salaries of judges and staff make up between 73 and 88 percent of the expenditures in the ten provinces. Only the Yukon and the Northwest Territories, with the heavy travel costs necessary to provide court services, fall outside that rather narrow range. These figures reinforce the importance of a mechanism providing the most effective utilization of manpower—the central purpose of personnel management in any organization, including the courts. Moreover, the public has a vested interest in the most effective utilization of human resources to achieve the court's goals, in how much personnel are paid, the manner in which they are hired, and how they perform. This is an age of high accountability. A literate population, through its elected representatives, is increasingly insistent on the principle of accountability for the expenditure of public funds. Accountability is central to the merit principle, towards which all public service commissions strive. It is the result of the people's desire for a skilled public service free of patronage, and providing a career civil service modelled on the British experience, in which "only the most worthy shall serve the state." This is not to say that the civil service is necessarily synonymous with the merit system; but it has travelled some distance down the road toward a merit system through the device of the civil service (or public service) commission. PERSONNEL MANAGEMENT GOALS There are two identifiable goals of personnel management. The first is to ensure high quality of performance. Preservation of quality involves careful selection of staff, their training and development, and, finally, the development of criteria to measure their quality. This is an essentially technical area involving recruitment, examination, and panel procedures for selection from within or without the court administration service, and placement in the job itself. It also involves compensation and classification, including job analyses, descriptions, evaluations, salary surveys, and fringe benefits such as insurance programs, health plans, and retirement plans. In government, only a centralized public service machinery can carry out many of these functions because they mesh into a system as a whole. The second and ancillary goal is staff motivation. Quality of performance is dependent on a positive motive drive. Motivation stems from the development of incentives, and contains five ingredients; namely, salary incentive, hiring based on merit, promotion based on merit, training, and finally (though this tends to be the poor cousin among the family of per142

Personnel Systems and Functions in Courts sonnel management functions) the development of management policies which are appropriate to the individual situation. Let it be said parenthetically that both hard-nosed hierarchical management styles and human relations styles can be effective, depending upon the situation and the personalities involved. This notwithstanding, it has been rightly noted that the trend in personnel management is from Taylorian to motivational concepts, and this trend is likely to continue. Whatever the management style, staff motivation demands the building of morale, the creation of team spirit, seasoned discipline, the handling of grievances at the local level, job enlargement, and once again, training. These functions are inescapably a direct responsibility of local management, that is, of the local court administrator. PUBLIC SERVICE COMMISSIONS AND THE MERIT PRINCIPLE

The development of the party system following Confederation in 1867 resulted in the emergence of uncontrolled patronage, the so-called spoils system, which saw each succeeding government purge its civil service of the previous government's appointees. Patronage was a useful tool in forging each party's political base. Public revulsion against this practice resulted in the establishment of civil (or public) service commissions at both the provincial and federal levels of government. These commissions were charged with the responsibility of building career civil services based on the merit principle. The appointment process was thus transferred from the back rooms of political parties to an independent arm of the executive. The principle embodied in this transfer is now deeply embedded in modern government, and its methods and techniques have seen gradual improvement in many directions. In the 1970s the public service was one of the fastest growing segments of the labour market, with provincial government employment growing even faster than that in the federal government. In the face of this melancholy fact, public service commissions have been and remain hard pressed to keep organizational pace with the new demands placed upon them. Legal and bureaucratic requirements render the employment process slower and more cumbersome in the public than in the private sector. A major difficulty for government departments is to replace lost personnel or to hire additional personnel without excessive delays. A major goal of present public service commissions, therefore, is to design and construct the machinery which will select the strongest applicant in the shortest time. But this goal is tied to the over-riding control of the treasury board, which frustrates such prompt hiring. Delays at both public service and treasury board levels create overtime work and pay problems, staff shortages, low morale, and the Ioss of qualified candidates who 143

CHAPTER SIX

take employment elsewhere rather than wait for the processing of their job applications. Likewise, a court which requires an extra clerk may have to apply first to the personnel section of the attorney general's department, which then refers the application on to the public service commission, which may also have to approve a new position. Following this, additional approval may be required from the treasury board. This process can consume weeks and even months, and accounts for the present urgently felt need that the personnel machinery in bureaucracies be streamlined. Even after final treasury approval of a position, a printed announcement must then be posted in public places setting out the job description, salary, and qualifications. Applications must then be submitted to the personnel department for initial screening. All these steps must precede interviews, and possibly written examinations. As previously stated, sometimes the most promising applicant has long since departed the scene for other employment before the interview stage or, if accepted, has obtained employment elsewhere before the vacancy is filled. These delays can add up to one of the greatest impediments to efficient court administration. TABLE 8 PROVINCIAL AND FEDERAL GOVERNMENT DEPARTMENTAL EMPLOYEES, CLASSIFIED BY TYPE OF ENGAGEMENT, DECEMBER 1971

Total Departmental Employees

Percent Civil Service

Percent Others

Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia Ontario Prince Edward Island Quebec Saskatchewan

24,685 29,141 12,011 21,525 11,736 16,493 81,199 3,131 58,353 11,595

75.5 100.0 76.3 32.3 96.4 46.0 80.0 62.2 89.8 65.6

24.5 0.0 23.7 67.7 3.6 54.0 20.0 37.8 10.2 34.4

Total, all provinces Federal Government

269,869 266,805

77.7 81.1

22.3 18.9

Province

SOURCE: Adapted from J. E. Hodgetts and O. P. Dwivedi, Provincial Govern-

ments as Employers (Montreal: McGill—Queen's University Press and the Institute of Public Administration of Canada, 1974), table 3, p. 8. Does not include employees of government enterprises and workers' compensation boards. 144

Personnel Systems and Functions in Courts Despite this current bureaucratic weakness, public service commissions per se justify themselves in that they advance the concept of the merit system. This system has five goals: 1. 2. 3. 4. 5.

Appointment based on competence. Advancement based on merit. Salary related to the nature of the job and quality of performance. Establishment of a career service. Provision of desirable working conditions.

The merit system has been established to varying degrees in the provincial public service. Hodgetts and Dwivedi, in their study of provincial personnel administration, report that, as of December 1971, anywhere from 32.3 percent to 100 percent of departmental employees were under the civil service. Table 8 shows the breakdown in each province and in the federal government. Court personnel tend to be more heavily concentrated in the civil service than department employees in general, with Ontario standing out as a notable exception. Consider the figures in table 9, based on responses to a 1977 mail questionnaire survey of the chief court administrators in each province. TABLE 9 COURT PERSONNEL, CLASSIFIED BY TYPE OF ENGAGEMENT, PROVINCIAL GOVERNMENTS, 1977

Province

Percent Civil Percent Percent Service Contract Other

Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia

99 95 91 92 99 69

1 5 9 8 1 —

— — — 31

Ontario Prince Edward Island

60 85

40 —

— 15

Quebec Saskatchewan

91 99

0.01 —

9 1

Explanation of Other

Appointed on judge's approval Halftime clerks, casual employees Magistrate's Court includes a few city employees in Regina, Saskatoon, Moose Jaw and Prince Albert 145

CHAPTER SIX

The fact that departmental or court personnel are civil service appointments does not mean, however, that a merit system has been fully—or even substantially—implemented within the public service of a province. Hodgetts and Dwivedi have persuasively documented the weakness of central personnel agencies in the various provinces.2 Their findings are reinforced by the responses of the chief court administrators. While the administrators all indicated that they had province-wide job classifications and comparable salaries across the province, their view of the effectiveness of central personnel agencies was mixed, at best. Each administrator was asked whether his province's service commission had been "very effective, not very effective or ineffective in establishing the merit system" in hiring, retention, and promotion. Their responses are shown in table 10. TABLE 10 EFFECTIVENESS OF PUBLIC SERVICE COMMISSIONS IN ESTABLISHING MERIT SYSTEM FOR COURT PERSONNEL, BY PROVINCE

Province

Hiring

Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia Ontario Prince Edward Island Quebec Saskatchewan

Not very eff. Very effective Effective Not very eff. Ineffective Ineffective (No answer) Very effective Not very eff. Very effective

Effectiveness in:° Retention Ineffective Not very eff. Not very eff. Not very eff. Ineffective Ineffective (No answer) Not very eff. Not very eff. Very effective

Promotion Ineffective Not very eff. Not very eff. Not very eff. Ineffective Ineffective (No answer) Not very eff. Not very eff. Very effective

SOURCE: 1977 mail questionnaire of chief court administrators. °Respondent administrators were given three alternatives, as shown in the table: very effective, not very effective, ineffective. Manitoba created the additional category of "effective."

The merit system has had the greatest impact on hiring; three provinces

report that it has been very effective. Another three provinces, however, report that their central personnel agency has not been very effective, and two provinces report ineffective agencies. In Nova Scotia, for instance, the chief court administrator reported that the commission "only classifies applications," while "the Department through the Deputy Inspectors or myself attends to the engagement, the retention and the promotion of employees." The CSC's only impact, however modest, in Nova Scotia would be on hiring. Only Saskatchewan reported that its central per146

Personnel Systems and Functions in Courts sonnel agency was very effective in all three areas. Yet table 8 indicates that Saskatchewan has a lower percentage of all departmental employees under the civil service than any province west of New Brunswick. It is clear, therefore, that neither the existence of a central personnel agency, nor the breadth of its coverage, is a good indicator of its authority or its effectiveness. The province of Ontario provides interesting illustrations of the limits of the civil service in general, and the central personnel agency and merit system in particular. A number of officials who perform roles analogous to trial court administrators in other provinces, or elected county clerks in the United States, are patronage appointments in Ontario. County and district court clerks, sheriffs, local registrars of the supreme court, and justices of the peace are appointed by the lieutenant-governor-in-council (the provincial cabinet) on the recommendation of the attorney general. Historically, these appointments were used to reward those deemed deserving of appointment by political leaders in the provincial government. Consider the account of Ernest C. Drury, the "farmer premier" of Ontario from 1919-23 and later a federal Progressive candidate with Liberal party backing. Having suffered financially during the depression, Drury recalled the election of the Liberals under Mitchell Hepburn in 1934: With a friendly government in power and three personal friends in the Cabinet [including] my former colleague Harry Nixon... , I had every reason to expect some appointment that would enable me to retrieve my financial losses. My choice was a seat on the Hydro Commission. For this I felt I was particularly qualified... . I had to be content [however] with a lesser appointment: the combined offices of Sheriff, County Court Clerk, and Local Registrar of the Supreme Court for the County of Simcoe. The work would be congenial and not too strenuous.... The salary was not large, even for those times, $3,750 a year to begin with... .3 It is not clear to what extent political ties influence appointments to these positions in Ontario today, but it is interesting that the Ontario White Paper on Courts Administration recommends that the government retain its appointment power over all of these local court administrative offices.' This recommendation was criticized by Professors Peter Russell and Garry Watson, who praised the judicial council concept in the White Paper as "bold and imaginative," but still observed that the government would retain "control of an important group of appointments to minor court offices which are perceived to have considerable patronage value (a dubious part of the proposal in view of the important administrative roles played by many such officers) ."5 The Iargest single group of Ontario court personnel outside the civil

147

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service is the small claims court staff, which includes 700 employees across Ontario who are neither civil servants nor crown employees.• The clerk's offices are staffed on a contractual basis, and may even be located in a room at the back of the chief clerk's private residence.' Newspaper stories in the mid 1970s reported that an Ontario cabinet minister succeeded in having his barber appointed as clerk of the small claims court in the minister's home constituency. These small claims court staffs, along with the other court officials with governor-in-council appointments, leave Ontario with the highest number of non-civil service personnel in any court system in Canada (with the possible exception of Nova Scotia). At the same time, however, a majority of Ontario court employees are civil servants, and the White Paper emphasizes that any new system of court administration will retain "civil service standards in relation to recruitment, promotion, job classification, salary, etc."8 What remains problematic is the extent to which civil service standards affect court personnel policy, and the extent to which any personnel standards are imposed by a civil service commission. In Ontario it appears that neither the central personnel agency nor departmental standards limit the discretion of local court officials in personnel matters. Local clerks and registrars are able, within minimum standards, to hire whom they wish. There are no central lists of stenographers or deputy clerks. A person is hired at the local level and approved routinely by departmental officials. Retention and promotion may operate in terms of a position classification scheme, but any general guidelines are applied by local court officials. The general weakness of central personnel agencies in the provinces contrasts sharply with the power of treasury boards. The central fiscal agency places real constraints on court officials and on ministries of justice throughout the provinces. The impact of treasury boards on personnel administration is growing because of increased fiscal constraints, and the role of treasury boards in collective bargaining. One indication of the different roles of personnel and fiscal agencies was reflected in provincial court administrators' views on the delay experienced in getting personnel. When asked whether central processing of applicants created "serious delays in filling vacancies," only Quebec and Newfoundland said yes. Saskatchewan responded "yes and no," while seven others reported no delays. When asked about "serious delays in establishing new positions"—a matter in which the central fiscal agency becomes involved —the answers were quite different. Alberta, British Columbia, New Brunswick, Newfoundland, and Quebec all reported serious delays, and only Ontario, Nova Scotia, and Prince Edward Island found no serious delays.8 In summary, court personnel are by and large civil service personnel, 148

Personnel Systems and Functions in Courts but provincial personnel agencies have not been particularly effective in establishing merit principles. Court personnel matters remain more decentralized than do court budget matters. Therefore, when personnel matters involve a fiscal component (such as creating new positions or bargaining with employee unions), central control increases; otherwise, it is relatively weak and local discretion dominates a theoretically unified provincial personnel system. THE SALARY REVIEW PROCESS

The question of salaries is obviously central to a merit system, because without an equitable and competitive salary structure the twin goals of high performance and morale will never be met. In a province-wide court administration system, this whole area can be effectively attacked only with the assistance of a public service commission and the involvement of the personnel section of the attorney general's department. If a province decided to adopt a crown agency model of court administration, or another approach that has a high degree of judicial control, a new and separate court personnel system might be possible and appropriate. Even then, however, public service commissions would possess the most experience and expertise in the relevant salary decisions, and should still play a major technical assistance role. The discussion that follows is based on existing executive centred models of court administration, but the principles would apply with equal force to judicially controlled court administration. The objectives of a sensible remuneration plan are: 1. Equitable treatment of all court personnel 2. Competitive compensation externally (that is to say, salary and benefits which bear a fair relation to the general labour market in the relevant area) 3. Fair salary scales internally 4. Control of overall salary costs 5. Motivation of the court staff The setting of salaries is not an isolated decision. It is the result of a sequence of activities or flow of events. In a word, it is the culmination of a process involving interrelated issues moving toward a goal, purpose, or end. The goal in this case is a fair salary for the court employee, while keeping in mind the competitive position in the job market generally. Sometimes this can be a lengthy process, covering several months. When a large-scale reorganization of a court system occurs (see chapter 13 for an example), unification and upgrading of personnel is likely to be a key element. Recasting the court personnel system requires a major re-evalua149

CHAPTER SIX

tion of existing salary structures. Any such evaluation consists of six distinct steps, namely: 1. Job analysis 2. Job descriptions (derived from job analysis) 3. Job evaluations (position classification) 4. Salary surveys (in private sectors and other public sectors) 5. Creating the salary structure (this involves minimum wage laws and collective bargaining) 6. Establishing salary rules These six steps will now be considered. 1. Job Analysis. This can be a lengthy and arduous procedure, and if a total survey is required, then it ought to be undertaken by a team recruited in part at least from the court administration system itself. It is impossible for outsiders to undertake a valid analysis of court functions. This team may include representatives from both the civil service commission and from the union. But the effectiveness of its work depends on the seasoned experience of court staff members, which comes through years of work within the various levels of the courts. This team will analyse each type and classification of job to determine what is done, when it is done, where it is done, and how it is done. 2. Job Descriptions. These consist of a series of written statements describing the duties and responsibilities of each type of job. It is important that these descriptions reflect the position, and not the individual occupying the position. The position may even be vacant, yet it exists and must be described in a detached manner, devoid of personality considerations. In interviewing court personnel, the team will naturally have first interviewed the relevant court administrator, and will have mastered any existing manuals and other documents relating to the job positions. Other staff employees would then be interviewed. This latter task requires a combination of tact and independence. The interviewers should be neither aggressive nor overawed. They should be concerned with overall parity throughout the entire organization and, while remaining resilient, be prepared not to yield at every turn to arguments relating to the uniqueness of the position, which are frequently advanced by the occupant thereof. Again, a distinction must be borne in mind between the technical job designation on the one hand and the incumbent who occupies the position, making certain that the incumbent's personality does not colour the results of the analysis. It has been argued that modern office procedures are reasonably uni150

Personnel Systems and Functions in Courts form throughout the commercial world and consequently an employee may move from an administrative office of an insurance company to a finance company to a national sales organization, then to a large manufacturing establishment (even from country to country) without being confused by marked environmental differences in terms of clerical functions. Others, however, argue that this ease of mobility does not extend to court functions. Should such an itinerant clerk move from any of the above corporations into the court environment, he would be bewildered by the tasks involved: the so-called "drama" of the courtroom, if he should be employed as a clerk of the court; the mystifying legal jargon in current and casual use; the abstruse contents of the documents with which he must deal, especially on the civil side; the complexities inherent in the linkage mechanism which lies at the heart of court administration. Likewise, a clerk from almost any other government department would experience the same sense of bewilderment if recruited into the court environment. In a very real sense court administration involves duties which are unique. The court administrator and his staff are able to function only because they have developed a special set of skills. Thus, the proposition has been advanced that they should be organized and recognized as a special civil service within the larger civil service itself, and should have distinct job classification and salary entitlements in order to ensure that they receive fair compensation in view of their special skills. This concept has been largely adopted in British Columbia (again, see chapter 13) . There are, however, limits to the claim to uniqueness, and limits to the utility of applying the concept. In the eyes of veteran personnel officers, the temptation to exaggerate uniqueness is universal. 3. Job Evaluation and Classification. Job evaluation measures the general worth of the various jobs and classifies them in order to assess appropriate salaries. In all candour, such evaluations are prone to subjective value judgments and must be arduously hammered out by a committee, which will frequently find itself in spirited debate. Ranking and comparisons with other jobs must be taken into account. Elaborate pointsetting systems have been. devised, frequently with good results. Ultimately the committee will arrive at a hierarchy of ten to twenty classes or groups of positions sufficiently distinctive to justify classification for purposes of selection, compensation, promotion, and transfer. Positions will then be assigned to these classes in accordance with criteria specifically relevant to the court system. Salaries allocated to the various classes will depend on the following: (a) Knowledge and skill necessary to perform the work (b) Degree of freedom of action 151

CHAPTER SIX

Originality required in the work Complexity of work Supervisory responsibilities Consequences of the work (for instance, a clerk coordinating trial dates in a large courthouse performs work fraught with consequences of considerable dimension; he cannot be assigned to a low clerk classification) (g) Responsibility for monies, property, lives, etc. (h) Responsibility for accuracy, quality and effectiveness of work

(c) (d) (e) (f)

Incidentally, the court system is highly sensitive to titles. It is questionable whether the term "clerk" any longer suffices. It is of course a term of ancient origin, deriving from an age of general illiteracy in which the title of clerk carried distinction, since a clerk was a cleric, priest, deacon, or scholar capable of reading and writing and therefore a person commanding respect. That sense of the term has been eroded, and the title is no longer so enhancing. Yet it persists in default of one more suitably reflective of the expertise and intelligence demanded in court administration. British Columbia established its own internal court administration classification survey committee in 1973. This committee surveyed all position classifications in the province, and reclassified a significant number to effect better matches with the work being performed in various court registries. Periodic internal re-evaluations are necessary, as work volumes expand at differing rates in each registry in response to changing demographic and social patterns. The dynamics of court jobs are constantly changing, with the result that reclassification or reassessment of previous classifications must continue as an ongoing process. 4. Salary Surveys. Unless the process of job evaluation is subject to annual reassessment, court system pay scales fall behind the average community labour market rates, and cease to be competitive with industry. When this happens, the resultant inequity in salary scale leads to demoralization, and a degradation of performance seeps into the system. Ultimately, both the courts and the public are badly served; poorly paid staff function at less than acceptable standards and it becomes difficult to hire and retain other needed employees. Therefore, salary surveys must repeatedly be carried out. The question is, how? One method is first to select "bench-mark" jobs (such as court clerk or clerk steno) on a small sampling basis, bracketing the highs and lows of their salaries; second, to gather salary data from organizations within the community which may be compared with such benchmark jobs; and third, to analyse the

152

Personnel Systems and Functions in Courts data to determine the prevailing rates which ought to apply to the benchmark jobs selected. Because of the distinctiveness attached to court administrative work, this is not easily done. Nevertheless, it must be undertaken in the best possible manner for the reason given—namely, to remain competitive with the labour market of the community. One might well ask: what is the community? If the court is financed locally by a municipal or county government, then the municipality or county will be the community. If the court system is provincially unified, then the entire province becomes the community, in which case regional anomalies must in many cases simply be lived with. As a general rule, the salary scale should be uniform within a province with the exception of allowances for work in remote areas. As large urban areas become more expensive places than smaller communities in which to live, new salary differentials may develop and be justifiable. 5. Creating the Salary Structure. Setting the actual salary structure in dollar terms involves questions such as the prevailing philosophy of the government (that is, whether it is economy-minded or expansion-minded); interrelated organizational problems such as the pay granted sheriffs, court reporters, probation officers (salaries and fees paid to such groups are jealously scrutinized by a court's clerical staff, and vice versa); and the historic relationships between these contending components of the justice system. At the same time, general market conditions will be an important, if not a dominating factor in decisions concerning salaries. Low salaries render recruiting difficult and sometimes impossible. On the other hand, once staff is recruited, much can be done by management through training programs, leadership, and sincere morale-building policies to reduce the turnover rate. Given reasonable salaries, high turnover is usually due to bad management. 6. Installation of Salary Rules. A general policy should be set and continually reassessed to deal with the host of problems which follow in the wake of the salary structuring process. These problems include taking into account anomalies created by absorbing employees into the system who were earning either more or less than prevailing rates, rates for initial hiring, salary increases within each classification, cost of living bonuses, changes in prevailing rates in the community job market, recruitment policies, status of women and of minorities, and the government's posture as an employer. There are remarkable differences in the philosophies of various provincial governments, and these are reflected in the salary ranges accorded court employees. Final accord and satisfaction are never achieved; it is a theatre of never ending flux.

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CHAPTER SIX PERSONNEL SELECTION AND APPRAISAL Having set salary scales, what may be said as to the selection process? Naturally, every court administrator—whether provincial, regional, or local—will attempt to match the person with the job. This involves a precise knowledge of the characteristics of the job itself, accurate information as to each applicant's qualifications and personality, and the important matter of whether the applicant will in turn mesh with his or her co-workers. There are a number of forms of interviews. There can be individual interviews, group interviews, or a combination of both. Sometimes an applicant will be processed through a series of two or three interviews by members of the selection panel sitting in different rooms. An innovative approach is to offer a group problem in order to observe how each applicant performs in a group situation. It is difficult to judge any applicant on the basis of a single interview. It is advisable not to rely on written references; one should telephone the writer if possible. Sometimes physical examinations are required to qualify for group insurance. Once personnel are selected, the next problem is appraising their performance. This is a process enjoyed neither by administrators nor staff. It can take many forms, including evaluation by management, by one's peers, and by oneself. Evaluation based upon a list of predetermined criteria has been strongly criticized. A more modern approach consists of the selection of targets worked out between the administrator and the staff member. This is a "project oriented" approach to the problem, and is often labelled "management by objectives" or MBO.10 The specific targets or tasks can be defined in terms of the administrator's goals and objectives in consultation with the individual staff member or a group of the staff. The objectives should be quantifiable, but this is easier to accomplish in theory than in practice. No satisfactory formula has yet been worked out to attach quantitative weights to qualitative factors. There is no prescriptive approach or technique to supply all the answers, just as no single management style will supply all management answers. We are unlikely to see the day when ultimate appraisals are not based largely on instinctive good judgment. THE ROLE AND PLACE OF UNIONS The emergence in Canada of collective bargaining agencies in the public sector has been haphazard and lacking in uniformity. One may view the arrival of unions in the public sector with distaste and treat it on an adversary basis. Such an attitude, however, can only lead to disaster. Whether or not the principle of public service unionization is "right" is 154

Personnel Systems and Functions in Courts no longer an issue. Public service unions are a fact of life. The most fruitful approach is one of continuous negotiation (in other words, a collaboration rather than a conflict model). Experience has proven the wisdom of involving the union from the beginning rather than fighting it at the end. Adverse ideological postures can only be destructive. In many instances, unions can be helpful partners in the intricate field of personnel relations. All ten provinces have developed bargaining mechanisms, but only the federal government and five provinces (British Columbia, Saskatchewan, Quebec, New Brunswick, and Newfoundland) are unfettered by various forms of compulsory arbitration or other discretions designed by government to impose compulsory termination to disputes." Employee participation in salary determinations can prove to be not merely prudent but helpful to the long and arduous process. Employee representation crystallizes and articulates staff sentiments and aspirations, surfaces and clarifies troublesome issues, provides a safety valve for smouldering resentments and insecurities, and lends stability to accords already reached. Frequent liaison should be maintained with the union in all matters affecting personnel, especially if functional changes are contemplated. Routine consultations between the court administrator and the union representative will sometimes include a personnel officer of the attorney general's department. On the other hand, court administrators must recognize the risks in becoming directly involved in contract bergaining sessions. Such negotiations are usually the responsibility of the treasury board, civil service commission, personnel section of the attorney general's department, and union representatives. Usually the court administrator will remain available in the background for consultation. If he sits at the bargaining table it may create tension with court personnel, and he may be subject to direct attack which can leave lasting scars on employee relations. The court administrator should be kept informed, however, as to the progress of negotiations since these will have a direct impact on the budget, which, in turn, will establish the parameters of negotiations with the union. In some provinces, court administration will not be required to control the salary cost item in the budget, which will simply be increased to accommodate salary increases. In practice, the chief court administrator's role in union negotiations varies from province to province. While every province's public service is now unionized, and court personnel are in the same bargaining unit as other provincial employees in every province except Prince Edward Island and New Brunswick, there is no consistent pattern to the participation of court administrative officials in union negotiations. Questionnaire responses indicate that the chief court administrator participates in Alberta, British Columbia, Manitoba, New Brunswick, and Prince Edward 155

CHAPTER SIX

Island; he is not involved in Newfoundland, Nova Scotia, Ontario, Quebec, or Saskatchewan.12 His participation is probably minimal in areas of global salary negotiations. Furthermore, only one chief administrator (in Nova Scotia) reports that he deals directly with the public service commission on personnel matters. Eight others deal with the central personnel agency indirectly, through a personnel office of their attorney general's department." Thus, a chief court administrator has an intermediate role in personnel matters: he participates to a greater or lesser degree, but lacks the authority of a departmental personnel officer. This intermediate status raises difficult questions for the courts. Because court personnel systems have been decentralized in the past, judges who have chosen to do so could play an important role in local personnel decisions. As court personnel systems grow and develop, control passes from local hands to headquarters officials—in other words, from judges to departmental personnel officers. This can be avoided by developing a framework for judicial control of court administration. Under judicial control, court administrators could develop a unified personnel system under judicial supervision, so that professionalization of court personnel would be seen not as a threat to judicial prerogatives, but as a step toward the development of effective court management. Civil service commissions and departmental personnel officers would then provide technical assistance rather than having a veto or screening function. To the extent that these commissions and officials have useful expertise and knowledge, court personnel officers could work with them. In this way, the courts would develop a basis on which to build their own merit system which would be sensitive to the special needs of the courts and their clientele. If under judicial control, courts would then have to consider the extent to which their distinctive characteristics require deviation from general personnel practices. For example, some court administrators argue for separate collective bargaining for court personnel, or at least limits on their right to strike. These administrators reason that a provincial public service strike would not include municipal police forces; therefore, when arrests were made, the staff necessary to move people and records in and out of court would be gone, resulting in people being detained without a judicial hearing, which would be contrary to principles of due process. The validity of this contention has been contested by some union leaders who are wary of management 'arguments for special consideration, but it is at least a plausible position to take. Court officials may be able to use their employees' knowledge of the courts to affect possible strike action. Thus, a few years ago, a union in one province decided to go out in sympathy with another union. Court 156

Personnel Systems and Functions in Courts employees phoned the administrator asking what to do about the sympathy strike: I said, well I can't tell you what to do. I'm big bad management. But I'll tell you one thing, if you don't come to work you don't get paid. And they said, well if we do come to work the union says that they'll fine us. "Well that's handy," I replied, "but how are they going to collect?" And one of the girls said, "Oh yeah, that right, we've got filing cabinets full of that kind of stuff." I said, "Sure, you can be another name on the list. Then they'll have to sue you first before they can do it and how far would they get in a suit?" So she says, "Oh heck, then I'll come to work."14 This interchange suggests that court administrators, like other managers, try to avoid the consequences of strikes. Whether they can develop the kind of effective labour relations that avoids conflict is, however, prob-. lematic, given their still limited authority in personnel matters. EDUCATION AND TRAINING The subject of training deserves special comment. It is listed as a function of goals, namely, high quality performance and the heightening of motivation. Practical experience shows that staff at all levels desire intensive training, and that concealed talents flower under the nourishment provided by training programs. Training seminars demonstrate a sincere concern for the employee as a person capable and deserving of enrichment rather than as a faceless isotype to be exploited. The employee gains in self-confidence, system perspective, and operational intelligence. Intensive, professionally presented training programs at all levels constitute a dynamic and indispensable key to both the goals of personnel management—namely, quality performance and high morale. It is the moral and technical responsibility of court administration to provide such programs, and the moral and practical responsibility of the local court administrator to see that his staff participates in them. Training programs within court administration are in varying stages of development in the provinces, with Quebec, Ontario, and British Columbia having the most extensive programs. Quebec estimates that 350 people have participated in theirs; indeed, a continuing program for clerks operates in the Montreal region. For the rest of the province, oneweek sessions have been held in civil law, small claims, accounting in the courts, the social welfare court, and the court of sessions. Approximately 400 Ontario court people have participated in training programs, including one-week workshops in basic management and advanced management 157

CHAPTER SIX

(communications). Programs for sheriffs, registrars, and staff have also been developed. In British Columbia, 75 percent of court workers have had some training sessions, including one-to-two-day seminars for registry personnel, a series of three-to-five-day courses for senior and middle management, two-week basic seminars for court clerks, and six-and-ahalf-week courses for sheriffs, held in conjunction with the provincial department of education and B.C. Institute of Technology. Alberta has conducted a brief in-house orientation course, with court clerks receiving an additional two-week paralegal course. Beginning in the fall of 1977, Alberta court administrative personnel were offered a two-year community college certificate program, centred at Mount Royal College in Calgary.15 Until 1980, no university in Canada offered a course of study in court administration. The subject is still considered technical rather than professional. In-house training, dominated by a combination of utilitarian and motivational goals, has, so far, been the rule. Almost every province reports some kind of training, but often it is either ad hoc and on the job, or conducted by the public service commission or treasury board and, therefore, not designed to deal with the distinctive issues and problems of court administration. In staff development as well as other personnel functions, more initiative must develop within the court administrative apparatus. Public service commissions can provide essential technical assistance, but the initiative, must be taken, as previous chapters suggest, by the court administration itself, following the leadership of the judiciary. Finally, the absence of a university program in professional court management has made it difficult either to recruit and train qualified outsiders, or to upgrade existing staff. An important remedy for this deficiency has come from a $91,000 grant by the Donner Canadian Foundation to Brock University in St. Catharines, Ontario, for development of a program in judicial administration. Opened in September 1980, the Brock program operates at the masters degree level, and provides courses in courts and legal procedure on one hand, and modern management techniques on the other. MANAGEMENT STYLES While the rationalizing of a personnel system through job classification and a salary structure allows for the application of Weber's bureaucratic principles, effective employee relations are less amenable to bureaucratic principles of organization. This aspect of personnel management deals with people rather than positions, and must therefore draw on research in social psychology and motivation. Many writers concerned with management styles emphasize a human 158

Personnel Systems and Functions in Courts relations approach. The movement away from a mechanistic version of Taylorian management philosophy toward a more humanistic view was first reflected in the writings of Chester Barnard and Elton Mayo in the 1930s. These writers asserted that employees were not automatons; for all their apparent passivity, they required and, indeed, were more productive when offered higher stimuli. They developed a pride in their work, a loyalty to their organization, a commitment to something larger than themselves, when given a real challenge. Psychologists and sociologists thus took their places side by side with time and motion study engineers, and a number of studies emerged, using organization theories still current today. Accordingly, management has switched from its emphasis on production efforts at any cost. It now seeks to acquire fresh information and also shows a willingness to take advice from employees, develop their latent capacities, acknowledge its own mistakes, sound out peers and subordinates for innovative ideas, and even accept formal training in management techniques. This last development is reflected in the recent establishment of management seminars for senior court administrative personnel. These programs, however, are only in their infancy and require expansion and emphasis.16 A number of the writers who currently dominate management theory have reinforced the shift from a mechanistic to a humanistic approach. One of the best known is the late Douglas McGregor, who enunciated the distinction between "Theory X" and "Theory Y" management." Theory X represents the legacy of the industrial revolution's need for routine and depersonalized jobs, and is based on the assumption that people possess an inherent repugnance toward work and must therefore be coerced and directed in order to promote organizational objectives. Theory Y, on the other hand, assumes that work is a natural and satisfying activity which releases untapped resources in most employees. In particular, the capacity for self-direction, confidence in individual instinct, and the development of a sense of responsibility are mentioned. It has been said that both theories are self-fulfilling in that workers will act in accordance with the manner in which they are treated. The manager's view of which approach to adopt stems from his own assessment of human nature, including his own experience and predelictions. Humanistic psychologist Abraham Maslow's concept of the "hierarchy of needs" has also been incorporated into management theory.18 Maslow views people as goal seeking and motivated by internal needs and drives. These needs he saw as hierarchical, and are set out in figure 7. The simple premise is that a person must first satisfy the most basic physiological needs, such as food and shelter. Next, he seeks safety: security and the absence of fear, including fear of unemployment. This having been satisfied, his social needs expand, giving rise to a need for inclusion, of ac159

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FIGURE

7

MASLOW'S HIERARCHY OF NEEDS

SelfActualization Esteem

Belongingness and Love

Safety

Physiological

ceptance by family, friends, and colleagues. Beyond this, he seeks esteem or prestige in some form. His search then ascends to the highest level, namely, self-actualization in some subjective form—self-realization, selfknowledge, or whatever phrase one regards as appropriate. Maslow states that the good manager will do everything possible to provide a good working climate in which these needs, as outlined, can be met. One of the most salient management theories for our purposes is that of Rensis Likert, who evolved the "linking pin" concept,19 as illustrated in figure 8. Linking pins integrate the organization into a mosaic of overlapping groups, with the result that organizations and their leaders orient themselves away from one-to-one relationships and concepts of accountability, to dealings with groups collectively. The link belongs to two groups simultaneously, usually the group of peers and the group in which the individual is in the leadership role. He is a member of both and not merely a conductor. Likert contends that a manager's authority is ultimately dependent on how much authority his subordinates will allow him to exercise, regardless of his formal position, and that the manager's influence varies directly with the extent to which he can be influenced by subordinates. By responding responsibly to subordinate input, he increases their commitment to the organization's objectives and goals, and thus solidifies his own leadership position. His authority is also influenced by 160

Personnel Systems and Functions in Courts FIGURE 8 LIKERT'S LINKING PIN CONCEPT

LINKING PIN

his ability to exert influence laterally and upwards. Likert sees leadership essentially as supportiveness. Another useful concept is that of Robert Blake and Jane Mouton, namely, the managerial grid, which delineates the interrelationship between the manager's concern for people and his concern for production, as outlined in figure 9.20 A manager may score from one to nine on each of the two dimensions. The 1/1 manager, with a low concern for both people and production, is passive. The 1/9 manager (high concern for people, low concern for production) is weak and shrinks from the animosity which arises from a 9/1 style of management. A 5/5 management style is traditional and compromising, while 9/9 managers seek to maximize integration of people and production through the interplay of ideas and people. The 9/9 location marks the optimal style, if it can be achieved. The grid analysis itself is of great pragmatic use. Blake and Mouton have developed tests to determine one's dominant and backup management styles. Most managers have an identifiable management style, with a backup style to which they resort in times of crisis. The backup style may be especially revealing, since managers may strive for a 9/9 style under normal circumstances, but move toward the extremes of 9/1 or 1/9 when a crisis precludes having the best of both worlds. 161

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FIGURE

9

BLAKE AND MOUTON'S MANAGERIAL GRID

High

1/9 Human Relations; "Country Club Management"

9/9 Greatest Production will occur through committed people

CONCERN 5/5 Balancing; Compromise between People and Production

FOR PEOPLE

V Low

1 /1 Management which is present but absent

Low

9/1 Scientific Management People viewed as things

CONCERN FOR PRODUCTION

High

Court administrators also have identifiable management styles. Some may achieve a substantial mix of people and production. Others may emphasize the latter at the cost of employee morale, or sacrifice efficiency to avoid interpersonal conflict. Province-level or regional administrators may allow an inefficient registry operation to persist because the personal upheavals associated with improvement are deemed too costly. McGregor's approach would explain a court administrator's location on the grid by his choice between Theory X and Theory Y assumptions about court personnel. Underlying that choice, however, may be organizational constraints rather than individual preferences. Operating-level court administrators may take a Theory X approach, in keeping with the routine tasks and low salaries that characterize many local courts and that reduce the commitment a manager would expect from his subordinates. Provincelevel court administrators may take a Theory Y approach that reflects their need to supervise highly trained, well-paid, and highly motivated professionals. In times of tight provincial budgets and high unemployment, a court administrator may display a higher concern for production, since it would be more difficult to obtain additional positions when exist162

Personnel Systems and Functions in Courts ing staff are inefficient, and easier to hire qualified people from outside as replacements. In an understaffed registry, this action could even boost morale of overworked personnel who may feel they had been carrying the less efficient people. While Blake and McGregor both built on Maslow's theories about a hierarchy of needs, the management theorists' concern for the individual is different from that of the psychologist. The general thesis of the former school of thought is that humanized leadership leads to high morale, which will result in increased effort, and hence higher production, reduced turnover, and lower absenteeism. This concern with the individual is frequently decried in that, essentially, the individual is being manipulated in the interests of higher production rather than being catered to for his own sake. In any event, the vagaries, perversities, and unpredictabilities of human nature have often encrusted this approach with statistical evidence of failure or, at any rate, successes so ambiguous as to raise critical questions as to its validity. A benevolent management policy may or may not encourage production; an authoritarian management policy may or may not hinder production. This is a matter of practical experience which once again suggests that any system involving human beings forbids adherence to any single theory of management technique. The variables are too many and too subtle. COURT. REPORTERS: THE LAST COTTAGE INDUSTRY

Perhaps the most controversial and distinctive aspect of court personnel administration is court reporting. The proceedings of most Canadian courts are set down verbatim so that a transcript can be prepared, if necessary, for appeal. The layman can readily identify the reporter in court—often with a stenotype machine or a pad taking shorthand notes, sometimes with a stenomask, or, in a few instances, with complex recording equipment. For some years court reporters in a number of jurisdictions have been criticized by court administrators for discouraging the adoption of new recording technologies on grounds of self-interest—the fear that their jobs would disappear. Court reporters reply that if a transcript is in fact required, a shorthand produced script still ensures the transcript in the shortest time. Tape recording equipment is now quite widespread, however, especially at the provincial court level. A second conflict relating to the reporter's work concerns the amount. of renumeration he should receive for the preparation of transcripts. While technology is being developed and tested for computer-assisted transcription, transcripts are still prepared by typing from the reporter's notes or from the tape or stenomask recordings. In many jurisdictions 163

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these transcripts are prepared on a piece-work basis by the reporter, or by a typist hired directly by the reporter. The reporter thus operates as an independent entrepreneur, and in some cases earns more money than any other court official except the judge (and, even there, some reporters can compete). The development of a merit system in the public service had included the abolition of fee officials, yet they continue to persist in the courts perhaps longer than in any other part of the public service. It is still possible to find process servers delivering court papers for a perdelivery fee, and earning a good living when doing so on a full-time basis. Stipendiary magistrates and JPs have only recently disappeared. Court reporters are the last remaining symbol of the bygone era when court personnel were organized on entrepreneurial rather than bureaucratic principles. The survival of court reporters can be traced to a variety of factors. They are not only in constant contact with the judiciary; their ability to smooth out the odd sloppy phrase in a statement from the bench makes them particularly useful. The political clout of court reporters in the United States is legendary; their association in California had for many years retained as a lobbyist an extremely expensive and influential legislative advocate who numbers the state's largest racetracks among his clientele. Even in Canada, however, court reporters have maintained their influence. One province moved to electronic recording devices only after the court reporters had unsuccessfully stated their case to both the minister of justice and the premier. The importance of the court record itself has made judges and court officials hesitant to adopt recording technology that is not absolutely reliable. Even with the introduction of recording equipment, it is not unusual to find a court reporter taking supplementary notes and checking the quality of the recording. However, the role of recording equipment continues to grow, abetted, ironically, by a shortage in some provinces of qualified shorthand or stenomask reporters. Court reporters, in an anomalous position as entrepreneurial public servants, may be a dying breed, but they are likely to remain important figures in the country's courtrooms for some years to come. EQUAL EMPLOYMENT OPPORTUNITIES

An increasingly important aspect of personnel management involves the assurance that public employment opportunities are fully open to members of society from different racial and ethnic backgrounds, different sexes, and different language groups. This promises to be an increasingly difficult area, affecting recruiting, promotion, training, selection, salaries, and incentive awards. Its relevance to court administrators is reflected by 164

Personnel Systems and Functions in Courts its inclusion in the most recent American monograph on court personnel management.'' Demands for equality on the part of minority groups and women are understandable, justifiable, and ought to be accepted as facts of life in the late twentieth century. Yet this conclusion carries in its wake a number of dilemmas that must be faced by the personnel manager when dealing with equal employment opportunity. Many of these dilemmas have been argued out in the United States, and were joined in the well-publicized Bakke case.22 In these arguments, equal employment opportunity has been related to affirmative action. Affirmative action means not only writing equal opportunity rules into personnel procedures, but also taking positive measures to ensure that the rules are actually put into practice, and that an organization's employees reflect a cross-section of the larger community. It has been equated by some critics to a form of reverse discrimination by which administrators, in order to rectify past imbalances, are forced to discriminate against those who are best or equally qualified to perform a specific job. In fact, affirmative action is sharply different from reverse discrimination. The thrust of affirmative action is to change those past hiring practices that have closed off employment opportunities but have not produced more meritorious or better qualified personnel. Thus, affirmative action programs have sought to reduce the impact of the merit system where "merit" principles have been applied with unnecessary rigidity. For example, many test requirements are culturally biased, either consciously or unconsciously, toward white, middle-class, English-speaking expectations; hiring the top scorers in an "objective" written test would not necessarily produce the hardest-working or most sensitive corps of staff employees. Furthermore, public service commissions could do more to encourage rather than discourage lateral promotion (in this context, promotion from outside the court system)—a step that could increase quality of performance as well as promote equal employment opportunity. Some affirmative action programs have sought to increase the application of merit principles. For example, a former equal opportunity officer in Vancouver described her role in city government as trying to implement a merit system—as against existing hiring practices that filled vacancies by word-of-mouth instead of advertising, and tolerated interview questions about personal habits and private behaviour.23 Furthermore, expansion of federal government requirements for proficiency in both English and French—making linguistic skills a qualification of work —has increased the proportion of francophones in the federal public service. In this way, stiffer merit criteria have become a means for opening positions to minorities. Some provincial personnel requirements are designed not to increase merit but to serve other purposes, such as re165

CHAPTER SIX

ducing fringe benefit expenditures. Saskatchewan's former director of court services described one such instance, a discrimination based on age, that made it difficult for him both to employ women and to obtain competent long-term employees in central registries: .... It's such a routine job that turnover is terrible.... But the most satisfactory employees are women over 45 who have been out of the work force for say 25 years bringing up a family, who want to do something but are outdated. You're sort of regenerating them back into the work force at say 50 years of age. Q. Why can't you hire them? A. Because public services says you can't hire anybody on a permanent basis over this particular age. They've got this regulation.24 Affirmative action in court personnel management may have benefits for the court system that go beyond responding to current pressures for equal opportunity. For if courthouse staffs do not include people of different racial, ethnic, and linguistic backgrounds, some members of the public will have no one with whom they can effectively communicate— in the real sense that justice is done from the moment members of the public enter the court registry with personal problems. Particularly in areas where minorities appear frequently in local courts, court employees should reflect that distribution of clientele to assure that the courts are not only open to the public, but are seen to be so. Many native peoples, for example, would hesitate to enter a court registry to inquire as to their civil law rights, even in areas of heavy native population. Commitment to equal employment opportunity programs, therefore, deserves priority attention, both by central personnel agencies and by court administrators. Even when constrained by central personnel restrictions, court administrators should persist in this goal. They should consciously adopt a positive approach, creating a system which will welcome minority groups and be prepared to promote them within the organization, allowing them upward mobility, and thus better serve the minority members of the public who enter the court stream. However dysfunctional such a policy may seem in the short run, the long term results would appear to be in accord with the need for a responsive and responsible public service. This brings us full circle back to the question of goals and the danger of goal drift. What are the goals of court administration? Are they solely to develop the highest level of technical performance by standards applicable to the 1980s? To do so may discriminate against a variety of special groups. The overriding goal should be even-handed justice to all, irrespective of race, colour, language; or sex. Thus, the danger is that such shortterm efficiency might well be achieved at the cost of long-term goals. It 166

Personnel Systems and Functions in Courts is vital that we keep this risk in mind. Efficiency must never imperil the quality of justice. The court administrator must seek to build a system which adheres to the ultimate goals of justice and avoid manipulating it for the sake of short-term efficiency. Such should be the principles of personnel management. Nevertheless, behind all personnel policies, all training programs, all systems development programs, all labour negotiations, all advances and retreats in the war against inefficiency lies the all-pervading shadow of the budget officer. This is a fitting note on which to end the present chapter, for the next deals with the problems of budgeting.

167

Chapter Seven Budgeting and Planning JUDICIAL PASSIVITY IN THE BUDGET PROCESS

Nowhere does the division of powers between the legislative, executive, and judicial branches of government become more evident than in the area of budgeting. First, the federal parliament or the provincial legislature votes operating funds to the courts under their respective jurisdictions or they withhold them. Second, even when funds have been so voted, the executive may under some circumstances withhold them if the attorney general's department is operating under a "global budget," whereby the department is given a lump sum of money to distribute as it chooses. In any event, with or without a global budget, the executive branch of government exercises a heavy hand over all line item expenditures through the procedure known as pre-audit vouchering or postappropriation control, whereby the court submits a voucher to the attorney general's department covering an expenditure, and the department may accept or reject it. Furthermore, while federally appointed judges' salaries are fixed by the federal parliament,1 magistrate's and provincial court judges' salaries are fixed by the executive branch of the province, the provincial cabinet. The key element behind all these constraints is the vise-like grip of the treasury board, usually consisting of the provincial premier and two or three cabinet ministers, which imposes a highly centralized control over actual expenditures of all government departments, whether or not such expenditures have been previously approved by the legislature in the form of estimates. While chapter 6 concluded that central personnel agencies have relatively little impact on court personnel administration, central fiscal agencies exert substantial influence. They are perhaps the most powerful institutions in most provincial governments, often feared more by program managers than the cabinet itself. Courts and judges feel their power as well. 169

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The judiciary is the only branch of government which does not actively share in the budget decision-making process. On budget matters, therefore, the constitution is out of balance, and there are those who argue that equilibrium can only be achieved by granting the judiciary a lump-sum budget which it can control. Yet even the adoption of this principle does not resolve an inescapable contradiction: it might deliver the courts from the control of the executive, other things being equal; but other things are not equal. As we have seen in chapter 3, the power to enact laws with respect to the administration of justice lies with the legislature by virtue of section 92 (14) of the British North America Act. The granting of fiscal autonomy to the courts could be at best an annual exercise in delegation, with funds being proferred or withheld from year to year at the discretion of the legislature. From this dependence there is no longer an escape. We say no longer because in earlier times courts exercised a measure of financial independence through the collection and retention of fees and fines. Even these revenue sources are now appropriated by the executive. This constitutional anomaly indicates the need for court administration to appoint a financial officer to develop an adequate budget for the courts, thus enabling the administration to make competent budget presentations to the department of the attorney general, to treasury board, and to legislative committees. The absence of this mechanism results in the courts being poorly represented as to their budgetary needs, with consequent financial neglect and crippling results to court development programs. By custom, judges are reluctant to make active representations for increased budgets, save in the matter of judicial salaries, where the legal profession has traditionally lent its support to the judges. On the overall court budget, where more management expertise is necessary, court administration is or ought to be in a position to press actively for adequate court funding. There are a number of ways to analyse court budgets and court budgeting, including: (a) The level of funding. How much money do courts receive? Is that amount sufficient for effective operation? (b) The sources of funding. How are courts financed? How much does each level of government contribute to meeting expenditures for judicial services? (c) The organization of the court budget process. How is the budget prepared and implemented? In particular, what is the role of court administrators and judges in preparation and implementation of the budget? What should their role be? (d) The forms and functions of budgeting. Which of the various ap170

Budgeting and Planning proaches to budgeting characterize the court budget process? Which approaches would do more to enhance the quality of court administration? LEVELS OF COURT FUNDING

In the 1977-78 fiscal year, Canadian courts spent an estimated $248 million. Court expenditures in Ontario exceeded $87 million; expenditures in Quebec were approximately $67 million, and in British Columbia almost $35 million, while Prince Edward Island spent $1.2 million. These figures include expenditures for judges' salaries and expenses; salaries of court support personnel in courtrooms, clerk's offices and registries, and provincial headquarters; supplies and equipment necessary to operate the courts and court services; and costs of maintaining court facilities. They do not include the costs of legal aid and crown counsel, or such court-related services as probation officers. Table I 1 provides a national overview of expenditures for justice-related activities. It shows that courts spend far less than police and adult corrections, but more than legal aid and crown counsel. Comparison between expenditures on courts and other justice services can be misleading. On one hand, almost all of the other agencies focus on enforcement and implementation of the criminal law and criminal sanctions, while courts have broader responsibilities for the processing of non-criminal disputes between private individuals and between individuals and government. Therefore, the criminal justice aspect of court expendiTABLE 11 JUSTICE EXPENDITURES AND PERSONNEL IN CANADA, 1977-78

Sector

Expenditures

Policeb $1,631,000,000 552,000,000 Adult corrections Courts 248,000,000 Legal aid 84,000,000 Crown counsel 51,000,000 Totals

$2,566,000,000

Expenditure as percent of total justice expenditure Manpower 63,000 21,900 10,400 1,900a 1,600a

64 21 10 3 2

98,800

100

National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 4. aExcludes use of private practice legal professional services equivalent to 2,380 additional staff. bExcludes $70 million spent and 2,500 persons employed in police-related services. SOURCE:

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tures is only a portion of the $248 million total. No effort has been made here (or in the United States, for that matter) to estimate the cost of publicly supported mechanisms for settlement of either private disputes or civil disputes between private individuals and government agencies. These mechanisms might include administrative tribunals, review boards, and ombudsmen. Courts thus represent only a small fraction of public expenditure on law enforcement and dispute settlement, even smaller than table 11 suggests. On the other hand, this should not imply that courts somehow do not receive their fair share, although their funding is generally inadequate and it is likely that it is even less adequate than that of other justice services. The fact that police receive six times the funding of the courts (or even that more money is spent on liquor or tobacco or cosmetics than on the courts) is irrelevant. Whether the courts are adequately funded depends on what they do, and whether their services would improve in quality or increase in accessibility if more funding were forthcoming. Those changes are problematic. Increased funding could improve the courts if it were used to reduce waiting time and improve service to the public. If additional money were used solely to increase the comforts of those already in the system—to make their jobs easier without making their performance of those jobs better—it would not result in a higher quality of justice for the public. TABLE 12 PER CAPITA EXPENDITURES ON COURTS,

Province British Columbia

1977-78, BY PROVINCE

Per Capita Expenditures $14.25

Alberta

11.22

Quebec Ontario Prince Edward Island Manitoba Saskatchewan New Brunswick Newfoundland Nova Scotia

10.68 10.40 10.36 9.14 8.60 8.10 7.31 6.78

Totalb

$10.61

SOURCE: National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 84. °Includes $7.3 million spent on federal courts and court programs, prorated among the provinces on the basis of population. bThe total includes court expenditures in the Yukon and Northwest Territories where low population figures have pushed per capita expenditure to $25.31 in the Northwest Territories and $37.80 in the Yukon. 172

Budgeting and Planning While it is difficult to arrive at some optimal figure, it is possible to compare the level of court funding from province to province, and suggest which provinces are more or less likely to be providing a level of funding sufficient for effective court operation. Since the provinces differ so much in population, total spending would provide no valid comparison. More useful would be per capita expenditures. Therefore, table 12 ranks provinces in terms of their per capita expenditures for courts. Table 12 shows British Columbia with by far the highest per capita expenditure, perhaps an indication of the impact of justice development reforms in the province under the New Democratic Party government in 1974 and 1975.2 The table also shows that the four largest and fastest-growing provinces rank highest, while the three largest Atlantic provinces rank lowest. The differences may reflect, in part, higher professionalization or at least higher salaries of support personnel in the larger provinces. How does this pattern of per capita spending compare with spending for justice services as a whole? Do the high-ranking provinces' court expenses merely reflect higher spending on all justice functions? Or have some provinces actually made the courts a higher priority than other justice agencies? Tables 13 and 14 provide the evidence on which to test these competing propositions. Table 13 ranks the ten provinces by their per capita expenditure on all justice services. Table 14 ranks them by the percentage of total justice expenditures allocated to the courts—a TABLE 13 PER CAPITA EXPENDITURES ON JUSTICE SERVICES,

1977-78,

BY PROVINCE

Province British Columbia Quebec Alberta Ontario Saskatchewan Manitoba New Brunswick Nova Scotia Prince Edward Island Newfoundland Totals

Per Capita Expenditure $118.21 106.56 104.15 101.00 95.03 90.79 72.88 65.69 65.52 64.26 101.35

SOURCE: National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 11. The total includes expenditures in the Yukon ($291.87) and the Northwest Territories ($337.34).

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TABLE 14 EXPENDITURES ON COURTS AS A PERCENTAGE OF TOTAL SPENDING ON JUSTICE SERVICES, 1977-78, BY PROVINCE

Percentage of justice services expenditures spent on courts

Province Prince Edward Island British Columbia Newfoundland New Brunswick Alberta Ontario Nova Scotia Manitoba Quebec Saskatchewan Totala

15.8 12.1 11.4 11.1 10.8 10.5 10.3 10.1 10.1 9.0 10.5

SOURCE: National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 15. °Includes territorial percentages of 13.0 for the Yukon and 7.5 for the Northwest Territories.

measure of the relative priority of the courts. A comparison of table 12 with tables 13 and 14 reveals clear findings. The provinces with higher per capita expenditures on courts are those with higher overall expenditures on justice services. Tables 12 and 13 do not correspond precisely, but the provincial rankings are substantially similar.3 The four largest provinces again rank highest and the four Atlantic provinces lowest. In contrast, there is no relationship between the rankings in tables 12 and 14.4 While British Columbia again ranks high in the priority given to court expenditures, Quebec is near the bottom; furthermore, the Atlantic provinces generally rank high. In summary, courts are better funded in some provinces than in others when all justice services are better funded, but not when court expenditures are given a higher priority than other justice services. An analysis of the relative share of court funding contributed by fedral and provincial governments can add a further dimension to our understanding of why courts in some provinces are better funded than those in others. SOURCES OF COURT FUNDING

Courts are financed from the public purse. Today this statement seems too obvious for words. But it could not have been said until the middle 174

Budgeting and Planning of this century. Up until that time, courts had often been funded in the same fashion as many other services provided by public agencies: charging fees to the users—fees for filing writs to initiate a case, fees for filing documents necessary to pursue the various avenues to successful litigation, and even fees for the judges who tried cases. Stipendiary magistrates have existed into the present decade—in one province their fees came only when an accused was convicted—and other court officials, whose earnings come from fees charged to litigants, still exist. However, as noted earlier, the fees and fines collected by courts today do not go into a fund belonging to the courts, but into the general funds of a municipality or a province. In turn, the federal, provincial, and sometimes local treasuries supply the funds used by the courts to carry out judicial functions. This change is one reason why financing has become a high priority issue for judges and court administrators, and why court personnel are only beginning to learn the techniques necessary to develop and justify a modern budget document before cabinet departments and legislatures. In examining the sources of court funding, we can begin with constitutional provisions. As elaborated in chapter 3, the administration of justice is a provincial responsibility. Therefore, we would expect provincial governments to provide for court funding. At the same time, superior, county, and district court judges are appointed and their salaries, allowances, and pensions are paid by the federal government under sections 96 and 100 of the British North America Act. So some federal contribution to the global figure of $248 million in table 11 would also be expected. Furthermore, the federal government would also fund courts created under its section 101 authority—at this time, the Supreme Court of Canada and both the trial and appeals divisions of the Federal Court. What the constitution does not specify is whether the provinces, in carrying out their authority to administer the courts, must fund them from provincial revenues or may pass that responsibility on to municipal governments (or, for that matter, may appeal to Ottawa for federal aid). In the United States, the federal court system (including the U.S. Supreme Court) is funded by the U.S. Congress, but the fifty state court systems, established under the several state constitutions, are funded largely by local governments—in most cases, at the county level. In only five states (Alaska, Hawaii, Conecticut, Rhode Island, and Vermont) does the state legislature provide 90 percent or more of the court's funds. In three-fifths of the states, local governments provide funds for at least half of court system expenditures. In California, state legislative appropriations account for only 11 percent of judicial expenditures.6 Table 15 suggests a much different distribution of court funding responsibilities in Canadian provinces. Local government participation is 175

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virtually non-existent, surviving in only three provinces, where municipalities contribute to the operating costs of municipal courts.° The federal government contributes a substantial sum of over $44 million to court funding, some 80 percent of which goes directly to salaries and expenses of judges sitting in courts administered by provincial governments. It is interesting to note that the distribution of federal and provincial contributions is similar to the distribution of state and local contributions to court funding in many large states in the United States. While federal contributions vary from 15 percent of court expenditures in British Columbia to 50 percent in P.E.I.-and provincial contributions TABLE 15 SOURCES OF COURT FUNDING, 1977-78, BY PROVINCE

Province

Total court expenditures

$ 21,517,000 Alberta 35,725,000 British Columbia Manitoba 9,408,000 New Brunswick 5,595,000 Newfoundland 4,140,000 5,682,000 Nova Scotia Ontario 87,262,000 Prince Edward Island 1,255,000 Quebec 67,046,000 Saskatchewan 8,094,000 Yukonb 809,000 Northwest Territoriesb 1,106,000 Total $247,639,000

Contributions to operating costs by: Federal,' Provincial Municipal (percent) (percent) (percent) 18.5 15.2 21.8 26.3 25.8 28.6 16.8 50.0 16.6 27.8 8.8 14.9 18.0

81.5 84.8 78.2 73.7 74.2 67.4 83.2 50.0 75.8 65.9 91.2 85.1 79.7

4.0 7.6 6.3

2.4

SOURCE: National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 84. °Includes section 96 court judges' salaries and allowances and judges' annuities and allowance to widows (superior, county, and district courts). Also includes $7.3 million for the Supreme Court of Canada, Federal Court of Canada, Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council, prorated among the provinces and territories on the basis of population. Also includes $127,000 for Ontario and $58,000 for Saskatchewan (unified family court projects) and $70,000 for the Northwest Territories (circuit court operations). bPercentage shown under "provincial" contribution refers to the territorial government's contribution. Includes only those municipal courts handling criminal code matters (Halifax, Montreal, Quebec, Laval, Regina, Saskatoon, Moose Jaw, and Prince Albert). 176

Budgeting and Planning vary in turn from 50 percent in P.E.I. to 85 percent in B.C.—the national pattern is apparent. With P.E.I. and its low population excluded, federal contributions vary within the relatively narrow range of 15 to 29 percent; provincial funding is dominant in every province. At the same time, the four most populous provinces had the highest provincial contributions and the lowest federal contributions. And the overall rankings by federal and provincial contributions bear a moderately strong relationship to the provincial per capita expenditure rankings in table 12. Thus the larger the per capita expenditure on courts, the larger the provincial proportion and the smaller that of the federal government.' In other words, federal contributions to court funding are distributed across provinces in a fairly even fashion, so that increases in per capita expenditure occur as a result of increases in provincial government funding of the courts. Canadians favouring increased funding for court services must therefore look to provincial governments, for low per capita spending is related directly to lower provincial contributions. ORGANIZATION OF THE BUDGET PROCESS

Budgeting is a key element of public administration because budgets can serve a number of purposes relevant to effective management. Thus, chief court administrators in the various provinces generally play a role in the development of court budgets. However, the scope of their participation varies widely, and suggests that the court administrator's role in the court budget process is not yet defined or established. Table 16 summarizes the variety of ways court budgets are prepared. In some provinces the court administrator has no responsibility for budget preparation, and is at most consulted by budget officers elsewhere in the department. Those departmental officials prepare the budget for all attorney general/minister of justice activities. Leaving budget preparation to officials outside court administration was quite common in most provinces until the recent development of having chief court administrators with broader responsibilities than the earlier inspectors of legal offices. Thus, Newfoundland, the only province whose top court official is an inspector alone, shows less involvement of court officials in budgeting than does any other province. And Ontario's court administrator has been extensively involved in developing a court budget only during the period since 1974. While many provinces are moving away from externally prepared court budgets, it is not clear what new methods of organization will emerge. Only Nova Scotia has a highly centralized process, but the budget process is peripheral to the work of the Nova Scotia court administrator—he reports spending less than 2 percent of his time on budget matters. 177

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TABLE 16 THE CHIEF COURT ADMINISTRATOR'S ROLE IN COURT BUDGETING,

1977, BY PROVINCE

Involvement of central cour t admin istrat ion

Budget Organization The court budget is prepared by • officials in the attorney general's o department without consulting court administration. The court budget is prepared by department officials who consult the chief court administrator. The court budget is prepared in segments, and collated by the chief court administrator. Two court administrative officials prepare budgets at headquarters, one for magistrate's courts and the other for court services and superior courts. N% Budget preparation is the responsibility • of regional court administrators under • the supervision of headquarters for ~ court administration. The chief court administrator prepares the court budget.

Provinces

Newfoundland

Entario rince Edward Island uebec Manitoba New Brunswick

Saskatchewan

Alberta British Columbia

Nova Scotia

SouRCE: Provincial chief court administrator questionnaire.

Saskatchewan's budget preparation reflects the split responsibility for court administration. The Director of Court Services is responsible for preparing budgets of the Appeals Court, Queen's Bench, District Courts, court reporters, and central registration office, but the Magistrate's Court budget is the responsibility of a separate administrative director. In New Brunswick, budget preparation is supervised by an administrative generalist in the department, pending appointment of the first individual 178

Budgeting and Planning responsible solely for court administration. Therefore, it is difficult to say what role the new official will have in budget preparation. Budgeting is more developed in Alberta and British Columbia, where it is linked to their systems of regional court administration. REQUIREMENTS FOR AN INDEPENDENT JUDICIAL BUDGET

The preparation of a distinct judicial budget by the chief court administrator and his staff is an important event in the development of court administration. For the first time, court administrators will have a tool to evaluate the distribution of court services within the province, and recommend the redistribution of fiscal resources to make court services more effective. However, the existence of a distinct court budget will have Iittle impact unless accompanied by the following changes: 1. Involvement of Court Administrators outside the Central Headquarters. In the past, when budget officers in the attorney general's department prepared the budget and consultation with court personnel was intermittent at best, local and regional court administrators operated entirely at the discretion of headquarters officials. One Ontario registrar expressed years of frustration with the system. On the one hand, his requests for additional funding of new projects were never granted; on the other, when existing items ran over the budgeted amount, the extra cost (as for photocopying) would be absorbed by the department with no questions asked. Thus, the local administrator could not develop an alternative budget plan that would facilitate innovation within existing appropriation limits. The frustrations of operating-level court administrators will not be met simply by shifting responsibility for budget preparation at departmental headquarters from general department budget officers to the chief court administrator. That is a necessary step, but must be accompanied by developing roles in the budget process for local and regional court administrators. Otherwise, budgeting will be unrealistic and fiscal controls impossible. 2. Direct Access of Court Administrators to Key Budgetary Decision Makers. Budget officers in an attorney general's department may delegate the preparation of their tasks to a chief court administrator. But what is the next step? If the court budget is simply folded into that of the department and then presented to treasury board and cabinet, the chief spokesman's voice for court needs will be muted. Officials with a special interest in courts, as distinct from other justice services, will be cut off from key decision makers. To deal with this requires that court administrative officials be able to speak for the courts directly, not only within an 179

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attorney general's department, but also before treasury board officials, cabinet, and legislative committees. At this time, however, less than twothirds of the provincial court administrators even appear before treasury board. Court administrators in Newfoundland, P.E.I., and Saskatchewan never do so,8 although those in Alberta, B.C., Manitoba, Nova Scotia, Ontario, and Quebec do so appear. Access must be established so that the court administrator's involvement in budget preparation will have a policy as well as a technical impact. 3. Increased Authority over Fiscal Controls and Budget Implementation. The budget process does not end with the preparation of estimates and their approval by treasury board, cabinet, and parliament. Many restrictions apply to the spending of appropriated funds. Some previously approved budget items will need departmental or treasury board permission in advance of actual payment. In some cases, the premier's office itself may require that certain expenditures (such as travel over a certain distance) be cleared there first. Development of administrative responsibility for the courts, however, requires that court administrators have sufficient authority over court expenditures to assure that they are made efficiently and effectively. Table 17 indicates that fiscal control is in the hands of court administrators in four provinces, and outside their hands in five others. Interestingly, the Quebec court administrator exercises fiscal control even though he does not prepare the court's budget, while the reverse is true of his counterpart in Alberta. Placing greater fiscal control authority in the hands of the chief court administrator should be feasible,. because the data base is already available for budget implementation. Every chief court administrator (except in Newfoundland) already receives monthly budget reports, and, except in Nova Scotia, they are all computerized. 4. Development of a Unified or Unitary Budget for the Courts. A unified budget brings all requests for court funding into a single separate document, in a form that facilitates central budgetary decisions and flexible implementation. Unitary budgeting is still being evolved in those provinces in which the chief court administrator prepares the court budget. For example, in Alberta, the court administrator for the first time in the 1978-79 fiscal year combined the budgets for provincial courts and supreme and district courts. This was done "in order to facilitate position transfers,"8 illustrating how a more unified budget can create greater flexibility and allow the court system to operate more effectively within existing levels of appropriations. Unitary or unified court budgeting is an important new development in the United States as well,10 but has been retarded by the absence of general state funding of the courts; the mixture 180

Budgeting and Planning

Involvement of cour t administra t ion

TABLE 17 LOCUS OF FISCAL CONTROL OVER COURT ADMINISTRATION, 1977, BY PROVINCE

Locus of control

Provinces

Treasury Department

Alberta

Shared by department of the attorney general and treasury/ finance

Newfoundland Saskatchewan

Within department of the attorney general

New Brunswick Ontario

Shared by department of the attorney general and court administration

Prince Edward Island

Within court administration

British Columbia Manitoba Nova Scotia Quebec

a

SouRCE: Responses by chief court administrators to question "who exercises

fiscal controls over court administration?" in 1977 mail questionnaire.

of state and local funding sources has required preparation of many separate court budgets. While court systems in the various provinces receive their funding predominantly from a single source, they have still been slow in developing unified court budgets, and obtaining the advantages of that concept." JUDGES AND COURT BUDGETING Thus far we have discussed the importance of involving central, regional, and local court administrators in the court budget process, not only to ensure that court needs will be articulated, but also to allow administrators to analyze their organization's fiscal priorities and impose controls over spending. Yet nothing has been said about judges. Do they have any role in the budget process? At the present time, judges are almost entirely excluded from budgetary 181

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and fiscal matters. A former general manager of the Ontario attorney general's department argued that this is required by the principle of judicial independence. For example, a judge cannot sign a purchase order because it must be signed by a public servant answerable to a cabinet minister who is in turn answerable to parliament. If a judge performed such an administrative task, he would be making himself subordinate to a supposedly co-equal authority.12 This theory, however, does not prohibit individual judges from making budget requests, or a committee or council of judges from developing a formal brief or budget document. Under a fully developed court system, judges would not be heavily involved in the mechanics of the judicial budget process, because court administrators who enjoy the judges' confidence and support would perform these functions. Judicial abstention in this field is not required by constitutional doctrine; on the other hand, heavy judicial involvement is not a sign of healthy administration. When judges participate in budget matters now, it is usually to voice criticism and frustration about lack of funds for a specific program or position. An important precedent has been established in British Columbia. In 1975, the attorney general granted a separate budget to Chief Judge Lawrence C. Brahan of the provincial court, covering judges' salaries and travel expenses, and miscellaneous items. This was later expanded to include items such as secretaries' salaries. Supreme Court Chief Justice Nathan T. Nemetz subsequently asked that the attorney general's department provide him with a separate judicial budget. The department agreed to separate from the court services budget a small group of items that would be part of the judges' budget, including, for example, the salaries of courtroom deputy clerks and bailiffs. That separate judicial budget, Nemetz then argued, should be approved by the department and cabinet without change, establishing that the judiciary, as an independent branch of government, should not be subject to the same budget controls as an executive department. This separate judicial budget is presently in operation, and the judiciary and the executive department have been working together on its preparation. Whether the attorney general's department will continue to adhere to the principle of not reducing items in the judges' budget remains to be seen. Administratively, a small separate judicial budget is probably unwise. It reduces the flexibility that a more unified system could provide. Those items within the judiciary's budget would be funded, while other court services would be the first items reduced if fiscal stringency is demanded by the government. As a result, certain positions would be well funded and well staffed, while others would not—without regard for the overall needs of the court system. The separate judicial budget in British Columbia is therefore an element in a transitional model of court administration, 182

Budgeting and Planning

where executive supervision is beginning to give way to judicial control. It is to be hoped that the separate judges' budget would be replaced by an overall, unified, court system budget, prepared by a chief administrator (along with regional and local administrators) under the direction of the judiciary. FORMS AND FUNCTIONS OF BUDGETING

The proper role of the judiciary and court administrative staff in the judicial budget process cannot be prescribed unless we know the form the budget takes and the functions it performs. The whole field of public budgeting has been undergoing major change in the past decade, as administrators and the public have become aware of terms such as PPBS (Planning-Programming-Budgeting System) and ZBB (Zero-Base Budgeting). These new terms signal changes in the way budgets are prepared, and changes in what they are supposed to do. The basic change has been the move from traditional or line-item budgeting to various forms of program budgeting. As traditional budgeting is increasingly replaced by program budgeting, the need for greater judicial involvement in its preparation has also increased. Traditional line-item budgeting needed less judicial involvement because it was based on the assumption that the activities undertaken by the courts were fixed rather than variable; that is, the resources required would vary only with caseload. As a result, traditional budgeting has been associated with incrementalism. Incremental budgeting starts with a base —usually the amount received the previous fiscal year. This is then adjusted to reflect expected changes in caseload and fixed costs. An incremental budget may rely on an overall increment; for example, a 10 percent allowance for inflation. But increments are most often presented as additions to line-item categories (salaries and benefits, supplies and equipment, contractual services). Under this system, base items and levels of expenditure tend to be taken for granted, whereas incremental items are the ones proposed by program managers, and questioned by the budget decision makers in treasury boards or legislative committees.13 In an incremental judicial budget, only the estimates of caseload increases and changes in the cost of delivering units of service become matters of controversy. Credibility thus depends on past success in accurately predicting future needs and effectively controlling past costs. To evaluate success in controlling the cost of court services, expenditures item by item (desks, stamps, wages, books, and publications) may be examined in precise detail (wryly referred to as "flyspecking"). This has its analytical use; requiring such an exact account reveals every item of possible waste and is valuable to tight internal maangement and accounting control. 183

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The counterpart to traditional line-item budgeting is the traditional fiscal audit—the monitoring and evaluation of previous year's expenditure of funds. Audits are designed to keep people honest; provide controls; provide information; measure expenditure patterns and procedures against existing standards; and enforce compliance in the face of internal and external pressures. An audit performs these tasks by checking records. The paper trail constitutes a map showing each step taken. The audit then verifies; it supplies consistency in accordance with set standards. It examines purposes, the reasons for expenditures. It compares consistency with reality or reasonableness by examining what has actually transpired. The auditor in this broad sense must exercise discretion which is properly and fully defined, especially in the area of public as opposed to private administration. The more mechanical nature of line-item budgeting, focusing on a traditional definition of control as adherence to detailed expenditure requirements, allowed executive officials to dominate the judicial budget process. The budget's role was important but narrow and routine; it did not generate questions about overall court management responsibility, structure and policy making. Therefore, little demand arose for intervention. However, current emphasis on program budgeting—involving a broader definition of the role of the budget as a planning tool—requires the participation of the judiciary. Program budgeting differs from traditional budgeting because it integrates financial control with physical and program planning. It recognizes that these functions cannot be effectively performed independently of one another. Program budgeting thus extends the budget process from an accounting to a management and program-planning function.14 By extending the role and functions of the budget exercise, program budgeting in the courts would deal with policy questions that require the concern, advice, and leadership of the judiciary. The key change that program budgeting requires is a focus on outputs rather than inputs. The traditional line-item approach is input-oriented; it focuses on the additional clerk or typewriter, and requests incremental additions as the pressure of work increases. The program budgeting approach is output-oriented; the desired outputs of the judicial system must be specified before needed resources can be defined. The administrator must first know the answers to basic policy-planning questions (at what speed and by what methods should cases be processed?)—and only then can he begin to cost out the achievement of those objectives. The inputs of staff and equipment become means to achieve those ends. The inputs, therefore, must be evaluated in terms of which mix of personnel and material comes closest to achieving the objectives at the most reasonable cost. 184

Budgeting and Planning A second way in which traditional and program budgeting differ results from the longer-range perspective that is required when budgeting is linked to program planning and evaluation. Program plans extend beyond a single year, as do the fiscal requirements for their implementation. Thus, program budgeting is done on the basis of multi-year projections, often up to four years beyond the specific requests for the coming fiscal year. Traditional budgeting by contrast, because it is not wedded to program planning and outputs, employs yearly rather than longer-range projections. A third difference between the two approaches to budgeting is program budgeting's use of analytical techniques for program evaluation. Because it links program outputs to fiscal inputs, program budgeting allows court administrators to evaluate the degree to which previous and present patterns of spending have helped the courts achieve their goals. It encourages justice planners to establish pilot projects, so that new procedures can be attempted and then evaluated in terms of both their relative cost and their relative effectiveness in achieving stated objectives. Program budgeting incorporates techniques such as benefit-cost analysis and cost-effectiveness analysis in order to help evaluate these relationships between inputs and outputs.15 Just as the fiscal audit is a counterpart to traditional line-item budgeting, program and management audits have become counterparts to program budgeting. Information is still gathered and measured against existing standards, but the standards and information are broader than dollars alone. As a result, program budgeting has altered traditional concepts of accounting itself.16 Historically, financial records have been organized along paths which make them easy to understand for accounting purposes but not for management purposes. Management has now taken the position that budgeting should be in terms of goals (that is, not just "can it be done less expensively?" but "why should we do it?") . Accordingly, budgeting has moved from an accounting to a management format, one which tells the manager what he wishes to know in a form he can understand and therefore use to manage. The budget has become the financial expression of a program plan. Accounting is not merely applicable to dollars but to work units. It therefore requires a built-in evaluation mechanism to enable management to measure the success or failure of the program against explicit objectives. Output measurements used for evaluation need not be in dollar terms. The effectiveness of courts can be evaluated by such non-currency measures as: percentages of cases exceeding acceptable lapse time limits; percentage of outstanding child support orders collected by automatic enforcement procedures; and the ratio of guilty pleas to trials for each offence. Non-currency measures are quite common in evaluating other 185

CHAPTER SEVEN justice services: recidivism rates; dismissal rates; indictable offence clearance rates; recovery rates (property recovered divided by property stolen); and the percentage of persons who successfully complete rehabilitation programs. In summary, program budgeting redefines the forms and functions of the budget document, the budget process, and the auditing process. It consequently redefines as well the responsibilities of court administrators and court budget personnel. They become responsible for management and planning functions heretofore not performed, or performed by other government departments. Bringing budgeting and planning together thus creates a potentially important and powerful tool—one that should be used only when court administration is responsible to the judiciary, and the judicial branch is accountable directly to parliament, rather than to treasury boards that indiscriminately apply executive branch standards to court performance. VARIETIES OF PROGRAM BUDGETING Program budgeting has taken on many forms. The best known (and perhaps most notorious) is the planning-programming-budgeting system (PPBS) developed in the United States and adopted by the Canadian federal government in the late 1960s. It first became widely known through its use by U.S. Defense Secretary Robert McNamara as a way of evaluating competing proposals for weapons systems by the three armed services. It combines systems analysis with program budgeting, following the writings of Charles Hitch and others at the Rand Corporation during the 1950s. In 1965, the United States government implemented PPBS for all federal departments. In PPBS, planning is a continuous cycle of collecting data by which existing needs are exposed, current and future needs are evaluated and programs to meet them designed, program investment and operating costs are analysed, and near- and long-term plans formulated. Programming involves the collection of expenditure and accomplishment data, the definition of fund availability and the execution of the budgetary system. This later component of PPBS enables an organization to determine how most effectively to accomplish the plan. In the PPBS context, budgeting is therefore program budgeting; the establishment of a financial schedule and control system whose component parts can be meaningfully related to program goals. In theory, the planning, programming, and budgeting process determines the allocation of limited resources among the many competing programs according to a carefully designed overall strategy. Operational management then becomes a matter of carrying out the various programs within financial and operational guidelines which 186

Budgeting and Planning have been developed in accordance with goals and objectives set at the highest organizational levels. Objectives are defined as necessary to attain the goals of the organization; from these objectives, in turn, major program areas are defined, possibly on a multi-departmental basis (that is, involving more than one department of government). Within each major program area, specific programs are developed in greater detail on the building-block principle. For each program, separate elements must be defined, together with specific measures of activity. The program is then structured down to the lower levels. In the 1960s, PPBS was used to help central policy makers decide where to spend increased government revenues generated by an expanding economy. Since PPBS had only limited benefits for program managers, it was resented and resisted by them because of its use as a basis for informed intervention from outside their departments. It was finally abandoned by the United States government in 1971,17 and gradually de-emphasized by the Canadian government. Subsequent forms of program budgeting have been more beneficial to program managers because they provide them with more information or greater discretion. The best known current form of program budgeting is Zero Base Budgeting (ZBB). Developed in private industry in the 1960s and used in Georgia by then-Governor Jimmy Carter,18 ZBB has gained public exposure as a technique for cutting unnecessary government expenditures and programs. While not always considered a type of program budgeting, it is similar in principle. It requires department or program heads to divide their budgets into decision packages (what PPBS would label subprograms), and to recommend to central decision makers both an appropriate level of funding and a ranking for each package. The ranking avoids the old problem of incrementalism; for if the department head wants a new program badly enough, it can be ranked higher than packages that embody existing programs. ZBB analyses, like those using PPBS, are output-oriented, and carry with them a variety of techniques for evaluating the connections between inputs and outputs (costs and benefits). Because ZBB has been associated with efforts to cut unnecessary government programs, its adoption may also create resentment and distrust in line agencies. Like other forms of program budgeting, however, it can help program administrators understand their own systems. Thus, when the county commissioners in Harris County (Houston), Texas, adopted zero base budgeting in 1974 and 1975, local court administrators were wary, but later found that the exercise improved their understanding of the operation of their courts. Ironically, the commissioners found the zero base documents sufficiently baffling that they abandoned the exercise and returned to line-item budgets in the following year. 187

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The Saskatchewan government has adopted still another system that it labels program-based management information system (PMIS).19 PMIS seeks to capture the advantages that program budgeting can have for line managers without arousing the resentment that PPBS engendered by centralizing policy making in the hands of extra-departmental budget officers. PMIS therefore focuses on generating information for program managers, so that they can improve internal departmental management and fiscal planning. The Saskatchewan system, derived from an unsuccessful attempt in Massachusetts, has been applied to a few additional departments each year, in hopes that the quality of budgetary decision making within departments can be enhanced with technical assistance rather than threats from central budget officers in the finance department. The use of PMIS is part of a general shift toward decentralization of program budgeting. Initially, program budgeting in the form of PPBS was imposed on government departments by central budget authorities. However, this meant that its application at the departmental level would be mechanical rather than creative. By decentralizing program budget decisions, it is possible to provide incentives for fiscal planning at the departmental level and below. PMIS is one attempt to do this. Another example is the modified ZBB system begun in Ontario in 1977. That system would allow individual departments to rank their decision packages and levels of effort so that the department itself would have more discretion over how to absorb cutbacks and still retain and expand desired programs. This trend toward decentralization of program budgeting should also benefit the courts. The state of Hawaii has gone through just such an evolution. When the Hawaiian legislature authorized program budgeting in 1970, it required all state agencies, including the highly unified state court system, to submit six year program and financial plans to the central executive budget office, which could revise any provisions—including program objectives. The Hawaiian judiciary was concerned about compromising its independence in internal fiscal matters, and pressed for enactment of legislation prohibiting the exercise of executive control "over the organization, programs, functions, operations, and expenditures" of the judicial branch. The resulting 1974 act received near-unanimous legislative support—it conferred similar authority on both the judicial and legislative branches to administer their own affairs—and has given Hawaiian courts the opportunity to use program budget techniques for their own benefit, without fear of executive intervention.20 Budget reform and fiscal responsibility can thus be made compatible with principles of judicial control over court administration. 188

Budgeting and Planning ADVANTAGES AND DISADVANTAGES OF PROGRAM BUDGETING

Program budgeting can claim a number of advantages over traditional budgeting. Line-item budgeting can lead to tunnel vision. It stunts planning, development, and conceptualizing faculties, and confines management to a sharp but narrow focus on details of day to day operations to the exclusion of searching and progressive thinking. An incremental approach, if followed exclusively, stultifies imaginative administration and kills evolutionary development. Twenty years of this style of budgetary control produces a decayed system. Program budgeting, on the other hand, forces management to consider, define and redefine its basic goals —a necessary periodic exercise in this fluid era. It therefore internalizes change in the sense that it introduces possible reforms to the thinking, not only of the courts and other branches of the justice system, but also of the executive and legislature. Program budgeting allows for the possibility of positive and constructive change, if only in the form of experimental programs. It operates as the seedling of reform. Program budgeting also acts as a leavening agent in the present era in which the systems analyst/planner has been thrust into management positions in place of the accountant/comptrollers, marketing experts, lawyers, and engineers who dominated the earlier organizational history of this century. As such, it constitutes a healthy counterbalance to what may be an excessively records oriented approach to management. Regardless of who occupies the manager's chair, perceptions of one's own behaviour and actual behaviour are two different things, and the analytical approach provides a self-discipline out of which new solutions can emerge to combat old problems. Finally, program budgeting encourages a cross-system approach in which all components are given an opportunity to be heard and considered, for changes in any one component may radically affect many or all of the others in the system. An example of this cross system approach was a plan formulated by the judiciary of Los Angeles County, California, to eliminate a 25,000 case criminal backlog within one year. Had this plan been consummated, it would have created 15,000 new cases for the probation department, 7,500 new inmates for the county jail, and 2,500 inmates for the penitentiary. It was calculated that members of the police force would have spent so much time in court giving evidence, the streets would have remained unpoliced; in addition, the probation department would have been brought to the verge of collapse, and there would have been no facilities to house the 2,500 additional jail inmates. Thus, a budget which provided funds for that court program would first have to consider the side effects, and perhaps distribute funds in a more effective manner.21 189

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The preparation of a program budget can involve all the systems analysis aids which will be discussed in chapters 10 and 11: definition of goals and objectives, organization charts, Gantt charts, detailed decisions as to what information is needed, staff required to obtain the information, a detailed program for the fiscal year, meticulous statement of assumptions, caseflow charts, critical path analyses, and so forth. The data, and the evaluation of those data, are the building blocks of the program, and the ultimate outcome is an interplay between data and evaluation on one hand, and program design on the other. Program budgeting, however, like anything else, can be overrated. It has been scoffed at as "the best method of determining an accidental result." Accurate statistics are always a problem in decision making, and it is sometimes difficult to structure programs in objectively measurable— that is, quantifiable—terms, so that the monitoring function can assess whether the program has succeeded, failed, or reached a stalemate. Thus, it can conceal the qualitative factors that are often determinative in policy making. For example, the courts are justified not only on grounds of efficiency, but also as a buffer against the abuse of public authority. Less expensive and more efficient means may be developed to resolve disputes, but these means may be inconsistent with the concept of an independent check on government authority. Program budgeting has been labelled promissory—a kind of seductive presentation designed to entrance treasury boards or legislatures in order to obtain funds, but which may or may not accomplish the avowed ends. Two real difficulties are reflected in this label. First, a department may fail to evaluate the results of last year's budget plan, both because it is too busy preparing next year's budget which must be ready before the present one has been spent and evaluated. Old objectives get abandoned for new ones without any real analysis. This year's philosophies can wipe out last year's objectives, without a paragraph of discussion. Second, middle, and long range planning are too often based on inaccurate projections. One authority estimated that crime statistics may, with extreme care, be projected for one year ahead to within a one percent margin of error, but a two-year projection would err by 4 percent and a three-year projection by 15 percent.22 This assessment is probably optimistic. Further, program budgeting must be adopted with care. If it is allowed to run wild, it can generate a good deal of useless information. A fullfledged system of program budgeting can cost more than it saves, unless one continually puts the simple but practical question: "Who will actually use this information?" Only then can the professional staff time required for developing budgets for management and planning be justified. Some form of program budgeting is undoubtedly here to stay. Few

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Budgeting and Planning planners possess the capacity to visualize in meticulous detail all the steps which must be followed throughout a plan. The various forms of program budgeting are powerful tools to compensate for this deficiency, in that they enable one, indeed drive one, to formulate alternate goals and ways of achieving them. Planned budget presentations also reduce the risk of frustration bred of a program being killed in the house, or in cabinet, or before treasury board because legislators and ministers fail to understand the proposals. Without logically presented facts, these bodies cannot effectively balance out the demands of competing programs. EFFECTIVE BUDGETING AND PLANNING

Planning is such a central part of budgeting today that all but one provincial chief court administrator reported using "the budget for planning purposes."23 British Columbia reported further that its "existing maintenance budget" would be "supplemented by a program budget,"24 and program budgeting was instituted there in 1978. However, the linkage of budgeting and planning—the key notion in all forms of program budgeting—is not sufficient to make the budget process effective in management. Effectiveness here may also depend on the consistency between budget orientations and other management practices. Effective management aims at control, not in the narrow sense implied in traditional concepts of fiscal or accounting control, but in the broader sense of steering an organization toward achieving its purposes. There are different ways of controlling an organization. For example, Jackson and Morgan distinguish feedback control from feedforward control. Feedback control is based upon information on outputs; feedforward control monitors inputs, and therefore requires a predictive model to explain the effects of those inputs.25 (Note how feedback controls are consistent with a program budgeting approach, while feedforward controls correspond to line-item budgeting.) The same authors go on to distinguish between behavioural control and output control: "If a manager wants to control something, he can control either the output or the behavior by which output is achieved. By controlling the output, it is hoped that the proper processes will be used. Similarly, controlling behaviors or processes assumes the result will be the desired output."26 This distinction reflects differences that can be observed in any organization. One court administrator may emphasize the requirement that registry employees arrive at and leave work at fixed hours, take fixed lunch hours and breaks, and adhere to a defined dress code; another administrator may be less preoccupied with procedures, focusing instead on how productive the employees are. The former approach is an example of behavioural control, 191

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the latter of output control. Again, the two approaches have corresponding budget techniques: line-item budgeting implies behavioural control, while program budgeting uses output control. A budgeting system is less likely to work if it is inconsistent with other control systems in an organization. Thus, an organization that uses behavioural and feedforward control would find a program budget unfamiliar and alien, while an organization using output and feedback controls could integrate a program budget into its operation. Therefore, if a court system shifts to program budgeting, it should also put more emphasis on output and feedback controls in other areas. Such a shift would be consistent with increased professionalization, since professional personnel are more effectively monitored by output and feedback, not by evaluating behaviour. One way of implementing output and feedback controls is through management by objectives (MBO), in which employees help establish their own productivity goals by which their work is evaluated. While MBO is now used primarily at the managerial leve1,27 it can also be used to establish performance guidelines for any quantifiable task (such as document filing and case scheduling). If budgeting is made consistent with other management processes, a double bind is avoided. Just as the salesman is frustrated when he is paid on a percentage of sales but tightly restricted in where he can sell, so is the local court when asked to administer justice expeditiously, but not given the opportunity to develop its own procedures to do so. At the same time, however, it is unlikely that one approach to budgeting or control will totally replace others. Program budgeting lends a new perspective, but that may not be sufficient reason to abandon all traditional line-item principles. Public pressure for fiscal controls must be balanced against public demands for higher levels of performance. The synthesis of old and new approaches is already common. Ontario's budget estimates include both program and line-item categories. Alice Rivlin discusses program budgeting in an incremental context, by suggesting that benefit-cost analysis be used for new expenditures over the previous year's base.28 What remains important is achieving a consistent emphasis on the analysis of one's work in terms of its impact and consequences. Traditional controls must remain, but cannot be the primary emphasis. A concern with outputs is essential, for if feedback in the form of constructively critical information is filtered out and not recycled into the monitoring and planning component of management, the system ceases to adjust to the realities of its operating environment, it loses its force, effectiveness, and utility, and withers or disintegrates. This kind of degeneration can be observed in a number of organizational structures, whether political, industrial, or social.2ø One of the most substantial impediments to the use of the budget for 192

Budgeting and Planning planning and for organizational self-control is its use by external control agents for their own purposes. Both line-item and program budgeting are important tools by which general policies are made for and enforced on courts. This use of budgets is inevitable and expected. If a penurious public opinion is mobilized against government spending, courts cannot expect to be immune from line-item cuts. If a government seeks a more cost-efficient process than the use of courts for resolving disputes with complex medical, economic, or sociological dimensions, program decisions may be made that reduce the courts' role. Both line-item and program budgets can therefore be used to reduce judicial budgets. This does not mean, however, that courts are defenseless against budgetary weaponry. The same tools are available to them—to gain control of their own spending, and to assess the costs and benefits of alternative ways of organizing court services. To the extent that courts develop budgetary competence, it would be wise for external control agents to restrict intervention. At present, for example, it can be hazardous for a court to commit itself to a line-item budget whose actual expenditures are subject to external controls after the budget has been approved. These controls allow no room for contingencies which are bound to arise during the coming fiscal year; items even included and accepted in the budget frequently meet an early and violent end when application is made to the higher controlling authority —the department or treasury board—for the actual expenditure of funds. This is a chronic problem for the court administrator, who is seldom, if ever, the ultimate arbiter of spending. Little incentive for economy exists within the court system. Yet it is possible for central budget authorities to delegate fiscal control through a global (or lump sum) budget to be administered by the courts. In this way, the courts could be held accountable without being subject to day-to-day fiscal control—in short, external authorities could use output and feedback, rather than behavioural and feedforward, controls. As the budgetary competence of court administrators increases, external controls can be reduced in accordance with the twin principles of judicial independence and financial accountability. We are constrained to conclude this chapter with one piece of advice: whatever form of budgeting is followed, the treatment should be in accordance with moral principle, not an exercise in manipulation or dissimulation. Sooner or later one's credibility reaches its proper level. Even from a pragmatic point of view, a high credibility rating escalates the success of each succeeding budget presentation as it enhances the internal acceptance of necessary priorities, and external acceptance of reasonable demands.

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Chapter Eight Caseflow Management Discussion of personnel management and budgeting in the courts is essential; human and financial resources are the supports of the judicial process, just as they are of other governmental processes. However, while they are at the heart of court services, they are not the central part of judicial administration. At the core of judicial administration lies the management of caseflow. It is here that the greatest difficulties and challenges arise. Yet trial backlogs, the symptoms of a caseflow management problem, are usually discussed in terms of individual cases, rather than in terms of principles. Until the problem is attacked in these latter terms, little progress is likely to be made. Having reviewed the legacy of the past, it is now apparent that we have arrived at a new plateau where time-honoured methods will no longer carry the load, and formal concepts of caseflow management must be hammered out to support the adjudicative process. It would be naive to formulate detailed prescriptive rules governing caseflow coordination for all situations. Each courthouse represents a distinct problem calling for individual solutions. But general principles can be used to design the caseflow management system most suitable to the distinct characteristics of each courthouse. That such a set of principles exists is infrequently recognized, which partly explains why so few attacks on the problem have succeeded. In this chapter we will attempt to present the pertinent body of principles and then apply them to current procedures for handling cases in civil and criminal trial courts. We will begin by defining and clarifying those caseflow concepts most familiar to judges and court administrators and then shift to a broader definition of caseflow management, which allows principles to be set down that encompass the breadth and depth of judicial responsibility. Once general principles have been articulated, we will examine existing practices in Canadian courts, and note where those practices fail. The chapter will then turn to the role of trial co195

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ordinator, and finally to the control mechanisms and procedures that can be used to improve casefiow management, thus closing the gap between principles and practice. DEFINITION OF CASE BACKLOG

The term "case backlog" is, in fact, usually misapplied, being frequently confused with the concept of case inventory. A court must have an inventory of current cases with which to work; that is, it should have on hand the number of cases—and only these—which it can conveniently dispose of within a reasonable or tolerable period of time. Any cases above that number constitute a court's backlog. Attempts to apply mathematical queueing theory to the backlog problem have been largely unsuccessful; the use of inventory theory (that is, the work-in-process concept) can, however, be effective. Tolerable or reasonable delay is determined first, by the number of cases in the court's inventory, and, second, by the concept of justice. Justice diminishes with time because both the number of available witnesses and the clarity of their memories diminish with time. Furthermore, a money reward granted four years later is insufficient remedy for the civil litigant; the acquittal of a citizen after a year of anxiety is scant justice; and the conviction of a heroin trafficker two years after his offence was committed does not jibe with the citizen's concept of justice. On the criminal side, a ninety-day inventory (that is, ninety days from arrest to trial) may be regarded as optimal in provincial court. If the rate of disposition remains constant, the ninety-day inventory can be expressed as a per judge figure. Thus, an analysis of one provincial criminal court revealed that on the average, judges presided over the disposition of ten contested cases per day (this included withdrawal of charges, stays, sentencings, and trials actually conducted). Assuming twenty-two working days per month, this amounts to a disposition of 220 contested cases per month or 660 cases per quarter-year. (These should not be confused with statistics relating to traffic and non-contested criminal cases, which involve vastly larger totals.) If the average number of cases pending per judge in this court equalled 800, then the backlog is 800 minus 660, which would equal 140 cases. Case backlog is frequently associated with delay in disposing of individuaI cases (lapse time), but it is important to distinguish between lapse time and production time. Court production is not necessarily a function of lapse time, particularly on the civil side where, in most instances in Canada, the court does not control the case until it is set down for trial, and all previous lapse times are the result of performance

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Caseflow Management by the bar, not by the court. In this instance, backlog is relative to lapse time in one segment only, namely, that between notice of trial and the trial. CASE ASSIGNMENT SYSTEMS

There are three principal models governing the assignment of cases to judges for hearing or trial in large urban courts.' The first is the individual calendaring system, under which cases are assigned by automatic rotation to court rooms (Figure 10 pictures this model in a criminal court.) Under FIGURE 10 INDIVIDUAL CALENDARING MODEL COURTROOM I FIRST APPEARANCE

BAIL

ADJOURNMENTS PLEA

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this system any given judge is responsible for the case from its inception. For example, in a criminal case, the same judge will (1) hear the defendant on his first appearance; (2) either accept a guilty plea and dispose of the case, or grant/refuse bail; (3) fix adjournments and trial dates; and (4) preside at trial. It has been questioned whether a judge who follows a case through preliminary proceedings may unconsciously lose impartiality and tend to prejudge the issues. But preservation of impartiality and open mindedness to the end is the judge's first duty. Prejudgment has not occurred in practice in courts with the individual calendar. Advocates of this system believe that if each judge is independently responsible for disposition of cases assigned to him, he will be motivated to manage his caseload with maximum efficiency and dispatch. A 197

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further advantage is seen in the elimination of "judge shopping," a developed art in some large urban courts. If a single judge familiarizes himself with the case he will eliminate unjustified adjournments which occur when a series of such applications are heard before different judges, and he will also be in a better position to assess the probable length of trial. The second model governing the assignment of cases is the master calendaring model, in which, for example, all accused parties in criminal cases appear before a single judge in a large chambers court (called an "arraignment" or "assignment" court) for first appearances, taking of guilty pleas, setting of bail, possible adjournments, and finally assignment to another court for trial. Figure 11 illustrates this model for a criminal FIGURE 11 MASTER CALENDARING MODEL COURTROOM I FURTHER ADJOURNMENT

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FURTHER ADJOURNMENT

TRIAL

COURTROOM 6 FURTHER ADJOURNMENT

TRIAL

court; an assignment court is not required on the civil side, but it is still possible to use a master calendaring system in which a single judge is designated to hear preliminary civil motions for all cases (for example, for a one-month period). Once the assignment court handles preliminary matters and assigns the case for trial, the trial judge will rule if necessary on any additional adjournments, hear other motions, and try the case. 198

Casefiow Management The advocates of this procedure urge that it tends to ensure maximum use of available judge time on any given day, since on the average a predictable number of cases will go to trial and a coordinating mechanism can easily shift trials from one courtroom to another in order to balance the queues of cases. Few would dispute that this system achieves maximum use of available judge time. It also takes account of the unavoidable fact that some judges work more swiftly than others. (Dispatch in hearing cases is not easily correlated to judicial quality. Some judges who work less quickly may be equal or superior in the quality of justice they dispense.) This procedure also allows maximum use of specialization among judges, and may reduce—though not eliminate—the ever present evil of lawyer conflict whereby one lawyer finds himself committed to trials in two different courts at the same time. The third model has many variants, but may roughly be termed the hybrid calendaring system because it combines some of the features of the first two models (see Figure 12 for a criminal court illustration). Under this system, a team of three, four, or five judges combine forces. One conducts chambers court to take first appearances and guilty pleas, set bail, rule on further applications for adjournment and ultimately assign a case ready for trial to one of two, three, or even four trial courts. The chambers court judge will also act as a trial judge on overflow cases on completion of his chambers work. This system has a number of advantages: it shares some of the queueing and probability theory flexibilities of the master calendaring model, in that cases can be shifted from one courtroom to another; it enables a small group of judges to develop a team spirit which works competitively against other teams in the hybrid system, thus developing a strong incentive toward the speedy dispatch of cases; and it allows for a degree of specialization amongst judges, as well as making allowance for their varying pace of work. Each team constitutes a subsystem, allowing a greater degree of supervision of adjournments, which almost inevitably become uncontrolled in a large master calendaring court serving ten or more trial courts. The individual calendaring system, on the evidence, does not always increase motivation. On the contrary, in some cases it diminishes the sense of judicial responsibility for the court's total caseload in the minds of individual judges. Chief judges are usually reluctant to discuss with one of their judges the fact that the latter's productivity is modest, with the result that the production sector of the system remains unsupervised and unregulated. This problem is exacerbated by the difficulty of validly measuring a given judge's output owing to the variety of cases adjudicated. For this reason, some judges are understandably wary about arrangements which involve comparisons between them. On the other hand, when some judges are more conscientious than others in their commitment to re199

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FIGURE 12 HYBRID CALENDARING MODEL

COURTROOM I FURTHER ADJOURNMENTS

TRIAL

COURTROOM 2 FURTHER ADJOURNMENTS

TRIAL

COURTROOM 3

CASES FILED

FURTHER ADJOURNMENTS

TRIAL

COURTROOMI FURTHER ADJOURNMENTS

H

rt 8 CC . ct

2F ~

m >-11

CC

8 ö

TRIAL

COURTROOM 2 FURTHER ADJOURNMENTS

TRIAL

COURTROOM 3 FURTHER ADJOURNMENTS

TRIAL

ducing the total caseload, the advantages of judge-pooling, through use of a master calendaring system, can be overrated. If the overall situation is not conducive to the building of team spirit, production can be of indifferent proportions. Each of these models has its disadvantages as well as its advantages. The findings of a major comparative study of court delay in twenty-one urban trial courts in the United States should add fresh fuel to the debate. The study found "striking" differences in civil disposition times depending upon whether courts used a master or individual calendar: "... [T]he mean of the tort disposition times among individual calendar courts is more than 200 days faster than among master calendar courts. When the courts are ranked according to the civil time measures, the fastest third 200

Caseflow Management of the courts consists of six individual calendar courts and one master calendar court, the slowest third consists of seven master calendar courts and no individual calendar courts."2 The study found no similar difference on the criminal side; master calendar systems ranked among the fastest and slowest. This American study reports an interesting and important correlation between delay and the type of case assignment system, but this correlation does not necessarily mean that delay results from a master rather than an individual calendar system. The assignment system must be placed within a larger context of caseflow management and administrative change. For example, the mere transfer from one assignment system to another may be followed by an increase in productivity, simply because the judges develop a commitment to the new system with a consequent enrichment of motivation. Courts have been able to use to advantage any of the possible models or variants. The particular model adopted will not in itself yield the solution to the problem of case backlog, nor will it determine the success or failure of caseflow management. In practice, most assignment systems in Canada now constitute hybrids of one sort or another. Because of smaller volume, most civil courts adopt the individual calendaring system. High volume provincial criminal courts drift toward the master calendaring model. Yet even civil courts are not strictly "individual," because judges are often not seized of a case until the day of trial. The three basic models thus lend perspective to analysis, but, by omission, raise other critical questions: Who is controlling the process? At what times do various system components control the process? Further, the models do not attempt to depict internal trial coordinating functions which may or may not exist, or exist in varying degree. To get at these issues requires a broader framework. PRINCIPLES OF CASEFLOW MANAGEMENT

The concept of caseflow management has been adopted by students of judicial administration in order to shift the focus of discussion from assignment systems to a broader framework. Caseflow management has therefore been defined (in Maureen Solomon's basic manual) as "management of the continuum of processes and resources necessary to move a case from filing to disposition, whether that disposition is by settlement, guilty plea, dismissal, trial or other method."3 She continues: It is concerned with active attention by the court to the progress of each case once it has been filed with the court. Thus, the term caseflow management is broader than the more familiar phrases "calendaring of cases," "assignment of cases to judges," or "trial scheduling." The goals of caseflow management are: 201

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1. to expedite the disposition of all cases in a manner consistent with fairness to all parties; 2. to enhance the quality of litigation; 3. to assure equal access to the adjudicative process for all litigants; and 4. to minimize the uncertainties associated with processing cases. Traditional discussions of managing a court's caseload have tended to focus on the relative merits of various methods of assigning cases to judges. They have not probed the underlying factors that determine the effectiveness of these methods. Recent court studies have demonstrated that the type of case assignment system used is not per se the determinant of success or failure of caseflow management' Effective caseflow management requires additional considerations, a number of which have been incorporated into a set of principles that Solomon argues are essential to successful coordination of case processing. We will spell out nine of those principles here.5 The first is that "the judges must accept collective and individual responsibility for court control and active management of the flow of all cases from filing to disposition." (Italics ours.) Without the personal commitment of the bench, and its belief in the validity of the task it is carrying out, no caseflow system can be successfully designed, implemented, or exploited. This is more difficult than appears at first sight. It involves intensive study by judges; they must be willing to change their thinking and modes of work to subordinate personal proclivities to consensus decisions; and they must be ready to consult with the bar, crown counsel, court administrators, and other subsystems, such as sheriffs and probation. They must appreciate that change will help preserve the system, and be determined to provide enlightened leadership and direction to court reform. Further, since the public usually blames the courts—that is, the judiciary—for delays in cases coming to trial, the courts must accept responsibility for the processing of cases from their inception. No other policy can serve the courts' ends. It serves no practical purpose for judges to complain about the delays of counsel unless they, the judges, are prepared (with the support of the court administrator) to take active responsibility for timely proccessing of cases. Frequently, delay suits counsel better. One cannot expect them to act contrary to their or their client's legitimate interests. The only solution is judicial acceptance of responsibility for case processing the moment the criminal information or civil writ issues. Solomon's second principle states that "The court should institute a 202

Caseflow Management process of continuing consultation among the judges, court staff, the bar," crown counsel, public defender if any, and other subsystems. Since coordination of the functioning of a complex organization is the objective, it follows that there must be effective consultation with all subsets of the system. This is especially necessary because all subsystems feel the impact of change, and a change program can derail in the absence of consultation with, and input from, all participants. Although it is frequently alleged that the courts are too hierarchical in their structure and mode, the urgent need for reforms and the technologically underdeveloped state of the courts demand that just such a hierarchical authority impose enlightened reforms on the system as a whole. This authority can reside only in the judiciary. However, reforms will be enlightened only to the extent that there is full consultation before change. Otherwise, it will be followed by confusion and resentment. Consultation should be a continuing process. Solomon's third principle is that "The judges in consultation with all involved participants must establish standard procedures governing the flow and processing of cases." The procedural rules of a court will have a pronounced impact on the caseflow system. Indeed, caseflow reforms are impossible without procedural reforms. A practical example of this was found in British Columbia where it was proposed that the court administrator's office monitor all civil cases commencing with the issuance of the writ, and follow all the basic checkpoints, such as the filing of appearance, statement of claim, defence and counterclaims, through to examination for discovery and trial, in order to assist the judiciary in expediting the flow of cases. In the early planning stages it was realized that any such plan was crippled by court rules which permitted a time lapse of one year after issuance of the writ before service of the same, and a further two years extension (on application) for renewal of the writ thereafter. The right of a solicitor to delay even one year in the service of a writ torpedoed the concept of monitoring of filings to control the expeditious progress of cases from the commencement of action. Yet the judiciary bears the blame for litigation delays. Firm but uniform policies must therefore be worked out with respect to adjournments, disclosures of evidence, the avoidance of last-minute guilty pleas on the day of trial, the reduction of stays on the day of trial, pretrial conferences, trial scheduling conferences if any, and so forth. The fourth principle asserts that "Judicial responsibility for operation of the caseflow management system must be centralized." Modern court management thinking favours the establishment of a calendar control centre in each court registry to provide a mechanism for maintaining a continuing record of the current status of each case. This mechanism is 203

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provided by a central control clerical unit, which must, however, be subject to the overall supervision and authority of the chief justice, chief judge, or other senior judge in the particular courthouse. The essential ingredient is the centralization of judicial responsibility supported by an administrative mechanism. The fifth principle maintains that caseflow coordination "must incorporate case processing time standards and system performance standards as explicit management goals." A number of American courts have adopted rules in criminal courts, whereby all misdemeanours must be heard within, say thirty or sixty days, and all felonies within ninety or 120 days. If not so heard, the case is dismissed; special leave to delay trial is permitted only in exceptional circumstances. The reported results vary from state to state, but notable successes have been attained in areas such as Los Angeles County. Such a system cannot be suddenly and cavalierly imposed on a court organization which is not ready to absorb the impact. It should be imposed by degrees. A comparable set of rules in Canada would aim ultimately at disposition of all non-indictable offences within, say forty-five days, and all indictable offences within ninety or 120 days. These goals should be approached according to a phased timetable in order to determine realistic limitations to the concept.6 In 1977, the deputy attorney general of British Columbia issued instructions to all crown counsel to enter stays on all charges in certain categories of offences (for example, drunken driving) outstanding longer than 180 days. This instruction did not fully succeed in its intent because its purpose was misunderstood by police and prosecution. Nor did public debate illuminate the real issues. The plan was initiated without proper preparation by the components of the system and consequently, its impact was only partial. It must also be remembered that the American system is more receptive to plea bargaining and has no scale of elective modes of trial. These factors have not yet been accurately measured in their impacts on caseflow dynamics. Similarly, in the civil field, some American courts have established processing time standards (subject to extension in special cases) of twelve months from closure of pleadings to disposition in personal injury cases; six months in contract cases; and three months in small claims matters. These goals are accompanied by strict fortnightly or monthly lapse times for filings of pleadings. In Canadian civil procedure, these deadline rules might read as follows: (a) all motions addressed to pleadings must be filed within thirty days; (b) discoveries must be completed within sixty days of filing statement of defence; 204

Caseflow Management (c) date for trial must be set during the week 120 days after the filing of the answer; (d) a pre-trial conference must be held fifteen days before trial. These explicit time standards would function as administrative, not adversarial, restrictions: they would inform attorneys of their obligations and provide means by which court administrators could perform trial coordination tasks. System performance standards, on the other hand, may measure maximum case backlog per courtroom, maximum adjournment rates at trial (the Superior Court of Los Angeles County, with 171 judges in 1975 had reduced its trial collapse rate on the civil side to an astonishing 10 percent —demonstrating that this can be achieved), or percentage error in estimating the number of cases scheduled for trial on a given day. These performance measures could provide useful bases for monitoring court work. Solomon's sixth principle contends that "Goal setting must be followed by continuing measurement of performance against the established standards and periodic review of procedures on the basis of feedback from the participants." An automatic monitoring system permits constant measurement of the degree to which time standards and goals are being met. Without this measuring device, the setting of goal standards is a time-wasting exercise. Monitoring data gives the number of cases disposed of, ages and types of pending cases, numbers of new filings, and so forth. This information should be thoughtfully studied by the chief justice or chief judge, the assignment judges, and the court administrator, to identify slippage and allow remedial action. The seventh principle states that "The caseflow management system should be modified periodically to meet changing conditions." A computer expert in the court administration field once remarked that "If you have used a procedure for five years, it is probably wrong." The court system is subject to unceasing impacts from the outside, resulting from accelerating social change, the annual avalanche of new legislation, and new developments within the total justice system, such as the growth of legal aid, modified corrections policies, and changing police methods. Fluctuating economic conditions result in rises and falls in the percentages of cases going to trial as well as increases and decreases in criminal offences. The caseload system is therefore attempting to cope with a constantly undulating and changing set of forces and, accordingly, it cannot remain static. There exists no last certitude in which the thought can pause or the guiding hand can rest. Periodic modifications are accordingly a matter of self-preservation. 205

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The eighth principle is that "The status of cases must be monitored from filing to determination." Even as late as the nineteenth century, the plaintiff's lawyer did not prepare the writ himself, but applied to the court, asking the latter to issue it; thus the court controlled the process from the beginning. With the passage of time, the control of civil process was gradually relinquished by the courts and left in the hands of the legal profession. This includes the preparation and filing of the writ, answer, statement of claim, statement of defence and counterclaim, reply, third party proceedings, discoveries, and the host of procedural steps leading up to setting down for trial. Nevertheless, in the eyes of the public, it is the court that is held accountable for delays in the processing of civil cases. Monitoring of cases by the court would indicate the extent to which time lapses occur at preliminary or at later stages—that is, whether they occur when counsel or the court has control of the case. On the civil side, no court in Canada does this on a regular basis. In 1974, a civil litigation case study was undertaken in British Columbia of over 13,000 civil cases ;7 its findings are instructive. Consider, for example, the mean and median lapse times for 298 motor vehicle cases filed in the Supreme Court of British Columbia, Vancouver Island, in 1970:8 Lapse Times Events

Mean Number Median Number of Days of Days

From issuance of writ to notice of trial (N = 87)

352

312

From notice of trial to trial (N = 26)

283

267

Similar figures are available for other regions of the province. The figures from this exercise reveal a lapse of approximately two years from issuance of writ to trials (The mean number is higher than the median because a few excessively delayed cases raise the mean more sharply.) More than half of the lapse time occurred before the court was given notice of a trial by the litigants' counsel. This is probably typical of superior courts across the nation. Following that report, Nathan Nemetz, then Chief Justice of that court (now chief justice of the B.C. Court of Appeal), reduced to a minimum the time lapse from trial readiness to date of trial. But the difficulty remains at the front end of the process—the year from issuance of the writ to readiness for trial. It is during this first year that judicial management is non-existent. Is this the best the justice system can offer the litigant, 206

Caseflow Management who suffers anxiety, financial loss, and sometimes bankruptcy while awaiting trial? Monitoring does not require a computerized solution that could prove costly and risk-laden. Many courts have found that the comparatively simple reform of eliminating cause books10 and, instead, adopting case control cards on pending cases, segregated according to age or status of cases, creates the basis upon which data can be quickly and accurately generated for monitoring on a weekly or monthly basis. This has been accomplished in the central Supreme Court in Vancouver. The timehonoured device of the cause book defeats any attempt at monitoring. The ninth of Solomon's principles suggests that "The court must establish and implement techniques for minimizing" lawyer schedule conflicts. The problem of scarce and busy counsel being booked on the same day for appearances in different courtrooms or different courthouses, or having no available trial dates within reasonable time, is ubiquitous and serious. A study initiated in the Vancouver Provincial Court (then an eleven courtroom operation) indicated that adjournments arising out of scheduling conflicts with higher courts amounted to only 3.8 percent of all adjournments. On the other hand, there have been instances where prominent counsel were faced with peremptory trial dates in higher courts for lengthy trials, with the result that fifteen or twenty provincial court dates had to be abandoned. This presents a number of questions. Should there be a principle of comity between courts at all levels to avoid forced adjournments in lower courts? Should counsel engaged in lengthy trials resign from the case in the higher court? This can be punitive to the counsel involved, and result in a further adjournment of the lengthy trial while the accused obtains the services of other counsel. It would appear that in busy urban courts, the doctrine that every accused is entitled to counsel of his choice must be qualified in the face of changed conditions. We suggest that the rule ought to be that an accused is entitled to counsel of his choice, if that counsel is available within a reasonable time. "The busy courts of this province could not function efficiently," concluded one supreme court justice, "if an adjournment of a hearing could be obtained by an accused person as of right because his counsel cannot attend solely because he has accepted retainers which require him to be in two or more places on the same date. In such circumstances, it seems to me that counsel owes a duty to his client to decline to accept his retainer and thus enable him to retain other counsel. While every effort is made in British Columbia criminal courts, I believe, to meet the convenience of counsel, the courts simply cannot function on the basis that hearings will be held only at the convenience of counsel."11 The message of experience is that large urban courts must institute a 207

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mechanism to track court commitments of individual counsel in order to reduce adjournments resulting from conflicting trial scheduling. This can be accomplished on a manual basis, or by computer. Refusal of some courts to recognize counsel's previous commitments in other courts, failure by some counsel to keep proper track of their own court commitments, and pre-emptory summonses to trials in higher courts without sufficient notice to counsel all contribute to confusion and frustration, leading to wasted time for judges, lawyers, litigating parties, and witnesses. Ontario took steps to deal with these problems in May 1979, when the province's judicial advisory council called for all courts "to respect the dates of others" so that no lawyer would be required to be in two courtrooms at once, and also announced new sanctions "for lawyers who delay trials by failing to show up in court for their cases."12 Popular counsel are always in short supply, and the court system must be geared to make maximum use of this limited resource. CURRENT CIVIL CASE HANDLING PROCEDURES The first comment one may make regarding the above set of principles is that they are singularly judge-oriented. This, of course, derives from the current American emphasis on judicial control. Second, they are strongly system-oriented. For these reasons, they may repel the Canadian reader, judicial or otherwise. However, study of court systems in areas such as Los Angeles, California, and Dallas, Texas, where active judicial control and systems sophistication have combined to put such rules into practice, must convince the detached observer that there are lessons to be pondered. If the principles of caseflow management are considered for purposes of discussion, then it must be agreed that most Canadian courts disregard the majority or all of them. This disregard is apparent in both civil and criminal case processing. The typical assignment pattern for a civil case in a superior or county court may be summarized as follows: when one or both counsel decide to proceed to trial, a court clerk or registrar is contacted to have the case placed on the trial list or ready list. A judge or court official then assigns the case to a specific sitting of the court. If the court operates on a circuit or assize system, the case is set for the one or more days during the period in which a judge will be in that location; or all cases may be set for a "calling day," at which time more specific hearing dates are established. If the court operates with resident judges, the case is usually set for a multi-week session of the court. A judge is then assigned to the sitting. If the sittings run for several weeks and the court has a number of judges, an assignment court may also be 208

Caseflow Management held, perhaps on a bi-weekly basis, to "finn up" the lists (call the cases that lawyers have asked be placed on the list, confirm that they are in fact ready, and assign a specific date and courtroom during the sitting for the trial). The local variations on these procedures are endless. But if we consider them in light of the principles of caseflow management, the questioning begins. Tardy Case Involvement. First, court involvement (here we speak of the court as an adminstrative apparatus) in civil cases begins too late. In the typical process outlined above, the court exercises no responsibility—pays no attention—to the case until plaintiff's counsel decides he is ready to proceed to trial. Thus, lawyers rather than court personnel direct caseflow management in the initial—and, according to the data presented above, the longest—stage in the judicial process. In terms of expediting, this situation amounts to non-management. The courts maintain no systematic data on time lapses between commencement of the action (filing of the writ) and the request by counsel to go forward to trial (trial readiness stage). This explains one of the reasons why American and Canadian courts seem to have delay problems of such different magnitude. While it appears that Canadian courts are generally more current in their calendars than American courts, the basis of calculation is different. An analyst in the United States may refer to a federal district court in which cases have been pending for up to five years, meaning that cases filed five years ago are still awaiting trial or other final disposition. If a lawyer in Canada laments an eighteen-month delay, he is referring to the waiting period from the time he notifies the court his case is ready until the date fixed for trial. Three years could have elapsed from the time the writ was issued until the lawyer certified the case ready for trial. If so, the time lapse between filing and disposition would be four and a half years virtually the same period of time. From the litigant's point of view, the situation is no better. Court involvement, therefore, begins too late to ensure that the system is operating adequately. It reduces the court's sense of responsibility for its cases, and reduces the likelihood that data will be available to evaluate system performance. For example, a visit to the Winnipeg Court of Queen's Bench in the fall of 1975 would have indicated that the court's calendar was completely current. A lawyer could have gone to the court offices and obtained a trial date within seven to fourteen days. But judges or court officials would not have known how many cases were pending but not ready, and how long any of those had been waiting for counsel to signal their readiness. One of the authors of this text recalls a litigant who had been waiting six years from issuance of the writ for his claim to be 209

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settled. His lawyer had retained the case in spite of a workload that apparently prevented the case from going forward to trial. The litigant changed lawyers, his case was put on the trial list, and satisfactory settlement was reached within six months. The public thus becomes the victim of well meaning but too busy counsel.'8 In summary, superior courts in Canada generally lack both the data base and the capacity to monitor their caseload. Meanwhile, each court depends on counsel to move cases forward, a system which may by most reports have been workable in the past, but is so no longer. Low Level of Judicial Responsibility. Second, there exists a low level of judicial responsibility for the speedy disposition of cases. This is not a criticism of judges as individuals, but of a system which has been uncritically accepted for over a century, and which no longer meets the demands of a changed society. Historically, the judiciary has never concerned itself with the progress of any civil case until a member of the bar has set it down for trial; the judiciary has seen itself as a passive decision maker, not an expediter. The judiciary has delegated to the bar responsibility for getting cases on for trial with dispatch—a dispatch the public certainly has the right to expect. But this is not a fair or proper delegation. Why should the bar shoulder this responsibility? A busy counsel's disparate goals, and the tremendous pressures of his work, often render him unable to carry it out. In practice, no one takes responsibility. Judicial responsibility thus tends to become limited to what happens inside the courtroom. But even at that point, cases are frequently assigned, not to a judge, but to a sitting or to a courtroom. The unsatisfactory results are most apparent in the circuit system. Thus, if a judge goes on the circuit to a county town for two weeks and does not have time to hear a case during that period, it carries over to the next sitting, when another judge will be present. This can result in another six months delay.14 Of course, the opposite is also true. Itinerant judges frequently return home early, complaining that the trial list has collapsed. The result to the litigant is the same—more delay. This is not to say judges are unconcerned with caseloads as such. Some regard themselves purely as adjudicators, yet others have a deep concern for trial expedition. It depends in part on whether they are in a position to exert any influence. The assignment of cases to sittings and courtrooms rather than to judges reduces the chance to exert influence. A judgespecific assignment system would be preferable. A judge-specific assignment system should be part of both an individual and a master calendar. Previous discussion of those two calendaring systems noted that the individual calendar stresses responsibility by assigning cases to an individual judge from the point of filing until dis210

Caseflow Management

position, while the master calendar is based on the principle of task differentiation—separating routine and preliminary matters that can be handled by rotating judges who take turns in motions court or assignment court.15 But even the master calendar discussed by Solomon assumes that once the case is set down for trial, it then becomes the responsibility of an individual judge. This is not so in a Canadian circuit system. There the master calendar approach is used, but trials are set for sittings or courtrooms, not for individual judges. This is because judge-specific assignment is impractical in a circuit system even after preliminary matters are completed, since a trial set for one sitting but adjourned by the circuit judge would have to be reset before another circuit judge on a later rotation. Efficient deployment of circuit judges demands that assignments be determined from day to day or week to week as cases expand or collapse. Since Iong-term commitments would defeat this deployment plan, judge-specific assignments are avoided until the latest possible moment—the opening of the trial itself. The absence of tight judic'al control of case processing also means that a substantial amount of court sitting time is lost, again because the ordering of events is the responsibility of the bar rather than the court. Initially, a case is placed on the trial list without specific information as to its likelihood of settlement or adjournment. Inevitably, last minute settlements and adjournments leave the courtrooms empty. The court is advised too late to backfill with other cases awaiting trial. It has been demonstrated, however, that the adoption of management procedures and monitoring mechanisms can greatly reduce this time Ioss. CASEFLOW IN CRIMINAL COURTS A similar analysis can be developed for criminal court case processing. In larger centres, criminal courts frequently follow a master rather than an individual calendar approach. Special courtrooms are designated for arraignments or first appearances, so that a number of cases are dealt with together. On first appearance, the court considers only whether evidence is sufficient to proceed to trial, and in some cases establishes a trial date. Many routine matters may be handled in their entirety at first appearance (parties plead guilty and are sentenced or otherwise dealt with, or the crown stays, withdraws or abates cases). In high volume courts, all matters are usually set aside for initial consideration at one specific time and courtroom; for example, all traffic violations are usually considered at one time. Drug cases may also be treated similarly in large cities. Serious crimes (indictable offences) are not automatically set for trial by the court, but upon the initiative of the crown prosecutor. Often the 211

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police, whose officers are among the most frequent witnesses in court, will play a major role in establishing trial dates in criminal cases. After a trial date is set, it is not unusual for a case to be adjourned at least once (occasionally with the accused remanded to custody) on a motion of counsel for either side, and rescheduled for a later date. The tendency for adjournments to occur in criminal cases led an observer of the Toronto Provincial Court to conclude that the court did not face a caseload crisis, but faced an appearance crisis, in that the court could handle its caseload if it could cut down the number of appearances per case.1° This is quite literally true. High volume provincial criminal courts spend the first (and best) hour out of a five-hour sitting day on these appearances. Additional trials collapse for a combination of two other reasons: last minute guilty pleas by defence counsel, and stays or withdrawals entered by the crown. The full extent of the problem can be perceived by citing British Columbia Provincial Court (criminal division) statistics for the first half of 1976: Percentage Trials adjourned, or bench warrant ordered because of failure of accused to appear for trial Guilty pleas entered at trial Stays and withdrawals at trial Trials that proceed Total

28 16 18 37 99

In short, almost two-thirds of trials (62 percent) were collapsing.' "Trial collapse rate" is a brutal term to use in the hearing of judges and lawyers. But this is what it is. As a result of reorganization of that court under the vigorous administrations of the present Chief Judge and his predecessor, it is now in a position to begin to attack this fundamental problem. Once the case is heard and the accused found guilty, an additional date is usually set for sentencing if incarceration is contemplated. This allows time for preparation of a pre-sentence report by a probation officer for use by the judge. This summary of criminal caseflow suggests that there is again a gap between principles of effective caseflow management and current practice in Canadian courts. Unlike the situation in civil cases, the criminal court intervenes immediately through the first appearance. In so doing, it is assuming responsibility for the movement of the case at an early point. But responsibility is one thing, and control is another. Criminal courts rarely monitor the progress of cases; in some large multi-judge courts, judges do not stay with a case until the actual trial, so that adjournments 212

Caseflow Management usually result in the case going before other judges; judge, lawyer, and witness time is squandered in adjournments; and the courts themselves are baffled and reluctant to assume meaningful control over the process. Many judges persist in the belief that they are controlling the process because they are ratifying the adjournments; in fact, as we shall see, the process is controlling them. CONTROL OF THE PROCESS IN CRIMINAL COURTS

Most provinces report that both judges and court administrative personnel (chief clerk or trial scheduling clerk) fix trial dates. British Columbia and Alberta report that the prosecution is involved; Quebec and the Maritime provinces report no role for crown counsel.18 Some provinces report local variations in practices; for example, the prosecutor "controls Ethel diary" in Calgary, while the Edmonton Provincial Court project, begun in July 1977, uses a deck mini-computer and three viewer screens in the criminal docket courtroom with whisper phones to other courtrooms, a system that is expected to facilitate setting of trial times by the judges.1° Local variations would be expected in Ontario as well. While that province's court administrator reports that trial dates are "usually fixed in consultation between the judiciary and counsel," he notes that there is "considerable variation which is difficult to detail."20 One example might be the Provincial Court in Toronto's Old City Hall, where earlier observers reported that, in practice, the police control criminal court caseflow: A police liaison officer is assigned to each ... court room and his function is to control the court's schedule to insure that police witnesses will be present when required. He keeps a daily record of all remands and adjournments and this is the only information available as to court's future scheduled adjourned caseload. He suggests future dates for adjournments through the assistant Crown attorney or provincial prosecutor to the presiding judge and his suggestions are almost invariably accepted because his is the only information available.21 On matters of criminal caseflow management, interesting and basic differences can be observed by contrasting Toronto and Vancouver. The Toronto Provincial Court has had a tradition of non-court control over caseflow management. This may be changing with development of automated techniques, but automation has principally emphasized the printing of case lists, and Toronto practices still contrast sharply with those in Vancouver. The Vancouver Provincial Court has been the scene of vigorous debate, the result of which has been a judge-directed system of caseflow management. A group of Vancouver judges waged a three-year 213

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campaign to supplant a master calendar by an individual calendar system. At a superficial level, they saw it as a means of reducing prosecutorial control over trial scheduling, but in a deeper sense it represented a determined thrust to increase the pace of the trial process, in other words, as a legitimate and effective device for meeting heavy caseload pressures in the court. The campaign did not lack humour; the proposed individual calendar system was dubbed "Operation Musk Ox," after the large beasts that defend themselves by gathering together in a ring, horns facing outside and posteriors protected from attack. The judges' lounge in the criminal court building in Vancouver is now graced with a large framed photograph of a group of those embattled ruminants, forming a defensive ring and gazing sullenly outward toward a hostile environment. Predictably, the photo is a gift of one of the judges who led the battle for the individual calendaring system. Finally opposition relented, a hybrid form of Operation Musk Ox was sanctioned, and today the system has a heavier component of the individual calendar model than perhaps any other urban criminal caseflow management system in the country. On first appearance, the case is assigned to a courtroom presided over by a specific judge. That judge sets the trial date himself, usually requiring an appearance by counsel. And that judge stays with the case through all preliminary matters and adjournments to trial. Counsel cannot use the adjournment procedure as a method of "judge shopping." The principle is qualified in practice, in that on the day of trial a case may be shifted to another judge if the specified judge is to busy to hear it. To this extent, it becomes a hybrid of both the master and the individual calendaring systems. The Vancouver system has its problems as well, as any system will. An extra appearance to set a specific trial date adds to counsel and judge time; but it is difficult to fix a date on first appearance under any system. Judicial productivity can vary sharply, and the court has eschewed techniques which might be construed as pressure on individual judges (for example, compiling the caseload and bench time of individual judges for internal circulation). What is significant is that in balancing the demands for individual and master calendar systems, the court has evolved a system in which the judiciary is more likely than prosecution or police to exercise control over caseflow management. The fact that dates are fixed by action of a judge or a court clerk (or the master of the rolls, as the clerk is termed in Quebec) indicates that the court has a major role in trial scheduling. But even that does not assure control of caseflow. Police involvement in Toronto indicates an absence, not of court participation, but of court control. The police co-

214

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ordinate their trial times with the court, and the court generally approves adjournments requested by the police. Whether there is a high degree of court control is determined by three factors: 1. Who takes the initiative? Is it court, crown, or police who name the date? 2. How willing is the court to accede to adjournment requests? 3. Who is monitoring the process—keeping track of the progress and status of all pending cases? Court control includes all of these elements, and is a basic requirement for effective caseflow management. It appears that in most criminal courts today, one if not all of these elements is missing. In the criminal process, judicial control of caseflow management, combined with the use of administrative personnel to implement and monitor the system, is essential for both administrative efficiency and the efficacy and fairness of the process itself. Defence counsel, and occasionally even crown counsel, has an interest in the outcome of each case. The court alone is, or should be, impartial as to who succeeds; its primary obligation is to ensure that the process is fair, and that the trial ensues without undue delay. This obligation must be discharged, not just in the courtroom alone, but also in the organizing of the process. Yet an increase in the level of court control is unlikely, given the judiciary's reliance on counsel in criminal as well as in civil matters, and its reluctance to establish a role outside the confines of the courtroom and the adjudication of individual cases. This is an ironic state of affairs. One former Ontario court official argued in 1975 that the supreme court of his province has authority to perform a monitoring role; that authority being rooted in the medieval English court of general gaol delivery. When the circuit judge made his rounds in England, he could order the local sheriff to bring before the court any and all persons held in the local jail, and inquire as to the status of the cases against them. He exercised this authority by virtue of his commission of gaol delivery: "Deliver the gaol of all persons therein." While unexercised, this authority, it was argued, still resides in the Ontario court; and could be the basis for judicial imposition of superintending control over the criminal justice process in Ontario.22 Judges of the Ontario Supreme Court would likely deny that they have any such authority in law, pointing out that before the Judicature Act, English judges went on circuit armed with a fresh commission relating (among other things) to general gaol delivery for that particular circuit; and that the commission was spent on its completion. But the central question remains: Why are today's judges perceived as so limited in their monitoring authority in areas where the quality of justice is involved?

215

CHAPTER EIGHT THE ILLUSION OF JUDICIAL CONTROL

How can our courts deal with the difficulties posed by caseflow management? Clearly, we must begin to put management principles into practice, but that task is more easily said than done. Before we can tackle the central process of caseflow coordination, we must shed the illusions that make it so difficult to identify and implement workable solutions. The greatest obstacle to a true understanding of what is happening in the courts is the persistent illusion that the judiciary controls the trial setting process. Because caseflow management involves granting adjournments, fixing trial dates, and a series of other judicial acts, it is a judicial function, and control of the caseflow process must be under the control of, and subject to the policies of, the judiciary. Judicial policy will determine success or failure within the field of caseflow management. Few judges would dispute this proposition. If asked, however, most judges would also say they do control trial setting—when in fact they do not. The absence of any one of the critical ingredients in a court case can and frequently does result in an adjournment. If an accused fails to appear for trial, he controls the event. A crown or defence counsel engaged in another court or unready for trial almost invariably forces an adjournment; in practice, he is then controlling the trial date. (The relative latitudes allowed crown or defence counsel appear to vary from province to province, but whichever side precipitates an adjournment is at that point commanding the course of the trial.) So too, if a court reporter is unable to attend the trial, he determines the event, as does a key witness who fails to appear, or a litigant, or an interpreter. Thus, it is one of the illusions of the system that the judge controls trial dates. Hence, the high adjournment rates in most courts. Experience shows that it is fruitless to urge judges to "adopt a stiffer adjournment policy." The invariable answer of judges is that they never grant an adjournment unless it is necessary. This is true, of course, given the facts existing at the time of granting the adjournment because, by that time, the judge is faced with a fait accompli which he simply rubber stamps. If judicial control is an illusion, and that illusion is a prime obstacle to identifying problem solutions, why has it persisted? To understand, we must return to the discussion of concepts and models in chapter 2. The power of models to determine the kinds of perceptions we have about things is little understood. The models we accept (consciously or unconsciously) also determine the kinds of decisions we make —because our decisions are based on the perception we entertain. Thus, the nuclear age did not emerge until the accepted model of the physical atom as a solid, indestructible piece of matter was displaced by the now 216

Caseflow Management familiar destructible model. In a more mundane case, the success of one merchandising organization rather than another may depend upon its choice of econoic models, and the business decisions it makes in anticipating, for example, an expanding rather than contracting economy. Our view of a court is also influenced by the traditional and accepted models we carry with us. Thus the accepted perception of a court is that of a hierarchical system, which may be cast in the following model: A Judge Crown Counsel Defence Counsel Court Administration Accused Civilian Witnesses Police Witnesses Court Reporter Interpreter The particular order in which the components are placed below the judge will vary according to the relative importance one attaches to the participants, but the general configuration represents a hierarchy dominated by the presiding judge. Control, as in all such systems, emanates from the top and is directed downward. Is this model an accurate depiction of a court? Remember that a model, like a concept, is neither true nor false; it is something constructed in our minds to interpret reality. Thus, a model can be more or less useful to the extent that it provides a mental picture through which we can respond to reality in an effective way. It is valuable if it allows us to understand the world around us, to develop new ways of approaching problems, and to predict the impact of our problem-solving efforts. Therefore, if the hierarchical model of a court were to reflect reality, decisions emanating from the apex of the pyramid would carry a high predictability rate; commands from above would, with rare exceptions, be carried out. But we have already seen that in the critical area of trial setting, the predictability rates are very low, in the range of 37 percent and even less. Trial collapse rates in almost every court in the country are the besetting reality. 217

CHAPTER EIGHT

Clearly then, the generally accepted model of the court system does not portray the system as it actually exists. Yet its exterior structure, with its rituals and titles, so convincingly conjures up the impression of a commanding hierarchical power that this misleading model continues to live in the minds of both the public and the judiciary. A NEW MODEL FOR CASEFLOW CONTROL To construct a model which more accurately pictures a court, we must begin by considering the diverse elements that must be assembled, at one place and at one time, so that a trial can take place: 1. Judicial manpower. Is a judge available, or is he otherwise engaged? 2. Courtroom space. Is a courtroom available, or otherwise committed? If a jury trial, does it contain a jury box? 3. Accused. Is he on bail, or must he be transported from a detention centre, prison, or elsewhere? How may he be traced and his attendance be insured if he is at large? Failures to appear by accused parties are a crippling factor in the even flow of trials. 4. Crown or plaintiff's counsel. Is he available, or committed in another court? 5. Defence counsel. Has he been notified of the trial date? Is he otherwise engaged? 6. Jury. Jury trials involve the marshalling of large numbers of jurors, and their impanelling. 7. Court reporter. Is one available? 8. Interpreter. Is an interpreter needed, and if so is a competent one available at this time? Has he been notified? By whom? 9. Sheriffs and court clerks. Can they be released from other duties? 10. Witnesses. Have they been subpoenaed? Are they expert witnesses? If police witnesses, have they been notified in time? Are they on holidays? On a course? Must the exhibit clerk bring exhibits to the courtroom? All of the above are chronically variable factors. While this list focuses on the elements to be coordinated in a criminal proceeding, the factors at play in civil matters are equally—and perhaps more—complicated. Perceiving these courtroom actors as part of a hierarchical organization, following the traditional model, places them in a superior-subordinate relationship. A more useful model would be extracted from a variation of the linkage model presented in chapter 5. To illustrate, we can construct a model of a criminal court that might appear as follows: 218

JUDGE

CROWN COUNSEL

COURT -

ADMINISTRATION

CIVILIAN -~ WITNESSES COURT REPORTER

DEFENCE COUNSEL

-ACCUSED

'-POLICE

WITNESSES

INTERPRETER

Note that in this model the pyramid has been supplanted by the circle; a kind of King Arthur's round table in which the judge appears, as it were, the first among equals. However repellent this intruding concept of equality—or relative equality—may be, the question will be forced on the detached reader: does this model more adequately portray what actually happens (not what should happen, but what does happen in an imperfect system)? Is its predictability rate higher? The answer is clearly yes. If this model were animated by flashing lights to identify which component determined the trial hearing in any particular case, then lights would continue to flash here and there, randomly, around and across, as the actions of one or another determined whether or not a trial actually takes place. The flashing indicator light would identify the judge as the deciding factor less than 50 percent of the time. But the model accurately reflects what is happening. Once it is clear that the model more adequately captures the reality, we can then address the second question: What is to be done? That is, what new decisions are stimulated by applying the new model? One practical answer is suggested by the nature of the diagram. If a circle is ringed by people with disparate commitments and competing plans, then some coordinator must be placed in the centre of the circle to liaise with all of them, since they are in some practical sense relatively independent, notwithstanding the judge having previously set a trial date. The trial coordinator would ensure first that all parties are aware of the date, then determine in advance if one of them cannot or chooses not to attend, and, 219

CHAPTER EIGHT

if so, adjust the schedule, alert the other parties, and arrange another hearing in its place. This simple queueing procedure is deemed elementary in the offices of dentists, physicians, and airlines; it is a matter of wonderment that it should have been otherwise with courts for so long, disclosing once again the low level of administrative development in this important public sector. In other words, the decision dictated by the model is the adoption of a coordinating device to identify, through liaison with all parties, the various factors that lead to adjournment; to analyse them statistically and determine their relative importance; to recommend procedural modifications to reduce their incidence if possible (and it is possible); and more immediately, to substitute other cases in time to reduce collapse rates. The model then appears as follows: JUDGE

CROWN COUVSEL~

COURTADMINISTRATION

,-DEFENCE COUNSEL

OOORD1NAØ

a.

W 4

CIVILIAN WITNESSES COURT REPORTER S

-ACCUSED

7 4

-POLICE

WITNESSES

INTERPRETER

THE TRIAL COORDINATOR: THREE EXAMPLES OF SUCCESS AND FAILURE

This chapter stated at the outset that it would be naive to formulate detailed prescriptive rules governing caseflow management in all situations; that each courthouse presents a distinct problem calling for individual solutions. One of the chief reasons for this is the factor of human dynamics. No two groups of people react in quite the same manner. Consequently, the field of judicial administration is strewn with contradictions. For every proposed reform, there will be those who claim that they have tried it and that it failed; and for every person who recounts a failure there will be others who insist that they have tried it and that it

220

Caseflow Management succeeded. It seems that the will to make something work is a dominating factor. The utility of the trial coordinator concept, as well as the importance of the human will to exploit it to advantage, was neatly demonstrated by a triple experiment initiated within the Provincial Court of British Columbia commencing January 1, 1979. A trial coordinator was appointed in each of three localities, with the following terms of reference: Under the supervision of the administrative judge or a judge designated by him: To schedule tentative trial dates and to propose them to the court; To confirm trial dates by liaising with prosecutors and defence counsel respecting: (a) the time that each scheduled trial is expected to take (b) the likelihood that the case will proceed as scheduled with no change in the charge or in the election and/or plea (c) the availability of the parties and their witnesses and generally their state of readiness to proceed; To indicate to the administrator, court reporters and sheriffs the court's priorities for their services in specific cases; To report regularly to the supervising Judge for direction; To keep a detailed record of all communications and transactions for future evaluation of the project. Court A. The adminstrative judge in court A entertained private doubts as to the practicality of the project, but gave it his best. The project was planned with fastidious care, everyone involved was informed and consulted, documentation was developed, coordination was meticulously practised and monitored. Six tasks were identified: 1. Calendar monitoring 2. Setting events and dates 3. Controlling lawyer conflicts 4. Controlling police officer appearances 5. Providing last minute adjournments 6. Notifying participants After three months, the percentage of cases proceeded with on the date fixed for trial rose from 28 to 46 percent—an increase of over 60 percent. The "aging" of cases declined (180-day-old cases declined by 50 percent). The local bar, which had also been consulted, gave the program ever increasing cooperation. During the third month, thirty-five new trials were slotted in to replace those which had collapsed. One of the most

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significant further results was that, although the number of trials processed had increased by 60 percent, the actual court time taken to process the trials declined slightly. The explanation: the court's time was no longer squandered in dealing with adjournments and date settings in the customary time-consuming way, and consequently real trial time was expanded without extra effort. A recent study of twenty-one civil and criminal courts in the United States found that the ability to set firm trial dates was a characteristic of the fastest courts.23 The British Columbia project supports that finding in a signal way so far as criminal courts are concerned; adjournments seriously reduce both trial time and productivity in busy criminal courts. The administrative judge in court B reported less success, with less cooperation from the bar, which could not be "sold" on early dates. The trial calendars had been compressed from six months to three, but the addition of another judge obscured the impact of the trial coordination program. Nevertheless, the administrative judge was enthusiastic, reporting that the program made it easier to cope with the flow of cases. In the third month court "down" time was reduced to two days. One of the other judges at this location reported a significant increase in available trial time, since his time was no longer frittered away in the mornings with preliminary date-settings. Court B.

Court C. This pilot project failed completely, being aborted by the initial opposiiton of crown counsel. It is interesting to note that a similar project was initiated a few years before in another B.C. provincial court, but ultimately languished. The program was people dependent; when the initiators left, the program withered. Trial coordination can work, and work very well, but must be solidly grounded in a formalized and established system, and have the firm and constant backing of the judiciary. Judicial support should be strong, since the central objective of proper trial coordination is to reduce absentee factors, bringing the fixing of trials under the control of the judiciary in a real and practical sense. Judges must develop the will to assist in constructing scheduling and tracking systems which control events, in order to reduce delays in the courts and thus eliminate backlogs. Having developed this firm will, they must then formulate and clearly state the information they require to support that control, and rely on the administration to supply that information. The court is then equipped to move in good time to insure that if counsel is engaged in another court, another trial can be put in place of the one previously scheduled; similarly, trials can be substituted if an essential witness is absent from the country, or the defence has decided to plead guilty, or the crown has determined to enter a stay or abate a

222

Caseflow Management prosecution. It can also identify other mishaps which frustrate trials— the absence of an interpreter or a court reporter, or failure to produce a prisoner in time—and set in motion the administrative wheels to reduce both the incidence and the consequences of these kinds of human error. OTHER EXPERIENCES WITH TRIAL COORDINATORS

Questionnaire responses from chief court administrators suggest that some worthwhile developments have already taken place in the use of trial coordinators. For example, they may now be found in Alberta, British Columbia, Manitoba, Ontario, and Quebec. In all five provinces, the coordinators firm up the trial lists, liaise with crown counsel, and set dates for civil trials. In all but Manitoba they also liaise with defence counsel. They are used to expedite trials in Alberta, Ontario, and Quebec; in Quebec and Manitoba, they also notify witnesses as to trial dates. The trial coordinator is supervised by the judiciary in Quebec and British Columbia, by court administration in Alberta and Manitoba, and by both in Ontario. Similar offices have not yet emerged in Saskatchewan or the four Atlantic provinces.24 The overall impression is gained, however, that exploitation of the trial coordinator concept remains at a low level. It is likely that a trial coordinator who is given administrative responsibility and operates under judicial direction can improve caseflow management in the trial courts. Given justice of the peace powers, they could set and adjourn trials. Trial coordination requires energy and skill, and the position must recognize and reward the difficulty of the task. In this way, both judiciary and administration gain and litigants and the public benefit. The trial coordinator is in one sense an attempt to institutionalize what Sarah Cox has called the "Great Gal" model of court scheduling in the United States: This model is the one where, if you ask the [judge] how he schedules cases, he says, "Well, I have this great gal, and she...." It doesn't much matter what the Great Gal does; what counts is what she knows. The Great Gal knows the judges: when they come to work, how likely they are to dismiss cases or accept guilty pleas, how hard they press for settlement, how long it takes them to assemble a jury, what their golf handicaps are. The Great Gal also knows the attorneys: whether they will insist on a trial or settle early, whether this defense attorney will speak to that prosecutor, who takes a long Easter vacation, which one gets along well with what judge. The Great Gal may even know the defendants. The Great Gal can juggle all this knowledge faster than the court 223

CHAPTER EIGHT

administrator can say "Fortran, Cobol, and System 370" and come up with the number of cases to set for any given day. Her fallout predictions are pretty accurate, and the schedule hums along efficiently. However, as Cox continues: The trouble is that Great Gals are discovered, not made. The knowledge the Great Gal possesses is half instinctive and mostly nontransmittable. When she retires or her husband is transferred ... you are in trouble. Some Great Gals operate an apprentice program, initiating a subordinate into the mysteries of being a Great Gal. This model is called "Son of Great Gal," and works pretty well—until the system and the case load get too large to be comprehended by one Great Ga1.25 Cox's satiric style should not hide the idea that certain skills are embodied in coordinating the flow of cases, and that they can be learned. Furthermore, what is presented as an old fashioned, non-automated approach in fact parallels current thinking about task definition and job enlargement as key elements in motivating personnel and achieving results. It is a reminder that effective caseflow management requires a focus on the process occurring in individual courtroom—and also on the signal importance of selecting the right personality to do the job. Effective caseflow management requires up-to-date (often up-to-theminute) information on the status of pending cases and judicial resources. If specific support personnel are designated as trial coordinators, they can develop this kind of information without requiring judge and lawyers to come together before every case. Obvious techniques such as frequent telephone contact can increase the firmness of the list, and also sound out counsel in other cases about the possibility of moving into any gaps that may appear. This is more easily accomplished at the county or supreme court level, where case volume is relatively low. Using a trial coordinator is much more difficult in high-volume, fast-moving provincial criminal courts, where lawyers are frequently inaccessible by telephone. Therefore, if trial coordination can succeed in criminal courts, it can certainly succeed in civil courts. Reform of caseflow management by employing trial coordinators will never entirely solve the problem of last minute adjournments. But adoption of management principles will minimize unnecessary problems—it will reduce wasted judge and lawyer time, reduce delay for litigants, and allow the courts to use their limited resources more effectively. THE BROADER CONTEXT OF TRIAL COORDINATION

By seeing a court through a non-hierarchical model, it has been possible 224

Caseflow Management

to define a new role—that of trial coordinator. However, our discussion of trial coordination has thus far focused on immediate operational tasks —on facilitating the progress of a small group of cases before one to four judges—and not on the broader issue of caseflow management and planning, such as monitoring the entire caseload for pressure points and excessive delays. These broader components are a key element in trial coordination. They mean that while performing immediate tasks, the trial coordinators, judges, and administrators are also engaged in a learning process. They are watching for recurrent problems, gathering data so that caseflow events can be analysed, and considering changes in administrative and legal procedures to reduce the incidence of adjournments. To paraphrase a current management axiom, they are trying to remember, while busy fighting the alligators, that one of their jobs is to help drain the swamp. The final portion of this chapter will therefore touch on some of the management needs, mechanisms, and policy changes that should be considered in developing an effective system of caseflow management. THE NEED FOR MANAGEMENT INFORMATION

One can move from province to province across Canada and point to courts suffering spiraling backlogs because of the lack of major overhaul of their caseflow systems. A classic example of a large and complex problem was witnessed in the Provincial Criminal Court in Vancouver. In 1970 its eleven courtrooms were coping with an inventory of 900 pending cases. This inventory steadily grew to 1,800 cases, to 2,500, to 3,000 and then to 4,000 cases. There was general agreement that improper facilities impeded trial processing, as indeed they did. In 1975 the court moved into a new facility, carrying with it an inventory of 4,500 cases. Public concern was expressed through the press when it rose further to 5,400 cases. The public was not alone in its concern. Members of the bench, bar, administration, and government—all were faced with a critical problem. What were the causes? Journalists wrote that the judges were not exerting themselves, when in fact the judges were voicing frustration because too few cases were being brought before them for hearing. It was darkly hinted that the number of guilty pleas had precipitously declined under the stimulus of a rapidly expanded legal aid system which encouraged junior lawyers to take cases to trial to augment their fees, when guilty pleas were manifestly appropriate. This was countered by arguments that charges were being improperly brought by the crown, only to be stayed at the moment of trial, thus causing trial lists to collapse; or alternatively that an overworked prosecutorial staff commenced trials 225

CHAPTER EIGHT

without first examining the files, thus calling redundant witnesses to give evidence already established, or to abandon the case in midstream when it became clear that no guilty verdict was possible on the evidence as it emerged. The judges' plan to switch from a master calendar to an individual calendar system of setting trials was thwarted, it was said, by the architectural design of the new courthouse; lack of prisoner confinement quarters adjacent to each individual courtroom radically reduced the number of courts which could hear "custody" cases (cases involving defendants detained in custody awaiting trial). Sheriffs complained that, for architectural reasons, the movement of prisoners to the respective courtrooms was inefficient (requiring five separate tasks as opposed to one in the old courthouse); and dangerous as well, in that the building design rendered proper security measures impossible. The result: delays in getting prisoners before the assigned judges in time for plea and hearing. There were complaints of shortages of administrative staff and backup support. Others stated that no remedies could be effective given the shortage of lawyers practising at the criminal bar. Trials were said to be growing Ionger owing to statutory changes and the sophistication of defences. Two points emerge from this: first, every component of the system was to a considerable degree blaming one or more of the other components. and, second, no judgments were based on hard facts. As to the latter, there were no adequate data on past performance to allow for a proper assessment. A comparison of judge time spent on the bench and number of cases processed per courtroom, as against a brief study two years before, indicated that production had dropped, roughly, by 50 percent. But this was a crude and superficial comparison and the available data could not help explain why the change occurred. Case inventory figures were available, but there were no time standards; no figures indicating percentages of guilty pleas, or of not-guilty pleas going to trial; no figures on stays or failures to appear; no record of adjournments by crown counsel or defence counsel; no data on courtroom time utilization, bench time (the average time devoted daily by judges to trials), lapse times between arrest and granting of bail or between arrest and disposition, or the rising or declining frequency of particular classes of offences going to trial. In short, there was no information upon which to base sound judgments as to how to solve the problem. This is not criticism of the senior judge or of the administrator. These were simply hallmarks of an underdeveloped court administration system which they had inherited. No reliable or profound judgments can be arrived at with respect to so complex an organization without hard data to identify specific problems and arrive at solutions. While the crisis was gradually contained and the case inventory reduced (statistics varied with the method of counting) 226

Caseflow Management

the Vancouver sample is nevertheless typical of the Canadian court scene; it demonstrates the lamentable fact that courts are less developed administratively than are business and industrial organizations. No profit-oriented corporation which had been operating for one hundred years could have been so lacking in decision-making information covering the core of its endeavour. Changes have finally come; as chapter 10 will indicate, the Vancouver court now operates a computerized management information system which automatically generates caseload statistics. Unhappily, however, the paucity of working data is still characteristic not only of many courts in the country, but also of many attorney general ministries. Since we cannot trust impressionistic judgments of complex situations, the only alternative is to break the problem down into understandable segments by careful analysis and use of statistics, since it is impossible to manage without measuring. If this reasoning is accepted, then there remains the practical problem of how to arrive at such an analysis (that is, how to measure) in order to set up controls governing the flow of cases. The only practical manner in which this can be done is for the judiciary to call on the services of court administrators to assist in designing the data-generating system, implementing it, and reporting back with the necessary information. One would think that the information judges require in order to exert control should determine what is counted. Yet this is not always done. For example, if information systems are directed by departments of the attorney general, they may be focused more on the problems of the crown than on those of the court. Thus, Ontario criminal court data at one time reported the number of charges rather than cases or persons in the court system. This presumably served the needs of prosecution, but would have less value in the judiciary's effort to improve trial coordination. Quantitative data are used for both planning (which requires consistent classes of historical data, so that the basis for comparison is preserved), and operations (for daily functions, such as setting bail, trial dates, granting adjournments, summoning witnesses). Data collected for operations are not necessarily relevant to planning. In altering its definitions of what ought to be recorded and reported in order to optimize operations, a court may destroy the consistency of data collected for planning purposes, or for monitoring, or for public information (a difficult area—numbers used out of context by the media can be unfairly damaging). The different purposes for which quantitative data are assembled must be defined so that the daily gathering process provides usable information. As so often in other areas, what is deliberately left out is as important as what is put in. Interpreting information is another matter. We all tend to interpret information by selecting or stressing the data which conform to our par227

CHAPTER EIGHT

ticular idea system and its set of biases. Thus in analysing the flow of cases, we repeatedly fail to distinguish problems from their symptoms. A group of judges meeting to discuss caseflow difficulties is likely to cite those that are most apparent from the perspective of the bench—the increased aging of cases, the ubiquitous question of trial collapse and adjournments, and "witness wastage" (the low percentage of witnesses called who ever give evidence). The results from such discussions are usually nugatory, because of the failure to realize that what we really have are three symptoms of a more fundamental problem: the absence of developed management. MONITORING

Monitoring is a key element in an effective system of caseflow management. Caseflow monitoring identifies the points where excessive lapse times have developed or may develop. These points must be clearly identified and a mechanism established to record and report them for action purposes. On the civil side, these points are as follows (by data of filing or event): 1. Writ 2. Appearance 3. Statement of claim 4. Defence and counterclaim 5. Reply 6. Examination of documents 7. Examination for discovery 8. Notice of trial 9. Trial It is open to debate whether all documents relating to the above points should be filed with the court26 to assist the monitoring function. Other important steps may also be involved, such as third party proceedings, interlocutory motions, payments into and out of court, discontinuance, amendments to pleadings, motions for directions, and admissions. But for practical purposes, one must draw the line at some point and it is suggested that the monitoring points as set out above are the minimum necessary. Fewer could be monitored with good effect. On the criminal side the monitoring points are as follows (by date) : 1. Information 2. Appearance 3. Subsequent adjournments 4. Preliminary hearing, if any 228

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5. Indictment, if any 6. Subsequent adjournments 7. Disposition by trial, withdrawal, stay, guilty plea on charge or reduced charge If, as happens in 95 percent of criminal cases, the matter is heard in provincial court, there will be no preliminary hearing and consequently no indictment in a higher court. Here too a number of subsidiary matters, such as motions for particulars or motions to quash may transpire, but for present purposes they may be disregarded. It is important, however, to maintain statistics covering rates of stays, withdrawals, guilty pleas, and the dates on which they transpire. Last minute adjournments, guilty pleas, withdrawals, and stays, with consequent collapse of court lists, are serious problems—or rather the symptoms of serious problems—for they indicate in many cases last minute preparation by defence counsel or crown counsel, or the subterranean growth of plea bargaining. EXPEDITING MECHANISMS

Additional proposals may be offered, based on a combination of analysis and experience, to control and/or expedite the caseflow process. Most of these mechanisms have been adopted in one or another Canadian jurisdiction or are known in England or the United States. Their usefulness in any individual court requires the best judgment of judges and administrators in that court. To the extent that trial coordination and caseflow monitoring are developed, decisions to use these mechanisms can be made more wisely. An important principle in both civil and criminal caseflow is that once a case is on the lists, it should not be removed save by trial, stay, withdrawal, or settlement. To remove it merely because it is inactive is to encourage its neglect by both the administration and the bench. A case no longer tracked is one over which the court has abandoned its monitoring and control. This practice results in the accumulation of vast numbers of dormant files which remain in limbo, neither active nor purged; meanwhile the conflicts which prompted the cases remain unresolved or have been settled and forgotten. This contributes to the congestion which plagues most court houses, and it is axiomatic in administration that congestion lengthens processing times. One suggestion is a rule that all actions in which no record of any activity has appeared for a stated time are deemed to be dismissed and files are to be stripped and documents, if any, that should be retained are to be put in dead storage. Notice of such action should of course be mailed to the parties concerned.27 Enforcement of such a rule or set of rules would ensure that, once commenced, actions would move through to conclusion at a proper pace. 229

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If the use of standardized deadline rules in civil matters, discussed earlier, would prove too rigid in practice, or apply to some classes of cases rather than others, a more flexible approach is the trial scheduling conference. When the processing of a case is delayed, counsel for plaintiff and defendant are required to appear before a judge for a five-minute scheduling conference to fix a time when pleadings will be completed, discoveries held, and a trial date fixed. Without an enforcement procedure of this nature, monitoring is an academic exercise; with such procedure, time lapses from commencement of an action to disposition may be cut by half. The scheduling conference consumes more judge time than the deadline rules, which can be routinely enforced by administrative staff. Therefore, the scheduling conference may be best used in complex litigation, and deadline rules applied to other categories of civil litigation (for example, contested divorces or two-party personal injury suits under $25,000). Another device for expediting civil cases is the pre-trial conference, a hearing scheduled before a judge in chambers, where two or more parties in a specific case search for agreement on issues of fact and/or of law. The purpose is to attempt either to eliminate trial, or to shorten the time it will take if settlement cannot be reached. The efficacy of this procedure is a matter of debate, and appears to depend on the manner in which the conference is conducted by the judge; conducting pre-trial conferences requires an expertise which comes more easily to some judges than to others. Some authorities assert that it does not reduce the number of trials, but that it does shorten trial time and firm up the trial list. Others deny that it reduces either trials or trial times, but that the requirement for a pre-trial conference causes cases to settle earlier. It is also said that a pre-trial conference only justifies fifteen minutes of a judge's time, not an hour or more. The preliminary report on the Ontario Supreme Court's pre-trial conference project of 1976-77 indicated an absolute reduction in trial time 28 Another frequent recommendation is the abolition of trial by jury in civil cases. Juries lengthen civil trials by an estimated 40 percent, and involve heavy expense and administrative load. Civil juries have been abolished in England save for actions involving defamation, fraud, malicious prosecution, or false imprisonment, unless otherwise ordered. Their use is on the decline in some provinces, and a U.S. advisory commission has recommended the abolition of civil juries—an astonishing development in view of the widespread use of juries in that country where, in some jurisdictions, juries may be invoked with respect to issues involving quanta as low as $200. Caseflow management has also been made more effective when changes in rules and procedures have facilitated the movement of litigation. Thus, 230

Caseflow Management most provinces have finally moved away from the traditional civil procedure of issuing a simple writ to commence the action, then requiring the defendant's lawyer to issue an appearance; both are eliminated. Alberta and Manitoba do not require a writ; civil actions are commenced by the statement of claim. (A writ of summons is still formally required in Manitoba county courts, but is never used; the form is not completed.) Four other provinces (Nova Scotia, Prince Edward Island, Quebec, and Saskatchewan) report use of the specially endorsed writ—that is, the combined or simultaneous issuance of both the writ and statement of claim. Some provinces are also relying more on use of the simpler originating notice. These procedures expedite progress of the case by eliminating points of delay in the early stages of litigation. They also require the plaintiff's solicitor to think through the details of his case before commencing an action, with the result that in some cases no writ does in fact issue. There would appear to be no logical reason why a statement of claim should not accompany the issuance of the writ, or per se commence the action. Yet British Columbia, New Brunswick, and Ontario retain the earlier separation of writ and statement of claim, and the unnecessary delays that may accompany the procedure. The argument supporting preservation of the writ is the occasional need to file a claim at the last moment in order not to be behind in commencing an action. Experience in jurisdictions which have eliminated the separate writ proves this argument to be specious. The ability of courts to monitor the flow of civil cases from the issuance of the writ (filing of the case) is hindered because a lawyer is not only responsible for serving the writ itself, but can delay service for a long period, often a full year or more. Thus, the writ or statement of claim is valid for one year in Alberta, British Columbia, Manitoba, New Brunswick, Ontario, and Prince Edward Island.2° At the same time, however, British Columbia permits an additional two-year delay on application for extension of time; Ontario allows a longer period on an order of a chambers master; and New Brunswick reports that while the writ must be served within twelve months of the date shown on the writ, there can be an allowable delay of two years for negligence cases, and six years for debt actions. Nova Scotia allows six months. In Quebec and Saskatchewan, there is no specific time limit; the matter is left entirely to judicial discretion. The judge or prothonotary in Quebec can order service if the plaintiff delays, on pain of nullifying the writ. Saskatchewan allows a delay until the next sitting of the court, when a delay can again be requested.2° There may be legitimate and useful reasons for delays in individual cases, but they indicate again the power wielded by lawyers over matters that have in theory become the business of the courts. Under this system, the court's role is necessarily limited, and effective casefiow management 231

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impeded. The disparities between the rules of the various provinces demonstrate that none is sacred; as argued here, rules permitting desultory service should be revised to ensure that litigants' claims are handled promptly. On the criminal side, cases have been expedited through the criminal discovery procedure, in which crown and defence counsel meet and exchange evidence and agree on statements or admissions.S' This concept raises a number of fundamental problems, such as the right of an accused not to incriminate himself, the presumption of innocence, and the right of an accused to remain silent until the crown has made out a prima facie case. On the other hand, a strong case can be made for the requirement of full disclosure by the crown in the initial stage of the proceedings, in the hope that it will expedite the case generally and precipitate early guilty pleas where crown evidence renders the case palpably indefensible. There must, however, be exceptions where disclosure of witnesses involves risks to those witnesses, or subornation of their evidence. In Ontario, a number of years ago, the crown, in prosecutions for certain indictable offences, adopted a policy of offering discovery to the defence as an inducement to the latter also to make disclosures. The success or failure of this policy fluctuates with the personalities and attitudes of individual crown and defence counsel. But it is a beginning. Traditionally, the preliminary hearing has been used in indictable cases by defence counsel as a kind of pre-trial discovery.32 This is a ponderous and time-consuming method of disclosure. Consequently, another proposal is to eliminate preliminary hearings altogether. In some jurisdictions, a preliminary hearing may not come on for hearing for three or four months and there may be a further period of six weeks to three months before the transcript is available. A further delay occurs at the interface between the provincial court where the preliminary hearing was held and the county or supreme court, because of a time lag in the framing of the indictment following the committal for trial. Many months may then follow before a trial date is fixed. Drug conspiracy preliminaries can now consume months of hearings, only to have the evidence repeated at the trial. The criminal bar tenaciously defends the preliminary hearing; both defence and crown counsel argue that they may wish to tie a witness down to statements before trial. But considering the enormous cost and delay involved, can we any longer afford this brand of justice? Another necessary reform involves the elimination of the trial de novo. This form of appeal is costly and time-consuming, and amounts in effect to a second trial. It can be justified when defendants appear without counsel before lay magistrates. However, once lay magistrates are replaced by fully legally trained provincial court judges, trial de novo can be replaced by an appeal based upon the trial transcript 33 Thus, British 232

Caseflow Management Columbia, following the elimination of lay magistrates, has abolished trials de novo from convictions under the Summary Convictions Act. Proponents of trial de novo have still argued that the actual number of trials de novo is not so great as to add significantly to trial congestion, and that confining appeals to argument based on transcripts tends to lengthen trials. This would not appear to be the experience in British Columbia, but much may depend on the local legal culture. The burgeoning of legal aid in many provinces, resulting in more and longer trials, has raised the question whether a public defender system should not be adopted to remove the tendency to defend indefensible cases, and to improve the cost benefit factor in free legal services. There is a certain irony in this development, since public defenders were originally advocated in the United States to provide lawyers for defendants who would otherwise have none—not as a replacement for an already functioning system of legal aid. American public defender systems have increasingly become a subject of criticism in scholarly writings,34 and should be adopted in Canada only after a review of that literature provides policy makers with suggestions for avoiding the shortcomings of those systems. Any system of subsidized defence services will be subject to weaknesses and even abuses. The absence of zeal and/or experience on the part of public defenders, and temptation that they would "play along" with the prosecution, represent some of the fears of their critics. The British Columbia legal aid program is government subsidized, but administered by a separate corporation, which ensures an arms' length relationship to crown counsel. There are inexperienced legal aid counsel in every jurisdiction—but so are there inexperienced prosecutors. Many of the expediting procedures discussed here involve more participation by the trial judge. Additional procedures could be derived from a careful examination of continental European practices based on an inquisitorial rather than adversarial model. There, judges are involved in preliminary work to secure agreed statements of facts, compel admissions, and prepare comprehensive dossiers and records. Few issues of fact are left for determination by viva voce evidence. Furthermore, evidentiary rules could permit wider use of documentary hearsay evidence, and perhaps some careful extension of admissible oral hearsay evidence. A pronounced prejudice exists in our legal system to an inquisitorial model. Moreover, trial lawyers tend to recoil from any proposal that they should expose their client's position before trial, or disclose details of evidence, or commit themselves to admissions—or, above all, that at trial they should relax the rules of evidence to admit more hearsay evidence. These scruples are not groundless. They developed out of a period in English history marked by the excesses of the Star Chamber and other courts in which wholesale admissions of dubious evidence resulted in 233

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savage injustices to accused parties. There is, however, a growing sense among members of the legal community that the entire set of rules governing evidence ought to be reviewed in the light of modern conditions, with a view to modifying those rules which are now anachronistic and lead to needlessly protracted trials. In so doing, we could learn much from the continental European legal system.35 In summary, we suggest that a combination of changes in administrative and legal procedures, growing out of the application of new models and explicit management principles, can develop caseflow management and expedite trials—all within the larger context of judicially controlled court administration, within which professional court administrators have the ability and authority to serve the judiciary and the public. Utilized in this manner, court administration can become a force supporting and strengthening the machinery of justice, and thereby strengthening the independence of the judiciary; for judicial independence ultimately rests on expeditious delivery of justice without unnecessary delay. If the courts fail in this primary function, no insistence on independence will save them from decline and substitution by a proliferation of administrative tribunals and other dispute-settling mechanisms. This is no idle threat. Dispute settling agencies outside the courts now abound in Canada and the United States: housing and urban "courts" (for non-payment of rent, evictions, lagging repairs, neighbourhood disputes); neighbourhood justice centres (for minor criminal and quasicriminal disputes); radio and newspaper "action lines" (for consumer disputes); no-fault insurance (for motor vehicle injury claims); federal and provincial consumer claims bodies; private mediation, arbitration, and counselling services (one New York law firm is reportedly considering offering mediation services, in addition to its traditional adversarial service); and administrative tribunals covering adjudicatory areas (securities, aeronautics, tariffs, power and fuel rates, agricultural marketing) .36 Court delays are one factor driving governments and disputants to test these alternatives to the court process. It is evident, therefore, that intensive use of court administrative resources to expedite cases can have a positive impact upon the machinery of justice and its preservation in these turbulent times.

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Chapter Nine Records and Space Management THE NEW CHALLENGE

For a generation before 1977, the Supreme and County Court Registry at New Westminster, B.C., occupied a cramped and cluttered corner of the historic old red brick courthouse on Columbia Street. Given the congestion, efficiency was impossible. Congestion, of course, is not remarkable in court registries. But this registry had a special problem: the filing vault. To retrieve a file, a clerk climbed cautiously down a long circular steel stairway, from level to level, past story after story of files, stacked on every side of each level to its ceiling. Hanging light bulbs gave a barely sufficient glow. Having retrieved a file, the clerk climbed back up the succeeding levels to the light. Prior to its conversion to a filing vault, this space was the hangman's drop. Few courthouses could claim so Dickensian a decor. But the filing facilities of most courthouses evoke a similar mood. For courthouses, the subject of records management still conjures a picture of dust-laden ledgers, file choked vaults, tedious hours of manual record-entering, green eyeshades and black sleeve-guards. That this is so is a mistake. Records management has emerged as a new and exciting field of reform, and the scope it offers in the courts area will stir the blood of anyone with administrative instincts. Its importance exceeds its modest mien. It is significant that one branch of a nationally known management consulting firm has set up a records management department on the premise that better and faster gains can be made in this than in other areas. Records are to the court system what blood is to the human body. Without their constant generation, regeneration, purification, and steady pulse, the body of the court system will die. The sluggish performance of courts today is due in part to the sludged blood of their records systems which, astonishingly, have changed little in two hundred years; modern forms management, storage and retrieval systems, are largely 235

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unknown to them. Many courthouses have lost or are about to lose control of their paper flow system because old-fashioned methods, adequate even ten years ago, no longer suffice. The reticence of the courts to seize on expertise now developed in this specialized field, and to profit from its insights, cripples reform. The regeneration of the Canadian court system will be determined in part by its success or otherwise in introducing parallel reforms in this area. Without success, any reform thrust will lose its way in an ever mounting morass of paper. Indeed, the present paper explosion requires that we study new and better records management systems merely to survive. Typically, there is an absence of any policy for dealing with current records or disposing of obsolete ones. Uncertainty as to statutory regulations, the hoarding instinct, the mystique of the legal document, and ignorance of available techniques have resulted in an accumulation of mountains of records which clutter vaults, passageways, filing cabinets, and entire basements of courthouses across the country. Archival considerations stay the hand which reaches forth to dispose of an 1898 file (what if it should contain some priceless record of use to the legal, literary, or political historian?). Meanwhile the generation and species of forms proliferate. (In British Columbia seven different forms of criminal information were found in use at one time.) Ponderous cause books continue to be laboriously heaved up onto counters for the insertion of fresh entries, then lugged back to their appointed resting place. Files and informations are physically lost in high volume criminal and small claims courts. The additional staff required to operate slow-moving manual systems, together with mountainous storage of files, cause space and dollar wastage. It is measurable, but has never been measured. Today's courts require modern records systems, efficient procedures for storing, indexing, and retrieving information from those records, as well as statistical systems for measuring and monitoring the flow, efficiency, and productivity of the work. A system and its procedures should guarantee prompt entries and retrievals of accurate data in an economical manner; not only to serve the public and the bar, but also to enable judicial and administrative decisions to be hammered out, not on the basis of impression, but on sufficient and readily available facts. In other words, it should contribute to the management information system. It should have built in controls to ensure confidentiality, privacy, and security of the data being maintained. It should cover all categories of records, not handle some efficiently while neglecting others, which is sometimes the case. It should discard obsolete equipment and take advantage of modern time and space savers offered by the office equipment industry. It should consciously attack the

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Records and Space Management problem of paper proliferation and control it by a redesign of forms and paper handling procedures. Finally, it should have a conscious policy of retention and disposal. In no other way can the courts, especially metropolitan courts, equip themselves to withstand present levels of case volume. And it is probably the only area where reforms can be pressed through without widespread criticism, because they are internal. It is not understood that better technology is available in the market place; that it can easily be applied to the courts; that it is comparatively inexpensive; that reforms introduced in one courthouse can be rapidly transferred to others; and that courts, as previously stated, are administratively at so low a level of development that almost any reform brings economies out of proportion to the expenditures involved. To arrive at this understanding, and to bring it into play, is one of the court administrator's principal challenges. A "RECORD" DEFINED Though it may appear painfully elementary, an understanding of professional court records management begins by defining a "record." The definition precedes the policy. Surprisingly, there are several definitions, some more inclusive than others. Is a record a folder file containing papers? Does it include court index books? Are exhibits records? Are cash books and ledgers records? Probably the most useful definition of a court record is "a collection of material which enables a neutral person to reconstruct the essential aspects of the matter under consideration.'" If this definition appears abstract, it nevertheless offers a practical utility, as will shortly be seen. The author of this definition proceeds to divide court records into three categories, as follows: Case papers. Case papers relate to criminal or civil cases brought before the court. All case papers are not of equal value. This is a critical point to grasp in the context of records management, because the decision to retain or destroy any particular case paper will depend on its value at any given point in time in the processing of that case. This concept of dealing with every item of any court record—however defined—in terms of its value at a particular time, is of the very essence of court records management. This too will become clear as the discussion advances. The principal case papers mark the successive steps in a legal action (criminal informations, certificates of judgment, writs, pleadings, judgments). A second category of case papers are those which are merely 237

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supportive (notes, praecipes, correspondence). An intermediate category of case papers may also be recognized in affidavits, reporter's notes, transcripts of discovery, and so forth. The central point is that the relative values of these various documents decay at differing rates of speed, depending on their nature and the stage of the proceeding through to trial, appeal, and post-appeal. Most documents rapidly lose their value, especially when the appeal period lapses, and may be destroyed. Instead, they are not destroyed. They are hoarded. Hence the problem, and hence the critical need for professional records management, given the present high volume of court activity. Hence too, the relevance of the definition of a court record as above quoted. It will be noted that it not merely enables massive quantities of documents to be disposed of; it commands that they be disposed of. Books and ownership or status documents. Court books include case indexes, judgment books, records of liens, chattel mortgages, titles to realty, partnerships, adoptions, and other records establishing ownership or status. They also include financial records, such as cash journals and ledgers with supporting vouchers. Clearly the retention span allotted to many of these records will be very long indeed. Exhibits. Most courthouses have one or more doleful closests containing a clutter of physical exhibits. This is in addition to vaults and basements storing folder files battened with paper exhibits. Most have outlived their reason for existing. Here the doctrine of manana is enthroned. They are harboured because the decision as to what to do with them is ever for tomorrow. Both physical and documentary exhibits should be systematically disposed of, thus gaining space and eliminating management problems. It has been pointed out that court records management, unlike that in the business field, is complicated by a number of unique factors.2 First, the administrator's function is not only custodial but ministerial, in that he must certify or authenticate documents, using time and date stamps and seals. This is to establish the legal status of documents; and having done so, to preserve their legal integrity. This function can apply to all three classes of records as defined above. Second, the creation, custody, and retention of court documents is controlled by statutes and rules of court, both federal and provincial. Public document disposal acts specify how many years particular types of documents must be held before destruction, if destruction is allowed at all. Court rules at all levels may dictate the legal life of a document, the most common example being appeal periods. 238

Records and Space Management Third, most legal documents originate outside the court house, at the hands of lawyers, lay citizens, and government agencies. Forms control is therefore difficult. Finally, most court records are public; the public has the right of access to them (a few are confidential). The administrator is therefore the custodian of these records, and is accountable to the public for them. All of these factors restrict the administrator in developing policies governing the reception, preservation, accessibility, and disposal of court records. INTAKE OF DOCUMENTS AND FILE CREATION As with living things, every court document has a life cycle, from creation through maintenance and retrieval to destruction. These three phases are convenient heads under which to describe records management. A court record is either created, as stated, outside the court (usually by members of the bar, or by some other court), in which event it is formally filed with the registry; or it is created inside the court (certificates of conviction, minutes of court proceedings, transcripts), in which event they are also entered in the registry. This is the intake process, when a file is also created if the matter is a new one. It is not a passive process, even though it is usually treated as such. Initiatives can and should be taken at this stage to control events in two ways. The first is controlling the form of the documents received; their size, number of copies, design, and (bulk) purchasing. Controlling this field yields economies in purchasing costs, the time taken in handling documents, and the space they take up. FORMS DESIGN The field of forms design analysis is now gaining status, because forms are vital for effective management and cost savings of 15 to 50 percent can be achieved, depending on the types and quantities of forms employed. Forms analysis and design involve not merely the examination of isolated sheets of paper. They are based on a visualization and understanding of the entire processing cycle, and the relationships between the various forms within that cycle. Eliminating a form sometimes eliminates a needless procedure. Conversely, eliminating a needless procedure can eliminate a form. A total systems approach is necessary in order to extract maximum benefit from forms design work. The cost of purchasing the form may represent only 5 percent of the total cost of processing it. Thus, forms design requires analysis of problem areas, bottlenecks, time 239

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lags, repetitions, and high-error points. These are operational areas. The forms designer must, therefore, relate closely not only with systems design personnel, but with operational personnel as well. His work is of a highly diplomatic nature. Forms design generates change, and change may generate hostility and opposition. Tact, understanding, and interpersonal skills are required. Forms design technology and records management generally are not static "one shot" programs. Continuous review of the entire system is necessary in the face of constantly changing standards and systems technologies. Forms, microfilming, and data processing systems render creativity and initiative essential in this work. New developments require continuous reassessment of courthouse requirements. Forms design in Canada is inhibited in the criminal area by Part XXV of the criminal code, which sets out forty-four standard forms. These, though variable, impose limitations on forms design in the criminal field. Yet even here the development of multiform paper flows can save untold hours of work, because it eliminates rewriting the same information two, three, or four times. The labour expended by the legal profession in preparing legal forms in civil matters is staggering. The legal community has unthinkingly continued to rely on forms developed between the seventeenth and nineteenth centuries, when time did not appear to be an important factor in the processing of a legal case. Enormous pay-offs await both the lawyer and the court administrator in the redesign of civil court forms. The use of legal size stationary alone increases paper costs by 20 percent.$ INTAKE PROCEDURES

The second way of controlling intake is in analysing and updating intake procedures. This is one of those self evident propositions so often observed in the breach rather than in the doing. It requires a precise defining of clerical activity and review of space utilization. Space shortage is usually the presiding problem. It is not merely a matter of shifting counters, desks, and filing cabinets about the registry to bring receiving stations closer to the handling and filing stations, though this may be involved. Updating intake procedures involves a careful study of modern records technology now available in the business field. Records no longer exist only in paper form; they may exist as microfilm or computer memory (which as we shall see in later chapters may take the form of tape, disc, printout, or video screen), and these forms in turn offer a variety of options to choose from. Aside from fundamental judgments as to which basic technology to

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Records and Space Management choose, modern office equipment offers an array of ancillary record processing equipment. Expertise should be developed in establishing records centres at various staging areas. Modern forms of shelving, filing, lighting, file-spacing, and colour-coding must be considered and used. Experience has shown that competent, dedicated, and service-oriented file control clerks can be attracted to the problems of inventory management, given these improved conditions. Education, sex, and other broad distinctions are of no significance in determining the aptitudes of such personnel. Training and leadership are critical. This will be obvious when it is realized that 80 percent of the program's cost can go to salaries. EQUIPMENT-NEW TECHNOLOGY

Card files remain in current and ever growing use. They come in a variety of forms and receptacles (card trays, tubs, magnetic cylinders, machinepunched cardboard, plastic, metal, or film). This constitutes an entire subject in itself which space will not permit us to explore, except to say that card filing is now photoprinted and mechanized to increase worker productivity by bringing the specific card to the clerk rather than the clerk going to the card. This technology should not be overlooked in choosing equipment. Microfilming has been adopted in many courts in recent years. But its use must be selective and cautiously judged, or it may be a costly step backwards. Miniaturizing documents at the intake point can cause filing delays, increase processing costs, and make for slow and awkward access to those who need to search the records. Microfilm can also create blurred hard-to-read copy, and deteriorate with time. The user must therefore be informed and discriminating in applying this technology. The intended use, present and anticipated volume, the nature of the particular record, and comparative cost will determine the selection as well as the type of equipment. Three basic microfilming methods are presently in use; microfilm jackets, computer aided retrieval, and microfiche. Of these, microfiche presently commands the field because of its ability to record every document in a file on one card, thus speeding retrieval and easing inspection of all the various documents in the file.' Computer applications to court record keeping have had an important influence on record forms and intake procedures. The form may no longer be a piece of paper, but a series of ciphers electronically recorded in erasable form on a tape or disc, or a pattern of holes punched on a card, or it may reappear in a variety of presentations on computer printout paper or video screen. This new evolution is too complex to develop here, and is the subject of succeeding chapters. 241

CHAPTER NINE RECORDS MAINTENANCE AND RETRIEVAL

The loss of a court file, or even part of a court file, is a serious matter. If a criminal information is lost, the court has no jurisdiction to hear the case. If a civil case file is lost, proceeding with that case at any stage of its life is difficult. If a probate file is lost, the original evidence establishing the status of an executor or trustee vanishes, and his authority with it. File preservation and paper maintenance are therefore vital not only to the court but to society. This means that proper procedures must be set up to organize each court file and to control it at all times. Computers may eliminate the need for file folders in high volume criminal courts (they are already eliminated in traffic courts), but in the main we can assume large scale use of folders for many years. Some courts vary the quality of folders according to the length of the case, organize the file (left hand and right hand clipping-in), or segregate basic documents from transcripts and exhibits. Colour coding is essential. Without it files are misplaced, endless clerical time is lost in searching for them, and hearings are delayed. Indexing of files is increasingly handled by computer or cards rather than through the use of unwieldy books. Location of filing stations should be reviewed. What was an efficient location twenty years ago may no longer be so. Increased volume may dictate division of filing stations into criminal, civil, appeal, divorce, probate, and so forth. Similarly it may force segregation of active and inactive files and relocation in two separate areas. And, as already stated, swelling case volume ultimately drives courthouses in the direction of microfilming, computers, relocation of files in records centres, and file destruction. Access to files must, of course, be limited to designated personnel, signout cards must record each removal of a file, and if the public and bar have access to search files, they must do so in a special search room. File contents can go missing for the most honest reasons. Space economy is also worth analysis. Filing systems are available that save space and serve certain court functions more economically. For example, open-shelf filing is especially useful for Iarge filing stations. It can save 15 to 20 percent of the floor space required for drawer-type filing cabinets. Open shelf filing also saves operating time, especially if colour coding helps direct personnel to particular sections or types of files. Filing cabinets are more effective for smaller decentralized filing stations, but should open at the side rather than the front, thus taking up less work space and being more easily accessible than the traditional filing cabinets .5

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Records and Space Management RECORDS DISPOSAL REFORM

Curiously, although disposal is the last phase of a record's life, reform frequently emerges at this end of the process. "Records management often finds its genesis in a reaction to a shortage of file space. Long-term storage, microfilming, or destruction of case files are often the first attempt to deal with records management problems."° This is precisely so. The court cannot contain the mounting records, and is driven to contriving new procedures to solve the storage problem. In the contriving it perforce redefines its perception of what constitutes a "current" file, and reclassifies files into current, semi-permanent, inert, and destructible. In this process, it also finds itself seizing upon new record keeping and storing technologies. While the impulse for reform stems from frustration at space shortages, reform itself is not easily accomplished. There are a number of inhibitions to any program of general purging. Public document disposal acts of one kind or another lay a heavy hand on administrators in every jurisdiction, compelling retention of certain documents for specified numbers of years. These statutes are generally in need of wholesale revision. Usually their provisions are ignored in practice or frustrated by the destructive accidents of time. But they exist, and must be incorporated into any records management program. A second control is imposed in the area of financial records by the auditor general or similar functionary, whose mandates are likewise rooted in statute. Properly treated, however, statutory restrictions can be converted into a powerful tool because they spell out, in clear and usually unambiguous terms, the requirements for preservation time spans of court documents. Consequently, a records disposal and destruction program can be confidently built around the statutory time limits specified by law. This removes some of the mystique which attaches to legal documents, and assists the administrator in systematically cutting back the volume of paper at hand, with the certainty that he is preserving the legal integrity of his files. In other words, a records retention and disposal program can be confidently based on specific authority. It disposes of the haunting question, "Will I be required to produce this document ten years from now?" A third inhibition is budgetary and administrative. Because the records management problem is usually unrecognized, and the potentiality for savings hidden, it is difficult to obtain funding for secondary warehouse facilities or the hiring of professional staff to plan and carry out a province-wide records management program. In the event, underfunding

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forces such a program to the bottom of the list of priorities. The longterm cost is heavy. To repeat, court records of every kind must be viewed in the context of a time flow in which each individual record is held ready for reference during the period of its useful life; it is retired to some more remote point of storage as its usefulness decays; and it is ultimately either destroyed or preserved for archival and historic purposes, usually in a low cost warehousing facility. This staged retirement of records must be a planned and conscious process rigidly governed by an automatic program, encasing set rules. To put the matter in organization theory terms, records disposal should be bureaucratized. It should be based on clear rules that can be made part of administrative routines. The wisdom of implementing such a program would appear to be self evident. But it is not frequently so seen. A tour of most courthouses of the nation will reveal a choked condition at both ends of the filing system —cluttered files in the registry working area, as well as vaults and basements filled with documents long past due for retirement or destruction —in some cases decades past. One of the authors toured all the courthouses in British Columbia in 1974, and found dust-laden shelves of transcripts, chattel mortgages, and all manner of dead documents and files dating back to 1890. On the other hand, lack of orderly purging plus acts of God such as fire and water damage had periodically resulted in desecration of priceless historical material. The registrar at Victoria advised that the will of Sir Matthew Begbie (the colourful "hanging judge" of colonial days) is on file in his registry. Is it safe from destruction? With the help of a provincewide program developed since 1974, the answer may be affirmative. THE CURRENT STATE OF THE ART

Records management is clearly an area of concern in many provinces. Success, however, has been limited by the fragmentation of court administration. In the summer of 1975, Ontario court officials concerned with record retention schedules met with the inspector of legal offices to discuss the matter. However, the chief judge most concerned had no administrative staff of his own to which to entrust the work, and had to rely on officials in the attorney general's department for recommendations—in spite of the fact that the Ontario Judicature Act gives authority to chief judges to make rules on record retention. Since then, the position of inspector-cum-court administrator had three different occupants as a result of personnel changes in the department, and little progress had been made on records retention, traditionally a low priority issue.? Thus, 244

Records and Space Management an existing model of executive-directed court administration has affected the ability of court adminstration to make progress even in an area much less sensitive than caseflow management, and much more amenable to routinized bureaucratic solutions. The existence of provincial records depots away from a courthouse allows removal of obsolete records that are precluded from destruction by reason of public policy. Four provinces have such depots in their capitals or major urban areas (Edmonton, Alberta; Vancouver, British Columbia; Fredericton, New Brunswick; and Mississauga, Ontario). Quebec has both a set of regional archives and its national (that is, provincial) archives; records stay five years in the courts themselves and twenty-five years in regional archives before going to the central archives.8 Provincial court administrators in every province except Prince Edward Island report that government and/or court policies exist to cover records retention and disposal. Yet the existence of a policy does not necessarily allow for disposal. Thus, Manitoba policy does not state how long court records must be retained and, in practice, they are held indefinitely. The same pattern is followed in P.E.I. In Newfoundland, process records (convictions) are kept permanently. In other provinces, retention varies with the type of case, but is almost universally longer than the needs of justice demand. In New Brunswick, civil case files are kept for twenty years, criminal for seventy years, and adoption and probate permanently. Ontario retains records for up to seventy years. Alberta never destroys criminal case files; others are destroyed after five years. Until recently, the British Columbia schedule retained some records for only one year, others indefinitely. The most sensible policy seems to be in Nova Scotia where criminal case records are kept for the duration of the sentence imposed and all other case records are retained for five years. Seven provinces reported that improvements in records handling and disposal are being developed for implementation within two years. Project OMEGA, the Alberta attorney general's in-house task force, extensively reviewed records management. A revised schedule for documents disposal is currently under review in British Columbia. Quebec has introduced computerization of records in Montreal and St. Jerome, with implementation to follow in Quebec City, Joliette, and Longueuil. "A major review and revision of all records retention schedules is now under way" in Ontario. Manitoba is reviewing its filing system "to find a quicker method of filing and retrieval," and New Brunswick is anticipating that all indices will be on computer with an on-line hookup for random access. Newfoundland is hopeful that "central data storage by computer will be initiated within two years as part of a justice computer data system." However, none of these last three provinces reported work on records disposal. 245

CHAPTER NINE INITIATING A PROVINCE WIDE RECORDS MANAGEMENT PROGRAM

It will be evident on reflection that records reform can be most effectively attacked on a system wide basis; if left to local administrators, storage options for inactive documents and economies of scale in forms production are impossible. We will therefore consider the design and implementation of a records management program on a province wide, not a local, scale.9 Assuming the decision had been made to institute a records management program, the question arises: who should undertake it? It is of course possible to select in-house personnel to do so, but unless they already have expertise in the field, this approach will fail. Such a fortuitous coincidence is highly unlikely, however, and the only sure approach is to appoint a provincial judicial records manager after public advertisement and competition. He should be a proven administrator with demonstrated experience in the records management field. Court experience is desirable but secondary. The office equipment industry offers expert advice without charge, but this service must in some cases be viewed with skepticism. It is asking too much of human nature that the equipment supplier provide entirely disinterested advice from beginning to end. Outside consultants may be brought in. If so, they should have some recognized expertise in this narrow but critical field. The stricture should apply as well that if outside consultants are relied on, it should be a term of their contract that they remain long enough to see the proposed program installed and running. As in so many other cases, a judicious mix may well be the soundest approach; that is to say, some reliance on outside consultants, the solicitation of advice from industry (accompanied by competitive bids), plus the appointment of a centralized staff of experts through public advertisement and job competition. Once the decision has been made to institute a provincial records management program, and a provincial records manager has been selected by public competition and appointed, he may rely on the support of some or all of the following technical assistants, likewise recruited by public competition: 1. A forms design analyst, trained in forms design and control. This expertise is difficult to recruit from industry, and may have to be selected and trained within the existing system. 2. A microfilm expert, familiar with all types of microfilm technology and systems. 3. Microfilm technicians. These can be recruited and trained from within the system. 246

Records and Space Management 4. Clerical staff for records handling, microfilming, records storage retrieval, and records disposal. To be most effective, a records management system should be established in conjunction with an overall systems development program. It is therefore desirable that the records manager and forms design analyst work in concert with systems analysts and system development personnel. The positions of the latter will depend on the stage of development of the system as a whole. Initially, systems analysts will in all probability be part of a temporary task force. As the system develops and crystallizes, those who remain on will tend to be grafted on to the main court administration system."' The records manager, forms design analyst, and microfilm expert can gain expertise through professional associations, current literature, trade publications and advertising, seminars, and direct contact and inspection of existing systems throughout the continent. All of these sources of information are essential, especially the last named; close inspection of various record management organizations (including one's own!) yields insights which can never be gained from perusal of the written word. Detailed planning requires as a first and mandatory step the drawing up of a records inventory in order to specify and identify the records which a court receives or generates, what it retains, and for what lengths of time. It is necessary to specify the date it is to be received or generated, and whether carbon copies, duplicates, or photocopies are required. (The arrival on the scene of copying machines has created a staggering paper problem in itself.) Lifespans should be attributed to each specific type of document or file. A permanent loose leaf manual of all forms must be compiled and kept. The next step is the construction of a forms management program. Obsolete forms are identified and eliminated. Current forms are standardized to eliminate variations which can be confusing and are expensive to print and order in smaller quantities. New forms are designed, as previously described, to yield more or better information and to eliminate needless processing steps. Multi-copy forms are adopted. The next step in gaining control of records is the establishment of a records retention, retrieval, storage, and disposal program. Detailed planning is likewise essential, and should be based on a consensus of personnel such as: 1. The provincial archivist 2. The comptroller general or auditor general for the province 3. The attorney general's department 4. The systems development team 5. The court administrator of the relevant area of jurisdiction or region 6. Professional researchers in the social sciences 247

CHAPTER NINE DOCUMENT DESTRUCTION

All statutory and regulatory constraints on destruction of records must be analysed and clearly set out. An agreed statement of policies and procedures should be distributed and regularly enforced. This policy should extend to current as well as to completed files. As already emphasized, the lifespan of a record will depend on its nature, and may vary from one day to twenty years. An inter-office memorandum may have a mosquito life-span of twenty-four hours. A mortgage may have a life-span of thirty-five years. The retention or destruction of individual documents must be viewed in terms of their individual life cycles. This in turn requires detailed planning and operational manuals specifying the precise retention span of each type of document. From this schedule a plan of immediate document disposal can be implemented. Some categories of documents can be consigned to the provincial archivist. Others can be destroyed. It has been said that 50 percent of all existing records in the modern economy ought already to have been destroyed. But a records destruction plan must be developed from a total overview position. Any attempt to implement a destruction program on a piece-meal basis is to be condemned, and will be defeated by an alliance of forces rising in alarm at the prospect of records destruction. Thus, the plan must be worked out on a consensus basis, carefully explained at the highest levels and accepted on the basis of its comprehensiveness as well as its soundness of reasoning. THE PROVINCIAL RECORDS CENTRE: DESTRUCTION VERSUS RETENTION AND RETRIEVAL

Document destruction should, if possible, be carried out at a provincial records depot, to ensure consistency of policy and execution of that policy. In practice it is not possible to control the sensitive task of discriminating destruction at the local level. Specialized knowledge is required, and the work must be closely supervised. The second clear reason for a records centre is the need to warehouse files or documents which may not be destroyed. These can be indexed and stored so as to permit retrieval should they ever be needed. Alternatively, they may be microfilmed prior to destruction, if a cost analysis justifies miniaturizing. Ultimately, as records swell, it is justified. In discussing the adoption of a records management program we have dealt first with document disposal (that is, either destruction, or retention at a provincial records centre in paper or microfilm form), because

248

Records and Space Management this is invariably the most urgent problem, the solution to which results in immediate and visible improvements. The utility and cost benefits of the program are swiftly demonstrated, and continuance of the program justified in the eyes of higher authority. Filing and working space is gained, and organizational efficiencies realized. Also, alleviating the space problem in the individual courthouses is the first step in further management reform within them. A RECORDS MANAGEMENT PROGRAM AT THE LOCAL LEVEL As stated, province wide redesign of forms, and establishment of a provincial records centre which allows individual court houses to off load dead files, sets the stage for records management at the local level. This must also follow a plan. Obviously the plan will differ with each courthouse. A small one may only adhere to the retirement schedule fixed by the provincial records manager, and ship a set of files to the main centre once per year. A medium size court, or a rural court, may adopt an intermediate staging point in its geographic area. Large urban courts will form a management plan within the context of computer and microfilming technology and other sophisticated equipment now available for large volume operations. They will also enlist outside expertise. In larger operations, the planning will begin with an analysis of the local system, its problem areas as well as its resources; backlogs in paper flow; bottlenecks; office and filing space areas in square footages; the organization chart showing job organization; and case volumes and annual growth rates. Paperfiow procedures are then analysed to produce economies and reduce duplication of work. This in turn involves an analysis of clerical functions, job descriptions, work procedures and the location of both personnel and filing spaces. It also entails an examination of existing equipment, and superior records handling techniques offered by up to date equipment. This analysis will bear in mind the important matter of filing efficiency; the rapid filing away and retrieval of files and documents, and safeguards against their loss or misplacement. The physical layout will reflect this need. COST AND IMPLEMENTATION Records management costs money, which must be justified in the annual budget. For this reason it is important that the records manager maintain regular progress reports and statistics recording, for example, the volume of records destroyed or retired, filing equipment released, savings in floor

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space, elimination of obsolete or duplicate forms, and reduction of copies. It is important to quantify these statistics in terms of dollars, wherever possible, to justify an essential service at budget time. The advantages in terms of dollar cost and space savings must also be brought home to individual court administrators and their staffs. Acceptance at the top level of administration does not guarantee implementation at the bottom. A constant conversion from current to infrequent-use files, and from infrequent to obsolete, and obsolete to destruction categories must be maintained, so that the easing out and destruction cycle is established in practice. A records manager should spend an hour or two with each court administrator and his staff, briefly describing the costs and the realizable economies involved in maintaining records (for example, the cost saving in the individual court in terms of the equivalents in salaries). Without specifying individual courthouses, the failure of current systems generally can be demonstrated by pointing out cases of personal belongings cluttering vaults, and the number of file cabinets useless because stuffed with obsolete files. The records manager can explain the process which led to the present lamentable state (such as, no clerical time available for weeding out files, no guidelines). This should be followed by a description of the proposed new system and a plea for administration and staff support in its implementation. A periodic inspection will expose areas where, either through loss of interest or pressures of other work, implementation of the new system has lagged or been abandoned. A follow-up visit should take place within three months of the initial introduction of the system to a specific courthouse. The message must be brought home that the new system will genuinely assist everyone in his work. At the implementation stage, expertise is less important than the ability to meet and deal with people, to listen with detachment to criticism, and to remember that today's critic will be tomorrow's champion. In short, a good records program offers savings in personnel costs (handling higher volume with existing staff), filing and retrieval time (swift searches), material costs (less paper use), equipment costs (fewer files) and storage facilities (lower housing costs and more floor space). These in turn are made possible through the installation of a management system suited to the particular court environment, development of fewer forms, and the use of a retention schedule and its corollary—a destruction schedule. We have not probed in any detail the subject of microfilm and computer techniques in records management. While we note below the value of microfilming in records storage, the recent American University court management project was critical of microfilm use by courts, even for storage of records. That study asserted that the "cost of microfilming casetype documents is typically $40 per cubic foot compared to 54 cents per 250

Records and Space Management cubic foot storage [per year] for up to 75 years in a records centre. Since inevitably some documents do not photograph well, microfilm often produces records not satisfying archival requirements."11 The yearly cost estimate for file storage does not of course take account of inflation, and microforms demand only 2 percent of the storage capacity required for paper files. The success of British Columbia's use of microfilm for records storage, described in the next section, may allay some fears. Ultimately, one can foresee legislation sanctifying the early reduction of an original mortgage document to microform, with destruction of the original, out of sheer necessity. Only three provinces—Alberta, British Columbia, and New Brunswick—now use microfilm as part of records preservation. Computer memory is even less commonly used, being reported only in Alberta and B.C. (there only as an index to the filing system).12 Consideration of the trade-offs involving in choosing between manual, microform, or electronic data processing procedures in court records will become a critical problem to the administrator. A RECORDS MANAGEMENT PROJECT IN PRACTICE To Iend an added dimension of reality to the above discussion, a practical example is offered of the establishment of a centralized records management system in British Columbia. Although chapter 13 is devoted exclusively to an account of major judicial administrative reforms undertaken in British Columbia in the 1970s, it was thought more appropriate to describe records management reforms at this point, since it is probably the most practical and mechanical function of administration, and theoretical discussion should be matched with practical example." An inspection during 1974 of all courthouses in B.C. disclosed the need for a records management program; most of the symptoms discussed earlier in this chapter were present. Plans were then formulated in 1975: the first requirements were to find inexpensive warehousing in some central location in the province, and to convince the attorney general of the efficiencies and cost benefits which could justify the cash investment in the program. After an intensive search, appropriate warehousing was located in Vancouver, and a presentation made to the attorney general's department. The objectives of the project were threefold: 1. To initiate the movement of document files from high cost storage areas to a central low cost storage area as rapidly as possible. 2. To establish a document microfilm program to preserve case history information as well as efficient retrieval of such information when required. 251

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3. To standardize all court related forms to facilitate ease of training, provide greater staff flexibility and substantially reduce costs. Cost projections were as follows: 1. Initial expenditure to establish and maintain opera$ 42,215.88 tion for balance of 1976-77 fiscal year 2. Additional expenditures required for 1977-78 $ 27,793.50 fiscal year $105,980.10 3. Annual program operational costs Thus it will be seen that after initial start-up costs of $70,000, the projected annual operating costs were $106,000 per year. As against these costs, projected savings (not to mention intangible savings through increased efficiency), were as follows: $36,327 1. Annual cost saving of current file storage space A survey of the "dead file" storage space throughout all courts in the province was estimated at 12,109 sq. ft. Assuming a minimum value of $3.00 per sq. ft. for this storage function, an annual cost of $36,327 was incurred by the courts in the province. This figure did not take into account a possible 10 per cent per annum expansion increase which would result. $40,000 2. Annual cost saving on bulk ordering of forms An annual savings from the bulk ordering of forms was estimated at $40,000 per year. Some examples of the cost savings to be realized were as follows: (a) 20 orders @ 500 forms $642.80 1 order @ 10,000 forms 153.01 Savings

$489.79

(b) 50 orders @ 1,000 forms $1,930.50 1 order @ 50,000 forms 641.69 Savings

$1,288.81

An estimate of annual Provincial Court criminal form requirements alone was calculated at 1,413,204 forms. Assuming this figure accounted for 25 per cent of the total court forms requirements, an annual printing volume of 5,652,816 forms could be anticipated. 3. Subsequent cost savings from the re-availability of filing cabinets $60,000 A substantial number of the "dead storage" files were 252

Records and Space Management being stored in four drawer filing cabinets. Approximately 300 of these cabinets could be made available for future current file storage, thereby avoiding the necessity of purchasing additional ones. 300 file cabinets @ $200 $60,000 Thus, estimated savings from this program totalled $136,000 in the first year, and a minimum of $76,000 per year thereafter (not including the previous expense of purchasing additional filing cabinets). In addition, the following intangible and unquantifiable benefits were anticipated from this program: 1. Standardization of forms would aid in the training of court personnel and provide more flexibility in the transfer of staff amongst registries. 2. Standardization of forms would aid in the redesign of systems and procedures since, in many instances, the form dictates the procedure to be followed. 3. Distribution and control of forms from a central area would eliminate the "rush order" situations, which invariably result in air freight costs being incurred. 4. Control over revisions of forms would ensure that only properly approved forms are in use. 5. Standard forms would greatly assist the Queen's Printer in its operation. (The Queen's Printer gave its full support to this project. ) Redesign of forms would result in further economies. 6. The central storage of court documents would alleviate the critical space problems presently faced by several registries. 7. The central storage of court documents would eliminate the need for individual court locations to rent warehouse space. 8. The central storage of court documents would facilitate installing an efficient microfilming program, and eliminate the cost of a microfilm unit having to tour the province. 9. The establishment of a microfilm and document retrieval system would substantially reduce the time spent searching for aged documents. 10. The establishment of a microfilm system would provide the necessary safety precautions for retention of court documents. 11. When the backlog of documents has been microfilmed and the central forms process is under control, the operational costs would be reduced while savings would continue to be realized. An interim records manager was appointed by July 1976, requisition and distribution procedures drafted, a determination made of urgent 253

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forms requirements, and minor forms design changes initiated (with further redesign work to be done when sufficient time was gained) . Inventory control procedures were also drafted, a critical path and network analysis diagram prepared, and preliminary discussion initiated with the provincial archivist. It was not, however, until eighteen months later that the post of provincial records manager was permanently approved, and the position filled by a candidate of some fifteen years professional experience in the field. A staff of four was also approved, and a forms analyst ("records improvement officer") with systems analysis training and experience advertised for. All records over seven years of age are now being shipped from all points in the province to the central storage unit in Vancouver. Long life documents are being microfilmed, the files then being physically destroyed by shredding, burning, or ejection. It is estimated that records can be stored at this unit for one-thirtieth of the cost of storage space in the most expensive urban buildings calculated at current rental costs. This is possible because warehousing space can be rented at one-seventh the cost, and files can be stored on shelving four or five times as high as in office accommodation. All courthouses are sending their excess forms to the central inventory point, and a program of mass purchasing of forms from the Queen's Printer has been initiated to reduce printing costs. Forms manuals have been prepared containing province-wide standardized forms of letters, warrants, and other criminal court forms, as well as forms used in adoption, divorce, probate, and other matters by family, small claims, and county and supreme courts. General administrative forms are also being standardized. All of this provides the groundwork for mass purchasing of stationery. Files are categorized according to three phases: active, dormant, and for destruction. Microfilming may occur at phase one or phase two. The central unit performs microfilming services for small courthouses. By contrast, the county and supreme court registry in Vancouver microfilms and stores its own documents for seven years, after which files are physically destroyed. In addition, the central unit has taken on other supply functions. It is responsible for installing a uniform procedure for handling exhibits throughout the province, with standardized tags, bags, and cards. The central unit proposes the purchase of judges' and clerks' gowns. It already retains an inventory of sheriffs' stores. Court reporters are being similarly serviced. When the study began, the government printer had some 267 plates for provincial court forms alone. The study team recommended reductions to 102 and finally to sixty-seven. By the end of 1977, the number 254

Records and Space Management of forms had already been reduced by some 50 percent. This has obviously eliminated a multitude of costly orders from eighty-two different locations in the province, half of which contained minor but individual variations. The centre also receives copies of all new legislation to ensure that forms are consonant with statutory requirements. In addition, it researches forms presently in use and makes proposals for the development of standards, policies, and procedures to ensure consistency and to eliminate duplication in the creation of forms. The centre offers additional service in collating, maintaining, updating, and distributing the large numbers of training and procedural manuals now in use in court registries. It also maintains a registry systems and procedures advisory service, though this is currently a low priority. This brief description of the actual establishment of a centralized records management program at the provincial level illustrates the advantages to be pursued and the method of initiation. It may also be suggestive of the versatility which imagination and enthusiasm can inject into such a project.

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Chapter Ten Information Systems and Computer Technology The previous chapter discussed the physical management of records. But it did not attempt to answer the question: "Precisely what kinds of systems are to be installed in the modern court?" The purpose of the present chapter is to attack this question, and to deal with some of the issues which flow from it. The subject is complex, and complex subject matter usually carries with it difficult and conflicting problems, characterized by an absence of consensus as to how they should be solved. Conflict of opinion as to how to proceed is not, however, the dominant problem in applying management information system (MIS) theory and computer technology to courts. The overriding difficulty arises from the nature of court processes. Management information systems and computers perform best when they can deal with a large volume of routine, homogeneous, and operationally repetitive facts (such as accounting entries). Court operations on the other hand are characterized by what is described as "randomness": that is to say, the facts or events being recorded tend to be unpredictable, exceptional, original, non-repetitive. It is dealing with this randomness that presents the challenge in the application of computers to courts. For this reason, the application of these techniques have lagged in the court field and failures as well as successes have been witnessed in the attempt. Even today, computers are commonly used by courts to keep financial records, but less frequently used to schedule trials. Information systems have been developed to collect data, but not always to analyse and use them. Increasingly, however, high volume has forced the entry of these techniques into the court field. It is the argument of this chapter that MIS and computers must be understood by judges and court administrators so that potentially valuable applications can be explored and evaluated. New systems and technology are not in and of themselves answers to court administrative needs, but analysis of the costs and bene257

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fits of these new tools may suggest many settings in which they can help produce important improvements in court operation. MIS: DEFINITIONS AND FUNCTIONS

The object of any writer on this subject, who wishes to be understood rather than to be admired, should be to reduce the subject to plain common-sense terms. First then, a few simple definitions and notions. To begin with, for our purposes a "management information system" is nothing more than the organization and processing of relevant information (case records and non-case data) to assist in managing the court (providing rationality), and generating information to reveal how successful that management is, and to plan for future changes (coping with change). Hence we have the phrase "management information system" —a system to provide information for and about management. Note also that we have chosen a broad concept that encompasses operations as well as planning, that speaks of organizing data for implementation as well as for decision making. Put formally, a management information system has been defined as "a communication process in which information (input) is recorded, stored and retrieved (processed) for decisions (output) on planning, operating, and controlling."' Such a system takes data (discrete, identifiable, and definable pieces of information such as items on a charge account), processes them (sends out the billing), and then converts all the data into aggregates (adds up all the billings to all the customers) to provide statistics to enable management to control its business and undertake planning for the future (for instance, should credit to customers be decreased or increased? If increased, will it require further financing for the business?). A management information system can be organized to perform all these tasks automatically, and at regular intervals. The above example is relatively simple to organize. Hence one finds such systems in wide use in accounting, budgeting, personnel, and other such fields. However, application becomes more difficult and confidence in results diminishes when this organization and technology are transferred to more complex areas such as caseflow management. Note that a management information system is separate and distinct from "automation" or "computerization." A management information system can be operated with pen and ink and a set of ledger books. It is the way the system is set up and used that defines it, not the method of keeping the records. Furthermore, automation and computerization are themselves two different things. Automation is simply a matter of replacing people and very simple machines, such as typewriters and adding machines, with 258

Information Systems and Computer Technology more complex and sophisticated machines, such as automatic typewriters or automatic court recorder devices. They may involve the use of simple arithmetic, but without memory. In the sense normally used, then, automated machines are limited to recording and retrieving data. They are unable to perform the complex logical and comparative activities that make up the actual function of computing. It is the logical and memory capability which sets the computer in the highest rank of modern management technology. While it is in essence simply a further extension of automation, its capacity to store data in its "memory," and to retrieve them in reassembled (computed) form according to programmed instructions, converts a difference of degree into a difference of kind. Suppose you were asked to design an information system for a court. You know your task is to devise ways to count events occurring in the courthouse, and organize and plan what you have counted (aggregate your data) so as to increase the effectiveness of court administration. There are four functions that can be facilitated by counting: 1. Daily operations. A management information system is necessary for a variety of operational functions: accounting (including payroll); personnel records; preparation of daily court dockets (listing the cases scheduled before a particular judge in a particular courtroom); preparing lists of prospective jurors; collection and disbursement of fines, fees, child support payments, and money paid into court on judgments and settlements; and recording dispositions such as adjournments, guilty pleas, acquittals, and judgments. Many of these operational functions are routine; the rules and particulars are well defined; the tasks have less discretion and can be clearly and completely spelled out; economies of scale are apparent. For these reasons the first systematic design—possibly leading to a computer—often begins at the operational level. 2. Control and Monitoring. Any manager ought to know whether he is doing his job. In a viable organization, a manager obtains this knowledge not simply by observing the satisfaction of his superiors and subordinates, but by evaluating whether he is contributing to the effectiveness of his organization. Evaluation has become a central focus of management; today's administrator is pre-eminently an evaluator of his own and his organization's performance.2 Evaluation requires a standard or set of standards against which to rate one's effectiveness and the effectiveness of one's organization. These standards, or goals—short term and operational, or long term and abstract—may be relative (are cases proceeding faster this year than last year?)—or absolute (are we setting cases down for trial in sixty days?). 259

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They may be intuitive and subjective (case processing is more effective because fewer lawyers became impatient with us last week; I must be working harder because I'm more tired out at the end of the day) or rational and objective (we are handling 20 percent more cases with the same staff; there have been 15 percent fewer criminal case adjournments since we began the new witness management program). A management information system provides for evaluation of a more rational, quantifiable, and objective nature. It translates the basic question in evaluation—how do I know I am achieving my goals?—into an almost imperceptibly but significantly different question—how do I measure whether I am achieving my goals? An MIS assumes that evaluation requires counting. If the system is well designed and properly used, the role of intuition becomes secondary to measures of performance or indicators based on events that can be counted (cases, appearances, files, complaints). Management information systems therefore shift the courts— or any organization—still further from a traditional or pre-bureaucratic model to a more rational one. However, to the extent that an MIS is output-oriented (insofar as it measures the number of inputs processed and the variety of outputs generated) it reflects an open system perspective. The MIS is then rational without necessarily being highly bureaucratic —without stressing conformity to internal rules rather than achievement of external organizational objectives. It can, therefore, contribute to the development of a post-bureaucratic style of organization. A management information system—again, if properly designed and properly used—can tell you what you have been doing and provide the means for yod to determine how well you have been doing it. For monitoring, data listed and recorded in operating functions are aggregated and reported. The reports most commonly used for monitoring are financial reports. A more highly developed MIS can provide a variety of reports useful in caseflow management: status reports that show numbers of pending cases per judge; aging lists that classify cases from oldest to newest, or flag those cases which have crossed certain time lines (ninety days or 180 days); case inventories that give total numbers by major categories, the number of cases disposed of within a certain period (as, for instance, one month) compared with the number of new cases in that same period. Reports listing persons held in pre-trial custody would also provide important clues to court performance. Reports of this nature allow an individual judge or a chief judge to find out whether an operational system is under proper control, and, if not, to suggest how to bring it under control—in the sense of controlling an inventory. Inventory control is often part of an MIS because information allows timely and viable resource allocation decisions to be made. In caseflow management, inventory control means monitoring to ensure that all cases are heard within a reason260

Information Systems and Computer Technology able period of time, given the circumstances of the particular type of case, and keeping the total case inventory at an acceptable size. Monitoring may also focus on exceptions, identifying items not under control, and finding out the source of the problem. This process of "management by exception" will be greatly facilitated by MIS. To achieve effective monitoring, a court management information system must give details which are easily accessible. The difficulty with many court systems is that they count different things from month to month or year to year, depending on which judge or administrator is asking for information. Hence comparisons become invalid, and no conclusions can be reached on the basis of firm knowledge. 3. Planning. An MIS can gather information which enables us to estimate future demands on the system, the necessary resources to meet those demands, and the costs of alternative methods of obtaining those resources. Present system performance can be matched against anticipated demands (incremental planning) or system goals (comprehensive planning). In most cases, planning simply involves expanding the scope and variety of aggregate data already generated for monitoring purposes. It attempts to measure the future impact of current decisions. Thus, financial reports become one basis for budgetary planning, and personnel reports become part of manpower planning. Case status reports can provide data on additional factors that affect case processing. For example, experience has demonstrated close correlations between types of offences and length of trials, as well as the length of an entire case from inception to completion. Thus, carefully worked out data covering volume and type of offences could form the basis for decisions as to judicial manpower requirements (the number of judges required for a given court in the next fiscal year), court staff requirements and deployment, and facilities expansion requirements over the next five years. As with monitoring, planning again requires clarity and consistency of definitions. If you change the things you are counting, then you have lost all basis of comparison with past counts and find yourself once again at sea, without adequate information as to how your system is functioning or where it is going. 4. Public information. This is an age of accountability, when the public considers itself entitled to information about its public institutions. The courts are no exception. It is the duty of the court administrator to give that information, and to give it honestly, though tact and judgment must be exercised to guard against distorted statements in the media, or statements based on partial information. Status reports on criminal and civil cases, used in monitoring and planning, provide extensive aggregate 261

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data to which the public is entitled. Are inputs increasing, decreasing, or remaining stable? Are dispositions increasing, decreasing, or remaining stable? Are outputs keeping up with inputs? If these indicators of court system performance were available to the public, statements based on incomplete information might be avoided, or properly refuted. Even when data are available, it is often tempting for managers to take steps that improve their statistics without improving performance. An example occurred in the United States in response to a local drive to reduce backlog figures. The court in question had enormous numbers of pending cases because the backlog included all inactive cases. An ingenious court administrator pressed for a court rule that any case on which no action had been taken for a given period of time (twelve or eighteen months) should be stricken from the court list. Once the rule was implemented, the court was able to remove all lagging cases from its lists, and report a substantial reduction in stated backlog. Lawyers and litigants soon discovered, however, that despite a 20 percent reduction in backlog, it still took eighteen or twenty-four months from setting down to trial. DESIGNING A MANAGEMENT INFORMATION SYSTEM: WHAT

Do You COUNT?

The essential consideration in designing a new or an improved information system is that it be so fashioned as to expose weak points in the process by collecting information relating to them. Nothing is achieved by superimposing sophisticated technology on a manual system which is badly designed in the first place. For information to be useful, we must remember that management is a continuous process that can only be served by systematic retrieval and reporting of data. The alternative is a situation where no systematic data are available, and a research/consultant team is sent in on a one-shot basis. If the team is unable to reconstruct the data, they are either stalemated, or they advocate a pre-designed formula solution borrowed from other jurisdictions, without adequate knowledge of local circumstances or local impact. But what data do you count? One might assume it is safe to say that a court management information system should count cases. But many do not. Criminal justice consultants in the United States usually argue that, on the criminal side, defendants should be counted. In Ontario, the Department of the Attorney General set up an MIS that counted charges rather than cases or defendants. In British Columbia, the Provincial Court MIS counts informations (save where two or more accused are named in an information, or the trial of co-accused are severed, in which event 262

Information Systems and Computer Technology accused are counted). In short, there is no agreement as to the most useful and workable unit of analysis. The lack of consensus on what to count reflects the differing orientations of justice system components. Consider once again the criminal side. A crown-defined MIS, designed to meet the needs of the prosecution, is likely to count charges, reflecting prosecution concern with clearing offences through the courts. An MIS that is oriented toward the overall criminal justice system is likely to count defendants, since a person can be followed from police to prosecution to adjudication to correction phases even though his status changes from accused to defendant to convicted person to probationer or parolee. A court-focused MIS is likely to count cases. Contrast the criminal side with the civil side. In civil cases, the court does not find itself working alongside other powerful governmental institutions such as crown attorney's offices and correctional departments. As a result, person-oriented criminal information systems give way to action- or case-oriented civil information systems. An MIS for civil cases might count the number of writs filed, and would be unlikely to count the number of plaintiffs. Clearly then, what information is captured and processed should be based on what is needed to achieve the court's goals, consistent with broader social goals. For courts to decide what to count, therefore, they must define their own needs. They must ask some basic policy questions: 1. What is the purpose (what are the goals and current objectives) of court administration? 2. What must management know, not only at the operating level, but at all levels of court administration? 3. What data should be gathered to support administrative goals and objectives? 4. What are the units of measurement? 5. Are the judiciary and court administration of one mind on the large and growing issues relating to the importance of security and privacy of the individual citizen? Are there well stated rules? Unless consensus is reached on this point, serious conflicts can arise in the midst of conversion from manual to more advanced technologies. 6. What are the linkage functions—that is, with what other agencies should you interface? (For example: sheriffs? corrections? local police or the RCMP? CPIC—the Canadian Police Information Centre?) For both technical and policy reasons, this is a vitally important matter, to be agreed upon by all system agencies before computer technology is introduced. Policy issues surround both the demands for individual privacy and the degree of integration desirable for criminal justice agencies. 263

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Consider some illustrative problems. If you are an administrator in a superior or county court with a traditional view of civil caseflow management, you would not monitor the number of writs issued in your court, but begin by counting the number of cases set down for trial, since management responsibility has been defined as beginning from the point of setting down. You would count cases, defining them as actions set for trial. On the other hand, if the caseflow management approach advocated in chapter 8 were implemented, you would count cases beginning with the issuance of the writ, so that the lapsed time from issuance of the writ to setting down would be monitored along with the lapsed time from setting down to trial. If data are used for projecting resource needs, units of measurement for cases must include some kind of case weighting system. For example, complex indictments or civil cases may involve higher average (mean) times for trial, and a greater number of preliminary court appearances. The best known attempt to develop weighted caseload measurements has been in California, where a major study was submitted to the state judicial council in December 1971 and subsequently updated in May 1974. Briefly, this study arrived at predictions of future judicial manpower requirements based upon an analysis of seventeen different types of criminal cases and twenty-six different types of civil cases, and the average time required to process each type. The study has won both supporters and critics. The latter question its pretension to predict judicial manpower needs in that it ignores the elusive issues of fast-working as opposed to slower-working judges and urban-rural variations in time requirements. Other questions are rooted in the complexities and vagaries of litigation generally, multi-defendant indictments, the failure to take into account geography and judges' travelling time (which exceeds 25 percent in rural areas), demographic factors such as aging of the crimeprone by crime categories, local cultures which differ from centre to centre within the practising legal community, prosecution capabilities, and seasonal fluctuations. In short, the factors which affect the processing of court cases are numerous, complex, and interacting. One is led to assume that this excellent experiment can gradually be refined to accommodate some of these ingredients. This brief comment on the California study, and subsequent reflections upon its reliability, are offered merely to emphasize not only the complexities in determining what should be counted, but the scrupulous and farsighted care which must be invested in defining the countable quanta. It is true that short-term case weighting is frequently crude and intuitive, as a judge estimates the likelihood that the coming day's schedule is full; but as numbers grow and projections move further ahead, intuition alone becomes inadequate. In summary, deciding what to count—establishing a unit of analysis264

Information Systems and Computer Technology is a difficult task. From the court's perspective, it appears at the present time that the case remains the most useful unit of analysis in criminal as well as in civil matters. A civil case begins with a writ, a criminal case with an information. Different types of cases should be given different weights when counting is used in resource allocation and planning. Consideration should be given as to how court data on cases might relate to that from other organizations that interface with the courts. Meshing court generated statistics with police statistical requirements is very difficult, and no successful attempt appears to be in sight. The same is true, though to a lesser extent perhaps, as between courts and crown counsel. Natural areas exist for meshing with mutual benefit in the caseflow field. This remains a largely unexploited field of planning. Wrestling with these questions brings home a fundamental point—the necessity for a design strategy. The preliminary essential steps are, first to state the system's goals and objectives in specific terms, second to define the problems and, third, to evolve therefrom a gross design and data flows of the proposed new system. Alternate designs may subsequently evolve, from which one will be selected in consultation with judges and staff. This preliminary analysis will define the long range goals and basic strategies arising out of the court's function as an institution built on the ideal of dispensing justice; the points at which administrative efficiency supports or threatens justice; and the large problem areas (case backlog, case aging, trial collapse, witness wastage, personnel and fiscal administration and control, relationships of judiciary with administration and the bar). It will also state the short and middle term objectives considered necessary to achieve the court's goals; this must be done in specific, not generalized terms. Having evolved a gross design, one is then, and only then, in a position to return to the question of what to count. Once again, however, a natural sequence arises. One must first determine what is to be counted in terms of aggregate data; and following that, of detailed data elements. First then, let us deal with aggregate data. SYSTEM DESIGN: AGGREGATE DATA

From inventories of data which identify and describe specific cases, aggregate data (what administrators term "statistics") can be developed covering the following: 1. Length of trial by types of cases 2. Number of cases filed 3. Number of cases terminated 265

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4. Number of active cases 5. Number of inactive cases 6. Lapse times (in civil cases) (a) from issuance of writ to filing of defence; (b) from defence to examinations for discovery; (c) from discovery to setting down; (d) from setting down to trial; (e) from trial to judgment. 7. Lapse times (in criminal cases) (a) from arrest to first appearance; (b) from first appearance to preliminary hearing; (c) from preliminary hearing to indictment; (d) from indictment to trial; (e) from trial to disposition; (f) from disposition to sentence. 8. Lapse times (in appeals) (a) from notice of appeal to hearing; (b) from hearing to judgment. 9. Number of cases tried 10. Number of cases settled before trial 11. In criminal cases, sentencing patterns by type of case, area, etc. This listing of required data (that is, required for purposes of day to day operations, monitoring and control, planning, or public information) in organized form should be supported by flow charts, or "block" diagrams, which are prepared by systems analysts to depict in visual form the respective court processes as a part of system design. Figures 13 to 15 provide examples of this work.3 All three are charts of existing, not newly designed systems. But they are important initial steps in the redesign process, prior to the installation of management information systems. No new system can be designed (in terms of revised forms, documentation, paper flow, and administrative procedures), until the existing system is understood in meticulous detail. Figure 13 is a simple schematic depicting in broad terms the caseflow paths in provincial criminal court. Its purpose is to give the analysts an initial overview of the system they are undertaking to redesign. Figures 14 and 15 depict the more detailed flow charts setting out existing documentary and clerical flow paths in supreme and county courts, both criminal and civil. These flow charts enable the systems analyst to redesign more efficient forms, shift work stations, reallocate clerical workloads, and change paper flows to build a more productive registry. Figures 14 and 15 become immediately clearer if the standard symbols used in them are explained: 266

Information Systems and Computer Technology

Represents a point at which a "yes"— "no" decision is made in the processing.

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Represents a clerical processing point.

end of process

The terminal point in a flow path.

A point at which documents are created and enter the flow path.

The station or official through or past which the flow path moves.

offpage connector

Identifies the page to which the reader should turn to follow the particular path being illustrated.

Indicates to whom documentation should be forwarded.

Indicates where operations merge into one.

267

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CHAPTER TEN

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(CPU). The bottom unit (file storage devices) will employ one of the data storage systems we have described (punch cards, tape, or discs). Input devices are key punch machines with sets of keys similar to those of a typewriter. Output devices are either the familiar TV-like display terminal (CRT), or typed printout machines. It will be observed that the data flows from an input device to the central processor, where the computer's "work" is done; thence either to a data storage unit or directly to an output device. The control flow is, however, different; it flows from the control device to all the other units, thus providing overall coordination throughout the system.5 The cathode ray tube display panel (CRT), the television-like device with the typewriter key manual below, may be linked with the various types of computers for immediate input and access of data. It is connected to the computer by telephone wires and therefore provides what is called on line ("hard wire") remote entry procedure ("remote entry," because the display panel and typewriter manual on which messages are entered are at a remote distance from the computer). Messages typed in at the terminal are recorded in memory at the computer and stored in one of the devices noted above. The remote entry procedure allows one to type in information from a place distant from the main computer; the equipment used to do this is connected to the computer by a line of telephone wire or cable; since one can have many such equipment packages along the cable lines, they are said to be "on line." For our lay purposes, understanding the computer is largely a matter of reducing the technical jargon to simple and familiar words. Tapes are usually "off line"; that is to say, directly at the computer site and directly wired to the computer, not relying on phone lines. Remote entry CRT with the now familiar keyboard may operate on what is known as a "real time" basis. That is to say, it 279

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possesses an on line immediate update capability. This means that the airline ticket agent can search the computer to determine that a spare seat is available for you as a passenger, then immediately book that seat on your behalf by typing input data into the computer on a typewriter keyboard; thus immediately reserving that seat in the airline flight seat inventory. In other words, the processing of data input into the system to obtain a result (such as your airline seat reservation) occurs virtually simultaneously with the event generating the data. We have attempted to describe computer technology in the briefest terms, under three separate heads: storage devices, computer mainframes, and display terminals. The court administrator, however, should also be aware of more recent and accelerating developments in technology. Mass storage technology is advancing rapidly. The newly developed "bubble memory" relies on crystal structures as storage material. Laser beam technology is now in use, which contemplates data storage on a film of laser light beam. "Buffered" terminals have also appeared, which have a memory element built directly into the terminal, rather than in the computer mainframe which is located at a distance. Likewise "intelligent terminals" now have a logic function built into them rather than it being, again, contained in the distantly located CPU. Finally, the last five years have witnessed a dramatic shift toward miniaturization and low cost with the development of the "minicomputer." Extensive computerization in the courts has already become practical in terms of both technology and costs, with the advent of the minicomputer. Now miniaturization promises to supplant the minicomputer in favour of the "microcomputer"; a small "stand alone" microcomputer is already being marketed which promises computer services at affordable cost, without the need for experienced data processing personnel, for use in one-courtroom court houses. A separate advance in mass data processing is marked by the appearance of so-called floppy discs. It is reported that an entire conference can now be recorded on three or four such discs, which can then be mailed in to any minicomputer centre, attached to a word processor, and converted into a several-hundred-page transcript, with a fifty-minute transmission time allowed for on the word processor. Conventional disc-packs are larger, and better for larger masses of data. Floppy discs are superior in versatility and portability, are useful in management and planning, and are also gaining general acceptance in space-saving memory bank use. The claims advanced on behalf of floppy discs are also a reminder that computers and word processors are moving closer together. The struggle to introduce automated word processing—so promising a concept in the court reporting area, and so long heralded—is no stranger to failures. In 1977, a pilot project was launched in Ontario, supported by a $40,000 grant from the Donner Canadian Foundation, to test a computer-assisted 280

Information Systems and Computer Technology transcription (CAT) technology. Only one satisfactory transcript was produced. A second planned experimental project was abandoned, because of rising costs.6 Similar experimentation is now under way in Alberta. One of the principal difficulties has been that the court reporter must also be, so to speak, "reprogrammed" in the use of symbols which the word processor can "understand." Technological advances have been so rapid in this field, however, that the availability of reliable equipment appears to be imminent, and the appearance of floppy discs would appear to support this hope. Transcript delay is one of the most serious and, thus far, stubborn difficulties faced by the courts in expediting trials. COMPUTER APPLICATIONS IN COURTS A number of strategic decisions must be made by any court system considering whether it should adopt computer technology to assist in operations, monitoring, and planning. The list below suggests some of these, and provides a prelude to discussion of specific problem areas that must be considered in applying computers to court management information systems. 1. What part of the MIS should remain manual? 2. Should part of the system adopt microfilm and its related technologies? 3. Should computer technology be attempted, and what is the available hardware? 4. What are the cost benefits and trade-offs involved in the above three technologies, or in a judicious mix of all three? 5. What backup equipment, capabilities, and procedures should be adopted to ensure uninterrupted production flow in the event equipment suffers "down time" (a euphemistic term meaning a breakdown or some intended interruption )7T 6. If computerizing, should the software packages be imported, or of local design? 7. If converting from manual to more advanced technologies, what is the time frame? 8. If a computer is adopted, what combination of "batch" and "on line" processes should be used? 9. What programming (EDP) language is to be used? 10. What training programs are required in order to convert? 11. Have other subsystems been ignored in the applications program? 12. How is acceptance by the users to be won? 13. Should reliance be placed on in-house or imported consultants? 14. Is there available expertise in terms of analysts, programmers, and operators? 281

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Note, however, the proper sequence here. The court administrator and chief judge, along with the others with whom they are working as part of a task force or committee, must (as discussed earlier) first determine what management and planning data are required. Only then should the management committee consider what types of equipment will best yield the data within the financial restrictions imposed by the budget. Among the issues that must be considered are: accessibility, cost, software characteristics, personnel constraints, and control of the computer service. 1. Accessibility. As stated, computer tape, like the computer punch card, has a "sequential access," which is analogous to having to roll out a piece of scroll or run through a deck of cards, until you reach the right point in the scroll or the right card. This takes time, even several minutes. On the other hand, as previously stated, disc-pack possesses "random accessibility," rather like a book which you may open at any given page, or a file cabinet which you can open and read immediately from the desired file. 2. Cost. Cost factors have already been referred to in passing. Until recently, the cost of converting to a computer has been heavy, and consequently could only be justified in very high volume court situations. A steady reduction in the cost of computer technology has now reversed this situation. Microfilming, for example, was initially less expensive than a computer. But, in recent years, cost differentials have shrunk to the point where the former is no longer cheaper. Film costs have increased. Photography is labour intensive. There is, therefore, a trend away from microfilm to computer technology. Moreover, as already mentioned, in the last few years computer applications in courts have enjoyed fresh impetus through the use of minicomputers, and now microcomputers. Mini- and microcomputers are relatively economical, and are therefore solving the cost problem. They are also highly adaptable to specific court situations, since they can be custom designed for virtually any package of desired programs. Their capacity is unlimited in practical terms when linked to large computer facilities now available through governments and universities (though most recent designs do not require linkages to a large CPU). This breakthrough offers economy with program flexibility, and promises to place computer technology at the heart and core of court administration. One of the difficulties of EDP equipment is obsolescence. Approximately every five years a new generation of computers emerges, with a consequent pressure on management to convert the complete data base from the obsolete machine to the newer model. 3. Software Characteristics. "Software" has a variety of different mean282

Information Systems and Computer Technology ings, but is a term generally used in contrast to "hardware" (computer machines) to refer to all programs which can be used on a particular computer system. It may consist of a single sorting program in punch card batch processing, or of many sorting programs. It may refer to an entire program involving the input of data into the computer in the form of symbols in various computer languages (for instance, COBOL, FORTRAN), as well as the input to the computer of instructions as to how to combine, sort, or otherwise deal with the data so as to yield back either the data themselves, or various combinations of data in the form of trial lists and reports, as previously described. The design of the software package is of immense importance. The computer programmer will calculate the size of the various "fields" (a field is a given number of letter or digit spaces on the card tape, disc, or whatever, to allow for insertion, for example, of a name or a case number). Initial design must allow for growth and changes. If it is necessary to change the field sizes, or file sizes, then the court administration may be forced to purchase or rent a larger printer or other piece of equipment, or to double input time. Thus, the price is high for casual programming in the original instance. 4. Personnel. At the design stage the court administrator must ensure that he has a system team appropriate for the job to be done. He may, for example, need only one analyst but six programmers because of the volume of coding to be done. The court administrator will require a project manager with technical knowledge and, perhaps even more important, the ability to manage professionals, because systems designers engaged in creative work may require direction and standards different from those used to supervise performance of routine tasks. The court administrator will also find that systems designers and analysts have a different orientation than officials within the courts. The careers of systems people are normally outside any single institution such as a court; their professional interests focus on their distinctive approach and techniques, not on the courts or any other organization for whom they are doing a specific but temporary project. S. Control of the Computer Service. Control relates to three real and growing concerns both on the part of the public and of those administering with the aid of computers. These three concerns are privacy, confidentiality, and security. Privacy raises the question: "Does that public or private agency get information about me?"; that of confidentiality asks "If that agency gets information about me, who else will it give it to?"; and the concern of security is "If that agency gets information about me, who will steal it, if it is not given to them?" These anxieties are reflected both federally and provincially in either existing or proposed privacy legislation. 283

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Concerns as to privacy are justified. In 1972 it was estimated that there were over 2,500 organizations gathering personal information on private citizens in Canada. Many of these organizations exchange information with or without written restrictions. A 1972 report by the federal departments of Communications and Justice expressed its concern through Michael Harrington's corrosive comment that the computer is "an enormous potential source of arbitrary, impersonal power which folds, bends, spindles and mutilates individuals but keeps IBM cards immaculate."8 Growing public concern has extended even to the use of social insurance numbers. Unease was expressed by a member of the MacDonald Commission on the RCMP that the federal force was using social insurance numbers to gather information in spite of the expressed intent of parliament in enacting the Canada Pension Plan in 1965, that the numbers be used only in connection with the pension plan and not as part of an effort to give every Canadian an identification number. Yet the RCMP is not alone in its use of social insurance numbers. It is common practice for police departments across Canada to use them as well as fingerprints for criminal identification and department stores and other businesses do so for other purposes. Every British Columbia Provincial Court criminal information contains the accused's social insurance number, although the B.C. corrections service no longer records it. While apprehensions concerning privacy arise from manual as well as semi- or wholly automated fact gathering systems, confidentiality problems are closely related to, and aggravated by, the appearance of the computer. This is because the computer is geared, in terms of both technical and cost efficiencies, to cross-system operations. This raises particularly sensitive matters for the courts. Dennis M. Hartman in his study, "Policy Issues for Privacy," has spelled out the issue in terms of the overall justice system: Current legislation affecting the justice system places the authority for collection, control and dissemination of justice information in the hands of justice agencies. Responsibility for confidentiality is also imposed by statutory requirements. When a computer system storing such records is not dedicated to Justice, its control is then not under the proper agency. By lacking management control over system operators and programmers, correctional (justice) officials cannot assure legislators that the data is properly protected. Without specific statute sanctions for improper disclosure, the only control mechanisms are administrative. Dedication, implying a totally separate system, can be further argued as a defense against the possible compiling of personal data files. If the system is dedicated, there is less chance that an efficiency minded system developer would create a single "dossier" file by linking health, 284

Information Systems and Computer Technology welfare, and justice files. The eagerness for more data about people and for cost reduction can endanger an individual's right to privacy.9 This is not an abstract concern. In 1977, the British Columbia Systems Corporation (BCSC) was formed to "rationalize" the proliferating growth of computer systems within the provincial government. It consolidated fifteen computer sites into two, Vancouver and Victoria. This move to rational and cost efficient computer services, laudable as it was, created the very cross system threat foreseen by Hartman. Thus the argument runs that every attorney general's department should have its own dedicated computer. But it is precisely this proposal that unsettles the judiciary, which views with a skeptical eye the prospect of entering into partnership with other users of court data (as, for example, police, prosecution, and corrections)—even if those users were entitled to access such data only on a restricted and classified basis. This confidence gap is to some extent shared by court administrators, who are rightly concerned with the confidentiality of their records. It is difficult to convince them that data in criminal, and especially in the matrimonial and juvenile matters, will not be accessible to unqualified personnel. As they and the judges view it, the need for a unified and concerted effort to enforce the criminal law does not mean that law enforcement officials should have complete access to information in the hands of the court. For example, juvenile matters heard in closed session by provincial family courts should not find their way freely into police records. Thus, integration of information services even within the attorney general's department is seen as a threat to confidentiality. Against this skepticism, others argue the realities of operation and cost. Again, as Hartman puts it: "Workload becomes an important variable in this debate. Is a dedicated system an economically justifiable alternative? Cost and effectiveness should be the sole determinants of this particular debate. Privacy in this context may well mean a lowering of overall system efficiency."10 For example, if a court is generating trial lists indicating the cases scheduled for a given courtroom on a given morning, these lists must be distributed not only to judges, court administrators, and court reporters, but also to crown and defence counsel, police and the public. Computers take on added justification if they can be used on a total systems basis, that is to say, used not only by the courts but by sheriffs, members of the bar, court reporters, and all other subsets of the justice system. The unit overhead cost of the computer declines with the number of applications to which it is put. Furthermore, the reality of current court administration reinforces the pressure toward integrated information systems. In every province, prosecution and court administration functions are located within the same governmental department, increasing the like285

CHAPTER TEN

lihood that only one system will be developed for both components. Even if Ontario adopted the judicial council format recommended in its 1976 White Paper, the attorney general would retain control over the court MIS. The security issue—what illicit access is there to information?—is a large subject in itself. The employment of computers has increased the amount of data created by and available to governments, but it has not altered the real problem of security in courts. The fact is that the agencies most likely to give away information remain those that collect the information in the first place. The main security question involving manual and automated court record systems is the possibility of informal access —not directly to the computer memory—but to provincial court clerks' offices and files, not only by police, but by collection agencies, private detectives, and other unauthorized but regular seekers of court information. The computer simply presents an old problem in a new guise. It is in the clerk's office that court administration must establish strong and clear rules that protect the privacy of those involved in court proceedings. An example of this may be seen in British Columbia, where the development of minicomputers, previously referred to, has accelerated the trend toward computerized record keeping in the courts. They have replaced a dedicated manual system with a "piggybacking" computer approach. Data from court lists are collected daily and entered into a minicomputer. The data are then processed by one of two large computers operated by Simon Fraser University at Burnaby, and the British Columbia Insurance Corporation in Vancouver, thus ensuring instant computer time availability. Once again, experience with the minicomputer linked to a larger computer (and, as stated, it no longer need be linked) has made it apparent that the only practical manner of accessing information is not at the site of one of the large host computers but precisely where information has always been illicitly accessed in organizations— namely, back at the administration office where the records are kept and are readable to the human eye. Much of the data created by computers is aggregate data, gross statistics (totals, averages) which are not an invasion of the privacy of any one individual. Information relating to specific persons has always been collected and retained, but it has been done manually. To a large degree the security problem exists, and will always exist, independently from computers. Computers render information on individuals more rapidly retrievable, but not more easily so if the records office maintains its standards of integrity. The issues are complex, offering no easy balancing of state power versus individual rights, or the authority of one system component as against another's. It now begins to appear, however, that the new advances in computer technology associated with mini- and microcomputers 286

Information Systems and Computer Technology will put to rest at least one of the problems relating to confidentiality, since each subcomponent could now have its dedicated computer. Furthermore, Hartman argues, critics have overlooked the capability of system design procedures to ensure confidentiality. Dedication controversy should not restrict the process of procurement and computer equipment responsibility. A non-criminal-justice agency can own the "computer," provided that the criminal justice agency which "owns" and has responsibility for the data has sufficient management control over programmers, operators, terminals, input-output devices, and the storage media." In summary, the issues of control—whether in data collection, access, dissemination, purging, sealing, and storage—are real and important. Judges and administrators must be prepared to spell out how their systems of data handling, whether manual, semi-automated, or computerized, deal with control. This issue is among a number of technical and policy matters that are raised when MIS and computer applications are considered in courts. MIS, COMPUTERS, AND CASEFLOW: A SUCCESS STORY A number of court systems in the United States have eliminated or reduced backlogs with the aid of computerized management information systems. Judge James B. Zimmermann, a superior court judge in Dallas, Texas, has argued, for instance, that backlog elimination would have been impossible in his court without the aid of a computer. One lesson to be learned from the Dallas experience is that management must be heavily involved with systems analysts from the preliminary planning stages through to programming and ongoing supervision of the project. Zimmermann himself studied data analysis for eight months prior to implementation of the program. He lists four requisites to success. First, a dedicated and willing judge, committed to the demands of the situation. Second, a well-conceived but simple and adequately tested plan, free of programming defects. Third, competent personnel to implement the system. Fourth, a top court administrator to direct it. The goal of the Dallas operation was to eliminate the backlog while keeping present cases current, and preventing the buildup of a future backlog. In March 1968, Judge Zimmermann's backlog was 1,004 cases. In August 1974, he had a working inventory of only 104 cases, while the crime rate was on the ascent. By December 1980, his inventory had increased to more than 200 cases, but was still well below the 1968 figure —a substantial accomplishment since the number of judges in Dallas in 287

CHAPTER TEN

1980 was half that of Houston, and the two cities' criminal courts were handling the same caseload. The Dallas computer-aided information system was reinforced by an austere continuance policy devoid of sine die adjournments, and an insistence on termination of aging cases. The court was committed to early and continuous control of the case from its inception. The sound proposition was that immediacy of trial disposes of cases. Policy was also based on the premise that a court with time available will dispose of more cases than one constantly sitting in trial; for if it is ready to hear the case, counsel will also be ready for trial, and the constant round of adjournments vanishes. The reform operation was combined with a program to educate prosecution and defence counsel to the new policy relating to adjournments. It is Judge Zimmermann's assessment that the computer operation "has made the difference between a good system and a mediocre system." The Dallas MIS generates regular reports classified according to type of charge and method of trial (jury and non-jury). It is flexible, current, immediately retrievable, and easily readable in plain English. It reveals a wide range of management information, including current and accurate inventory statements of cases. It further provides indexes, automatic calendaring, and research and planning data (see figure 17 for a sample of the first page of that court's weekly summary). The system is administered by a competent staff with high morale. This operation is facilitated by the fact that a computer terminal is located in the office of each judge's court clerk, which office is next to the judge's chambers, thus permitting the court clerk to key relevant data into the computer on leaving the courtroom. This reduces the possibility of error to the human minimum. Obviously, courthouses cannot be redesigned to accomplish this. But, meanwhile, costs of computer terminals have dramatically fallen, with current rental rates becoming a negligible factor in relation to overall cost. Low terminal costs, combined with miniature processing units, promise to revolutionize record keeping procedures even in small court houses. Success, however, presupposes sound system design before operational implementation. THE STATUS OF

MIS

AND COMPUTER DEVELOPMENT IN CANADA

After a slow start, the emphasis on management information systems and computer development in the public sector generally began to spread throughout the courts in the mid-seventies, and is now accelerating. In 1977, only British Columbia, Saskatchewan, Ontario, and Quebec reported that they had a court management information system in some courts. Five provinces—Alberta, Manitoba, New Brunswick, Newfound288

Information Systems and Computer Technology FIGURE 17 DALLAS COUNTY CRIMINAL JUSTICE INFORMATION SYSTEM WEEKLY SUMMARY-WEEK ENDING-12/20/80 CRIMINAL DISTRICT COURT NO J

JUDGE JAMES B. ZIMMERMAN

100 ACTIVE CASES (BOND & JAIL) 101 102 103 104 105

-

SET SET SET SET SET

TRIAL TRIAL TRIAL TRIAL TRIAL

30 DAYS OR LESS OLD 31 DAYS TO 60 DAYS OLD 61 DAYS TO 90 DAYS OLD 91 DAYS TO 120 DAYS OLD MORE THAN 120 DAYS OLD

01 05 06 08 24

106 - TOTAL SET FOR TRIAL

44

107 108 109 110 111

05 09 09 02 03

-

SET SET SET SET SET

PLEA PLEA PLEA PLEA PLEA

30 DAYS OR LESS OLD 31 DAYS TO 60 DAYS OLD 61 DAYS TO 90 DAYS OLD 91 DAYS TO 120 DAYS OLD MORE THAN 120 DAYS OLD

112 - TOTAL SET FOR PLEA

28

113 114 115 116 117

07 05 06 08 13

-

SET SET SET SET SET

INV INV INV INV INV

30 DAYS OR LESS OLD 31 DAYS OR 60 DAYS OLD 61 DAYS TO 90 DAYS OLD 91 DAYS TO 120 DAYS OLD MORE THAN 120 DAYS OLD

118 - TOTAL SET INVESTIGATION

39

119 120 121 122 123

00 00 00 03 20

-

SET SET SET SET SET

HEARING HEARING HEARING HEARING HEARING

30 DAYS OR LESS OLD 31 DAYS TO 60 DAYS OLD 61 DAYS TO 90 DAYS OLD 91 DAYS TO 120 DAYS OLD MORE THAN 120 DAYS OLD

124 - TOTAL SET HEARING 125 126 127 128 129

-

SET SET SET SET SET

ANNOUNCEMENT ANNOUNCEMENT ANNOUNCEMENT ANNOUNCEMENT ANNOUNCEMENT

30 DAYS OR LESS OLD 31 DAYS TO 60 DAYS OLD 61 DAYS TO 90 DAYS OLD 91 DAYS TO 120 DAYS OLD MORE THAN 120 DAYS OLD

130 - TOTAL SET FOR ANNOUNCEMENT 131 132 133 134 135 136 137 138 139 140

-

FIRST FIRST FIRST FIRST FIRST TOTAL TOTAL TOTAL TOTAL TOTAL

SETTING 30 DAYS OR LESS OLD SETTING 31 DAYS TO 60 DAYS OLD SETTING 60 DAYS TO 90 DAYS OLD SETTING 91 DAYS TO 120 DAYS OLD SETTING MORE THAN 120 DAYS OLD ON FIRST SETTING SET DISMISSAL UNSET CASES APPREHENDED CASES SET FOR CONFERENCE

23 05 11 04 01 05 26 46 01 00 01 03 51 02 200

289

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land, and Prince Edward Island—reported plans to install an MIS for the courts. Only Nova Scotia was not planning the expanded collection and use of statistical data on the courts.12 At that time questionnaire responses from the ten provincial chief court administrators revealed computerization only partially implemented in the four provinces that had an MIS. While the use of computerized data collection and retrieval is a hallmark of MIS development, the courts had computerized primarily the high volume, routine work that characterizes provincial criminal courts. Saskatchewan had computerized the voluntary payment of fines in magistrate's courts. Ontario had computerized criminal data collection in eleven of forty-eight counties. Quebec and British Columbia reported that their systems were 60 percent computerized— again at provincial court level. Data collection in British Columbia, however, was still done on a manual basis, even though the data were then collated by computer and reported in extensive printout reports used by the provincial criminal court. Of the five provinces reporting plans to install an MIS, only Prince Edward Island appeared likely to do so without some difficulty. Manitoba noted "some reluctance" to provide information and aggregate data on the part of the courts involved. New Brunswick might "encounter difficulty later if the government is unwilling to incur costs of a computer system." Alberta reported no difficulties, primarily because its system had "not reached the preliminary stage" at the time of the questionnaire survey in 1977. Newfoundland's inspector of legal offices was pessimistic. He expected that a justice data system would not be operational for at least two years because of "fear of the unknown by executives (usually lawyers), lack of wilful participation, and a desire to maintain the status quo even if that means a gradual deterioration of the judicial system." The use of computers in the courts revealed strikingly similar patterns. They were rarely applied to such court functions as caseflow management, although their use in financial management was widespread. Court administrators were asked which of seven functions (indexing, payroll, expenditure reports, docketing, reports on pending cases or case disposition, caseflow management, and preparing transcripts) were performed in their court system with computer assistance. Seven provinces reported only financial management functions; payroll and expenditure reports were prepared with computer assistance in Alberta, Manitoba, Newfoundland, Ontario, Prince Edward Island, and Saskatchewan, and financial reports in New Brunswick. Only two provinces, Quebec and British Columbia, reported any additional, non-fiscal functions performed by computer. B.C. courts performed alI but transcript preparation with computer assistance; Quebec reported the use of computers in all but transcript preparation and caseflow management. Nova Scotia was the only 290

Information Systems and Computer Technology province reporting that none of the seven functions involved computers. These responses suggest that the computer was an important element of central fiscal control systems in almost every province, but had significantly less impact in facilitating non-fiscal work within line departments in general and justice departments in particular. By the spring of 1980, an "Inventory of Canadian Juvenile and Adult Court Information Systems," prepared by David H. Mead, reported surprisingly rapid advances in computerization throughout the ten court jurisdictions.13 All ten provinces had either manual or computerized information systems for some court functions, and eight provinces (all except Prince Edward Island and Nova Scotia) had computerized some part of their MIS. Furthermore, Ontario, Alberta, New Brunswick, and Manitoba joined Quebec and British Columbia in computerizing nonfiscal functions. Traditionally the leader, Quebec maintained its pace in the proliferation of both manual and computerized information systems, followed by Ontario, British Columbia, and Alberta. Table 18 summarizes current data on computerized information systems. It provides graphic proof of MIS growth in a short period—even though it is limited to computerized systems. (It does not show, for example, the three different manual systems developed in Nova Scotia between 1977 and 1980. ) The growth of computerization and management information systems does not render merely academic the issues and caveats discussed throughout this chapter. If anything, it makes those matters more immediate and relevant. Thus, Mead's 1980 inventory reports that the computer systems used to process court information are controlled within the attorney general's departments in Quebec, Ontario, and Manitoba, while computer services are supplied by other government departments in the remaining provinces. Thus, issues of control, among others, are becoming increasingly pertinent. A SUCCESSFUL COMPUTER OPERATION A brief look at a relatively inexpensive computerized data system in use on the criminal side of the provincial courts in British Columbia may suggest how courts could move in the direction of more computer assistance for their own distinctive administrative functions. (Plans are now in train to convert to a still less expensive operational mode.) Appendix A displays the daily court list in use in virtually all provincial criminal courts in that province, with additional columns which can be completed by clerks of court while they are still in the courtroom. These court lists are collected daily and forwarded to Vancouver from every court in the province. The data are entered into a minicomputer and 291

CHAPTER TEN TABLE 18 COMPUTERIZED COURT INFORMATION SYSTEMS, BY PROVINCE

Province Newfoundland

Level of System Name Courts Served Traffic Court Computer System

Provincial Court (St. John's)

New Brunswick Justice Information System

Provincial and Criminal

Quebecb

All

Ontario

292

SIP (Syst. l'inform. sur le personnel) SIA (Syst. l'inform. sur l'assiduite) SIS (Syst. l'inform. sur temps supplementaire) SAGIP (Syst. automatise de Bestion des information sur le personnel) SYGBEC (Syst. de gestion budgetaire et comptable) Greffes informatises Centre de distribution" Petits creances informatises Statistical Reports for Juvenile Delinquents Act offences Financial Management System Integrated Operational/ Information System

Main Areas Served Court Services, Prosecution, Judiciary, Administration and Finance Court Services, Prosecution, Judiciary, Administration and Finance Administration and Finance

All

Administration and Finance

All

Administration and Finance

All

Administration and Finance

All

Administration and Finance

Provincial Superior, Sessions de la Paix All

Court Services, Administration and Finance Administration and Finance Court Services

Provincial Small Claims Provincial Court (Family Division) All

Administration and Finance

Administration and Finance Provincial Court Court Services, Criminal Division Administration and (Oshawa) Finance

Information Systems and Computer Technology Courts Administrative System Statistical Reports System Manitoba

Saskatchewan

Alberta

Court Room Utilization Jury Lists PCMIS (Provincial Court Management Information System) a Adult Criminal Court (Fines and Statistics) AFIS (Alberta Financial Information System) CAP (Court Automation Project) a PROMIS (Prosecution Information System) Court Name Index System Police Annual Leave (PAL) a

Minor Traffic Court Services, Court (Toronto) Administration and Finance All Court Services, Judiciary, Administration and Finance All Trial Courts Court Services Queen's Bench Court Services, (Winnipeg) Sheriff's Office Provincial Court Administration and Finance

Provincial Court Administration and Finance All

Administration and Finance

All

Court Services, Administration and Finance Prosecution

All

Administration and Finance All Vancouver Court Services, Courts Administration and Finance, Prosecution and Vancouver Police Court Services, Provincial Provincial Administration and Criminal Case Courts (Lower Finance, Prosecution Mainland) Processing and Judiciary (PCCP) Record of Pro- Provincial Court National statistical reporting ceedings (ROP) (Criminal) Provincial Court Court Services, ProseCourt List Information (Criminal) cution, Judiciary, (CLIS) Finance 'Under development. Planned systems not shown in this table. Øe first five Quebec systems are financial. The first three feed information to SAGIP, which in turn feeds the SYGBEC. SOURCE: David H. Mead, "Inventory of Canadian Juvenile and Adult Court Information Systems," prepared in association with the Association of Canadian Court Administrators and presented to their annual meeting, Banff, Alberta, April 20-23, 1980. British Columbia

All

293

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processed by one of two large computers, as noted previously. It is calculated that this new procedure generates 80 percent of all the data required for operations, monitoring, and planning in the court administration system throughout the province. This program has been installed in the provincial court which handles 95 percent of all criminal cases, and is now being refined prior to implementation in the other trial courts. A breakthrough has been accomplished, opening the way to the economical use of the minicomputer for court operations in British Columbia. Appendix A also exhibits samples of such reports, which may be aggregated locally, for each courthouse; regionally, for each of the five court administration regions of the province; and provincially. The formats of these reports have undergone some revision to eliminate unusable data and substitute more relevant information. This reporting program was formally initiated in January 1976, after test runs in the fall of 1975. During the first six months the error factor in reported case load averaged 8.2 percent. This is on the high side, but it has since been reduced somewhat. Other distortions appeared, which in some cases invalidated regional comparison of some factors. Integrity of the data is, however, gradually improving. This reporting system yielded the first in-depth understanding of how the court was actually functioning, and described many problem areas in clear silhouette for the first time. The initial reports were met with healthy skepticism as to their accuracy and utility in some specific areas by both users and those generating the data. But sufficient overall symmetry exists to conclude that they reveal the mechanics of the system in broad outline, and that fine tuning of the data reporting techniques, combined with revised formats, will produce a valuable planning and operational tool, at relatively low cost. The problem is to achieve a good balance between cautious interpretation of data on the one hand, and their practical use on the other. The long-term risk is not invalidity of the data, but the failure to use them for management and planning purposes. Major lessons are to be learned in these areas. CLOSING OBSERVATIONS We have witnessed a decade of experimentation in the application of new technology in the justice field. It may be predicted that semi-automation and computer technology are irreversible forces which will transfigure court administration within the next decade. High-volume courts are gradually turning to computer operations. For medium-sized courts, the probable solution is a carefully melded combination of manual, microfilm, and computer operations. Small courts may look to microtechnology to achieve new efficiencies. At the same time, excessive claims have been 294

Information Systems and Computer Technology made in North America as to the utility of the computer in the courts area. Beyond dispute, some computer installations have been successful; but others enjoy only varying degrees of success, and some have been described as disasters. A sobering national survey of court information systems in the United States, issued by the National Institute of Law Enforcement and Criminal Justice in 1977, revealed a number of soft spots and offered some caveats. It found that in the overwhelming majority of cases the important initial step of requirements analysis was ignored or performed in a perfunctory manner; that many courts failed to face up either to the heavy development costs or the need for a long-term commitment to funding to operate and maintain a court information system; that courts tended to regard the computer as a panacea to case backlog, instead of recognizing that the solution lies effectively with the judiciary, to which a computer is merely an aid; that caseflow has generally not been recognized by the courts which employ MIS as a separate and distinct function; that individual courts are sufficiently different that software packages are not automatically transferable; that few consulting firms have the field experience to assist effectively in the design and installation of a court information system; that few courts have established separate project organizations to accomplish project objectives; that judges—and even some administrators—have shunned the responsibility for active management in their respective spheres and that, consequently, there is a lack of user participation and usefulness of the system to the court (the outstanding exception named was the Dallas project, referred to earlier in this chapter); that a general lack of interest by the judiciary was reflected in the attitude of court personnel; that courts generally have operated without "dedicated" computer services; and finally that in most cases documentation of the computer programs was inadequate.14 We should not therefore be surprised if the somewhat erratic attempts to computerize court systems on this continent have nourished a pervasive skepticism, as expressed in the pungent words of a provincial court judge: "I still cannot help feeling that the more machines we get, the more the damned things will go wrong and I will always regret the loss of those faithful Scottish bookkeepers with quill in hand, visors and black sleeveguards on three-legged high stools, who kept completely accurate records, ready for instant retrieval, over the one hundred years of their employment."16 Thus is the challenge to technology squarely put before it.

295

Chapter Eleven Systems Implementation The first five chapters in Part II have focused on the major management functions involved in operating a court system and a local courthouse. They suggest that each of the functions will require further development before our courts can meet the requirements of a new era. In the language of management and systems analysis, the courts will need to implement new systems for the management of casefiow, personnel, finances, and records. Special consideration, therefore, is given in this chapter to the process of systems implementation. The sections that follow will go through the stages in that process, from the first general considerations to the successive and increasingly pragmatic steps required to implement changes in a single management function. We will begin, therefore, by reviewing the administrative and planning context of court management systems. We will then touch on aspects of the internal planning process; discuss the use of consultants to plan and implement system change; describe how a team of outside consultants would design and implement a new records system; consider the relationships between "in-house" court administrators and outside consultants; and show how new records systems were installed in two courts in British Columbia. While the chapter uses the implementation of a new records system as a case study, the implementation procedures are identical in principle to procedures followed to install any other system: a casefiow management system, a jury utilization system, a factory production line, a military supply echelon, or any other processing system. Much of the contents of this chapter is technical and pragmatic. This is deliberate. Court administrators have worked for decades with personnel, budget, and documentation intake and storage. But the next decade will demand the presence of a more sophisticated administrator, one ready to meet the coming day of change, when increased volume will result in the forcible entry of restructured routines, computerization, or at least modernization of manual operations. When that day dawns, the 297

CHAPTER ELEVEN administrator must be equipped to converse on an equal level with systems analysts. This exercise involves the capacity to use what are currently termed "systems analysis techniques" to examine the organization concerned, and to develop operating standards, procedures, and documentation which will constitute a plan for optimum performance. JUDICIAL ADMINISTRATIVE FUNCTIONS It is implicit in this work that the organization's goals and problems be identified and clearly expressed prior to any new planning. In the courts, for example, a properly planned judicial administrative system is designed to carry out seven functions:1 1. It carries out the caseflow process in an efficient manner. This is a trite observation, frequently honoured in the breach. Many court systems neither monitor case flows nor direct them with any attempt at predictability. 2. It provides immediate periodic ongoing information for operational and planning purposes. 3. It achieves an efficient use of resources with the available finances. The efficiency ratio (cost benefit index) will vary with the planning and organization of the court system. Cost efficiency is vital because provincial governments are unlikely to fund the justice system at the expense of other programs and services. 4. It sets up procedures in support of the previous three functions. 5. It filters out and eliminates the constantly accumulating dysfunctional factors—obsolete records, the perpetuation of meaningless datagathering, time-wasting clerical functions, dilatory adjournments. 6. It coordinates the movements of all the subsystems (the link function discussed in chapters 5 and 8). The significance of the word "coordination" has been eroded. This brief explanation may bring that significance back into focus. A system consists of a series of separate functioning areas, usually with distinct boundaries, which may be pictorially represented as follows:

A

H

B

H

C

The spaces between the separate functions (A, B, and C) have been termed "interfaces." When a system or a process becomes disrupted, it is 298

Systems Implementation usually through lack of coordination between the separate units at these interfaces. The interfaces must therefore be bridged by: (a) the common manager (unavailable in Canada thus far, since administration has been divided between judiciary and court administration); or (b) the committee (Ontario proposed this method in its October 1976 White Paper on Courts Administration); or (c) the link mechanism (the model attempted in British Columbia).' The coordinating model will depend on the type of court and the functions performed by A, B, and C. Coordination problems increase with complexity and size of the organization. With the high complexity level found in the courts, coordination problems can only be satisfactorily solved through the linkage coordination technique described in chapters 5 and 8, whatever other hybrid models are adopted. 7. It develops a built-in set of controls designed to monitor and forecast the functioning of the system. Modern management theory emphasizes counting, through the cybernetic or feedback model (as a thermostat measures heat and feeds back data which activates or deactivates the heating mechanism). Such controls are a necessity in the complex court setting. Most case calendaring is carried on with no control mechanism built into the system, a fact that contributes heavily to case backlogs. FROM PROBLEMS TO PLANNING

The monitoring concept in turn involves the notion of a three-phase cycle: 1. Cause. Some internal or external development causes a disturbance resulting in an instability in the system. 2. Problem. The disturbance and resulting instability cause a deviation from the planned results, which gives rise to a new problem. 3. Symptom. The problem is frequently not self-evident. It merely reveals itself as a symptom, which is a subtle indicator of the basic problem. For example, "courtroom door settlements" are a symptom. The problem is wasted judicial, jury, court staff, and counsel's time. The cause in turn underlies both the symptom and the problems. Monitoring usually identifies the symptom but not the cause. Analysis breaks down each part of the cycle so as to reveal the ultimate cause of the problem which produced the symptom. The root cause having been identified, the system must then respond in some manner which will bring 299

CHAPTER ELEVEN

about a consensus plan. To continue the above example, a consensus plan would be required to reduce the disruption of courtroom door settlements while still accommodating the economic requirements of the bar, which are necessary to its existence as a profession. Too few courts have analysed and attacked this problem. Systems analyses reminds us, and enables us, to deal with the causes rather than the symptoms of a problem. Defining and analysing problems in these terms is essential for proper identification of real problems and their solutions. One of the intangible difficulties in this process lies in attaching labels to changing values. Justice, for example, means something different, functionally, than it did even fifteen years ago. Today it is assumed that justice must contain social, economic, and political ingredients, and that without these components, civil justice, let alone criminal justice, cannot function. The changing definition of justice therefore generates a different set of problems for the court administrator, who is called upon to provide support services for a system engaged in more complex tasks than in the past. In planning, identification of the problem determines the goals and then the objectives, and therefore the appropriate system to deal with the problem.$ We can only solve problems by moving from the immediate crisis to higher levels of abstraction and by eliminating conditioned barriers. The following exercise (figures 18 and 19) illustrates how the mind can unconsciously cramp itself in the search for a solution. The object is to touch all nine points on figure 18 by a series of four straight lines, without lifting the pen from the page once you begin to draw the line. FIGURE 18 EXERCISE

O 00 O 00 O 00 In order to benefit from this exercise the reader should attempt to solve the problem before examining the solution shown in figure 19. 300

Systems Implementation Few are able to solve this problem, simply because they do not consider the option of extending a line beyond and outside the cluster of points. We unconsciously adopt intellectual blinders and lock ourselves into mental closets, when simple and practical solutions are staring us in the face. In practice, planning operates at different levels. Practitioners usually refer to three types of planning, each corresponding to a type of goal statement. Normative planning focuses on the fundamental goals a system should pursue ("We should adopt these principles ..."). Strategic planning takes over once the basic norms are established, and involves the allocation of resources to achieve the system's goals ("Our approach to the problem should be . ..") . Operational planning defines how the overall approaches of strategic planning will be implemented in practice ("We will do it this way ..."). Within each level of planning, analytical and problem-solving skills are essential, as suggested by the steps in the planning model shown in figure 20 (developed by the United States National Institute of Law Enforcement and Criminal Justice). Normative, strategic, and operational plans should all be responsive to major aspects of related court problems. They should be clear, concise, and understandable to a wide audience. They should provide direction, guidance, and foundation for the identification and selection of alternative improvements. They should be subject to revision. They should be feasible. They should be time-phased. Planning should be carried out in conjunction with the judiciary, not for the judiciary. The accomplishment of good planning is made more difficult by the complexity of the courts. For example, a province-wide court administrator will be primarily involved in strategic planning for the court system as a whole. A court administrator in a local courthouse will direct his attention primarily to operational planning. Thus, both officials may engage in planning activities, yet come in conflict when optimal strategic decisions do not adequately mesh with optimal operational ones? Response to these conflicts often comes in the form of a committee, established to coordinate planning activity. But other techniques have been developed to facilitate planning, so that the process need not be a committee one. One of these, explicitly developed to replace the traditional approach of achieving consensus through committees, is the "Delphi Technique." In its simplest form, this technique eliminates committee activity altogether, thus reducing the influence of certain psychological factors, such as specious persuasion, the unwillingness to abandon publicly expressed opinions, and the bandwagon effect of majority opinion. This technique replaces direct debate by a carefully designed program of sequential individual interrogations 301

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FIGURE 19 EXERCISE SOLUTION

STARTING POINT

interspersed with information and opinion feedback derived ... from the earlier parts of the program. Some of the questions directed to the respondents may, for instance, inquire into the "reasons" for previously expressed opinions, and a collection of such reasons may then be presented to each respondent in the group, together with an invitation to reconsider and possibly revise his earlier estimates. Both the inquiry into the reasons and subsequent feedback of the reasons adduced by others may serve to stimulate the experts into taking into due account considerations they might through inadvertence have neglected, and to give due weight to factors they were inclined to dismiss as unimportant on first thought .5 Although the Delphi Technique was developed for technological application, it can and is being used for all three types of planning. Interrogation of members of the organization can be done quickly and substantial time is saved through this process. The Delphi Technique is essentially, perhaps exclusively, a field study technique. One of its principal advantages is that it tends to avoid confrontations which may emerge from open discussion sessions. A contrasting approach, labelled "Mason's Dialectical Approach," applies the adversary system to management operations. It is based on the Hegelian concept of thesis, antithesis, and synthesis; that is to say, a thesis is confronted, disputed, and debated by an antithetical viewpoint, and out of the debate emerges a new synthesis embodying some of the 302

Systems Implementation FIGURE 20 GENERAL PLANNING PROCESS MODEL

* BEGIN

PREPARING FOR PLANNING

PRESENT PERCEIVED > SITUATION I

DETERMINE PROJECTIONS > AND ANTICIPATIONS

I

I

L

"should be done"

DEFINING \PROBLEMS

MONITORING AND EVALUATING PROGRESS

CONSIDER > ALTERNATIVE SYSTEM FUTURES I J

SETTING \ GOALS

"Ø be done'

U IMPLEMENTING PLANS \

PLANNING

/ SELECTING / PREFERRED \ \ ALTERNATIVES IMPLEMENTATION

FOR

IDENTIFYING ALTERNATIVE COURSES OF ACTION

elements of both competing viewpoints. The iterative process continues to refine the alternatives, and this process is encouraged through argument. Sometimes the exercise does not survive the argument. To quote Mal King, "The greater the clarification, the bloodier the war." The environment and culture of the justice system tend to constitute a kind of settled ideology in which change can appear as a direct threat to the world view and personal lives of the various persons involved. A dialectic process is therefore buried in it. Planned change is a recent concept in all the court systems of this continent and it is questionable whether a formula of deliberate confrontation would assist in the working out of new programs. CONSULTANTS—ADVANTAGES AND DISADVANTAGES

A different way of planning and implementing change is through the introduction of outsiders as temporary participants in the process. These outsiders, or consultants, have increasingly developed common styles of work and approaches to organizational problem-solving. In the court management field, consultants usually take a systems analysis approach that is sometimes met with skepticism. A typical complaint is that the 303

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consultants, who are strangers to the organization, spend endless hours of their time and the staff's time learning what the staff has known since year one; and second, that, having consumed these many hours, the consultants produce a report containing recommendations which are either self-evident to management (if self-evident, why has management not implemented them?) or unsound because the consultants' research did not give them any practical understanding of the nature of the operation. The report is put on a shelf. Management and organization continue on as before. This leads to another possible weakness in the use of outside consultants: impermanence—the absence of carry-over to see proposed reforms through to success. Like royal commissions, they can appear, pontificate, and vanish, leaving the original problem exposed but untouched. And finally, their work can be difficult to evaluate, because no one else possesses the expertise to assess it. There are, however, examples of concrete successes achieved through the use of consultants as a mechanism for system change. They bring detachment to the analysis. Their detachment is free of personal commitments to vested interests within the system and enables them to import fresh ideas from experience gained in the analysis of other complex organizations. Detachment gives them the time to quietly analyse the system's problems, free from the distractions and interruptions of routine operations. To repeat an ungrammatical apothegm, "operations drives out planning"; that is to say, those who are engaged in daily operations lack the uninterrupted time to perform analytical and planning research, to conceptualize, and to implement. Second, a consulting team can bring with it a range of professional skills where internal expertise is low. This gives the team a trained and seasoned capacity to cross-pollinate the thoughts and ideas of those within the system, and to present fresh ideas in terms which represent acceptable modifications both to management and to staff. The team may likewise be adept in strategies which bring together representatives from conflicting and competing subsystems in such a manner as to produce consensus decisions resulting in reform. Such a guest is frequently in the position to call together a group where no one individual within the group is able to do so, for reasons of protocol or a history of competitive relationships. Another argument in favour of engaging outside consultants to assist in any system analysis has been expressed in the following terms: "Large or complex systems are counter-intuitive."6 This can be explained as follows. As administrators, we develop certain impressions or points of view which ultimately become the built-in equipment of our mentalities and working methods. Sometimes these acquired convictions are correct. 304

Systems Implementation Sometimes they are not. The fact is that modern systems are so complex, the known and the unknown facts are so voluminous, that they defeat impressionistic and generalized knowledge. Four research projects in the area of sentencing carried out by Millar demonstrated the truth of the concept that large-scale systems are counterintuitive. They convinced him that the instinctive, intuitive, and rational conclusions he had developed in each area, and upon which he was basing some of his sentencing practices, were not fully in accord with the realities. For example, statistical results drew a profile of him as a sentencing judge that did not conform to his own self-image. Nor, for that matter, did the results of the sentencing profiles of other judges always conform to their reputations. Some judges who were said to exhibit severe sentencing attitudes were at or below the average levels in terms of sentences imposed. One judge considered "mild" actually imposed the severest sentences. Vast increases in reported crimes in one category were met by sentences of steadily declining severity. Each analysis shattered the accepted wisdom. Similar counter-intuitive tendencies are found in the administrative patterns of courts. Thus, the human mind's limited comprehension of complex organizational processes also requires, for example, that records systems be designed to generate necessary information on a continuing basis, and in a form that is immediately retrievable for daily management, analysis, and long-term planning. This eliminates costly and tedious research which tends to produce information which is out of date by the time it is compiled. A systems analyst can bring to this task a store of technological expertise and an up-to-date knowledge of the latest conceptual models and equipment that may be adaptable to the particular needs of the system. The latter may include the most modern office equipment, court recording and transcribing equipment, and computers. Flexibility is another advantage of consultants. An organization gains the use of an expert on a short-term contractual basis, when employing him permanently would be expensive and needless. This flexibility in turn lends speed to the reform operation. Change is telescoped into a short time frame. Contracting consultant services is essentially buying speededup change. Hence the need from time to time to import consultants and systems analysts to assist in the development of information systems and improved operational procedures. (This chapter will conclude with two examples of outstanding successes involving outside consultants. ) A final comment must be that reliance on outside consultants can, in the end, be only one more aid to management. It cannot be expected to supply permanent cures for a system's problems. Implementation invariably brings along with it a host of new problems; and the trick, if we 305

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may so express it, is to identify solutions which result in net gains rather than net losses in terms of additional complexities. There are some advantages in permanently hiring in-house experts who accumulate a knowledge of the unique attributes of the court system, and thus require less and less education to raise them to the level of conceptualizing capacity. California's court system, for example, retains some thirty highly trained in-house specialists on a permanent basis. Colorado has followed the same policy. British Columbia has also been able to retain a small group of in-house researchers and planners. Oddly enough, management consulting, regardless of its title, is often based, not on modern systems models, but on outmoded management concepts, one of which is the Taylorian technique of scientific management, referred to at the beginning of Part Two, which swept the North American industrial complex in the early years of this century. The concept was simple; analyse the process, break it down into its smallest possible operational motions, and assign one or more persons to each of these motions. The myopic and dehumanizing aspects of scientific management are now being purged from industry by slow degrees as our knowledge of the human personality and organizational effectiveness increases. But the systems analyst retains as a starting point the first step in the Taylorian management science, namely, the minute analysis of a system flow, step by step, in the greatest detail and description. The purpose is twofold. First, to understand the process, and present it to management in pictorial (chart) form for clearer understanding. And second, to enable the analyst, in concert with management and staff, to identify the bottlenecks, communication blocks, duplications, and other problems in the flow process. The consultant's adoption of either Taylorian or systems analytic techniques should not lead court administrators to misread the consultant's major contribution. The consultant who claims to possess a set of answers to court problems is not the person to use in systems implementation. He should, of course, be aware of the wide variety of new techniques in his field, but must first be able to analyse the causes and problems underlying the organizational symptoms he has been called on to examine. In many situations, the organization that hires a consultant may present him with the official understanding of the organization's problem, while the underlying issues remain vaguely defined and little understood. A sensitive consultant will not accept an organization's definition of its problem and set out immediately to solve it; he must sort out the root causes from the symptoms, and present workable proposals to improve system operations.' 306

Systems Implementation SYSTEMS ANALYSIS AND REDESIGN

How would a team of outside consultants deal with the more glaring problems in a court situation? Describing the methods it would follow can provide clues by which court administrators can unravel some of the mysteries of systems analysis. The team would in all probability follow a series of steps such as the following: 8 1. Conduct an overview analysis of the system's cycles in order to form a general idea of how to approach the survey. (A cycle is a term broadly embracing any repetitive set of steps. A budget cycle extends over a calendar year while a civil litigation cycle extends from the filing of a writ to issuance of a judgment.) The team will hold interviews with the senior judge and the other judges and the registrar/court clerk and his assistant; and make notes on the court's jurisdiction, objectives, policies, attitudes, philosophy, and general financial position. 2. Reduce to simple form a list of statements which best describe an overview of the problem. This might include some or all of the following: (a) (b) (c) (d) (e) (f) (g)

Absence of planned development Absence of unified facilities and shortage of (two) court rooms Absence of direction on the judicial level Lack of coordination between the court clerk and his assistant Lack of uniformity of procedures and systems Insufficient job descriptions and staff training Absence of planned audit controls and monitoring

The problem of judicial leadership aside, the analyst team might reach the conclusion that the records cycle (which includes receiving, filing, and processing of informations, and the clerical handling thereof) represents a critical problem area. The temptation, indeed the instinctive course, is simply to move immediately into the solution phase of the above described problems. To do so, however, would result in wasted time in backtracking, and loss of credibility in the face of management. There is a sizeable information-gathering job to be performed before possible solutions can be approached. The team must become aware of everything that takes place within the records cycle. This in turn requires an in-depth study. A worksheet, therefore, will be compiled giving a list of information required. (See Appendix B for a sample worksheet.) It is important to note that the above research will not be carried out at this time. There is as yet no authorization to do so. Therefore the next step is to: 3. Draft a job specification for the systems analysis project. As a result of the last exercise, the consultant will now have some conception 307

CHAPTER ELEVEN

of what the problem is, and a reasonably clear picture of what must be done in order to complete the survey. The question is, will the court really benefit from such a survey? After further consideration, the analyst may decide that it would so benefit, and he accordingly drafts a proposal addressed to the client (the client may be the province, the municipality, or some individual court authority) recommending that the survey of the records system be continued. This proposal will contain the following: (a) (b) (c) (d) (e) (f)

A definition of the problem Its scope Depth of the survey to be undertaken Time estimate of the survey Cost of the survey Objective of the survey

This proposal will be contained in a written report and used in support of a verbal presentation to the client for acceptance or rejection. We will assume that the recommendations are accepted. The consultant therefore proceeds to: 4. Analyse the procedures. He will now commence the fact-finding survey of the records cycle in a more thorough manner. It may be that written procedural manuals are available, saving considerable time. But this is unlikely, making oral interviews necessary. Essentially the analyst must discover: (a) Who does what, and when (b) What forms are used in the system (c) Control points (if any) or the lack of control points Court personnel tend to judge systems analysts on the basis of their knowledge of court systems rather than on their ability to analyse. Therefore, the sysiems analyst starts from a position of disadvantage. Over the coming weeks, however, he will increase his knowledge as he lists the actors, actions, and forms, determines the records system cycle, and develops a flow chart of the records procedure, noting on it all the control points or absence thereof. Much of this information will be generated from interviewing, which in itself is a seasoned art, not a casual excursion. The consultant should obtain all information in a single interview, if possible. Repeat interviews are not appreciated by busy staff unless the reasons are clear. Before approaching the interviewee, the analyst should have a clear picture of precisely what information he wishes to obtain, whether that person has the information readily available, the time required for the interview, and how the interviewee should be approached in order to establish a good working relationship. Depending on the occasion, a few minutes of gen308

Systems Implementation eral conversation unrelated to the object of the interview may break the ice. The analyst must control the interview and, to ensure a constructive relationship, avoid argument and the use of such words as "steamlining" and "efficiency." In closing the interview, he should ask permission to continue the survey and to check out any necessary material. He should also attempt to allay any objections to or restrictions on his analysis. The next step is to: 5. Analyse the forms. In analysing a records procedure, one must learn which forms are an integral part of the system. An analysis of the forms is necessary to learn what the people in the system actually do. The analyst must ask himself: What is wrong with this form from a design viewpoint (technical end)? How is it used in the system? Why does it not fit into the system? Can it be eliminated or combined with another form? In complex situations, he may call on the additional expertise of a forms specialist, but probably would not do so in the present case. Matters to consider are form numbering, title, spacing, tab stops, zoning, form instructions, spaces for signatures, ambiguous captions, colour, size, paper stock. A forms analysis checklist is also useful (see Appendix C). The next step is to: 6. Draft the precise ingredients to establish administrative controls. Control points and procedures are essential elements of effective records systems. Managerial control ensures that resources are obtained and used effectively to accomplish organizational objectives. Before designing a system, one must understand the purpose of control and provide procedures for generating control information. To this end the analyst must: (a) compose a statement of objectives for the records cycle (controlling activities and resources, setting standards and control checkpoints, interpreting and evaluating the significance of such measurements); (b) identify the key control points which ought to be part of the new system; (c) list the methods and techniques to establish the control points to provide feedback. This requires defining (i) measurable goals (e.g. case volume, hours of courtroom utilization, lapse times); (ii) the work in relation to goals (does the work achieve the goals?); (iii) proper statistical methods to be used (means, medians, or modes); (iv) criteria for interpretation (are we measuring the right things in order to measure performance against goals?); and finally (v) a knowledge of response action (what do we do to re-establish or tighten control?) . The analyst is now in a position to: 7. Design the new system. He is now in possession of the necessary 309

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facts. His creative faculties must now come into play in order to design the new system in detail. It will be immaterial whether the system is designed for manual, microfilm, or computer operation, since these techniques all relate to the narrow issue of word processing, whereas we are concerned with control of production flow. One must first establish the controls, then design the system—not vice versa. Goals dictate controls. Controls dictate procedural design. The goals of this particular system may be defined as follows: eliminate duplication of effort (save personnel); eliminate duplication of records (save paper); eliminate processing delay (save time); establish uniformity of procedures (reduce confusion) ; ensure a prompt recording of accurate information and notification to all personnel (reduce errors, tighten control), and (f) train court personnel (raise efficiency, reduce personnel turnover).

(a) (b) (c) (d) (e)

Examples of control points are as follows (using a criminal court as an example) : (a) (b) (c) (d) (e) (f) (g) (h) (i)

preparation of the trial calendar; typing of the trial calendar; obtaining pre-sentence reports; recording data on trial calendar or information in the courtroom; typing probation orders; completing committal orders; typing warrants; typing interim orders; filing trial calendars.

In order to design the new records system, one must: (a) (b) (c) (d) (e)

design a new grid flow chart; design a new procedure chart; design new forms; design new reports; design an organization chart (optional).

Designing a records system requires teamwork at a high level. Simple though it may appear, it also requires a capacity to visualize, in the abstract and in detail, the concrete difficulties which will occur down the road. This is a rare capacity. Few possess it. It is essential in the expert planner. The design report may contain implicit recommendations for tightening administrative controls by shuffling staff positions or redefining staff roles; to establish, for example, coordination between the court clerk and 310

Systems Implementation his assistant. It may contain proposals for restructuring the present courthouse or the ultimate construction of a new court facility to ensure central controls (management control is often a function of propinquity). It may recommend amendments to court rules to expedite case processing (this is a large and important subject), or closer integration of the legal aid system with the court operation to reduce lapse time from arrest to plea or trial. It may recommend the employment of a professionally trained court administrator, with a precise job description, qualifications, and terms of reference, in order to introduce a rationalized management philosophy. It may contain a job re-evaluation plan, in order to create more specific job descriptions, with salaries competitive with industry to attract the necessary personnel and retain them in the system as career oriented employees, so that expertise is not lost to the system due to high attrition rates. Many of these recommendations are far reaching with respect to court operations, and will extend far beyond the area of records management. However, it is common for a consultant's plan—developed as it is from a total-system point of view—to include broader recommendations for improved management. 8. Present the consultant's report. The consultant (who will have supervised all the above analytical work) will consider the results, make adjustments to include higher level policy considerations, and prepare his report. He is now in a position to make a presentation of the new systems plan to the governmental or judicial client. In so doing, it is vital for the consultant to remember that his audience may understand little of the records function. Nor are they likely to have much understanding of what a systems analyst does. It may be important to consult beforehand with the senior judge or senior governmental officials. It can be a risky matter to make a presentation "cold." By this time the consultant may well have organized a committee consisting of government officials, judiciary, and administrative staff, and established an 'amicable if not intimate working relationship with all concerned. If so, the presentation can be relaxed, informal and low key. We will assume this has been done. The outline should present the following: (a) What is the original situation, and what are its historical antecedents? (b) What appears to be the actual problem? (c) How was the survey made? (d) List the most important aspects of the problem. The presentation must be precise and documented in detail. The systems analyst must place himself in the minds of the judiciary and the administration, who are questioning what is happening, whether effective 311

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decision making is possible, whether staff morale will be improved, whether there can be delegation of certain administrative duties without erosion of judicial independence, whether the plan will affect the style of judicial work in the courtroom. It may almost be stated as a certainty that if the judiciary is not won over to the proposals, the plan will abort, either through rejection at the committee stage, or subsequent neglect at the judicial level. In a reasonably small court setting it may be advisable to discuss the presentation personally with each judge beforehand, inviting his criticisms and realistically accepting proposed modifications to the plan, where necessary. The plan should stress possible solutions; how court registry work will improve without jeopardy to work flow; how the judiciary will benefit; how these benefits will be achieved; the time required to achieve them; the cost of achievement; and, finally, how weaknesses in the plan may be handled. The presentation should contain milestone or progress charts, illustrating the starting, intermediate, and concluding points of all activities involved in implementation of the plan. This chart will set out the time frames for planned implementation, but should allow for time slippage. 9. Implement the new system. Assume that the plan has been adopted and that the consulting analyst has been instructed to supervise the installation of the new system. He will then proceed to implement it. This, in turn, will require further detailed planning, based on the milestone charts already referred to, which constitute a mapping of future activities. Implementation of the plan will include the following steps: (a) Arrange a meeting with all involved personnel. Be sure to include the printer—it must be experienced to be believed, but projects may be delayed in the final stages because the printed forms have not arrived! This meeting may lead to further small modifications of the system, space layout, work methods, or file designs. (b) Conduct final run with stencilled forms, ledgers, and other materials, to ensure they meet with the approval of all personnel before printing. (Refer back to the check list in Appendix C.) (c) Second meeting with printer regarding printing of forms. (This will be neglected at the cost of implementation delays.) (d) Write procedures in final form. (e) Complete final design of forms. (f) Develop price list sources for forms. (g) Train personnel in the use of the new forms and procedures. (Also a vital area. An untrained and apathetic staff breeds error and confusion from the day the new system becomes operational.) (h) Put the system into effect.

312

Systems Implementation (i) Check effectiveness of the system. (j) Compose a follow-up report to the central committee and arrange for subsequent evaluation. A few "by the ways" to consider: (a) In scheduling the implementation, one must allow for time to prepare sub-departments for changes in policy and to accommodate to them. This is a coordinating function. (b) Forms design and checkout will take longer than one thinks. It requires time for all personnel to check forms out, and redesigning forms can be a lengthy process. Testing (if a pilot project is set up) is likewise time consuming. (c) Allow sufficient time to prepare the new procedure, coordinate and publish it in manual form. It must be available before the form checkout period. (d) A well thought out training program has to be developed to prepare staff for the change; telling them once is not enough. (e) Delivery time for new forms must include time for proofs. (f) Generally 20 percent leeway time should be added in the procurement of forms and manuals. 10. Conduct an audit of the new system's performance. The team should prepare a list of things which can be done to ensure the system accomplishes its objectives. The systems analyst who prepares a plan for presentation and departs the scene on acceptance is eroding his reputation. His track record is his most important asset, and it will melt if he does not see a project through to successful completion, and give a final report. The system's performance audit is, therefore, a vital step in the process. There now remains but one final step, namely: 11. Report on the new system's performance. This report should be made to the central committee, and should be brief. Reader resistance increases in direct ratio to the length of the report. It should, if possible, be limited to one or two pages and stress the key differences between the old and new systems. It will use before and after comparisons, and relate improvements in terms of time and money savings, service and quality. Time should be allowed for people to settle down into the new procedures before submitting the report. Changes always result in disruption of work flow, and flow disruption in turn temporarily slows performance. Bugs must be worked out, old habits unlearned. Only when all of this has been consummated should the final report be submitted. 313

CHAPTER ELEVEN INVOLVING COURT ADMINISTRATIVE STAFF

The above is a brief outline of the consultant's attack on the problem, exploiting the skills of the systems analyst. This field is a growing science —or art—and we do not presume to have more than brushed its surface. Court administrators, however, should develop more than a nodding acquaintance with the nature of the systems analyst's work and its methodologies, in anticipation of the day when administrators will be working in collaboration with a team of systems analysts to upgrade the performance of the court. To build a successful records system (which ideally will include the added component of a management information system) requires a partnership between the consultant and the court administrator and his working staff. Peter Drucker pointed out in his Practice of Management that one of the critical defects in the scientific management approach to organizations is the "divorce of planning from doing."9 It may be necessary to break down an operation into its smallest components in order to understand it. Yet analysis must not be confused with operations. Planning an operation in its smallest separate parts may yield the highest level of understanding of the operation; but it does not therefore follow that separation of the job performance into the smallest separate parts, to be performed by unthinking automatons, necessarily results in the highest level of production. Indeed, the modern trend represents a reversal from the assembly line concept of job performance to one whereby the worker performs many subtasks, often as part of a small team. Pushing this development one stage further, recent insights in production techniques have brought the realization that production increases when the worker is involved in the actual planning as well. However repugnant the suggestion may be to the high priests of expertise in any field, the fact is that, in most cases, the run-of-the-mill worker possesses a deeper understanding of the difficulties and inherent opportunities in his operation than the expert can arrive at, for the simple reason that understanding is rooted in on-the-spot experience with the job. For these reasons, the court administrator and his staff are essential members of the planning team as well as of the implementation team. The administrative staff should be admitted and committed to the planning operations at an early stage, and be intimately involved in the analytical, planning, and programming operations from that point on. This participation yields large pay offs in sound planning, avoidance of analytical errors, practicability of programming, change implementation, personal commitment of the court staff to the system, and efficient operation of programs which are ultimately built into the system. This concept cannot be overstressed. Its neglect will result in a design containing in314

Systems Implementation herent vices which will reveal themselves only at the debugging or operational stages, with consequent heavy modifications of programming, if not outright failure. Two EXAMPLES OF SUCCESSFUL REDESIGN At the beginning of this chapter, some of the disadvantages of outside consultants were considered. On the positive side, two examples are now offered of highly successful reorganizations carried out jointly by management consultants and court administration staff, working as one team. In the summer of 1974 the attorney general's department of British Columbia retained a large national management consulting firm to assess and report on the administration systems in the two large courthouses in Vancouver, namely, the Court of Appeal/Supreme/County Court complex (approximately thirty courtrooms) at 800 West Georgia Street, and the Provincial criminal court (sixteen courtrooms) at 222 Main Street. The firm in turn retained the services of court administration specialists from an American consulting firm. This was a move of signal importance, because it brought to the scene consultants seasoned in reorganization of court administrations throughout the United States over the previous few years. Allowing for differences of terminology and style, and inevitable variations in organization and procedure from jurisdiction to jurisdiction, the underlying principles—and, it might be added, the problems inherent in their exercise—are shared by the two countries. The perspectives brought to the analysis by these specialists were of great value in identifying both symptoms and causes of inefficiency. But, more important, they identified the big payoff areas where the largest gains could be effected in the least time and at the least cost. It is worth emphasizing that when a reform project is attempted, it is strategically important to identify and exploit these large payoff areas as the first points of attack. In this way, management can be presented with a proposal which is reasonably simple, can be accomplished within a tolerable time span (approximately one year in these cases), at a cost which is palatable to the budget minded, and promises visible results. To reach for wholesale reorganization is risky in its complexity, costly, and likely to create unrequited expectations on the part of management and staff, with ensuing cynicism. To reach for perfection can be fatal. Reports were submitted to the deputy attorney general in April and May of 1975, reflecting the above strategy. The reports divided the subject matter into criminal and civil caseflow, but for our purposes it is more convenient to describe briefly what was achieved in each of the two courthouses. With respect to the Georgia Street operation, the problem areas and 315

CHAPTER ELEVEN

weaknesses identified were insufficient staff in the face of a constantly increasing number of judges, excessive staff turnover (52 percent of those hired during the past two years had resigned), inadequate wages, unsatisfactory working conditions, training inadequacies, insufficient supervision, inadequate personnel policies, low morale, work backlogs, and deficient standards of service to the public. In terms of workflow, the consultants found excess filing of documents not required to be filed, cumbersome index books, the use of archaic cause books, a filing system inadequate for the volume handled, and misplacing of files. A nineteenth-century system was buckling under the weight of twentieth-century caseloads. Yet the report did not recommend full automation, but rather a semiautomated system, based on two main concepts: first, a manually produced card file system and second, the microfilming of all necessary documents. The card files would provide a record of key events and be used for case tracking and control in daily operations. The readily accessible microfiche files would handle the over-the-counter inquiries for document searches by the bar and public. Elementary and economical as these proposals might appear, they offered a singular array of advantages, as follows: 1. They eliminated cumbersome, space and time consuming cause books. 2. They eliminated the necessity of extracting files from the file room to search their contents, with consequent savings in clerical time and in the preservation of existing records. 3. They eliminated typing plaintiffs' and defendants' index books, which would be replaced with computer-produced indices processed at the nearby provincial court computer centre. 4. They eliminated the typing of weekly and daily trial lists. Instead, case record cards could be used to generate these lists on a photocopy machine. 5. They provided a "snapshot" of the workload for any future court date, by simply counting the numbers of case record cards at any given process stage. 6. They provided a concise history of all motions, adjournments, and dispositions in each individual case. 7. They provided a simple means of compiling statistical reports on court activity, dispositions, backlogs, and time intervals for case stages. 8. They provided a ready reference to those cases which might be in jeopardy of dismissal for lack of prosecution. 9. They automatically identified divorce cases where an unusually long time had elapsed from the date of pronouncement, without the filing of a decree nisi. 316

Systems Implementation 10. They allowed the monitoring of time lapses from writ to appearance, from statement of claim to statement of defence, and subsequent procedural phases. The recommendations of this report were accepted and "Project 800" was launched by a working committee under the chairmanship of an experienced court administrator. This working committee was comprised of court administrators, researchers, planners, consultants, and systems analysts. Its work followed in general the procedures previously described in this chapter. By the spring of 1976, the task was largely accomplished and the conversion to microfiche and the new case record card system was smoothly negotiated. This was so because the right principles were followed, and none ignored. Management and staff were committed to the project from the beginning, and even in the earlier stage of report preparation staff members were consulted as to problems and the details of possible reforms. Staff members were named to the committee, and still others worked closely with the committee in the design of forms and new procedures. Procedural manuals were published in the fullest detail. Luncheon sessions were arranged, as well as other meetings, when the proposed changes could be explained to the staff. Training was undertaken prior to installation of the new procedures. Behind and supporting this were careful and intricate analyses of systems, dissecting of forms, and preparation by analysts of flow charts in exquisite detail. The project was held within a tolerable timeframe because design and conceptualizing work was focused on predetermined goals and objectives. Because of non-acceptance by the bar and the public, the microfilming program was abandoned, save for storage purposes; but with this exception the result is a considerably improved operation, built on a system which lends itself to ultimate automation as volume increases. The second report, covering the Main Street court complex, found few weaknesses in the administration, but pointed to the 46,802 traffic offence notices which had been issued in the city of Vancouver during 1974, and offered the view that 45,000 traffic offence notices constituted the practical maximum which could be efficiently handled manually. It consequently recommended full automation (computerization) of the traffic section of the Vancouver Provincial Court at 222 Main Street. What followed is an example of the warping effect which budgetary considerations can have on the development of a system. Since the city was the beneficiary of all fines imposed for traffic and other by-law offences, the province recoiled from the prospect of investing in a computer operation at its expense. Therefore, although the report was accepted as valid, the decision to computerize was deflected from the traffic section to a different target, namely, the sixteen room criminal court operation. The program was named "Project 222." 317

CHAPTER ELEVEN

Again, the same procedures were followed. An operational committee, once again headed by an administrative officer, and composed of a mixed bag of administrators, analysts and computer programmers, designed a computer software package. A mini-computer was installed and linked to a host computer at Simon Fraser University. Once again the meticulous training and involvement of the staff, preparation of a procedure manual, redesign of the processing system to eliminate repetitious and redundant loops, consultation with judges, winning of final approval by all parties of new forms and procedures, and preparation for the test run target date assured ultimate success. The manual and computerized systems were run in tandem during a trial run period, after which the manual system was jettisoned. The operation was carried off with remarkable dispatch, within a period of approximately nine months. The system produced ten output reports (notice court list, file selection report, daily court list, completed court list, weekly status report, daily status report, numeric index, case snapshot, judge's memorandum, and active case follow-up report). LESSONS

The lessons from these two examples are clear; they are five in number. First, in retrospect, it is safe to say that these salient reforms would still be in the talking stage had outside consultants not been retained. The fixed corpus of the administration was too absorbed in day to day problems of unifying the courts administration, reforming the personnel field, training, and developing budgetary sophistication to take on this challenge. Second, immediate identification of problems and practical short term solutions was only possible because specialized expertise was parachuted in. The necessary degree of expertise was not available within the system. Third, in one aspect, systems modification is a game, like chess or golf. The game can only be won if the right strategy is followed. A competent consulting firm ensures adherence to right strategy; that is, adherence to a sequence of moves (as described previously in this chapter), involvement of the administration staff at each and every stage, reliance on specialized expertise, a task force team approach offering a mix of disciplines and talents, analysis of the system in resolute detail, fastidious planning, and rebuilding by disciplined minds trained to anticipate the future. In the complexity of today's judicial machinery there are major tasks which can only be accomplished with the assistance of management consultants. If in-house consultants are lacking, contracting for outside services is the only assurance of success. Fourth, reliance on a management consulting firm alone will not ensure 318

Systems Implementation success. Seasoned conceptualizing and sound strategic and tactical advice can only launch and guide the project. Success requires that implementation be carried out in concert with competent permanent staff. Indeed, the requirement in terms of staff is not mere competence, but manifest talent and flair. In this, both projects were fortunate. David Warren (now director of court services) and Donald Stewart (now a district manager) were project managers of Project 800 and Project 222 respectively. Each brought dynamic leadership to the operation, and each in turn was fortunate in having team members of surpassing drive and dedication. This calibre of local talent is essential to success. Fifth, the benefits derived are not static as to place or time. They grow and become manifold. The Project 800 reforms are being copied in all civil litigation registries throughout the province, one by one, at negligible cost. Project 222 (computerization) is being extended in a grid throughout the lower mainland of the province. The cost benefits therefore are incalculable ip a centrally coordinated court administrative system because the basic model, once worked out, can be adapted to courts throughout the entire province. Planning is thus a process allowing local initiative without isolation, and innovation that responds to needs, not crises; in short, a rational response to the inevitability of change. Stability is achieved not by ignoring or battling social change, but by anticipating and adapting to it— and even transforming organizations to ensure their persistence and vitality. The implementation of new management systems is a technical problem whose details must be appreciated by policy makers and managers alike. But it is also part of a broader concern with change, and a broader movement for the renovation of our legal system that will be given fuller consideration in the closing chapters of this book.

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Part Three

Judicial Administration and Social Change

Introduction

The concerns, assumptions, and arguments in Parts I and II are anchored in the realities of social change. It is the changing nature of the courts' environment that has made it difficult for them to operate, and requires the adoption of a court management philosophy and development of a concomitant administrative apparatus. We have assumed the existence of change and the forces of change, but have not assumed that courts will deal effectively with the changes around them. It is in keeping with this perspective that we have adopted a general systems approach in analysing the courts and their administration. General systems theory also assumes that change is continuous, and that entropy makes the persistence of any system—physical, biological, or social—problematic. Adaptation to change is a means of survival for all systems, though all are not successful in adapting to environmental change. Tendencies toward entropy must be monitored so that they can be identified, and so that coping mechanisms can be designed to prevent or arrest it. Viewed this way, stability is quite different from the absence of change. Stability in a system is measured by how successfully the system limits the effects of entropy. A stable system is usually the one that can change to meet environmental pressures while retaining its essential values and functions. In contrast, a system that does not change may survive, but takes on significantly different sets of social functions; or it may disintegrate and effectively cease to function. Even a system that does change may not survive, if the changes it makes fail to arrest entropy, or if the changes transform the essential defining characteristics of the system. The chapters in Part III will focus specifically on the impact of change, and the processes by which court administration deals with—and brings on—change. The previous chapter, in discussing the implementation of new systems, set out the practical steps for implementing a change in one 323

INTRODUCTION

of the court's important management subsystems. The present chapter, after emphasizing the paradox of change, will consider what organization theorists have written about the processes of change in complex organizations, and will develop a scheme for analysing administrative change. Chapter 13 will examine in detail the work of the most comprehensive change agent to operate in the Canadian justice field, the Justice Development Commission (JDC) of British Columbia. However, the practical implications of the JDC experience will not be perceived unless the theoretical principles of chapter 12 are applied. Chapter 14 will focus on the distinctive evolution of court systems, and spell out a set of alternative futures for our courts.

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Chapter Twelve

Theories of Change CHANGE, ORDER, AND COLLAPSE

A system may be defined in terms of a central goal. Thus it is said that the goal of the court system is to achieve justice. As already discussed, this is in fact an oversimplification. We have argued that courts have multiple goals, of which consummation of justice is but one. For example, in high offence categories such as traffic offences, the object of the system is not only to achieve justice but to arrive at an ultimate determination of a dispute, to put an end to it, so that society is left to pursue its other aims without further interruption. The court is geared to this second important goal. It does not insist on the offender appearing to answer the charge; he may be obliged simply to send in his money with the speeding ticket. Certainly, however, one of the dominating goals of the court system is to achieve justice. To achieve its goal or goals, a system must function physically. To function physically it must maintain a flow of tasks and documents. And just as the record and case flow constitutes the bloodstream of a court system, so the system's life depends on order. The principle of order and harmony must infuse its many subsystems or components if it is to function effectively, and not merely exist. Order implies that a system is consistent and reliable. Leonard Sayles has stated that the purpose of organizing work is to introduce stability. This, however, introduces a paradox, for the court system is an ever changing, fluctuating, and undulating system which is faced with different problems in different dimensions during each year of its existence. It is what is known in systems theory as an "open system"—one which receives and absorbs impacts, influences, and invasions from outside its borders. New legislation increases or decreases the volume of criminal offences in certain categories (for instance, drug abuse legislation) or increases or decreases the number of civil actions (for example, socialized no-fault motor vehicle insurance, which may 325

CHAPTER TWELVE

reduce the number of claims in county and supreme courts but increase the number of actions in small claims courts for the amount of the "deductible"). Fluctuating social habits relating to drug or alcohol abuse will increase or decrease impaired driving offences, theft, breaking and entering, and robberies. Urban growth, social breakdown, wars, depressions, and an endless number of other external factors have an impact on the court system, which must continually adjust to these bombardments to preserve stability as a functioning system. At the same time, the courts have changed radically, although almost imperceptibly, over the centuries. A review of several historical atlases from southern Ontario brings this home in striking fashion. An 1877 atlas of Halton County (between Toronto and Hamilton) lists only one county judge and nine lawyers, but shows six division courts and 136 magistrates.' An atlas of adjacent Peel County published in the same year names one county judge for the population of 26,011, along with 168 magistrates.2 It is not certain that all 304 of these men exercised judicial power, but it is certain that judicial power was spread among a much greater proportion of the adult male population than is the case today. An 1875 history of Wentworth County (Hamilton), Ontario, recalls that the first court of general quarter sessions of the peace in that district, held January 12, 1819, was presided over by a bench of nine magistrates.3 Sketches of prominent community leaders often referred to their appointments as justice of the peace, and their work as "a useful and active magistrate."4 Judicial dispute resolution of a largely non-professional nature thus permeated rural nineteenth-century society. There were perhaps more courts—or at least more officials acting as judges—a century ago than there are today. But in the process of change, courts have maintained and expanded their authority vis-å-vis other institutions of government; and grown into institutions of full-time, professionally trained judges with full-time administrative staff. Many of the qualities of nineteenth-century rural justice have been lost—some for the better, some perhaps for the worse—and the magistrates of old might prove unrecognizable today. Yet certain underlying characteristics of the judicial process have remained to give the courts an institutional continuity, and even make us believe that courts are so old and conservative that they never change .3 The paradox, therefore, is that stability is maintained at the cost of constant change. If the external impact (or, for that matter, the internal impact, for the system must constantly respond to internal changes as well, such as changing modes and concepts on the part of the judiciary and practising bar) is minor, then a minor adjustment only is required in order to maintain that stability. If, however, a heavy impact is received, then the system may suffer large-scale disorder, in which case stability is 326

Theories of Change destroyed and can only be reintroduced at the cost of large-scale changes. This is precisely the point at which we stand today. Deep-rooted changes can have a subtly distorting effect on the goals of the court system, as indicated in chapter 1. To understand this, we must appreciate the distinction between "functional" rationality and "substantial" rationality in an organization!' A system is functionally rational if it operates efficiently in the sense that order prevails in the processing mechanism, so that input, process, and output proceed to an orderly conclusion. Yet a system may be functionally rational while being "substantially" irrational in that the finely tuned and well-functioning machine no longer produces an end product which is justifiable in terms of any worthwhile goals. Organizations can settle into an unthinking routine, or imperceptibly convert to a different routine, which nullifies the original goal of the organization. Stated in terms of organization theory, this is one of the current threats to the courts. In the face of high volume, a criminal court may develop into a smoothly functioning, high volume machine which merely processes criminal charges at high speed, while losing the essential quality of justice. It then becomes a substantially irrational system; it works, but to no acceptable purpose. Examples have already been referred to in cases of large urban courts, where the process changes from time-consuming adjudication of each case to ensure full justice, into a mindless, numbing production line dedicated to containing the swelling backlogs by plea bargaining and summary dispositions. The point is clear and signal: management analyses of a court system should never lose sight of the high and overriding goal of doing justice in each individual case. Otherwise, court administration may prevent disintegration of a court system, but make changes that so alter basic goals that the courts would be transformed; functional rationality would be maintained at the expense of substantial rationality. Daniel E. Griffiths, in his analysis of change in organizations, puts forward a more ominous proposition. He postulates that "living systems respond to continuously increasing stress first by a lag in response, then by an over-compensatory response, and finally by catastrophic collapse of the system."7 This is the history of the French and Russian revolutions. The first two stages can be seen in the court system. Following a rise in a particular type of crime, such as breaking and entering, the courts, after a sluggish time lag, may respond by imposing unprecedentedly stiff sentences. Customarily, sentencing policy settles back to its former level, whether the harsher sentencing policy has acted as a deterrent or not. The important stage to avoid is the third, namely, collapse. The court system has proven durable over the centuries, and is unlikely to collapse save in the event of a full-blooded revolution. Yet collapse of a different sort does occur. It is quiet, regulated, usually 327

CHAPTER TWELVE

official, and often falls under the definition of corrosion, not collapse. Nevertheless, it constitutes collapse insofar as it affects any given segment of the courts' traditional jurisdiction. We are referring to the rise of administrative bodies, which one by one encroach upon and ultimately capture areas of jurisdiction previously recognized as judicial. Examples are many. No-fault insurance is one. The decision is simply made that the legal process involved in settling disputes arising out of automobile accidents is too expensive, cumbersome, and time consuming, and settlements are transferred to an administrative board or crown corporation. This transformation merely repeats the history of workmen's compensation boards which divested the courts of industrial accident litigation. Labour relations boards are tribunals designed to resolve disputes between capital and labour, which were previously referred to the courts on injunction applications, suits, and so forth. The concept of a unified family court may divest the family court judges of their dominant role and central position in the arena of domestic relations disputes. The family court judge is removed to the back end of the system, with family counsellors, probation officers, welfare representatives, and family advocates assuming the major role of conciliation, with reference to the judge only as a last resort. Although these social services operate on the courthouse premises, the social and conciliation process is expanded, while the judicial process is eroded. Increased discretions are being granted to police, probation officers, and counsellors in disposing of juvenile cases without resort to the juvenile court judge, through "diversion" out of the court processing stream. The point system exercised against motorists for traffic infractions, and imposed by provincial superintendents of motor vehicles, divests traffic court judges and magistrates of their sentencing function, including issuing of fines and the suspens.on of driver's licences. All of these represent instances where the courts have failed to respond adequately to changing social pressures, with quiet collapse and extinction of their jurisdiction in these areas. Once again we perceive how the apparently bland and dry postulates enunciated by systems theorists represent the realities of everyday life in flesh and blood terms, even for a system so apparently stable as the courts. The courts' organizational goals may have varied little over the centuries. Yet the organization's area of command has changed vastly, though changes have gone virtually unnoticed at the time they were ocurring because they were not recognized for what they were. CORRELATES AND DYNAMICS OF ADMINISTRATIVE CHANGE

Griffiths argues that the major impetus for change in organizations is from outside; that the degree and duration of change is directly pro328

Theories of Change portional to the intensity of the stimulus from the environment.° He then develops a set of propositions suggesting how the characteristics of an organization affect its ability and willingness to respond to these pressures for change. For example, Griffiths states that change in an organization (such as a court) is more probable if the successor to the chief administrator is appointed from outside rather than from inside the organization. This point is of practical interest. Under normal operating conditions, promotion is and should be from the lower ranks inside the organization. But if an organization is winding down, exhibiting the effects of indifferent management—in a phrase, suffering entropy—then a point is reached when reform can only be achieved by lateral transfer from outside the system. A new administrator is parachuted in who is unencumbered by loyalties, friendships, and commitments to others in the organization, and is consequently free, for psychological and other reasons, to correct irregularities and institute reforms.° Another postulate put forward by Griffiths is that "the number of innovations is inversely proportional to the tenure of the chief administrator. The longer an administrator stays in a position the less likely he is to introduce change." This constitutes an argument for limited tenure. Few administrators have the power of intellectual self-regeneration. They lose energy and initiative in the job, and change decelerates or ceases. Griffiths also argues that "the more hierarchical the structure of an organization, the less possibility of change." This postulate would appear self-evident to most. However, he further states that "when change in an organization does occur, it will attempt to occur from the top down, not from the bottom up." This follows the previous proposition; every administrator knows how difficult it is to effect a change at the lower levels of the hierarchy, and he therefore resorts to fostering orders from the top. Finally, Griffiths states that "the more functional the dynamic interplay of subsystems, the less the change in an organization." Subsystems must develop procedures which do not conflict with the other subsystems, and achieve a tolerable degree of harmony. The difficulty then is this, that if any one subsystem effects changes, the "domino effect" comes into play and the impact of the change hits all the other subsystems, which may react in a negative, obstructive, or even sabotaging manner. Change, as Griffiths states "is practically synonymous with conflict," since it means that the arrangements worked out by the subsystems no longer hold. Subsystems resist conflict, and in the same manner resist change. This insightful statement raises a whole new subject, namely the dynamics of change. In the practical world of public administration, one quickly learns that change brings with it a twin set of disruptive forces. The first disruption is substantive. that is to say, it disrupts the routines, procedures, methods, and even the facilities of the component which is 329

CHAPTER TWELVE

being changed. Secondly, the substantive change brings with it psychological and emotional disruption to personnel, not only throughout the component being changed, but also throughout the components at the interfaces which are being subjected to the domino effect. This psychological factor can be more difficult to control than the substantive change itself. It carries with it a highly charged emotional backlash. Some people enjoy change, its novelty, its excitement, its adventure, and its challenge. Others are upset by particular types of change—though they may be very flexible in other areas—and find themselves the victims of anxiety, insecurity, irritation, and reasoned or unreasoned bias against the proposed change. They regard the innovators with suspicion, distrust their intrinsic motives, see empire building whether real or illusory, and view the disruption to their working routines as detestable.10 Such are the dynamics of change in terms of interpersonal relationships. It is doubtful whether any change can be affected without some of these effects and the only hope and possible endeavour is to minimize the force of the emotional repercussion. This requires the art of the diplomat, the technique of the conciliator, the sincerity of the saint, the understanding of Solomon, and round-the-clock devotion to the task at hand. All parties to change should be advised in advance. Those affected should be consulted. Decisions should be reached, if possible, on a consensus basis. The imaginative faculty must enable the innovator to place himself mentally in the position of all of those affected, anticipate their reactions, avoid ambush (this is usually fatal to a continuing relationship), and accommodate where necessary. Employees at all levels should be brought into the operation and actively involved so that they, to use a colloquialism, "own" the change; that is to say, they feel a proprietary interest and personal commitment to it because of their own involvement in it. Formal and informal educational programs should be initiated where possible. The success of many bad reforms, and the failure of many good ones, have turned on this factor of change dynamics which has nothing to do with the actual subject matter of the change itself. It is difficult to overestimate this factor in any reform program. At the same time, the human factor in change should not determine the content of a reform program. Anticipating psychological factors in change is important. As Warren Bennis has stated: "The clearer we are about what the innovation is going to be, all things being equal, the better the chance that the change will be adopted. The more participation by the people to be affected by the change, the better the chances for adoption, and for acceptance rather than limitation. The more trust in the people advocating the change, the more implementation follows."11 There is research evidence supporting each of these propositions. "Unfortunately, however," writes Bennis, "[the approach] doesn't work often 330

Theories of Change enough. Clarity, participation, trust—they can't always be brought into the innovation." The fact that conflict over change can be minimized is not enough to support the assumption of the human relations and small group theories' approach to change: that change will occur if only enough information and enough trust are present. "Sometimes you have to use the power model," which views change as emerging from dissension and conflict. "Despite all the nice things I've said about the human-relations model," Bennis concludes, "it is a fact that there has been no really basic radical restructuring of any institution by consensus."12 In summary, reform in judicial administration should be built upon an analysis of the fundamental purposes of courts, not on the wishes of court participants. But the process of instituting those reforms should, where possible, be engineered through a consensus process, designed to reduce the level of conflict. Some conflict will be inevitable; widespread dissension, however, is as often a sign of poor management as it is a sign of radical change. SYSTEM RESPONSES TO UNCERTAINTY While systems theory makes the persistence of an organization problematic in the face of change, many organization theorists assume that an organization or system will respond to change automatically, or naturally. Organizations, in their view, are always seeking an equilibrium, and will use a predictable variety of strategies to do so. The most respected proponent of this approach is the late James Thompson. His best known work, Organizations in Action, sees systems operating in the midst of, and responding to, uncertainties arising out of the environment and technology. He then argues that systems "naturally" search for stability and security in the face of these two uncertainties. This is otherwise expressed as the concept of homeostasis or self-stabilization "which spontaneously, or naturally, governs the necessary relationships among parts and activities and thereby keeps the system viable in the face of disturbances."13 While modern theorists like Thompson continue to deal with the concept of equilibrium mechanics, the existence in fact of an equilibrium— even a "moving equilibrium"—cannot be assumed. Under the pressure of a sudden dynamic change, any tendency to seek an equilibrium may be insufficient to offset a loss of equilibrium which may be highly destructive or even fatal to the organization. Furthermore, an organization may make the wrong choice of coping mechanisms because it has not understood or been able to respond to the root causes of its problems. Thus, the notion of a natural or instinctive tendency toward homeostasis in organizations is inconsistent with general systems theory. 331

CHAPTER TWELVE

Despite this basic question about Thompson's assumptions, his work is still useful because organizations respond to uncertainty in predictable, even if not instinctive or effective, ways. As a result, the propositions Thompson develops are useful for understanding the processes by which organizations often adapt to change by resisting and minimizing its impact. For example, Thompson discusses how organizations seek to seal off their core technologies from environmental influences. This reflects the syndrome variously described by such terms as "ivory tower thinking," "tunnel vision," "palace guard advisors," and "prisoner of his own thinking"; in short, inbred thinking which develops in public as well as in private organizations. It is humorously typified by stories such as the aging member of the judiciary feigning lack of vulgar worldiness by asking the meaning of "a V-shaped neckline on a dress," or by the administrator resigning in the face of conversion from 100-year-old cause books to computer recording. Organizations seek to buffer environmental influences by surrounding their technical cores with input and output components. Buffering for trial courts on the input side is seen in the use of chambers or arraignment courts to meet the daily waves of fresh charges, accept guilty pleas, release accused parties on bail, and assign cases to trial courts for trial. Other examples are the resort to traffic and by-law commissioners, J.P.s, chambers masters, and registrars, to grapple with incoming matters of a minor or preliminary nature. Output buffering is seen in reliance on probation officers for pre-sentence reports. Other boundary maintaining mechanisms increase the social distance between the judges and the public—through indoctrination and use of court clerks and security officers in the courtroom, and the privacy accorded judges in their entry and exist from courtrooms and court facilities. Organizations seek to smooth out input and output transactions. Courts are highly vulnerable because they cannot control input. An example is a wholesale "drug-bust" which results in sixty-six new drug charges appearing on a drug court calendar within a twenty-four-hour period. All the court can do is reorganize its calendaring and caseflow process to absorb the impact. Thus, a well-organized court will exploit its administrative system to the maximum in order to smooth out the caseflow process, thereby avoiding excessive backlogs on the one hand and having the court lie stagnant because of collapsed trial lists on the other. Organizations seek to anticipate and adapt to environmental changes which cannot be buffered or levelled. Weighted caseload studies are now used to predict and anticipate judicial manpower requirements, as well as those in the administrative, police, sheriff, corrections, and other fields in accordance with middle- and long-term crime and civil litigation trends. Clearly, the court as an organization cannot erect buffers against ever 332

Theories of Change increasing cases being brought before it, and must therefore anticipate and adapt to them by expanding its capacity in terms of improved efficiency, and increased manpower and facilities. When buffering, levelling, and forecasting do not protect their technical cores from environmental fluctuations, organizations resort to rationing. Budget restrictions prevent courts from expanding at the same pace as caseload increases. Therefore, court services are rationed to conform to the budgetary restrictions. Small country courts are phased out and modern transportation is relied on to bring the members of the public and their cases to some central point. Family court intake services are curtailed or shifted to some other agency. Part-time volunteer workers are recruited from senior high schools or law classes. Per diem court clerks are hired on an hourly rather than a full time basis. Courts may refuse to collect by-law fines. In smaller courts, court recorders may double for clerks, or magistrates and other judges may be requested to conduct court without their assistance. Diversion programs, both narrow and broad in scope, are put into operation to eliminate services once performed by the courts. In short, court services are rationed. Thompson states that all organizations stake out a domain. A court stakes out for itself a certain domain or jurisdiction: a geographical area to cover, a specific population to serve, and types of judicial services to render. It identifies the points at which the court is dependent on (or in a sense serves) the inputs from its environment or "task environment." The domain concept enables us to deal with operational goals, in terms of a set of expectations both for the members of the organization (for our purposes, the judiciary or court support personnel) and for others with whom they interact (the litigants). Task environments of complex organizations are multifaceted and pluralistic, and an interdependence develops between the organization and its task environment. Again, the organization survives by maintaining a tension between its goals and purposes on the one hand, and survival on the other. Two further propositions suggest how Thompson proceeds from the domain concept:" The first is that organizations seek prestige. Courts must inevitably seek and maintain prestige, for on it rests their sanctioning powers. While courts eschew the open advertising that business firms, universities, and government agencies use in the quest for prestige, they are by no means passive. One need only consider the use of titles, trappings, rituals, and even contempt proceedings. The second proposition is that organizations seek power relative to those on whom they are dependent. Again, the goals of the court system require that it preserve its power relative to the other branches of government in order to maintain its capacity to function. As well, it seeks power relative to the tax-paying public, upon whom it is in a sense dependent, but upon whom it must from time to time impose sanctions. 333

CHAPTER TWELVE PLANNED CHANGE

The prevalence of social change on one hand, and organizational response to change on the other, have allowed organization theorists and other scholars to focus on a whole new area: the study of planned change, or innovation, or knowledge utilization. Studies in this field have mushroomed as the success of government agencies and programs increasingly depends on the ability to develop and communicate innovations. The field of planned change has developed most extensively in the United States, with studies of innovation in agriculture, education, space (focusing on the technology transfer efforts of the National Aeronautics and Space Administration), family planning, and even criminal justice. Important new theoretical insights have emerged from these studies; four will be discussed here. Gerald Zaltman and his associates have emphasized how the characteristics of innovations will affect adoption. One obvious example: the less costly an innovation, the more likely its adoption. Other features also make intuitive sense: the less complex an innovation, the more likely its adoption; "the more compatible the innovation is with the existing system, the more likely" its adoption; if "the decision to innovate is reversible," adoption is more likely than when it is seen as irreversible. Furthermore, certain innovations may be "gateway innovations"—that is, changes in an organization's structure or procedures, however small, that "have the effect of paving the way for additional innovations." Thus the adoption of certain innovations and policies may increase the "gateway capacity" of an organization—that is, its ability to adopt additional innovations.16 Zaltman's findings could provide court administrators and consultants with fresh guidance in choosing among competing innovative proposals and strategies. Jerald Hage and Michael Aiken have isolated certain organizational characteristics that are related to levels of innovation and planned change. Organizations are higher in innovation when: • • • •

Organizational members have high professional training; Power is decentralized within the organization; The organization is low in formalization; A low emphasis is placed on efficiency and on volume of production.16

Hage and Aiken's findings are sober reminders of the need to beware of the emphasis on efficiency and on processing large volumes of cases and records. While the present text has argued for an emphasis on efficiency in judicial administration—as an antidote to the historic tendency of judges to ignore management issues—any discussion of efficiency must 334

Theories of Change be in terms of increasing the courts' ability to render effective justice. Modern court management innovations should be designed to be responsive to change; they should not emphasize efficiency to the point where formalization of procedures leads to organizational rigidity.17 Raymond Nimmer's study of procedural reforms in criminal courts provides additional important warnings. He studied both mandatory reforms (plea bargaining conferences and shifts between individual and master calendars) and optional reforms (speedy trial statutes and omnibus hearing processes) in a number of American cities. He found that these reforms had different effects in different courts; for impact to occur, "the incentives generated" by the reform "must be sufficient to overcome systemic tendencies toward the retention of normal patterns of behavior —the status quo."18 Otherwise, the reforms would be absorbed by participants into the existing patterns of behaviour; the new procedures would exist in name only, their effects altered to reinforce existing distributions of power in the court setting. Nimmer also observed the tendency of the change process to acquire a value in and of itself. In some places, implementing the reform became the pre-eminent goal, displacing the reasons underlying the reform itself. Under those conditions, it was easy for local people to convert the reforms to serve their own purposes, and undermine the original purpose of the reform. Nimmer's observation reflects the limits of reform that operate in many areas, but it is especially relevant to the proposals in this text. Thus, the authors have argued for two changes: judicial responsibility for judicial administration, and the development of a management philosophy for the courts. If one reform is adopted without the other, the result could undermine the authors' whole purpose. For example, if the judiciary assumes responsibility for administration, but fails to adopt a commitment to effective management, the court system will stagnate. Conversely, if the courts have modern management thrust upon them from outside, without judicial involvement, the result could threaten the independence of the judiciary and the distinctiveness of our court system. Only if both elements of our argument are accepted, even incrementally, will the reforms be directed to their underlying purpose: the preservation of effective and independent justice. Nimmer's analysis suggests that the implementation of a reform is not enough. Other students of planned change have begun to suggest the same thing. As a result, the process of planned change and knowledge utilization is now conceived as having not only development, diffusion, and implementation stages, but also an institutionalization stage, when "an innovation becomes incorporated into the routine operations of practitioner systems."19 Finding that "even successfully implemented projects are short-lived," Paul Berman has urged that research turn to 335

CHAPTER TWELVE

how changes become standard operating procedures. Robert K. Yin has developed measures of the degree of institutionalization based upon "the number of organizational passages (or discrete decisions marking the transition of the project from one status to another within the organization [such as personnel turnover, altered job descriptions]) and cycles (e.g. budget cycles) that a new practice survives."20 The same passages and cycles can be observed during planned change in the courts, and should be monitored to assure that administrative reforms are institutionalized. For example, judicial advisory committees established by an attorney general's initiative may later be embodied in legislation; pilot projects may be incorporated in the court's annual budget; trial coordination tasks may be written into the job descriptions of relevant courthouse personnel. THE TASK FORCE

Students of planned change have discussed the process of knowledge utilization largely without considering whether homeostasis, entropy, or persistence is the most likely outcome of organizational response and nonresponse to change. Meanwhile, those organization theorists who assume change rather than homeostasis have developed a variety of views on the shape of change in the future. During the 1960s, the writings of Warren Bennis were among the most comprehensive and provocative. From them emerged a new "task force" conception of organizational structure and leadership. Bennis and Philip E. Slater, in The Temporary Society, have summarized the underlying theory: 1. "The increased level of education and mobility will change the values we place on work. People will be more intellectually committed to their jobs and will probably require more involvement, participation, and autonomy." 2. "From an organizational point of view we can expect that more time and energy will have to be spent on continual rediscovery of the appropriate mix of people, competencies, and tasks within an ambiguous and unstructured existence." 3. "The key word will be `temporary.' There will be adaptive, readily changing temporary systems. These will be task forces organized around problems to be solved by groups of relative strangers with diverse professional skills." 4. "The task of the organization will be more technical, complicated and unprogrammed. They will rely on intellect instead of muscle. And they will be too complicated for one person to comprehend, to say nothing of control. Essentially, they will call for the collaboration of specialists in a project or a team form of organization." 336

Theories of Change 5. The executive "becomes coordinator or `linking pin' between various task forces," a person who must "speak the polyglot jargon of research, with skills to relay information and to mediate between groups. People will be evaluated not according to rank but according to skill and professional training."21 In order to survive changes in the environment, temporary systems are necessary to complex organizations. A form of temporary system in the courts area is a task force team consisting, for example, of court administrators, business consultants, computer experts, statisticians, and architects, combining to analyse, only to be succeeded by a different team of different specialists to attack some new and different problem. Problems are no longer simple. They require a diversity of.specialists drawn from several fields. Increasingly, we find ourselves working with intelligent and highly trained specialists who resist commitment to an organization for any period beyond eighteen months or two years. Their commitment is to their profession and to their specialty. Their life style is that of a peripatetic free spirit, moving from organization to organization, confronting complex and ambiguous problems, and moving on. What are the characteristics of this new professional? These individuals are well described by Bennis and Slater: (a) They are dilemma-seeking, problem-solving people. They identify with, and thrive on, the process of solving problems. They have a high tolerance for ambiguity. This is a strength be(b) cause problems are things with a shifting, elusive quality. (c) They have a high identification with their profession and their invisible college, not with their immediate jobs. (d) They are learning people, who value the opportunity to learn and the content of a job more than money or their physical surroundings. (e) Their work motivation is primarily internal, intrinsic to their interests and the task itself. They respond very negatively to any coercion to work on a task or problem defined and imposed on them by others. (f) They have a high need for collaboration and involvement in a systems approach to their work. They recognize that no individual has the knowledge and the perspective to handle new and complex problems alone. A related phenomenon is the increase in education in today's society. Increasingly, people are finding themselves undertaking new educational courses in order to enter new fields -in the midst of a working career. Bennis estimated that the average American now moves through five 337

CHAPTER TWELVE different occupational fields in the space of a lifetime. He further estimates that by late in this century 40 percent of the U.S. work force will have positions in problem solving organizations, most of them technically based; 40 percent will be social change agents, working in the revitalization of our institutions, and 20 percent will perform the remaining unprogrammed low level tasks of society. Under these conditions, management rests heavily on the capacity to collaborate with subordinates and to negotiate and collaborate with task forces, to act as a buffer between task forces and line organizations. It also demands recognition that no one mind can grasp and retain all the complexities of the problems involved; thus, managerial problems can only be solved by team effort. Today's manager must create an open organization with open feedback channels. He must meet the moral and technical demands upon him to develop and cultivate the skiIIs and talents of those working for and around him. In summary, Bennis' vision of the future combines with the existing reality of changing and complex organizations to emphasize the importance of a theoretical understanding of modern organizations. Courts, as we have observed at many points, share the characteristics of the complex organizations out of which current theories have developed. Yet the courts have lacked the administrative equipment that complex organizations need to survive and flourish in the future. Organization theory restates in its own language the central thesis of the present book: courts must change or atrophy, and a crucial part of the changes they must undergo involves the development of a modern management perspective. ADMINISTRATIVE CHANGE: PARALLEL AND ALTERNATE STRUCTURES While Bennis and Slater spell out the general direction of change in organizations, administrative changes may be directed toward diverse sets of goals and may work through different structural arrangements. We will thus move to a conceptual scheme that derives from three different approaches to changing what government does. Each approach, or strategy for change, derives from a different set of assumptions about the use and importance of administrative structures and procedures. In system terms, one approach emphasizes the importance of inputs, the second emphasizes the importance of outputs, and the third emphasizes outcomes (the impact of outputs on the environment). Thus, the first approach would propose changing the leadership of a department in order to change what the department does. The second would seek out competing sources of policy advice, so that new policy outputs would be generated. The third approach would attempt to change the basic assumptions by which a department administers policy by re338

Theories of Change defining the roles of its members. The first approach requires no structural changes; the second and third are premised on the need to develop new administrative structures. The leadership approach assumes that high-ranking administrators in a department are capable of making changes within the existing organizational structure—that the existing structure will respond to leadership from the top and implement desired changes. This assumption postulates that the organization will change if new, more effective, or more innovative leaders—strongly committed to desired values—are chosen. This is the approach which has cost many hockey coaches and baseball managers their jobs in mid-season.22 The policy outputs approach involves the creation and/or development of parallel structures. These exist when two institutions or sets of institutions, operating independently of one another, perform the same functions based on similar but not identical sets of expectations and values.23 Thus, the World Hockey Association was created as a structure parallel to the National Hockey League, performing the same activity but making it available to cities ignored by the well-established NHL. Major political parties often function as parallel structures; while each one has a similar party organization, change is considered more likely to occur when a second group (the loyal opposition) capable of performing the same function presents different perspectives to the public. Parallel structures can be like miniature replicas24 of an existing organization; for example, a consulting firm or an auditor's office, whose staff has skills and knowledge paralleling those of a larger organization, may be called upon to study the practices of that organization in order to bring forward recommendations for change not adequately considered in the past. Thus, parallel structures are seen as necessary for administrative change because existing structures often filter out information that leaders require if they are to make changes. The way to stimulate policy change is to give leadership new perspectives or new policy options from which to choose. A parallel institution can both develop the additional options and monitor the activities of the existing institution to ensure that a wide range of policy choices is available. The third approach seeks fundamental change in the pattern of administrative behaviour through the use of alternate structures. These exist when two independent institutions with different prevailing values organize to perform comparable functions in very distinctive ways, so that each one reinforces a distinctive set of values. Thus, credit unions have developed as alternatives to banks, technical schools as alternatives to universities, and utopian communities as alternatives to contemporary life styles. In each case, the new structure has attempted to embody different goals and values, not merely providing competition for financial, 339

CHAPTER TWELVE

educational, and family services, or offering a more efficient version of pre-existing services. An alternate structure is seen as necessary when the behaviour of an existing institution remains unchanged even in the face of new needs or new policy directives. The way to stimulate change is to develop new standards of appropriate behaviour (norms) and new organizational roles, so that officials alter their patterns of work and the interests and values they serve. In public administration, an alternate structure that embodies these new interests and values may co-exist for a time with the pre-existing institution, but is more likely to merge with it, placing a new organization with different values in the shell of the old. Each of the three approaches can be observed in the recent history of federal and provincial governments. Cabinet shuffles at each level of government are common occurrences premised on the notion that change at the top will change the direction of an existing department. Paul Tennant's characterization of the New Democratic Party government in British Columbia as "unaided politicians in an unaided cabinet"25 suggests that the NDP chose to rely largely on changing leadership after the long period of Social Credit dominance, not on making structural changes. Parallel structures are increasingly common today, typified by the Privy Council Office in Ottawa, which serves as the secretariat to the federal cabinet. It has grown dramatically in size, enabling it to review independently all departmental policy proposals.26 The PCO also generates its own recommendations to cabinet. Similar policy development and screening bodies created in Ontario (policy secretariats) and Quebec (ministries of state) also constitute parallel structures. Alternate structures are less common. British Columbia's experiments in linking the delivery of social services (and justice services) to the development of local citizens' councils may be the best examples. Bennis and Slater's task force model discussed above is similar to an alternate structure strategy for change. Note, however, that most task forces in Ottawa and the provinces in recent years have been more in the nature of parallel structures, staffed by career public servants pulled from their departments on a temporary basis in order to generate policy proposals to meet a short-term impasse. The three approaches to change can also be observed in the field of court administration. The emphasis on leadership change is reflected in the importance given to the selection of chief justices and chief judges. There is increasing concern that those chosen for these positions, especially in trial courts, have an interest in and aptitude for administration— on the assumption that the quality of judicial leadership is crucial to effective administration. The feverish activity of Ontario's Willard Z. Estey, during his tenures as Chief Justice of the High Court and of the province, stimulated important changes. His replacement by men less active in administration has slowed the pace and reduced the scope of 340

Theories of Change change, because his presence alone was not sufficient to ensure the continued priority of changes in court administration. Quebec's rejection of judge-directed court administration and support of the existing administrative system27 suggests a belief that change will come more effectively from the top down, without the need for additional structures. Note also Sarah Cox's conclusion that no form of caseflow management has yet been developed that surpasses the effectiveness of the "Great Gal" system.28 The development of parallel structures may be best approximated by the Ontario White Paper on Courts Administration, in recommending creation of a judicial council to direct court administration in that province. The White Paper emphasized the development of new lines of responsibility (to judges rather than executive officials), meaning a change in reporting relationships rather than in roles. The White Paper assumed that changes would occur as a result, but did not focus on the kinds of changes that would produce visible alterations in administrative operations. For example, the notion that caseflow management begins at the point of setting down for trial rather than at the commencement of the action was not questioned; nor were other operational changes made explicit. The White Paper, in keeping with a parallel structure design, also recommended creation of an advisory committee on court administration, separate from the judicial council, to monitor the council's work. Ontario also followed a parallel structure approach in recent revision of civil practice rules. Desiring a more substantial revision than he could have expected from the existing statutory rules committee dominated by judges, the attorney general appointed a smaller committee of lawyers that followed similar procedures, but was somewhat more willing to make rules changes. The replacement of judges by lawyers suggests that different policy choices would emerge, but basic assumptions about how the rules ought to work would still be shared. Neither committee had lay members. The closest approximation to an alternate structure in court administration was the Justice Development Commission of British Columbia, the subject of chapter 13. Underlying the JDC was the notion that the courts should serve and be responsive to public needs as part of a unified and better-integrated system of justice. Local justice councils were established to obtain citizen participation in early stages of policy development and on a continuing basis. Training programs were designed so that existing personnel could absorb the new values and new ways of operating. Buildings as well as organizations were redesigned, in hopes that new assumptions of court administration could be reflected in architectural terms. The biggest battle that JDC fought against the judiciary (and lost) involved the design of a new Vancouver courthouse to include extensive 341

CHAPTER TWELVE

facilities for private non-profit service groups, and to limit the number of courtrooms to encourage decentralization of judges. In summary, the commission reasoned that changes in the outcome or impact of public policies required changing behaviour of government officials; that behavioural changes required more fundamental and permanent changes in the nature of the institutions; and that these fundamental changes required the creation of an alternate structure whose eventual merger with the existing institutions would change the assumptions underlying court administration, and build in mechanisms for assuring continued reform in the face of future changes in personnel and governments. Our earlier discussions of personnel administration in chapter 6 and of budgeting and planning in chapter 7 can also be related to the three approaches to change. On the personnel side, all three approaches operate within the present constraints of the merit system. However, the leadership approach requires more flexibility in personnel selection so that the one "right person" can be selected. Following Griffiths' proposition presented early in this chapter, a leader selected from outside the organization may produce more change than a career employee elevated from within. Therefore, the leadership approach cannot work without a more flexible personnel system. The public service of the nineteenth and early twentieth centuries, which rested on a basis of patronage, carried this approach to its logical conclusion. What mattered was not the structure of government departments, but whether employees of those departments were Grits or Tories; a change in government had to be accompanied by wholesale changes of personnel, whose different political philosophies would produce whatever changes in policy were necessary and appropriate. The continued flexibility available to both federal and provincial governments in the selection of chief and puisne judges allows the leadership approach to be maintained even when it is no longer the most viable mechanism for administrative change. The parallel structure approach has been meshed with existing merit systems of personel administration. Thus, personnel in the federal Privy Council Office, Treasury Board Secretariat, and even the Prime Minister's

Office are generally recruited from the career public service, as are the staffs of the policy secretariats in Ontario. In fact, the parallel structure approach can mesh with whatever personnel practices characterize existing departments. Thus the Ontario White Paper on Courts Administration recommends no changes in practices for selecting support personnel under the proposed judicial council, even though the existing system is heavily patronage-oriented. The parallel structure approach assumes that the existing personnel can produce policy changes as long as they are placed in a new organizational framework designed to generate more policy options for the leadership. 342

Theories of Change Personnel administration in an alternate structure could draw on Bennis and Slater's task force model, which stresses that change agents on a task force are likely to be temporary personnel with professional expertise, free spirits who would resist inclusion in the permanent civil service. If so, they would be most effectively recruited through a contract system, allowing them to commit themselves for a more limited period of perhaps eighteen to thirty-six months. Interestingly enough, the JDC originally hired the bulk of its professional staff on a contract basis, in some cases hiring professionals on leave from other organizations. In the long run, the alternate structure approach is compatible with an existing merit system, in that employees of the pre-existing institution are given the opportunity to absorb new values and Iearn new roles. Those that are unable to do so would not function effectively as part of the redesigned organization. If they fail to meet revised criteria for merit and find themselves on the sidelines while others move up to more responsible positions, ineffective personnel are expected to resign or transfer to positions for which they are better fitted. Approaches to budgeting have changed in recent years, and these changes relate closely to the three models of administrative change. The development of program budgeting, in the form of PPBS or ZBB, is designed to enhance the ability of central decision makers to make policy choices. It is explicitly output-oriented. It has led to the enlargement of central budget agencies such as the federal Treasury Board Secretariat. In short, it reinforces and reflects the parallel structure approach to change. Demands for the loosening of central control and an increase in the flexibility of program departments have resulted in adoption of different degrees of lump sum budgeting, which means that while a program department must stay within its total estimates, it can more freely transfer funds across budget categories as new priorities emerge. This approach to the budget would be most compatible with an alternate structure approach to change. It operates without the central policy direction featured in output-oriented program budgets, or the tight accounting controls characterizing input-oriented line-item budgets. Again, note that the Justice Development Commission in British Columbia moved by its second year to a lump-sum budgeting system. The leadership approach to administrative change assumes that new or existing leadership can make budget choices without the necessity of adopting new techniques or mechanisms for budgeting. Leadership could therefore operate under line-item, program, or lump-sum budget systems. In practice, the traditional forms of line-item budgeting are likely to become predominant, since newer techniques of program budgeting have 343

CHAPTER TWELVE

required heavy support of top leadership for their continued effectiveness, and lump-sum budgeting remains relatively uncommon. The theories of change discussed in this chapter deal with the growth and development of organizations, and also with the disintegration and collapse of organizations. This tension will be seen again in the next two chapters that describe the work of a change agent organization, and spell out the disintegrative tendencies that require a rethinking about the fundamental role of courts in our society.

344

Chapter Thirteen The Change Agent ORIGINS AND PURPOSE OF THE JUSTICE DEVELOPMENT COMMISSION

We have discussed the pressures for reform in the courts, analysing court and justice systems, as well as change design and its implementation. The nature of complex organizations and the manner in which they react to pressures (both external and internal) for change have been studied. Finally, we have discussed the internal stresses induced by change. For the most part, the treatment of these phenomena and their underlying principles has been on either an abstract or a normative level. How do these principles work out in practice? The justice system reform program undertaken in British Columbia in 1973 is a classic example of the way in which complex organizations behave as described by organization theorists. It is also an excellent example of the dynamics of reform in actual practice. It constitutes a fascinating narrative of high aspiration and mixed results, courageous imagination and sober questioning, fastidious planning and partial concellation of effort, a consensus approach to problems and unresolved conflicts of view, vast labours counting neither the minutes nor the hours and incommensurate returns, search for stability and unending flux. Its drama invested these reforms with a certain glamour which attracted professionals from many fields: judges, lawyers, police, administrators, psychologists, systems analysts, consultants, sociologists, statisticians, research specialists, academics. These do not exhaust the list. The aura of this reform program, the vigorous controversy which surrounds it, the fluidity of the exercise were such that it was difficult to assess its worth in terms of accomplishment from year to year. Yet it pursued its course under the firm hand and percipient eye of Deputy Attorney General David H. Vickers, recruited from the Vancouver bar in 1973 and deputy until his retirement in June 1977. It held to specific objectives. It was not, as claimed by some of its opponents, a goalless voyage along a dubious 345

CHAPTER THIRTEEN

course, nor did it represent change for change's sake. A bird's eye view of this reform movement, caught near its conclusion, reveals a formidable inventory of reforms designed to improve the justice system. The austerely objective critic may justly observe that it remains to be seen whether these reforms have accomplished either immediate or longterm goals, namely, to increase protective efficiency of the police, reduce case backlogs in the courts, render speedier justice, and decrease recidivism and crime rates. It is too early to say, and in any event the question is too simplistic. A minimum ten-year turn-around time is required to assess the results. Further, no reform is a "one shot" exercise; it is an ongoing process of continual adjustment in response to a dynamically changing society. From this viewpoint, no definite judgment is ever possible. The justice system must be regarded as encompassing the larger context of the interplay of social forces so profound that it is never in the position to provide prescriptive and final solutions to social misconduct. The justice system cannot cure social ills; it can only seek to contain them. Since they spring from the built-in deficiencies of society, the only permanent solution rests in a profound spiritual transfiguration of the entire civilization—a subject beyond the scope of this text. The purpose of this chapter, then, is to describe and explain the practical mechanism of real change in a particular justice system, and to raise some new questions. We have previously remarked on the tendency of day to day operations to sabotage planning and discourage the implementation of change. In complex organizations, therefore, a catalytic agent must be injected into the process in order to effect any desired change. This catalyst may be referred to as the "change agent." In simple terms, it consists of a task force, or series of task forces, composed of specialists and experts from all relevant fields, drawn both from inside and outside the existing organization. This internal/external mix is required to produce the proper blend of detailed operational expertise on the one hand, and specialized systems consultants and professional expertise on the other. The fundamental strength of a task force lies in the fact that it is unencumbered by daily operational duties, and therefore enjoys the time and freedom to analyse the existing situation, produce prescriptive solutions for individual problems, plan and implement the change, and then graft the change onto the main operational body of the organization—a kind of bureaucratic transplant. Having accomplished this, the task force is dissolved. This is the formula adopted in the British Columbia program, and we now turn to a detailed examination of its sundry aspects before attempting to measure some of its results. A final comment will address the risks inherent in the use of the task force concept. The seed of the British Columbia reform movement was planted in 346

The Change Agent the final two or three pages of a report of the Task Force on Correctional Services and Facilities, prepared by Dr. Malcolm A. Matheson (former deputy director of provincial corrections) for the attorney general of the province on February 28, 1973. This report revealed that criminal code offences in British Columbia had doubled in the eight years between 1962 and 1970; that British Columbia suffered a significantly higher overall crime rate than the national average (one criminal offence for every twelve citizens); that drug offences for opiate drugs ran five times higher than the national rate; that crimes of violence had increased by 150 percent between 1962 and 1971; and that over this period rape and sexual offences had increased by 152 percent, property crimes by 140 percent, and the number of females convicted of indictable offences by 200 percent. It further predicted that criminal offence totals would double again by 1980. Among other recommendations, it proposed that "immediate action be taken to implement a criminal justice computer-aided information system for the Province, with the use of existing Federal resources in the Statistics Canada Judicial Section."' It further recommended "a planning unit for the Attorney General's Department with responsibility for integrating the planning for police, courts and corrections into a total Criminal Justice System plan, with clear priorities, and with capacity to monitor the changing nature of crime and the effectiveness of the system," and that "the Province establish a Master Planning Council for the Criminal Justice System which would include the heads of agencies within the system, with provision for citizen input from all sectors of society in British Columbia." The proposal envisaged the classic criminal justice model which had been developed in the United States, as outlined in figure 21. This model contemplates the arrest of a citizen, who enters the police compartment. He is either released after questioning or a charge is laid, in which case he enters the prosecution section. At this point he either exits because the charge is dropped by the prosecution or it is proceeded with, when he enters the court section for adjudication. Here, he may drop out of the system because the crown enters a stay or a trial is held resulting in an acquittal. If convicted, the accused will enter the corrections section, whereupon he will be released on probation, or subsequently released following a period in custody. The object is to monitor this input/output system. Its effectiveness would be measured in inverse ratio to the number of accused parties who recycle back into the system. Traditionally the four sections of this criminal justice model have adopted competing postures, as previously described in this text, with what are regarded as counter-productive results. The theory backing the new concept is that if a joint council is organized representing all four sections, then, on the basis of improved statistical data supplied by the 347

CHAPTER THIRTEEN

FIGURE 21 INTEGRATED JUSTICE SYSTEM MODEL

CRIMINAL JUSTICE COUNCIL

ARREST

POLICE

PROSECUTION

CORRECTIONS

RELEASE FROM CLØ

(PLEA) (CONVICTION)

(CHARGE)

I RELEASE AFTER INTERROGATION

COURTS

RESEARCH

CHARGE DROPPED

I STAY OR ACQUITTAL

I PROBATION

research arm of the council, joint decisions can be made to improve effectiveness of the overall system. This is a neat and stimulating concept —on paper. Its implementation is fraught with adventure, which begins with a justifiable hesitation on the part of judges to lock arms with police, prosecutorial, and corrections agencies with resulting risks to the independence which a judiciary must maintain, not only in fact, but also in appearance.2 In any event the Criminal Justice Coordinating Council was swiftly organized with Matheson as chairman, all components of the system represented, and a research unit attached. By November 1973, it was clearly apparent that the courts' section of the system could not be reorganized to reduce case backlogs in the criminal courts without a reorganization on the civil side as well. Accordingly, the word criminal was dropped from the title and the body became the Justice Coordinating Council. The salient issue of executive capacity had then to be faced. Was the council to be purely advisory? If so, would its existence be no more than an academic exercise? It was at this point that the concept of a change agent was introduced. Bill No. 2 was introduced into the legislature in 348

The Change Agent the spring of 1974 to enact the Administration of Justice Act. This act (see Appendix D) was shortly passed, establishing the Justice Development Commission as an agent to the crown in the right of the province. The commission's functions, set out in section 5, included coordinated planning for the future development of all aspects of the administration of justice, conducting and financing research and investigations into all aspects of the administration of justice, making recommendations for "change, reorganization, and general improvement of the administration of justice," and developing experimental programs and projects. It was realized that if rapid change was to be achieved the assistance of specialists from outside the public service must be sought. The only method of accomplishing this was to create a commission with power to contract for such services without the time-consuming and frustrating procedure of establishing positions, advertising, and holding selection panels through regular public service commission channels. This circumventing device worked, and a formidable body of experts was shortly assembled under the ultimate chairmanship of the deputy attorney general. The commission assumed no less a task than the complete overhaul of the justice system of the province in all its departments. To list all the resulting reforms is unnecessary; as the organization chart in figure 22 suggests, they reached all aspects of the criminal justice system.$ We will, however, attempt a brief and partial inventory to offer some idea of the pragmatic power behind the change agent concept. It should be borne in mind that all or most of the programs which it spawned were grafted back onto the main body of the administration of the attorney general's ministry, to be operated by permanent public service employees. Although reforms were applied to the entire justice system, those relating to the courts wil be stressed in this summary.' REGIONALIZATION OF JUSTICE SYSTEM AGENCIES Before the inception of the Justice Development Commission, the Justice Coordinating Council had already developed the strategy of regionalization. It divided the province geographically into nine administrative regions (subsequently reduced to six and then to five). This administrative structure was to be adopted by the eight main components of the justice system, namely the three tiers of trial courts (supreme, county, and provincial courts), crown counsel, police, sheriffs, corrections, and the provincial parole board. The regional concept would not only facilitate administration of such a large area (more than one third larger than Texas, and almost seven times the size of England), but it would also be useful for monitoring purposes. Quantitative data flowing from all -ions could be compared, analysed, and used as a basis for monitoring 349

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FIGURE 22 THE JUSTICE DEVELOPMENT COMMISSION

H

POL10E

•

DELIVERY OF LEGAL SERVICES

H

•

COURTS INFORMATION SYSTEMS

CORRECTIONS

CHAIRMAN

EXECUTIVE SECRETARY

MANPOWER DEVELOPMENT

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PRETRIAL SERVICES PLANNING RESEARCH EVALUATION

•

COORDINATED LAW ENFORCEMENT UNIT

JUSTICE COUNCILS

the effectiveness of the various regional subsystems. The data would also yield insights as to the manner in which the system operates as a whole. Such data would of course have to be interpreted with flexibility, tact, and an understanding of the crucial part which sheer geography plays from region to region. Some regions, such as the northwestern and northeastern quadrants of the province, contained vast areas with lightly scattered populations, while others a fraction of their size (such as the Vancouver and lower mainland regions) contained large populations in concentrated 350

The Change Agent urban areas. Criteria determining regional boundaries included demographic and geographic factors, and the necessity of harmonizing regional boundaries of related subsystems. The idea of imposing common boundaries on all components succeeded in some measure. The nine original regions were adopted by the provincial court, crown counsel, court administration, sheriffs, and court reporters. While it was hoped that the ministries of Education, Health, and Human Resources would adopt this regional structure, the nine regions were instead contracted to six in 1977, and five in 1979, for administration of the four last-named justice components. Beyond this, the regional concept, though theoretically sound, was proven impossible to effect. County courts still operate within county boundaries fixed decades ago, and supreme court itinerant judges with province-wide jurisdiction ignore all boundaries for practical purposes. Corrections developed a separate regional structure and other ministries ignored the plan. Provincial court and crown counsel have deviated: only the three court services have maintained common regional boundaries. FOUR PERIPHERAL SYSTEMS

Courts Planning Group. From its inception, the commission had the benefit of a courts planning team composed of architects, lawyers, and researchers. This unit gathered, collated, and analysed court statistics throughout the province and provided long-range planning. It provided the first complete inventory of existing court houses and caseloads and conceptualized the computer aided management information system now in use in the criminal division of the provincial court (see chapter 10). Justice Councils. In an effort to involve citizens throughout all the communities of the province in the planning and development of justice services, the commission established the mechanism of regional justice councils under the overall supervision of Director Donald McComb. Regional directors, in turn, fostered the formation of local community justice councils composed of interested citizens to provide feedback from the public to the attorney general regarding the problems, reformative ideas, and needs of their communities. These councils attempted to observe the police, courts, corrections and legal services in the hope that through a two-way communication flow between the public and the attorney general's ministry, greater innovation would result. The councils worked as well with representatives from the Ministries of Human Resources, Education, and Health. Experience naturally varied from community to community. Some flourished, others declined. Meetings were frequently animated. Frank discussion was encouraged. Many were seized 351

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on by the mayors, municipal councils, and progressive groups in smaller communities as a focal point for their grievances, which were immediately communicated to the ministry. At their height, justice councils provided an effective mechanism through which the ordinary citizen of a small community could have his voice heard at the seat of power in Victoria— as well as having the ministry's point of view explained to local citizenry. The councils gradually declined, however, and were finally disbanded in 1980. Manpower Training. The commission established a unit to plan and implement training, either directly or in a support and resource role, of employees within the justice system. It attempted to develop a common strategy of training and education, and to provide an inventory of learning resources for all programs. Information Systems. In January 1975, the commission established a planning group of systems specialists under the direction of Dr. William D. McMinn.5 Its initial emphasis was on systems design and computer feasibility, then it shifted to systems operations and data base services to users within the justice system. Some twenty feasibility studies were undertaken, and developmental work followed in some areas, including an index inquiry system for police files, monthly criminal activity statistics, development of an integrated data base of crimes and criminals for police detachments and CLEU (the Coordinated Law Enforcement Unit that was part of the JDC), and coordination with the Canadian Police Information Centre (CPIC) in Ottawa. Its work also included revision of the provincial corrections information system and analysis of its data base, establishment of a legal aid information system, simulation modeling for the B.C. Law Reform Commission, and a computer support system for legislative drafting and revision of statutes. In 1977, this unit was largely absorbed into the British Columbia Systems Corporation, a body supplying management information technology to all government departments. POLICE, CORRECTIONS, AND CROWN COUNSEL

A Police Act (proclaimed effective November 15, 1974) established a three-member British Columbia Police Commission, each commissioner to hold office for a term not exceeding five years. Dr. John Hogarth, a noted Canadian criminologist,6 drafted the act in February 1974, after consultation with police agencies. The commission's functions are set out in section 5 of the act. Its purpose is to establish minimum standards for police services in the province and to recruit and provide training. It may 352

The Change Agent also establish guidelines for discipline, and complaints of abuse of authority. Hogarth, who was appointed chairman of the Police Commission in the summer of 1974, retired three years later. Under his guidance, the commission promptly proceeded to establish the standards set out above. They appointed police boards in municipalities and local police committees, expanded police forces where necessary, established a provincial police college to train all new constables joining municipal forces, streamlined management systems, examined the auxiliary police program, developed police/community liaison, expanded the role of women in policing, and made recommendations concerning projects in native Indian communities. CLEU. As other JDC programs were moved from the draft stage, Matheson assumed personal direction of a new coordinated law enforcement unit (CLEU) to attack the mounting problem of organized crime in the province, as reflected in drug trafficking, gambling, loan sharking, extortion, prostitution, commercial crime (stock manipulation, fraudulent bankruptcies, credit frauds), theft rings, and holdup gangs. This program followed the recognition that the historic organization of law enforcement agencies, with their separate responsibilities and jurisdictions, was inadequate to meet the diverse and interwoven criminal activities which extended beyond provincial boundaries into national and international networks. Organized in 1974, CLEU moved in to work with the law enforcement agencies at all levels of government from municipal to federal, and beyond the national border to enforcement agencies of other countries. An investigation division fixed on targets indicated by the policy board. In the first year, joint forces operations resulted in the arrest of 100 persons, most of whom were major criminals, thus doubling the apprehension of this class of lawbreaker. CLEU also developed a section to prosecute organized crime figures, though this invited criticism that the classic English concept of a detached prosecutorial body, divorced from the investigative function, was being breached. CLEU is backed by a policy and analysis division to examine such factors as trial delays, parole and temporary absence programs, Bail Reform Act problems, immigration, and legalized gambling, and also to act as a monitoring device for the CLEU operation. CLEU's success exceeded predictions to a startling degree. Corrections. In consultation with the commission, the provincial corrections branch initiated a major reconstruction of overall policy and programs on a five year basis. It proposed dissolution of large or antiquated correctional centres (specifically, the Vancouver Island Regional Correctional Centre, Haney Correctional Centre, Lower Mainland Regional Correctional Centre, and the Vancouver and Victoria Juvenile Detention Homes), and the construction of adult remand centres and juvenile deten353

CHAPTER THIRTEEN tion homes. A community correctional centre plan was developed as an alternative to incarceration in a further attempt to humanize correction and reduce costs. Temporary absence programs were extended and Canada's first co-ed facility opened at Prince George. Community correction programs were also expanded and diversified. Crown Counsel. The commission introduced the principle of provincially employed crown counsel to operate at all levels of criminal courts in the province. The program was initiated in March 1974, with the appointment of regional crown counsel in each of the nine regions of the province. The stated objective was "that an accused be brought to trial as expeditiously and fairly as possible." Before the program began, prosecution was handled by a variety of means: larger municipalities hired full-time prosecutors, while small towns and rural areas either used private attorneys on an ad hoc basis, or allowed the police to prosecute accused persons. Under the new program, a manual for crown counsel was developed, with yearly training seminars at the University of British Columbia law faculty. A unified information sheet to provide better statistical measurement of court workloads was developed on a pilot basis. Crown counsel, sheriffs, court reporters, and court administrators met both regionally and provincially to fine-tune the system and coordinate developments. It is interesting to note that crown counsel (and, in fact, all members of the attorney general's legal staff) are not classified according to civil service commission ratings, but on a flexible competency rating system, which embodies the principles of the British and European civil services where one is classified according to intrinsic rank rather than civil service category (that is, remuneration and ranking are in accordance with personal qualifications rather than stratified categories) . Inadequate salary ranges severely hampered this program; recruitment was slow and resignations frequent. It is now recognized that salaries must be increased. Meanwhile, the continuing reliance on ad hoc crown counsel is inefficient and expensive. DELIVERY OF LEGAL SERVICES Legal Aid. Anatole France is famous for his corrosive statement that "The law, in all its majestic equality, forbids the rich as well as the poor to sleep under bridges on rainy nights, to beg on the streets and to steal bread." It is a reminder that the underprivileged and, indeed, the legally uninformed public at large, have the right to adequate legal services before both civil and criminal courts. In the pursuit of this ideal, the JDC created a separate section for delivery of legal services. Twelve regional legal aid offices were opened throughout the province, with a head office 354

The Change Agent at Vancouver. The JDC also instituted a research and staff training program which extended from criminal to non-criminal matters, such as advice on problems with administrative agencies, landlord and tenant disputes beyond the rentalsman's jurisdiction, family problems, and debts. The offering of a new service is always an exercise in self-fulfilling prophecy in that it tends to generate previously unarticulated demands. Such was the case with legal aid. Criminal referrals doubled in two years from 7,043 in 1972 to over 16,000 in 1974. Once again a heavy spinoff effect was felt, particularly in the provincial courts. Availability of legal aid counsel vastly increased the percentage of not guilty pleas, which in turn resulted in more and lengthier trials, thus contributing to backlog problems. This is a classic example of the domino effect of changes initiated within a subsystem. Native Court Workers Programs. A five person task force researched the delivery of legal services to native peoples in the province. The disproportionate number of native peoples in correctional institutions indicated that the justice system was somehow out of balance and required redress. This phenomenon may flow from one or many factors: lack of understanding by judges as to conduct unique to native Indian culture; the reticence of most natives in articulating their problems to police, prosecutors, or judges; language problems; disintegration of a viable native culture under the onslaught of the white man's culture and legal system. Whatever the root causes, it was recognized that justice joined the economic and cultural arenas in imposing inequities on natives whose territory we have assumed, and that amends must be made. Studies were undertaken in areas such as judicare, neighbourhood offices, and a public defender's system. The result was an important project undertaken by the legal services group in the provision of thirty-one native court workers to assist native persons in trouble with the law. Counselling and support in court proceedings are now provided and native court workers receive a measure of legal training and supervisory support. This program has justified itself, though relationships with police can be awkward. Paralegal Program. A further development was the inauguration of paralegal training at the University of British Columbia and the setting up of community legal assistance clinics in a number of the major centres throughout the province to advise the impecunious in civil law problems. Pre-Trial Services. The JDC also set up a pre-trial division, concentrating on the post-arrest, pre-trial stage of the justice process, aimed at improving the quality and scope of services to those awaiting trial. This 355

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division made recommendations regarding lockup and remand facilities, coordination with legal aid to expedite trials, and a supervised bail program to help those who, for innocent reasons, are unable to meet bail requirements. It also attacked the problems of checking information relating to the granting of bail, the interviewing of accused parties, and assisting of duty counsel by hiring duty court workers on a round the clock basis in the large Vancouver provincial court. CIVIL ENFORCEMENT OF FINES

The changing social climate of the 1970s saw increasing concern over the numbers of persons serving time for non-payment of fines. In 197273, fine defaulters represented 25 percent of all inmates in the Lower Mainland Correctional Centre, surely an unhealthy ratio. Accordingly the commission amended the Summary Convictions Act in June 1974 to eliminate committals to prison for unpaid fines, save for contumacious parties refusing to pay (those who after due investigation before a provincial court judge were deemed able to pay). The problem then arose: who should take the initiative in pursuing the payment of fines? There were gloomy predictions of mounting default totals: crown counsel did not consider themselves responsible for civil collection of fines; the provincial court administrator's office regarded itself as playing a neutral role inappropriate to enforcement assignments. After one or two changes of policy direction, the attorney general's ministry set up a civil enforcement division to collect unpaid fines. It was designed ultimately to have a province-wide network, operating a relatively simple procedure. A certificate of non-payment signed by a judge or local court administrator would constitute a judgment when filed in a civil court. This opened the door to the traditional variety of civil remedies such as garnishee, writ of seizure, judgment summons, and so forth. The immediate problem was the time lag between the amendment to the Sumary Convictions Act and the mobilization in the following winter of this enforcement mechanism, which has yet to take full flight. The accumulation of unpaid fines is less than the gloomiest predictions, but there is no guarantee that this trend will continue and it cannot be said that the enforcement problem has been solved. While civil enforcement of unpaid fines represents another step away from the Dickensian debtor's prison, the progress of this program will require further reassessment. PHASING OUT OF LAY JUDGES

In 1973, British Columbia relied on the services of approximately 100 lay provincial court judges, who sat outside the larger urban centres. This 356

The Change Agent was an atavistic result of the ancient lay magistrate system descending from the English court model. The JDC was concerned with the weaknesses in the lay judge system: the paucity of legal expertise, excessive disparities in bail and sentencing policies, lack of impartiality in cases involving local residents, and so forth. At the same time, the strengths of the lay judge system could not be ignored. In some cases, a knowledge of local conditions and a feeling for local mores produced a more just and equitable judgment than one reached by a visiting, professionally trained judge, whatever his legal expertise. A high calibre of judgment and commitment to the principles of justice were innate to a number of lay judges. Residence in the community not only ensured daily dispatch of the court's business, but was comparatively inexpensive when set against salaries commanded by legally trained judges. Yet in the end, the prophecy of Maitland, in writing of the English magistrate, proved to be true in British Columbia: "He is cheap; he is pure; he is capable; but he is doomed; he is to be sacrified on the altar of the spirit of the age." Increasing complexity of the law, increased case volume, heightened sophistication of defendants, ease of travel, and a new affluence persuaded the commission that it could afford the luxury of phasing out the lay provincial court judge and could substitute a system of itinerant, professionally trained judges throughout the province. This proved to be a difficult and a traumatic undertaking. The first objection was that dismissing any judge, lay or otherwise, by a stroke of an executive pen, was not merely a threat to, but the death knell of, the independence of the judiciary: if the attorney general could dispense with a judge on the ground that his qualifications were no longer considered adequate, then the Act of Settlement of 1701 was being savaged. Compensation for released lay judges was another issue—not constitutional, but ethical and moral. Should such a person, after years of public service, be dismissed with a ritualistic letter of farewell? The problem was resolved by a formula gratuity amounting to one month's pay for each year of service. The constitutional issue was in part bypassed by an amendment to the Provincial Court Act, reducing the age of retirement from seventy to sixty-five, thus retiring some forty-four judges at one cut. The remainder, save three who enjoyed special status and were retained, were retired on the basis of the compensation formula. Henceforth, only the legally trained will be appointed. Once the phasing out of lay judges was completed, the chief judge of the provincial court had to find substitutes for them. This was resolved in part by increasing the number of legally trained judges from 76 to 101 (by the end of 1976) to serve where necessary as itinerant judges. But they could not satisfactorily cover each village and hamlet. Therefore, 357

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provision was made for local justices of the peace to perform such functions as granting bail, hearing minor traffic matters, granting adjournments, and fixing trial dates. These JPs were appointed throughout the province and received specialized training. (The justice of the peace holds an ancient and honourable office carrying with it quasi-judicial discretion, and both the office and its incumbents deserve intensive training not only in their duties, but in their powers and responsibilities.) The phasing out program consumed two years and was marked by controversy, deep and introspective questioning as to the constitutional and moral principles involved and, let it be admitted, an acute sense of hardship on the part of many fine citizens who had unstintingly given of their service and wisdom for years. It is impossible to assess in qualitative terms the results of this transformation of the justice system in British Columbia. The former lay judge system, a mixture of weakness and strength, has given way to another system, also of mixed weakness and strength. The stranger who visits an outlying community once a month may possess a larger legal expertise, but he may not always measure up to the lay judge, whose wisdom and knowledge of local conditions are sorely missed by small communities. But, for the reasons given, this change was inevitable, and its time had come. The domino effect of this transformation was felt by court administration and court reporters as the demand for their services was vastly increased. The full force of these effects was not anticipated in formulating the first year's budget; nor could it have been, for the principles behind and the timing of the program for the phasing out of the lay judges had not then been determined. This is another interesting (if unamusing) example of the dynamic interrelation between departments in a complex organization, where moves in one department produce spinoff effects in others. PROVINCIAL COURT DIVERSION PROJECTS

Small Claims Mediation Project. The commission introduced four diversion programs, three in civil matters and one in traffic court. The first was the small claims mediation project in Vancouver, modelled after the Toronto small claims referee system. The pilot project developed in Vancouver involved three services, to be provided by law students and paralegal workers, as follows: (a) Procedural assistance to litigating parties who visit the court registry, including advice and assistance in completing summonses, dispute notes, and other forms. (b) A legal advice clinic to advise members of the public as to the strength or otherwise, in law, of their position and how they might 358

The Change Agent best proceed with their case. This service is only available in summer months, when manned by law students. (c) Mediation services conducted on a without-prejudice basis, in an endeavour to settle cases without court appearances. This project was a distinct success. During May and June, 1975, sixty-eight such hearings were handled, with forty-three appointments (in excess of two per day) being made during the month of June. Seventy-seven percent of the parties involved in mediation were unrepresented by lawyers, but lawyers who did attend were helpful in resolving disputes. Sixty-seven percent of these hearings were completed in less than one hour. Settlement rates ranged between 50 percent and 63 percent. Unhappily, this pilot project collapsed owing to lack of renewal funding. Its success could not be measured in statistics alone, which do not record the hundreds of telephone calls dispensing advice to the public, and the hundreds of cases in which the public was assisted through this procedural and legal advice. Furthermore, the collection rate on mediated claims was high. An informal pre-trial service was revived in Vancouver in 1979, however, using a court examiner (see chapter 14). Court Referee Project. The second diversion was a court referee project that developed out of the above mediation project, with the aim of providing officers of the provincial court to undertake inquiries into the financial means of judgment debtors. Post-trial (and even pre-trial) inquiries frequently result in payment terms mutually agreeable to both parties. If a settlement is reached, the referee appears before a judge on behalf of both parties to enter a consent judgment. Sometimes the judge refers cases to the referee for an accounting or other inquiry, and a recommendation. There are now four referees throughout the province. In 1976, the Vancouver referee reported an 88 percent recovery rate on judgment debts—an extraordinarily high performance record. In addition, it was estimated that during a fourteen-month period, commencing January 1, 1976, court referees in Vancouver and Victoria diverted a potential 4,276 cases out of the county and small claims courts. The Victoria referee was only in operation for five out of those fourteen months. Thus, the court referee concept has justified its establishment. Rentalsman. A third diversion program was accomplished through the establishment of a rentalsman with offices throughout the province, staffed by non-legally trained mediators in landlord and tenant disputes. This service has mediated thousands of cases, thus diverting a major proportion from the overloaded small claims courts. 359

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Traffic Commissioner. Finally, two justices of the Peace were located close to the Vancouver provincial court to adjudicate disputed traffic notices and summonses. Hearings are now conducted on an informal basis, with or without the calling of evidence, and without the necessity of fixing an appointment or hearing date. Motorists can explore issues and settle them in an informal and unstressed atmosphere, with a minimum loss of time. The traffic commissioner system is being extended throughout the province, but commissioners are now called referees. COURT ADMINISTRATION

The initial force of the Justice Development Commission was brought to bear on the courts area, which had long suffered neglect. The speed with which the commission moved, the wide scope of its activities, and the depth of its probings generated anxious concern wherever its touch was felt. The threat of inroads by the executive branch of government on the independence of the judiciary through the erection of a unified but monolithic court administration system alarmed the judiciary, which justifiably asked for and received assurances that trial coordination was and would remain an inviolable judicial function. Understandable concern was also expressed over possible violation of the principles of privacy and confidentiality through the application of computers to court related data, where computer time was shared with non-court related systems. This was already proving to be a sensitive issue in the United States, where computer applications in the justice field were more advanced. Public service employees experienced anxiety and frustration at the sudden invasion of reform-minded newcomers, who proposed unseasoned solutions to old problems with which the traditional civil service had been forced to live through years of budgetary neglect. Some members of the legal and other professions, unaware of the multi-faceted problems and preparatory planing work of the commission, were unable to discover any practical results from its vast labours and expenditures, in terms of case backlog reduction or swifter justice. The commission recognized from the outset that communication with these groups was a critical factor in the success of its undertaking, and that to be understood and to earn the cooperation of the various segments of the justice system, it must keep all parties informed. But this turned out to be an impractical ideal; the diversity and volume of projects the commission let loose was such that even those engaged full time in its work could not stay abreast of current developments.7 A necessary condition for the achievement of major reforms in court administration was the creation of the office of chief court administrator for the province. The office was filled early in 1974, and the new chief 360

The Change Agent administrator was instructed to carry out the task of unifying and upgrading the court administration system. In a report to the commission dated November 15, 1974 (some eight months after assuming his post), he defined the primary objectives of his program as follows: PRIMARY OBJECTIVES OF THE COURT ADMINISTRATION SYSTEM

1. Court Administration System Reorganization, expansion and development of basic court systems throughout the various levels of the courts. (a) Assume responsibility from the municipalities of 44 Provincial Court registries. (b) Assume responsibility from the Department of Finance of 36 County, Supreme and Small Claims Court registries. (c) Introduce standardized practice, procedures and forms in registries of the Supreme, County, and criminal, civil and family divisions of the Provincial Court. (d) Combine, where possible, administrations of all levels of courts. Only through an integrated approach and structure will it be possible to conceptualize reforms, develop skills and fiscal controls, technology, management information systems, [make] efficient use of resources and an effective attack on case overloads, all of which are affected through the other four areas of administrative responsibility set out [hereafter]. Without a properly integrated, rationalized, and planned administrative structure, needed reforms can never be achieved. (e) Improve courthouse facilities and equipment. 2. Personnel (a) Develop uniform policies in the hiring, removal and remuneration of administrative staff. (b) Liaise with the Public Service Commission. (c) Liaise with the Provincial Government Employees' Union. (d) Train administrative staff at all levels. (e) Develop job classifications unique to the court administration system within the Civil Service Commission structure. 3. Budgeting and Fiscal Control (a) Institute [program] budgeting on a planned basis, to avoid crisis management. (b) Establish and maintain tight fiscal control through reorganized accounting and auditing procedures. 361

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(c) Establish a uniform accounting system throughout the administration, or at least with respect to each level of the Courts, in matters of payroll, accounting, receipt and remission of fines, collection of money judgments, family court orders, etc. (d) Draw a projected budget covering court operations and corresponding financial requirements over the ensuing five years, with periodic reviews and revisions of this projection. This will, of course, involve major capital expenditures. 4. Management Information Systems (a) Develop management information systems. (b) Coordinate [data] gathering with Statistics Canada requirements. (c) Develop manpower utilization and work measurement procedures. (d) Disseminate information to the public, the bar, and the press. (e) Develop monitoring procedures to maintain a continuing evaluation of the effectiveness of the entire administrative system, and institute or recommend changes in accordance with such monitoring. (f) Gather, on a planned basis, statistics for purposes of analysis, planning of future operations, and implementation of existing programs. (g) Issue an annual report to the Attorney General. 5. Case Flow Coordination (a) Develop consistent statistical data to support planning, operations, monitoring and effective presentations of caseflow management programs to the judiciary, the bar, and other related agencies. (b) In conjunction with the judiciary, plan, develop and institute revised procedures in order to eliminate existing case backlogs. (c) Develop new procedural rules in both civil and criminal jurisdictions in order to reduce case processing times to tolerable limits. (d) Conceptualize, plan and advocate diversion programs as a means of reducing case backlog. How were these objectives pursued? Unification of the Court Administration System. Traditionally, the court administration system in the province had been heavily fractured, being composed of forty-six different and autonomous authorities. Forty-four of the larger municipalities operated and funded provincial courts; the attorney general's department administered approximately seventy-five 362

The Change Agent provincial courts in small municipalities and unorganized territories, as well as five supreme and county court registries in five of the larger urban centres; and the Department of Finance, through its scattered government agents, administered thirty-six supreme and county court registries throughout the interior of the province. The Ontario Law Reform Commission's 1973 report was, thus, precisely applicable to the British Columbia scene: The lack of definition of administrative responsibility appears to be the result of the evolutionary nature of the present court administrative structure and a failure to attempt to define responsibility for the various aspects of a system as unique as the courts of justice. If we are to have maximum efficiency in the administration of justice an earnest attempt must be made to find satisfactory solutions to the relevant problems.8 In British Columbia it had become apparent that the only way in which court administration could be updated, proper fiscal controls imposed, forms, practices, and procedures standardized, and necessary training programs instituted at all levels, was through a unification of the entire field. This the commission determined to do, beginning with the assumption of responsibility for the forty-four provincial courts administered and funded by the municipalities. Before implementing this latter plan, the commission took the precaution of consulting members of the attorney general's ministry in Ontario, since that province had assumed the administration of its provincial courts in 1968. Out of these helpful discussions, two major points emerged. First, that the province should not commit itself to the purchase of any municipal court facilities, since most of them were undesirable for long-term use. This was eminently sound advice as later events proved. Second, it was urged that the commission allow itself a comfortable lead-in time of nine months to one year. As matters fell out, a directive issued in January 1974 set the takeover date as April 1 of that year—giving only three months' lead-in time! Fifteen million dollars was budgeted to accomplish the transfer of responsibility, of which an estimated $6,000,000 to $7,000,000 would be recovered in fines previously collected by the municipalities. The Ontario attorney general's ministry was helpful in a number of other respects, including the supplying of their model legislation, the Administration of Justice Act of 1968, which imposed on municipalities the duty of continuing to provide leased premises for court operations.° This salient provision was included in Bill 44, the act to amend the Provincial Court Act, 1974, as follows: 10A (1) Where a municipality owns land, buildings, or personal property required by the Attorney General for the purpose of 363

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Section 9, the Attorney General may require the municipality to lease the land, buildings, or personal property to him at the rental value to be determined, in the absence of an agreement, by arbitration under the Arbitration Act. (2) Where a municipality occupies or holds land, buildings, or personal property required by the Attorney General for the purpose of Section 9 under a lease or other agreement, the Attorney General may (a) require the municipality to assign the interest of the municipality in the lease or other agreement to him; and (b) require the lessor or other party to the agreement to consent to the assignment under clause (a), if such consent is required. (3) Where a municipality, lessor, or other person fails or refuses to comply with the requirement of the Attorney General under this Section, the Attorney General may enter and take possession of the land, buildings, or personal property, and the municipality, lessor and other persons shall be deemed to have executed the necessary leases, assignments, and consents for that purpose. Unhappily, this provision was deleted in a subsequent amendment, leaving the attorney general's ministry in an awkward position with municipalities insisting upon the return to them of premises used for provincial courts. Regional Structuring and Assumption of Supreme, County, and Provincial Courts Administration. Regional administrators were hurriedly recruited as an apparatus to take control, not only of the forty-four provincial courts administered by municipalities, but also of those already under the supervision of the attorney general's ministry. Municipal employees were given the opportunity to remain with the court system as provincial employees, which they did almost without exception. To the surprise of many, the transfer of power was accomplished smoothly and without any disruption in the flow of services. Provincial court registries met the challenge, and brought to light a number of seasoned and dedicated employees whose capacities had never been fully utilized under the old fragmented structure. The result was an abundance of administrative talent which justified promotion from within the system in building the regional and headquarters administrative apparatus. In contrast to the regions, the headquarters' group was organized along structural lines with specialist consultants in the various court areas, such as supreme and county court, and the criminal, civil, and family-juvenile sides of the 364

The Change Agent provincial court, as well as an executive assistant to the chief court administrator. Each consultant was assigned the task of designing reforms in his particular court area, for implementation throughout the regions. This procedure carried the seeds of potential discord between the headquarters staff and regional administrators. The issue at stake was whether headquarters' consultants should exercise executive authority to implement changes. If so, what line should divide their authority from that of regional administrators? The problem was explored during a week-long training seminar, and was solved in the course of a theoretical exercise on organizational structuring; it was unanimously agreed that executive responsibility must rest solely with line (that is, regional) staff. It is interesting that this—the classic textbook solution in terms of organizational theory—was arrived at as a result of pragmatic experience. Quebec court administration headquarters, in contrast, adopts a functional rather than a structural model: that is to say, specialist areas relate to budgetary, personnel, and other such functions, not to the divisions of courts. It is reported to work well, but may possibly discourage innovation and reform, since ideas for structural and procedural change could only come from specialists in a planning division. Every headquarters' staff member would not have the mandate for innovation that can be built into the structural model. It will be interesting to see how headquarters' organizations change over time to reflect the parent department's overall emphasis on system reform. In April 1975, administration of the thirty-six supreme and county court registries was transferred from the Department of Finance to the unified court administration system. This proved to be a more complex operation, preceded by months of planning on the part of a task force of seasoned administrators. Every effort was made to anticipate possible difficulties and obstacles. A takeover strategy was planned and documented with the precision of a military operation, and was consequently graced with the code name "Operation Ultra." Regional administrators were subjected to an intensive one week immersion course in Supreme and County Court registry work. Positions were carefully graded and established with the Public Service Commission, posted, and advertised. Interview panels selected the local registrar/administrators and successful candidates were hired in advance of the April deadline and also subjected to a week long intensive course in registry practice. Province wide unification of a court administration system is a hazardous undertaking at best, requiring immaculate planning, proper timing, and a measure of luck. This is doubly true when, as in this case, reform time frames precluded the luxury of test runs and pilot projects prior to implementation. Disaster results if any of the ingredients of planning, timing, and good fortune are missing. The transfer of power must 365

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take place in the twinkling of an eye, so to speak, and without a single stroke being missed in the continued smooth running of the courts. The detailed planning and execution of the supreme and county court operation was carried out under the superb direction of David Warren, a supreme and county court expert, and a man with administrative gifts of a high order. Without his direction it is doubtful whether it could have been carried off at a single stroke. For, in this case, fortune did not smile. At the moment of takeover, and while still some twenty-five positions short of full recruitment for senior registry personnel, budgetary restrictions froze further employment. This was matched by unanticipated increases in the establishment of judges and in court sitting times (the number of criminal charges laid in 1974 increased by 18 percent over 1973). At the same time, a staff establishment numbering some 650 was operating with a chronic shortage of fifty to sixty personnel. The combination of these factors was a matter of grave concern for a number of weeks. But within a few months, intensive training and the talents of specialized court administration personnel in all supreme and county court registries elevated the standards of service to the judiciary, the bar, and the public to a level not previously enjoyed in the province. The staff shortage was temporarily circumvented by a per diem clerical program, under which retired personnel (such as RCMP officers and other persons under the age of sixty-five) were recruited and trained to act as clerks of court on an ad hoc basis from day to day, as required. These retired and semi-retired citizens made mature, responsible employees. Assimilation of Supreme and County Court registry staff exposed a conceptual problem contained in the Ontario Law Reform Commission's proposed organization as set out in Figure 4, chapter 5. It will be recalled that that proposal made registrars responsible to a provincial director of court administration. The difficulty in B.C. was that though registrars were provincial civil servants, they traditionally performed judicial or quasi-judicial functions as well as their administrative functions. The question then arose, should they be subject to administrative or judicial control? The pragmatic answer was, both. In performing judicial or quasijudicial functions they would remain under the control of the judiciary. In performing administrative functions they would be made subject to the instructions of their superior court administrator. In larger cities, such as Vancouver, Victoria, and New Westminster, where the volume of judicial and quasi-judicial work justified it, registrars would perform only these functions; full time local court administrators were appointed to carry on purely administrative work. By contrast, in the smaller centres appointees now wear "two hats": when performing administrative work they conform to administrative control and when performing their other functions they 366

The Change Agent conform to judicial control. This practical formula appears to have resolved the dilemma for the present. The regional administrators and headquarters staff were originally recruited under the Justice Development Commission. As of April 1, 1975, they were grafted back onto the attorney general's ministry as members of the regular public service. This large scale reorganization was the necessary prelude to reforms in all other areas. These swiftly followed. Facilities, Personnel Upgrading, and Staff Training. Adequate office space for court registries was one of the first problems attacked. It is a characteristic of court houses that registry staffs are placed in inadequate quarters to begin with and, with time, the initial overcrowding is made worse. But a second problem overlay this one. Because thirty-five supreme and county court registries were being divorced from the Department of Finance, separate accommodation had to be found for them, a very large task in itself, especially considering the necessary provision of new furniture and office equipment. Personnel reforms began in the spring and summer of 1974, when a salary and job evaluation committee reassessed the roles of all employees in the court administration system. This committee included representatives from the chief court administrator's office, the B.C. Public Service Employees' Union, and members of the Public Service Commission. Salaries were upgraded and a special court clerks' classification series was created ranging from grades 1 to 7, thus initiating the concept of a special judicial public service reflecting somewhat higher pay scales, in recognition of the distinctive qualification requirements of court clerks. A later committee again reviewed classification and establishment strengths in all court registries in 1975-76, with consequent adjustments. The aim was to maximize local initiative, with the central office supplying guidance rather than giving orders. Although monolithic in design, the unified administration's approach was not hierarchical, but supportive. For example, it was recognized that one of the reasons for the unsatisfactory level of services (aside from paucity of staff) was the absence of training in past years. Accordingly, training programs were developed at five Ievels: 1. Local Provincial Court Clerk Level. Two week-long, live-in training sessions were established, supported by standardized operating manuals covering criminal, civil, family, and juvenile matters. Seminars, too, were set up and held at, and with the assistance of, the B.C. Institute of Technology in Burnaby. Phase II courses have followed. By December 1978, 235 people had received this training. 367

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2. Supreme and County Court Registrar Level. One week seminars were instituted for thirty-five supreme and county court registrars, supported by operating manuals covering such subjects as probate, divorce, taxation, criminal law, and civil litigation. (This program was timed to match the supreme and county court takeover described above.) This was followed by a second course for registrars, and one for deputy registrars. Subsequent courses in 1976-77 introduced a revised set of supreme court rules. A total of 102 had received instruction by December 1978. 3. Senior Management Level. A seven to nine week course was instituted, in segments of one week each, covering personnel, budgeting, court systems, management information systems, caseflow coordination, organizational theory, and management theory. These seminars were organized by the newly created B.C. Institute for Court Management. Held at the B.C. Institute of Technology, they were designed to build professional expertise into court management. Further management training is now planned. 4. Mid-Management Level. Seminars have been held for mid-management level personnel. This program will also be extended. 5. Justice of the Peace Level. The chief judge of the provincial court organized a continuing series of two-day seminars, conducted regionally throughout the province, as a first step in upgrading functioning justices of the peace. The list of JP appointments was pared down to eliminate non-functioning appointees. A justice of the peace manual was produced to support this program and to assist JPs in the field. The initial phase has been followed by three succeeding courses. As of February 1981, a total of 480 JPs had received this training. The regular instructor of the court clerk and JP seminars is supported by a number of others, drawn from inside and outside the court administration system. The aim is to pursue these training programs intensively until the province has produced one of the most highly trained bodies of court administrative personnel on the continent. Unification of the system is an essential condition for this training. It can be achieved in no other way. In turn, the heavy emphasis on training reflects a supportive rather than authoritarian approach to unification. It recognizes that local conditions vary from region to region, that maximum flexibility must be maintained, and that room must be left for local initiative and discretion by the administrator in his own courthouse. Payoffs in terms of heightened morale and expertise were immediately apparent and staff attrition rates declined substantially. Training programs are regarded as a major factor in this new stability. 368

The Change Agent Budget Reforms, Management Information Systems, and Caseflow Coordination. The budget process has been progressively refined, with the result that each year the budget has become a more precise tool for forecasting and fiscal control. In 1976 the decision was made to decentralize fiscal control down to the regional level. Regional administrators now exercise authority over all expenditures within their region; they submit their budgets to administration headquarters, where regional budgets are collated into a single one for presentation to the ministry for inclusion in its budget. A form of zero base budgeting has now been adopted, and overruns have been eliminated or drastically reduced. There have been three developments in the use of management information systems. First, province wide computer-aided processing of all provincial court (criminal division) transactions is in place and there are plans to extend the system to the remaining divisions of all trial courts in the province. Second, a computerized record keeping and analysis system has been installed at the large provincial criminal court in Vancouver (and present planning envisages its extension throughout the lower mainland and Victoria). Third, there has been a reorganization of the court registry documentation flow at the supreme and county court in Vancouver through the elimination of redundant cause books, substitution of case record cards, and introduction of microfiche records storage. These reforms are being extended to other court registries. Finally, a series of seminars were held to offer administrative support to the judiciary in attacking caseflow problems. Although increased efficiency in this area is one of the main goals of court administration, the development of such expertise was contingent upon that in related areas of personnel, budget, and fiscal control, and upon the development of a management information system. Even then, sensitive problems of coordination remain. In discussing the dynamics of change, chapter 12 made the point that all parties affected by change must be consulted and advised in advance, that reforms must be reached on a consensus basis, and that line staff must sense personal "ownership" of the reform, or it will fail. These admonitions are so obvious as to be almost painful to read. The difficulty is that although prescriptive rules are understood by everyone, they are frequently neglected. A classic example of such a failure of communication occurred when, as described in chapter 8, it was agreed that three pilot projects would initiate trial coordination programs in three different court houses, with court services supplying a trial coordinator in each on a six-month experimental basis, to liaise with bench, prosecution, and defence. After polite demurral, crown counsel in the last of the three affected courts confessed that they entertained a low opinion of the concept, had never been consulted, and could not be counted on to cooperate. That pilot project was stillborn. 369

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Court-Related Services: Court Reporters, Sheriffs, and Witness Management. The original concept of court administration was flawed in that it was divorced from both sheriff's services and court reporter's services. This was cured in May 1977, when court administration, sheriffs, and court reporters were merged under the direction of a newly appointed director of courts services. The office of regional manager was created to control the activities of all three of these services within each of the regions (now reduced to five). This merger effected a reduction in the total supervisory staff from sixty to twenty-eight, and is expected to improve coordination among the three services. Unification of court administration in 1974 was initially accompanied by similar unification of the court reporter services throughout the province. It was based on the master regional structure, with regional court reporters supervising local court reporters and court recorders in their respective regions. This was accompanied by a recruitment and training program to increase the court reporting service, which in some cases was entirely absent in up country regions, at least in the provincial courts. Simultaneously, the commission directed that court reporting or recording services extend to all summary conviction hearings. Court reporter administration, like court administration, naturally encountered problems in implementing its programs. Regional reporters complained that the time spent on administration reduced their earnings, as indeed it did. As in so many jurisdictions, court reporters are in fact entrepreneurs within the civil service, and rely in part on privately earned transcript fees for their income. It was therefore difficult to persuade them to continue in their posts, and still more difficult to replace them. Judges and lawyers, unaccustomed to the luxury of reporting services in the interior of the province, made liberal orders for transcripts. Recruitment and training programs were impoverished by resignations of reporters leaving for other jurisdictions. Competent American court reporters were discouraged from staying because of provincial regulations guaranteeing first preference to nationals. During the two and one half years after January 1974, there was an increase of five supreme court judges (to a total of twenty-five), nine county court judges (to a total of forty-four), and twenty-five provincial court judges (to a total of 101). This situation worsened an already acute shortage of reporters and recorders, and was further exacerbated by budgetary restrictions. The usual alternatives, such as stenomasks and central electronic recording equipment, were explored, but the ultimate solution may lie in computer readable technology. The Justice Development Commission also initiated a plan for the recruitment and training of several hundred sheriffs to relieve the RCMP and municipal police forces from courtroom security and prisoner escort duties, thus freeing them for their primary functions of crime prevention 370

The Change Agent and apprehension. Prior to April 1, 1974, sheriffs' organizations comprised a mixture of public servants and civilians working on a fee for service basis, few of whom had received formal training. Training programs, again backed by the assistance of educators from the B.C. Institute of Technology, processed recruits through a six-week course. Approximately 350 deputy sheriffs completed training and were sent into the field. Budget restrictions, however, inhibited this recruitment and training program. The goal of fully releasing police from courtroom duties has not therefore been fully met, but it has been achieved to a substantial degree. The JDC also initiated a witness management program in the courts, originally grafted on to the court administration system on April 1, 1975, but later transferred to sheriffs' jurisdiction. A preliminary study of the Vancouver provincial court had revealed that, on the average, as few as 17 percent of all police witnesses and 35 percent of all civilian witnesses who were called to court on any given day actually gave evidence. The cost to the city of Vancouver in terms of salaries paid amounted to approximately $520,000 in 1973, $650,000 in 1974, and $900,000 in 1975, exclusive of the loss of services of police personnel reporting to court to give evidence during hours of duty. Loss of police services and of public goodwill, financial loss, and the inherent injustices of this condition were matters for serious concern. The witness management program, thus, was organized to study the problem and formulate solutions. A plan was outlined for Vancouver, and a pilot project was carried out in the provincial court in Victoria. The vast savings to be achieved seem obvious. Indeed, this has already been demonstrated in small pockets of the provinces. But budget restrictions in some centres, and want of executive vision in others, have impeded reform in this field. It should, however, be standard practice ten years from now. In all areas of court administration, much remains to be done. Courthouse facilities are still inadequate in many areas. Staff training must continue and expand. Further sophistication of the budget process is predictable. Caseflow management will be developed—not as a science, but as an art. The central lesson to be learned is that none of these manifold reforms would have taken place, or would be continuing today, were it not for the commanding impulse of the Justice Development Commission. The commission literally marked the dawn of a new era—an era which has brought court administration in British Columbia into the twentieth century. THEORY DEMONSTRATED IN PRACTICE What insights are to be gained from contemplating this vast list of reforms 371

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in the light of the theoretical material in chapter 12? The importance of "order and harmony" is a case in point: in presenting a new unifying blueprint for an integrated justice system, the JDC was attempting to harmonize a system which historically had operated with its subsystems out of phase with one another. Police, prosecution, courts, and corrections all espoused conflicting goals. To some extent they still do. But the concept of consultation at the top levels of each component represented an attempt at the interfaces, in the interest of a higher overriding goal, namely the administration of justice, to achieve increased operating stability within a system which had failed to react sufficiently to change in a dynamic society—to increased crime, to the demands of increased litigation, and to new administrative technology. Chapter 12 stated that if "a heavy impact is received then the system may suffer large-scale disorder, in which case stability is destroyed and can only be reintroduced at the cost of large-scale changes." This is precisely what happened. Those who were appalled at the extent and force of the commission's reach failed to understand that no less an intrusion could restore operating stability in what was, in retrospect, a decaying and outmoded system. The preceding chapter also drew upon Mannheim's distinction between functional and substantial rationality in every system's behaviour. Consciously or otherwise, the commission was attacking both the functional and substantial irrationalities which pervaded the province's justice system. It tried to upgrade its functional rationality by releasing the police from court room and prisoner escort duties; creating a permanent province wide body of trained crown counsel to ensure strong prosecutions; eliminating lay judges from the provincial court; instituting staff training in all components of the system; introducing management information systems as well as microfilming and computer technology; centralizing and reorganizing court administration; regionalizing the province for all components; appointing traffic commissioners to expedite traffic hearings; expanding the court reporting and recording cadre—and on and on. The list of purely administrative reforms achieved is astonishing. But the commission perceived the danger that despotism, too, may be functionally rationalized and that a check on such a development was required—namely, an examination and overhaul to ensure that justice was being administered in accordance with the new philosophy which had emerged out of the social upheaval after the second world war. The focus on substantial rationality can thus be seen in the appointment of native court workers; civil enforcement of fines; a formalized procedure for citizen complaints under the new Police Act; the creation of justice councils to ensure a two-way flow of information relating to justice administration between every community and the attorney general's 372

The Change Agent ministry; the formation of CLEU (Coordinated Law Enforcement Unit) to attack white collar and organized crime; corrections reforms; the expansion of legal aid and paralegal services; referee and mediation programs in small claims courts; and the creation of the rentalsman's office. Chapter 12 also quoted Griffiths' postulate that "living systems respond to continuously increasing stress first by a lag in response, then by an overcompensatory response, and finally by catastrophic collapse of the system." The Justice Development Commission was intent on averting phase three—that is, collapse—even if by an overcompensatory action. What it probably failed to do is to avert the "collapse of a different sort" (also alluded to in chapter 12), namely, silent erosion, existing examples of which were there offered. They will be considered in more detail in the next chapter on the future of the courts. Griffiths was further quoted as stating that the major impetus for change in organizations comes from the outside. It is interesting that the commission was created immediately following the election of a new government under the New Democratic Party which stressed a more social approach to its responsibilities. While it may be debatable whether such an emphasis is desirable or not, the point is that these vast reforms did not originate from within; the changes were imposed by a new government. As Griffiths points out, change can come from the outside in another sense—that is, new personalities can best direct the organization needing change. (The reasons were given in the preceding chapter.) This principle was followed in appointing a new deputy attorney general, a police commissioner for police affairs, a chief court administrator from outside court administration, and a veritable host of other appointees from outside the existing justice system. These fresh faces may not always have been welcome, but no other principle could have assured reform. Predictably, few of those original faces are now seen. A period of stabilization has brought new faces, new and different personalities, new. aptitudes and attitudes. This is as it should be. Another point made in the previous chapter is that "when change in an organization does occur, it will attempt to occur from the top down, not the bottom up." Once again this is demonstrated in the JDC phenomenon. Many of the reforms came as a benign relief to many line staff, who had long endured the inadequacies of the old routines but were powerless to change them. Reform would have been clearly impractical if initiated at the lower levels because it would have "ridden madly off in all directions at once." However, the reform impulse, when it gathered strength, was successfully achieved by moving from the top downwards. Finally, it will be recalled that Griffiths postulated that "the more functional the dynamic interplay of subsystems, the less the change in an 373

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organization." A corollary has been illustrated here. The absence of dynamic interplay between the various subsets of the justice system finally dictated sweeping organizational changes. Thompson's theories relating to the attempts of organizations to seal off their core technologies, to buffer, to ration, and to level out inputs and outputs, in their attempts to avoid internal change, have already been discussed in the previous chapter. Suffice it to say here that all of these techniques had been resorted to, and their possibilities exhausted. When this was recognized, the Justice Development Commission's moment had come. Thompson's final point was that all organizations stake out a domain which they instinctively guard. The judiciary's sense of domain was violated by the emergence of a monolithic court administration system. The latter at times felt that the local justice councils were raiding its hegemony in frustrating efforts to close some small local courts in an attempt to "ration" under the pressures of budget tightening. The domain concept was also evident when crown counsel viewed with alarm CLEU's announced intention of hiring prosecutors to assist in the preparation of prosecutions against organized crime. This was said to be an espousal of the American "district attorney" concept, which would involve crown counsel in police work and, therefore, break down the barrier between crown counsel's domain and that of the police. We have already related the perceived invasion of crown counsel's domain by the pilot project which would install a trial coordinator in the court house. Sheriffs were initially regarded as invading the Vancouver city police domain when the former assumed the role of prisoner handling and service of warrants and summonses. Also, researchers were viewed as intruders when they invaded the court staffs and registrars' domains during the initial analysis phase of the commission's work. Other concepts from organization theory could be presented here, and related to the practices of the JDC, but the above are sufficient to establish that a background of systems and organization theory is necessary to understand the commission, and to comprehend the forces at work behind and within it. The JDC reforms listed in this chapter, though not exhaustive, demonstrate the transforming power of the change agent mechanism. Systems theorists advocate its use by complex organizations, suggesting that they first employ the task force concept in the planning and development of change, and ultimately graft the change back onto the parent body itself. The Justice Development Commission constitutes a classic textbook example of the utility of that management theory. The above array of reforms could not have been undertaken, much less effected, without resort to the change agent principle. It also demonstrates the validity of Bennis 374

The Change Agent and Slater's task force principle whereby a group of specialists from diverse backgrounds combine for a time to analyse and solve a problem. Observing these task forces in action, one sees that their members do indeed conform to Bennis and Slater's description of dilemma-searching, problem-solving personalities, committed to their individual professions but absorbed at any given moment in a single problem for its own intrinsic worth. The postulates of modern organization theorists, therefore, do not exist in a vacuum; they contain the secrets to successful management in the pragmatic world of large complex organizations. Organizational interface problems are highlighted in the work of the Justice Development Commission. Even a minor adjustment in a system causes disruptions in workflow and personal interrelationships. Each disruption is out of all proportion to the magnitude of the adjustment itself. This was clearly evident throughout the life of the commission, seen in the controversy and bracing exchange of strongly held views between representatives of the competing components on every conceivable issue surrounding each reform program. A number of these controversies remain unresolved today; the resolution of some will only be achieved through the passage of time rather than through continued debate. The dynamics of change initiated by the commission were underestimated. Minor changes create severe disruptions, while major changes create disruptions which threaten control. New leadership, appearing with its retinue of new supervisors, creates tensions and apprehensions throughout an established organization, tearing the predictable web of process. Time and cost predictions relating to the implementation of change usually fall short by 100 percent to 200 percent, because advocates of individual reforms are traditionally over-optimistic, not only as to time/ cost factors, but as to benefits. The wit of humanity lacks both the cunning and the imagination to envisage the results of change as they materialize further down the road. The truth is that most problems appear after the change is in place. None of these factors can be taken fully into account by management. Proliferating discussion, training, and informing seminars fail to penetrate to the deeper levels of the realities involved, or down to the line operators, charged with the responsibility of maintaining the system in operating form in the face of these changes. Furthermore, productivity is habitually lowered until the system has had sufficient time to accommodate itself to the change. Given all these factors, it is not surprising that judges, prosecutors, court reporters, police, and court staffs in our example felt threatened. The extent and velocity of change made information flows partial at best, and non-existent at worst, not because the commission was neglectful, but because of the extent and rapidity of events. An "all-to-all" communications pattern was developed 375

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through an unnumbered series of seminars, published reports, and newsletters, all designed to keep contemplated modulations moving throughout the units and not merely through superior-subordinate channels. The problem was that a longer time for orientation was needed than was possible. One could devote one's entire working day to reading reports flowing in from other subsystems and programs, simply to be aware of overall advances. This would have been a stimulating but unproductive use of working time. Thus, communication emerged as one of the biggest problems. Another feature of the commission's life was its extreme fluidity, marked by the appearance and departure of personnel, the evolution and devolution of controversial policies, and the rise and fall of philosophic concepts as they apply to justice. The commission attempted a quantum leap into the future. Many reforms, shot off in a single volley, carried organizational risks only to be assumed by the stout of heart. The first fine flush of conceptualizing and planning carried with it the ardent expectation that old problems would vanish. This shared optimism was a necessary ingredient. It provided dynamism, high aspiration, and the vision to see—or at least to peer dimly—into the troubled future and to take the first long steps down the road to change. Once launched, the Justice Development Commission moved forward with a dynamic of its own, carrying all participants in its train, whether willing or not, understanding or not. It was a force whose time had come. This force exists not only in British Columbia but across the entire continent. Indeed, it surfaced in parts of the United States some years ago. Its appearance provides eloquent testimony that a new justice system must be constructed and geared to the requirements of the age. The Justice Development Commission serves not only as a classic demonstration of the necessity for the change agent concept, despite its risks. In a more narrow sense it raises a profound issue for the student of judicial administration: it has brought into hard focus the question, "Is the judiciary to manage its own courts, or is it not?" This was the question we raised in chapter 1. The JDC's creation of a unified court administration under the control of the attorney general's department was a mere reassembling and modernizing of existing components already controlled by the executive at provincial and municipal levels of government. But the unification and activation took on the appearance of a massive invasion by the executive into the judicial domain. There was, in fact, no invasion. Nothing had changed constitutionally or, indeed, in practice. Nevertheless, for the first time, searching questions were raised in judicial minds. Had the judiciary a management—as distinct from a legal or adjudicative—responsibility? If so, what was its proper area? No one had hitherto attempted to define it. What should be its limits? Again, no 376

The Change Agent definition had previously been hammered out. Was it being fully exercised, and if not, what measures could be taken to arrive at some agreement on the full exercise of judicial management responsibility? What is the judicial managerial job? If there is one, and it has not been exploited, what decisions will ensure the job getting done? Precisely what has to be managed? Who does the judiciary manage? How does a judge manage? How much is to be delegated? How delegated? How can the judiciary ensure informed management? What use can be made of quantitative data now generated for the first time? What happens if the judiciary controls, but neither manages nor delegates? (This question is loaded with implications.) Is there any agreed upon philosophy of judicial management? If so, what is it? Are the constitutional structure and legal environment understood insofar as they determine the nature, limits, and responsibilities of judicial management? Is there a clearly articulated boundary separating judicial and administrative management? And how are all these questions to be applied to the vexatious, contentious, ubiquitous, and never ending problem of casefiow management? The answers to these questions were not illuminated at any searching level within the commission. Outside the commission, neither the real object of a reformed court administration, nor its methods and procedures, were understood. It was inevitable under these circumstances that the judiciary would withdraw to prepared positions on the only high ground known to it, namely the doctrine of judicial independence. This is a doctrine which is very difficult to grasp in any visceral sense without actually spending time on the bench, and is therefore one which in turn is little understood or appreciated by the lay public, the politician, or even the bureaucrat. What we are describing here is the polarization of two opposing camps separated by a previously Iatent issue, imperfectly understood by both sides. The consequences for the Justice Development Commission in general, and court administration in particular, were serious. An attempt has been made in Part I of this text to define and answer some of the problems now raised. A comment may be offered on the subject of unification, particularly as it applies to the court administration structure. Unification was attacked as a deficient and even destructive administrative solution. Critics urged that an interceding layer of regional administrators insulated the local from the centre, thus clogging communications, and that this bureaucratic layer could never be phased out. Problems, they said, are not solved by armchair specialists drawing neat models. Unification, it was argued, results in multiple and inconsistent goals because different regions generate different needs. Quick response to inquiries and problems is eliminated. In the eyes of its critics, the thrust toward court unification, 377

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founded on the brilliant exposition of Roscoe Pound, assumed conditions no longer applicable today. No reform is without its trade offs, and unification of the court administration system in British Columbia encountered critical difficulties owing to budget restrictions, and the initial lack of expertise in newly recruited personnel. In balance, however, in the case of British Columbia, the benefits of unification heavily outweigh its disadvantages. First, efficiency of services has indisputably risen. Second, the unified administration is not based on a hierarchical but on a supportive philosophy. A flexible policy is maintained to allow for differences of conditions from region to region. The organization does not conform to the classic pyramid-shaped organizational chart based on the presumption of a need for strong central control. It is based, instead, on maximum initiative and latitude at the regional and local levels, with a headquarters structured along supportive lines, comprising a staff of consultants in various fields. The role of these specialists is to visit the regions and local courts, supplying advice, training, and expertise, and recommending changes which will lead to standardized policies where possible, but subject to unique local conditions. In other words, the specialists are resource persons, not supervisors.10 The proposition enunciated by James Thompson in Organizations in Action is followed—"When the task environment is dynamic, regional divisions will be decentralized." As a result of unification, training has been supplied for the first time in over one hundred years of operation. Court clerks have been provided for the provincial court, as well as additional staff where none had previously existed. In fact, 125 additional personnel were added to the provincial court system during the year following the assumption of responsibility from the municipalities, thus providing badly needed services. Increased economies are now offered by the merging of the services of court recorders, sheriffs, and court administrators. Information flow also has improved. The headquarters staff and regional administrative personnel hold conferences every five or six weeks, where information is exchanged and decisions reached on a consensus basis following open discussion. The practice has also developed of holding meetings with regional administrators in the absence of headquarters staff, to ensure full freedom of expression and critical feedback. Bureaucratization has been kept to a minimum and a conscious effort has been made to avoid the evils of empire building and to maintain a lean, fastmoving apparatus. Unification has made tight fiscal control possible for the first time in the province's history. Fiscal monitoring in each region, and analysis of expenditures in the Victoria headquarters, bring to the surface a number of areas where control can be exercised. Noticeable economies have been 378

The Change Agent effected, and fiscal control, thus, is expanding. There is no other procedure so capable of achieving fiscal controls which are essential in the face of the fast growing volume in a vast geographical area. This brings us to what may be the central force dictating regionalization, namely, the effect of geographic area on the phasing in of change. Given the size of British Columbia, regionalization is a simple and practical necessity, the area being too vast to supervise from an island in the lower southwest corner of the province. British Columbia is generally undergoing profound reforms which dictate centrally based operations, but with regional flexibility and control. Once a policy has been decided upon, it can be implemented by the simple process of issuing a memorandum from headquarters to five regional administrators. Under this system, however, the policy is not dictated from headquarters, but follows consultation with regional administrators, and the development of a consensus between headquarters and field administrators. In effect, this means that the province has five operating managers rather than one, and operational controls are increased fivefold. In management terms, this is the simple arithmetic of the matter. Without this mechanism, decisions could never be implemented. Constant contact between the members of the headquarters staff and the regional administrators results in the continual redefinition of problems and reinforced feedback for decision-making purposes. Monitoring is simplified for both headquarters and regional personnel through the new system of data reporting for computer analysis, as described above. Finally, the unification process has accelerated the need for professional court administrators. It appears that this need is now gaining increasing support from the judiciary and other elements of the system. If so, court administration as a profession could be a growth industry for the next ten to fifteen years.

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Chapter Fourteen The Future of the Courts This text has focused on the internal administrative problems of the courts, and the internal issues which flow from them. If the gaze has turned outward, it has been, for the most part, to reflect on the effect of governmental policy on the courts within the narrow field of court organization, caseflow management, and support services. But a more ample landscape may be contemplated; namely, the role and destiny of the courts as they recoil from and react to the impacts of social and cultural change in a dynamic society. The ground breaking text Managing the Courts, by Friesen, Gallas, and Gallas, published in the United States in 1971 and previously cited in this work, directed attention to this larger view in its concluding chapter entitled "The Courts as a Social Force."1 Strategic perspective can be as important as technical skill. It may, therefore, be useful to survey the Canadian scene from the mountain top, so to speak, and to ask in what directions the courts may be drifting and the significance of these trends to judicial administration. EXPANSION AND CONTRACTION OF THE COURTS' ROLE IN SOCIETY

A frequent theme in modern writing and rhetoric focuses on the pervasiveness of law. Others, however, argue that the rule of law has become less central to human affairs, and public decisions are increasingly made without reference to legal standards.2 The former also assert that we suffer from "over-judicialization" of our lives and our society. We would expect that, if laws are becoming more pervasive, we would be growing overjudicialized. Conversely, the disintegration of reference to legal standards should mean that courts have become less relevant. To understand correctly the current evolution requires a separation of the role of law and the role of courts in society, both here and in other countries. In fact, the expansion or contraction of the courts' role may not parallel the pervasiveness or decline of the Iaw. There are four possible 381

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scenarios, or alternative roles, that courts may play in the future. Analysis always requires some degree of simplification, and the scheme proposed here is guilty of this offence; however, it provides one framework for considering the future tasks of judicial administration and the direction of court reform. Table 19 labels four systems whose emergence varies with the pervasiveness or decline of law, and the expansion or contraction of the activities of courts. TABLE 19 FUTURE COURTS AND THEIR ALTERNATIVES Law Pervades Social Relations

Expand their Activity

Declines in Importance

Social Courts Judicial Activism (Canadian (American-style family and juvenile courts) courts)

Courts Contract their Activity

Specialized Appellate Courts (Canadian-style courts)

Community Social Systems (Canadian and American criminal justice)

When the law and the courts both grow in importance, the result is usually termed judicial activism. In this context one thinks of the American political system, in which a variety of political and social issues are translated into legal and constitutional ones, and brought before the courts for resolution. The courts are used by a variety of political and social groups of various ideological persuasions, and the courts often respond by applying legal rules that mandate or prohibit action by governmental, economic, and social institutions. At the beginning of the twentieth century, American courts interpreted early labour legislation as violating constitutional protection of the liberty of contract. In the past generation, American courts have interpreted constitutions, statutes, and common law precedents to prohibit discrimination against a wide range of minorities, reform the criminal justice system, and change the basis of legislative representation. In the process, many areas of social and economic policy have become both "judicialized" and "legalized" to a previously unknown degree. In Canada, public concern and government intervention have extended 382

The Future of the Courts the scope of legal rules and regulations without a similar expansion of the role of the courts. This is usually done by the creation of administrative tribunals and boards invested with quasi-judicial authority. These tribunals, at both federal and provincial levels, rely heavily on legal rules and procedures. Their work is essential in understanding law in fields such as communications, labour, zoning, immigration, industrial accidents, and pensions and benefits. Law plays an important role in these fields, but the courts do not. The judicial role is limited to appellate review of administrative action. Even then the scope of review is tightly regulated and limited by statute and practice. If this scenario illustrates a growing trend in Canadian law, it suggests that court administration may become less important, unless its lessons are transmitted to those charged with managing the proceedings of administrative tribunals. Court administrators within a system of specialized appellate courts would become less involved with caseflow management; they would probably be most valuable if they had legal training and could assist appellate judges in screening cases.8 How is it possible for the importance of law to decline in society while that of the courts expands? Can judicialization exist without legalization? If this occurs, courts could be termed "social courts." They would perform important functions in society, but without primary reliance on legal principles. In fact, Canadian policies have encouraged the development of social courts to deal with certain matters. The most obvious examples are in the family court field. Juvenile matters involving delinquency and the need for supervision are dealt with in "informal" proceedings in which emphasis is placed on counselling, work programs, and other alternatives that involve social work and corrections professionals. Rather than completely diverting these matters from the courts (the community social system discussed below), present policy tends increasingly to bring the issues and the supporting techniques into the court framework. This policy is reflected in calls by many law reformers for unified family courts, and the approval of federally funded pilot projects in a number of provinces to test the efficacy of the unified family court principle which, in some manifestations, represents a new extension of the model combining declining importance of the law and expanded court activity. In a system of social courts, administrators will grow in importance because courts will take on new and more diversified activities. On the other hand, the court administrator's job may come to resemble that of any other administrator in a complex and highly professionalized organization—equally difficult but less distinctive. The Iast alternative shown in table 19 occurs when both law and courts decline in importance. Ironically, this is occurring in the very field where charges of over-judicialization are most often made, and court administra383

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tion first rose to importance in Canada—crime and law enforcement. Public and official concern over the problem of crime has grown to the point where the pragmatic search for solutions has led to a new emphasis on diversion programs to channel offenders away from traditional court and correctional "streams." Diversion has sometimes been advocated at the post-conviction stage, in terms of alternative correctional techniques. These diversion programs are often court-supervised, and the courts may then take on characteristics of the "social court" type. But other and more typical diversion programs are implemented prior to conviction or other judicial proceedings, though what is termed pre-trial intervention.4 Thus, what used to occur in courts in a legal context takes place in other community institutions in a non-legal context focusing on the solution of social problems, rather than on the conferring of legal statuses and liabilities. By setting out four alternative scenarios for evolution of the law and the courts, we have avoided committing ourselves to a single predicted outcome. This is justified in part because different trends can co-exist; a community approach can develop in criminal matters, a specialized appellate court role can emerge in labour relations, or a social court role on family matters. The trends co-exist because policies evolve differently from one area to another. Thus, Mr. Justice Antonio Lamer, past chairman of the Law Reform Commission of Canada, has cited examples of over-judicialization,5 but has also argued that not enough effort is devoted to seeking "judicial solutions in the area where the administration of the state begins to lap over into the essential core of civil liberties and areas for individual self-assertion."° While the four "alternative futures" allow us to discuss co-existing (and even conflicting) trends, they are not purely eclectic. For example, table 19 does not presume that the declining importance of the law is simply another one of the oscillations between rigidity and flexibility that have characterized English legal history over the centuries. If this cyclical theory were valid, what would emerge from present currents and crosscurrents of change would be a renovated system of legal principles, reflecting newly emergent values in a set of clearly defined and understood statutory and judge-made rules. But that result is problematic: instead, in Edward Levi's view,' what may come to dominate our institutions is leverage rather than law—power exercised without adequate limits or legitimate rationalization. Developing alternative futures for the courts may therefore be justified because new events may not only alter the slope of trend lines, but define entirely new directions for the courts. Consider a more mundane example. The recent shift toward merger of superior and county courts (discussed in chapter 4), can be attributed to the combined impact of motor vehicle accidents and inflation. Both factors increase the monetary value of law384

The Future of the Courts suits without increasing the legal complexity of litigated issues. Motor vehicle accidents often result in sufficiently high damages to qualify for hearing in a superior court, but rarely generate challenging legal questions. Inflation increases the likelihood of qualifying for a superior court, without affecting the difficulty of legal questions raised in a suit. Both factors, therefore, produce a flatter profile of the court system—reducing the perceived difference between supreme and county courts, thus weakening the persuasiveness of arguments for retaining two separate section 96 courts. Technological and economic changes thus generate changes in court structure. Newer technology may, on the other hand, reverse the trend. Pilot programs are under way in the United States to evaluate the use of telephone conference calls to argue motions, take depositions, schedule cases, and handle other preliminary matters. If this technology is effective, a major source of lawyer and litigant dissatisfaction with the circuit systems used by traditional superior courts could be mitigated. In another example, new trends toward the regulation of technology to curb environmental damage and resource depletion may lead to new and sensitive areas of government regulation in which informed judicial deliberation becomes essential to the legitimacy of public policies, and judicial activism emerges in ways not previously predictable. While it is difficult to use the four scenarios as a basis for prediction, they may prove useful as analytical tools, providing a context within which we can discuss some of the important social and philosophical reforms in Canada, including those developed in British Columbia through the Justice Development Commission. THE UNIFIED FAMILY COURT The unified family court project developed in British Columbia is an example of the "social court" approach. It locks the court with social service resources into one unified package. It is based upon the concept that all levels of trial courts, namely supreme, county and provincial, should combine to supply a unified service at one geographic point—a pragmatic solution to the present constitutional division of legal jurisdictions between federally and provincially appointed judges. The B.C. Family Relations Act, which makes provision for maintenance of destitute or deserted spouses and children, is a provincial statute administered and adjudicated through the provincial court. Yet divorce and maintenance are subject to the federal Divorce Act, under which hearings are heard by federally appointed judges in the supreme and county courts. Provincial courts (family division) are empowered to enforce, but not to vary, supreme and county court maintenance orders. Consequently, for constitutional reasons, the unhappy deserted wife and 385

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mother frequently finds herself on a shuttle service from one court to another. The unified family court concept is an attempt to rectify this historic anomaly. The unified family court, however, pushes further in its attempts to develop a social approach, taking the position that many domestic and juvenile problems are better solved at the non-judicial level; and therefore the judiciary should occupy, not the front end or centre of the process, but the back end. Under this approach, the front end should be composed of family and juvenile counselling services conducted by probation and social work officers with professional training. Consultation and negotiation with family members and juveniles should take place in an informal setting, resolving problems before attitudes harden. This is believed to provide flexibility, room for negotiation, and compromise solutions, and is contrasted with more rigid decisions arrived at through the adversary process. Consultation also allows time for the detailed examination of financial and other factors lying beneath the surface problems. All these matters are thrashed out in an informal, non-judicial setting. Only if these procedures fail is the matter referred to a judge for final adjudication. Parties are represented by legally trained family advocates, and settlements are ratified by court order. Visiting supreme and county court judges adjudicate divorce, judicial separation, and other matters referable to federally appointed judges under the Divorce Act. It is anticipated that the unified family court concept will be extended throughout the province; its administrative personnel have now been transferred to the provincial court administrative system. Thus, the concept of the court as a social instrument has been developed—the social court which is front-end loaded with counsellors and probation officers seeking to deal with the root causes of the domestic disturbance in an informal atmosphere, rather than reordering the array of symptoms in the formal atmosphere of the courtroom. The approach is reminiscent of Friesen, Gallas, and Gallas' discussion of the domestic relations responsibilities of American trial courts; those authors cite the establishment of marriage counselling services in many American courts, going back as early as 1953 in Los Angeles County, and independent investigation by court staff personnel of conditions underlying domestic disputes.8 As a social court, the unified family court exemplifies the trade offs inherent in a court setting within which legal standards play a reduced role. On the one hand, the court has recognized the social dimension of its work, and not imposed legal standards in a setting where adults and children are seeking a different sort of service; on the other hand, the court's social functions may shift its role so far from judicial to social service that the distinctive attributes of courts are minimized. For ex386

The Future of the Courts ample, domestic investigation by court personnel in the United States may extend to information about "the life styles and habits of both parties, including any associations with persons reputed to be of an unsavory character.... The data in reports compiled by trained court investigators is useful," write Friesen, Gallas, and Gallas, "even though hearsay and damaging information is included."9 Under these conditions, the social service functions of court staff may replace rather than enrich the legal standards and procedures associated with traditional litigation. If judges do not bring explicit legal standards to the enterprise, their decisions threaten to reflect personal biases about appropriate family relations, rather than apply principles of justice and fairness. In Canada, the social court, as exemplified in British Columbia's unified family court, faces a further dilemma. Unlike American courts that have developed their own marriage counselling and domestic investigation staffs, Canadian courts are likely to inherit personnel from other departments, or to be given a minimal role in the selection and training of personneI. In this situation, judicial control of front-end services is lessened, and these staff services could operate with a relatively high degree of autonomy—taking on (in the extreme) the character of an external diversion agency associated with the "community social system" type. Changes in judicial administration proposed in earlier chapters could preclude this result, and make the social court a viable alternative. For example, judicial responsibility for support services would ensure that court administrators responsible to the judiciary have authority to select counselling staff who could be encouraged to share their expertise and integrate their work into established court processes, increasing the likelihood that their front-end discretion would be adequately structured, confined and checked.10 B.C.'s pilot project proved effective; however, as the enthusiasm of a new experiment wanes, its effectiveness depends upon how well it is integrated into established institutions. The support services within unified family courts could provide the basis for a viable social court, or they could further impede the necessary role of the judiciary in domestic and juvenile matters. SMALL CLAIMS COURTS

Pressure for more effective ways of settling consumer disputes are likely to have a profound impact on the future of small claims courts. This field provides a classic example of reforms that pull in two directions: toward a sharply reduced and toward an expanded role for the courts. During the mid-1970s in British Columbia, new consumer-oriented legislation for rent control, government automobile insurance, and fair trade practices led to demands for new machinery to pursue consumer 387

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claims. By 1975, Justice Development Commission staff became strongly concerned about how this legislation would affect the small claims courts. In the words of one attorney in the Courts Division of the JDC: "... I am quite concerned that the jurisdiction of the Small Claims Court will soon be non-existent. The combined effect of the Rentalsman, the Trade Practices Act, the Debtors' Assistance Board and the proposed creation of I.C.B.C. arbitration boards and the Consumer Claims Tribunal would almost eliminate the necessity for a Small Claims Court system."'1 The JDC response was not to resist reform, but to ensure that changes to serve the consumer would build on and strengthen the existing courts. JDC staff agreed that there was "a need for an effective and informal mechanism to settle disputes such as consumer claims," and that "the Small Claims Courts are not meeting this need at the present time." On the other hand, they showed concern "about a proliferation of dispute settling mechanisms, because of the overall cost to the Provincial Government and confusion for an individual complainant/plaintiff."12 The JDC therefore designed a Small Claims Mediation Project "to test the feasibility of a court related mediator/referee to settle disputes,"13 which as with the unified family court project, provided for diversion out of the traditional adversary system, but at a point after disputes had entered the court system rather than before. This form of internal diversion, where mediation services are established inside the courthouse, provides an informal mechanism for the settlement of civil disputes without formal hearing but with the court's sanction. In the process, the JDC hoped to "demonstrate that the court system can be responsive enough to meet" the demands for alternative dispute settlement mechanisms.14 The mediation project proved successful; it lapsed, however, for want of continued funding. New events suggest that informal small claims procedures are still likely to develop, and to play a constructive role. The Vancouver mediation project has been replaced by another innovation. Under the instructions of small claims court Judge Edward O'Donnell, the plaintiff and defendant in each case are required to attend a pretrial meeting with a court staff member selected by O'Donnell, to ensure that the claim (and defence) are properly documented at trial. In practice, it is found that many claims are resolved at this stage, eliminating the necessity of a trial. Senior County Court Judge Gordon Killeen of London, Ontario, has designated a member of his staff as a small claims referee who has effectively mediated many disputes under that court's jurisdiction. Effective resolution of small claims raises vexing problems in defining an appropriate role for the courts. The smallest claim in dollar terms can raise questions of tort and contract law as difficult as those in cases in-

388

The Future of the Courts volving thousands of dollars. At the same time, small claims litigants are usually more interested in expeditiously resolving their disputes than becoming involved in an expensive process of establishing new legal precedents. Because the demands of the law and the disputants may be competitive, a balance is necessary. If the standards of substantive and procedural law become too exacting, the courts' role will decline as disputants look elsewhere to resolve civil matters cheaply and quickly. Those alternatives may, however, operate with too little sensitivity to basic legal principles. Small claims judges already strive to balance legal requirements with the need to hear out and to question disputants, who usually appear without counsel. The use of court staff, selected by judges and working under judicial supervision, to assist litigants and mediate disputes can therefore expand the current approach of the small claims judges, while increasing the court's ability to handle disputes expeditiously, and reducing the need for alternatives. Small claims reform is not likely to create a "social court" in the extreme form, but it will expand the court's activity by reducing the traditional emphasis on formal legal procedures. DIVERSION IN CRIMINAL CASES On the criminal side, diversion processing, also based on informal discussion settings, has developed through resort to so-called pre-trial intervention programs, whereby the prosecutor is given the power to "shortstop" cases before going to trial and even prior to an information being laid. Experiments on this continent allow intervention at the pre-summons stage, the post-summons stage, the post-plea stage, or even the postsentencing stage. Most diversions occur at the pre-arrest and pre-summons stages, after consultation with the accused, his or her family, the victim, the police and probation officers. The emphasis on diversion derives from what sociologists and criminologists refer to as labelling theory. The labelling approach argues that by the time an accused person moves through the courts to face sentencing, he tends to be hardened in his attitude. He may have persuaded himself of his innocence, rationalized the crime, and even transferred the guilt from himself to the system. Some interesting research, for example, has found that mental patients treated out of hospital are healthier than those treated inside hospitals, because hospitalized persons were labelled "mental patients." Similarly, the label "ex-criminal" may be destructive. Some labelling research has gone further in finding that juveniles who were apprehended committed more offences per capita afterwards than those who were not caught. Labelling theorists therefore argue that those who have penetrated an institutional process are further

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damaged, as they draw destructive signals from parents, school teachers, employers, and friends. The solution that follows from this theory is to front-load the system by providing treatment before trial is reached. Analysis of the accused's attitude by labelling theorists is only one of the factors feeding the present drive toward diversion programs. Another strong pressure is generated by the large volume of cases, with consequent congestion and expenditure of public monies. Most diversion programs are cost saving. They are rendered more predictable by the development of prediction scales indicating the probability of successful diversion of an individual, based on age, criminal record, and personality. For example, the base expectancy scale technique embraces the use of typologies and maturity levels. Thus, a personality of low maturity level, for example, will perform better under a rigid program, while a high maturity level personality will perform better under a more liberal one. Finally, diversion programs have come into vogue as a result of disenchantment with the conventional justice system as a way of dealing with crime. Alcohol and drug addiction, for example, are areas in which the impact of courts and corrections is difficult for the public to assess. Diversion programs raise extremely controversial issues, in spite of their growth and current popularity. One set of issues is directed at the validity of labelling theory. Critics of the approach argue that it is based on a humanistic ethic, rather than on adequate evidence. Labelling may occur, but with what effects? Scaling techniques may be rational in theory, but they require a knowledge of the impact of offender characteristics that is not yet available. The title of a 1978 book by University of Alberta sociologist James C. Hackler conveys a sense of these reservations: The Prevention of Youthful Crime: The Great Stumble Forward.15 A second set of issues is directed at the impact of diversion on the court's role in the criminal process. Early intervention may entirely exclude the court; pre-arrest and pre-summons diversions then represent an extreme form of the "community social system" scenario. If the validity of labelling theory is problematic, use of that approach as a basis for excluding judicial involvement may be inappropriate. Even if diversion programs require changes in judicial procedure, some judicial supervision or court monitoring remains essential. For example, intervention routines must be subject to rigid legal and time criteria. They must be on a consent basis so far as the accused is concerned. They must take into account the nature of the crime, and the record and background of the accused. Interventions must (in appropriate cases) be documented and ratified by open court proceedings. Enthusiastic claims have been made in support of some of these programs, but the general absence of monitoring and measuring against control groups leaves room for further assess-

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The Future of the Courts ment. As in the case of probation and parole, such programs should not be oversold on the basis of economy alone. THE QUIET REVOLUTION

The trend away from traditional judicial proceedings in criminal matters continues apace. Consider the five high-volume offence categories normally found in the criminal courts: drug addiction, soliciting," traffic offences, shoplifting, and impaired driving. It is significant that diversion programs are being tested or studied in the first three; and in the remaining two, namely, shoplifting and impaired driving, the trend is toward treatment rather than punishment. This represents a quiet revolution in the criminal law field. Few are aware of this development, which repudiates the century-old concept of a punishment-oriented justice system controlling misconduct. In the drug addiction field this has led to a variety of controversial proposals, all of which envisage diversion out of the court stream. The one most frequently proposed is the establishment of free drug clinics. These have operated with reasonable success in England, but would probably produce more ambiguous results in the cultural setting of North America. Vancouver is a major seaport and entry point for illicit drugs on the international drug market, for distribution in North America from Southeast Asia. British Columbia's estimated 13,000 addicts generate a dark subculture spawning thefts, breaking and enterings, robberies, and murders. It has been estimated that 60 percent of all serious crime in Vancouver is hard drug related. One or two drug courts have sat daily for years in Vancouver provincial court. For reasons beyond the scope of this work, free drug clinics in such a setting offer scant promise. A second proposal is modelled on the Japanese heroin program which involves compulsory hospitalization, the test not being possession, but addiction. This model was adopted early in 1979 in British Columbia with the establishment of a 150-bed hospital in a rural setting, for committal and treatment of persons dependent on heroin and other opium derivatives, methadone, and any morphine-like drug. Other residential and day clinics were also established. Admission was to be determined by the unanimous opinion of an evaluation panel of two medical doctors and one other person. Committal was to be made pursuant to a supreme court order, or by consent of the person concerned, without a court order but after the evaluation panel recommendation. Consequently, this represented an attempt to divert drug addiction out of the criminal justice stream into the medical stream.17 However, later in 1979, the program was declared ultra vires the provincial government by the B.C. Supreme

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Court, on the grounds that it constituted criminal law (a federal responsibility) rather than legislation relating to health (a provincial power). At the same time, civil liberties groups have strongly protested the use of compulsory treatment by any level of government. From a law-in-action perspective, marijuana possession has already been partially diverted out of the court stream in many jurisdictions. Charges are not laid, or if laid, the court may give conditional or unconditional discharges. This is a response both to softened public attitudes toward the use of this drug, and to the unmanageable volume of these cases. Prostitution is another area where the justice system appears to be ineffective. A "street survival" diversion program was initiated in Minneapolis consisting of a nineteen-session program for street prostitutes. It does not involve group counselling or confrontation, but is educational and deals with matters of health, abortion, the victim of the procurer, grooming and employment. Initially this program was not monitored. Concern has been expressed that prostitution may be decriminalized and delivered over to the supervision of health agencies. This will not startle those familiar with similar public policies in Europe and other continents. It is less repugnant to those who hold that venereal disease can spread very rapidly, and that licensed and inspected establishments at least ensure some medical supervision. The high prevalence of heroin addiction amongst prostitutes is an added dimension to be considered in any decriminalization program; it may well constitute an argument in its favour. The opportunities for organized crime to gain control of such premises may support this social approach to the soliciting problem. Traffic offences is another category being diverted out of the criminal court stream and into the hands of traffic commissioners across the continent. Båt the effect is less obvious because traffic commissioners courts must now be set up to replace the regular criminal courts. In fact, therefore, it is not an absolute diversion out of the courts, but a diversion from courts of record to courts of non-record. However, the traffic "point system," which merely records points against the operator's driving record, is an absolute diversion out of the courts. Shoplifting diversion programs, linked with volunteer agencies, have been experimented with more widely in the United States than in Canada. These programs include vocational training. To be successful, they must be accompanied by an effective employment program. Thus far, unions have not proven a stumbling block. Employment follow-through and continuing counselling is usually necessary in these cases. Caseloads should not exceed twenty to twenty-five clients per supervisor. These programs experience a heavy fallout rate. They are frequently accompanied by the requirement of a waiver of trial or statute of limitations 392

The Future of the Courts rights. Subsequent offence measurements (that is, monitoring) and objective evaluations are not always made. At any rate these programs are an effort, as has been said, to "lock the defendant into his own future," and are aimed at the criminal novice, as yet unhardened by repeated experience with the criminal justice process. The Elizabeth Fry Society of Vancouver has operated a successful, if relatively expensive, group therapy program for shoplifters, but after, rather than prior, to conviction. Likewise British Columbia, and no doubt other provinces, have followed the American lead in setting up education and rehabilitation programs for impaired driving offenders. Attendance at these clinics is offered, or ordered, as an alternative, or in addition to, a fine or imprisonment. It is curious that a consistent 40 percent success rate is claimed for these programs. Further diversions may well include husband/wife assaults, mentally retarded minors, minor bad cheque cases, mentally ill serious offenders, and certain types of sex-related offences, such as indecent exposure and voyeurism. Finally, experimentation is under way in a number of provinces and states with community service programs or community work orders, whereby an offender is placed on probation on the condition that he contribute a stipulated number of hours or days or weeks of voluntary labour for some worthwhile cause. There are peripheral problems attending this type of program, such as employer liability and objections on the part of unions. In British Columbia the Workmen's Compensation Act was amended to include community work service under the definition of "work," to solve the employer liability problem. Unions were represented on the original committee considering this program thus eliminating union problems in the design stage. UNTANGLING TRENDS IN THE CRIMINAL PROCESS Taken together, the variety of new programs for dealing with criminal offences, outside of the traditional judicial process and traditional modes of incarceration and punishment, represents a new social approach to crime and justice. It reflects the frustration of policy makers with traditional responses to crime. The first chairman of the federal Law Reform Commission, Mr. Justice Patrick Hartt, put it in these terms: "I suspect that the criminal justice system is one of the least important deterrents to crime."18 Also, it is now acknowledged that detention frequently fails to rehabilitate the offender;19 punishment per se, on the evidence, tends to debase rather than reform. While judges, police, probation officers, prosecutors, and prison wardens all operate on the assumption that custodial institutions are necessary simply to spare society from the 393

CHAPTER FOURTEEN

predatory abuses of certain convicted criminals, they also understand that "correctional" institutions seldom correct, and achieve little beyond a warehousing function. The resulting search for alternatives that go beyond the traditional response to crime has taken two quite different, though superficially similar, directions. One is toward diversion programs, as previously detailed, in which government acts through supervision, treatment programs, and social work methods to control criminal behaviour. The other is toward decriminalization, that is, reducing the range of activities covered by criminal law. Decriminalization goes beyond the notion that governments should move away from a more rigid and formal system of punishment for crimes, proposing instead that they should limit the intervention of criminal law in private conduct. It requires a new philosophic centre of gravity, akin to the conclusion of Mr. Justice Hartt that "every citizen should be free to adopt his own ethic, choose his own lifestyle, and live his own life—provided he does not fall below a minimum standard of acceptable public order. We ... have to rid ourselves of a lot of myths about what the criminal justice system can do and what it can't do."20 Diversion and decriminalization have developed simultaneously in the criminal justice field. Nowhere is this clearer than with drug offences, where hard drug addicts are diverted to compulsory treatment programs, while marijuana possession has been subject to either legal or de facto decriminalization in many jurisdictions. And nowhere is the distinction between diversion and decriminalization more stark: diversion represents an extension of government coercion, albeit in a new form, while decriminalization represents an extension of governmental toleratio. The public may view both compulsory community diversion programs and the decriminalization of soft drugs as examples of the failure of the courts and the law in their disciplinary function. However, diversion and decriminalization have quite different implications for the courts in that both have shifted the courts toward the "community social system" model. Yet to the extent that diversion programs involve the coercive authority of the state, courts must retain a role—at least as "social courts" or "specialized appellate courts"—to ensure that the coercive authority now resting with social, correctional, and probation personnel is subject to judicial supervision. Off-loading whole categories of offences, by diversion or decriminalization, will not leave the courts idle because other categories will rise to take their place. The courts will predictably become more involved in the control of white collar crime, whether organized or unorganized. Recent years have witnessed the disposal in Canada of securities stolen in the United States, the emergence of Canada as one of the major drug trafficking centres of the world, as well as of organized bookmaking and layoff 394

The Future of the Courts betting which, in turn, leads to Ioan shark activities victimizing bettors who are in over their heads, business takeovers by crime syndicates, fraudulent bankruptcies, fraudulent fire insurance claims, call-girl operations, bootlegging, counterfeiting of securities, wholesale merchandise thefts, tax evasions, alien smuggling, and illicit construction and meat processing practices. The list is endless. These types of cases will require an unprecedented investment of time by crown counsel, defence counsel, and judges, thus taking up any slack generated by decriminalization or diversion, and reinforcing a central role for the judiciary. TOWARD A MEANINGFUL ROLE FOR THE COURTS

This concluding chapter began by suggesting future trends in the role of courts in society. By examining concrete changes in criminal, civil, and family law and procedure, the pressures on the court—either to remove itself from traditional responsibilities or to take on new and different responsibilities—become apparent. Unquestionably, the courts stand at a crossroads, which chapter 2 labelled a paradigmic crisis. The jurisprudential flux in which the courts find themselves today may be expressed in terms of system breakdown. But whether the paradigmic crisis is expressed in terms of jurisprudence or systems theory, solutions should be based on rational and deliberate thought rather than unplanned responses to crisis. The solution to an overheated system is not alone an increase in the number of judges and courtrooms, or the removal of court matters to other arenas. The crisis must be examined in the light of the court as an evolutionary organism responding to social change through internal adjustments, guided by some sense of what its essential functions should be. The courts are properly reluctant to move on issues which are the preserve of the executive and legislative branches of government; hence the necessity for change agents (such as represented by the B.C. Justice Development Commission) which can formulate policy reforms (a political function), and create the necessary support services (an executive function) to enable the courts to carry out their new mandates. In the present setting, however, the judiciary must consider what its role should be within a changing society. If courts continue to operate as they have in the past, they will be unable to play a meaningful role. "The background of passivity and formalism so common to judicial operations," writes Edward C. Gallas, "has not been entirely overcome. In our adversary system, the courts have long been viewed, and have viewed themselves, as a referee. This is a posture ill fitted to social progress." The tendency to a "passive posture" has caused the judiciary "to react rather than to act on matters of social concern."2' 395

CHAPTER FOURTEEN

So the court should take a more active role, and be sensitive to the consequences of its work. But what should that active role be? In what ways should the courts expand their vision and their activities? American writers who have argued for an active and sensitive judiciary have not always thought this question through. Consider a statement by Friesen, Gallas and Gallas: "The role of the courts as a remedial force for the correction of the social ills of society needs buttressing. The court's ability to deliver results depends on the strength of support activities in the civil, criminal, domestic relations, juvenile, probate, and psychiatric courts."22 It may be hoped that the courts, in performing their essential functions, will thus remedy the ills of society. But this can be only an indirect consequence of most judicial activity. If the courts were to accept too broad a mandate to correct social ills, they would become purely "social courts" whose connection with the law would be increasingly tenuous. The first step a court should take is to ensure that its central role of resolving conflicts between adversaries remains effective in times of social change. This requires the sort of management philosophy expounded throughout previous chapters. Unnecessary delay results in the resolution of conflicts by default, not by law or reason. Inadequate or inaccessible facilities mean that courts are not available when they are needed. The failure to monitor the flow of cases from the point of initial entry prevents the courts from monitoring the adversary process to ensure its continued effectiveness. In each case, improved court management can strengthen the traditional adversary system. To retain—and in many cases re-establish—a meaningful role, courts must also ensure that some minimum adherence to the rule of law exists whenever the authority of the state is used against individuals. This principle requires, for example, that the courts supervise and oversee the application of diversion programs to individuals. The treatment approach to crime embodied in many diversion programs should not mask their compulsory nature. A difference remains between government services that are sought out by clients on a voluntary basis, and diversion programs in which government services are made an alternative to incarceration, or a condition of probation. Under these conditions, the state— including correctional professionals dispensing treatment services—must be accountable to the court, so that state action against an individual is taken according to general principles of law. A third step in building a meaningful role for the courts concerns the enforcement of its orders. Friesen, Gallas, and Gallas express the principle quite well: "The modern—and proper—role of the court extends beyond identifying the mentally deficient, the mentally ill, the orphan, or the elderly person in need of a guardian. The court's role extends to seeing that its orders with respect to justiciable matters are administra396

The Future of the Courts tively put into effect expeditiously and efficiently. The court is more than a decider. It is also a protector with responsibility for assuring that court orders are implemented as intended."23 The court's failure to oversee enforcement of its orders may undermine the effectiveness of the law and the adversary system. Current public controversy in Ontario over the enforcement of child support orders in the family courts provides a relevant illustration. In Ontario, an automatic enforcement system has been on the books since 1973; it was designed so that nonpayment of child support would be monitored administratively and the parent with custody would not be required to return continually for judicial hearings.24 Yet current figures kept by the family division of the provincial court show that less than half of the support money ordered by courts is in fact paid. Automatic enforcement has not been effective because of administrative overload, inadequate technology and records systems, and insufficient judicial intervention. Thus, the Ontario family court understood the principle of court responsibility for enforcement, and has collected financial data to monitor enforcement, but still requires additional steps to improve its management practices before its orders become viable. Plaintiffs in small claims courts have traditionally found that the judgments they win are difficult to enforce. The result is a belief that small claims procedures has no efficacy—that it cannot produce results. Thus, efforts at mediation within small claims courts are important not only to expedite cases, but also to increase the likelihood of collecting on judgments. In Vancouver, as stated, Judge O'Donnell has found that a pre-trial meeting of the parties with a designated court staff member has reduced default judgments and increased compliance. A more active court that uses parajudicial personnel may therefore more effectively increase the viability of its orders as well as the pace of its processes. THE DECLINING EMPHASIS ON COURTS

While we have enunciated our views on the role that courts should play, and the contribution of informed management to its effective performance, we are constrained to make certain concluding observations about the role the courts are likely to play in the future. The general movement of Canadian public policy is away from an emphasis on courts. When public support exists for government action, the bureaucracy—however unpopular it is in common parlance—is given responsibility for implementing new policies. The unified family court, with its front-loaded support services that give the court a role that transcends the traditional boundaries of the judicial process, may be a short-lived exception. For example, Quebec's new Youth Protection Act has moved in the opposite direction, carefully separating social intervention from judicial inter397

CHAPTER FOURTEEN

vention.25 The Quebec law attempts to define a meaningful role for the court without involving it in social functions, but some judges fear that the law defers judicial supervision until too late in the state's contact with individual young people. If family courts do assume a wide range of social responsibilities, the traditional Canadian pattern would eventually result in devolution of family matters upon an administrative agency or tribunal, with judges removed from the process and given a limited appellate role. What explains this trend away from the courts? The cabinet system, with power centred in a responsible ministry and its civil servants, may not be the cause of the courts' decreased role, but it certainly contributes to that decline. Members of parliament appear more inclined to trust a cabinet minister than a judge to make informed, consistent, and fair decisions. Present and proposed statutory changes point away from judicial involvement in a number of areas such as exemplified in the recent changes in federal immigration law. Powerful consumer interest groups support the creation of provincial administrative mechanisms to handle consumer complaints, effectively eroding a major function of small claims courts. Landlord-tenant matters become so controversial that a board or rentalsman, instead of a court, is created to deal with them. Cities call for expeditious by-law tribunals. These administrative mechanisms all make law, in the sense that they are the first to apply and interpret new legislative guidelines in actual cases. As a result, the courts take on a specialized appellate role. Part of the court system's deficiencies (and its benefits) are inherent in its nature. Its role is not to enforce government policy but to make decisions on individual cases in a manner consistent with principles of law and justice. At times, these principles require application of specific statutes to individual cases in ways contrary of the wishes of the government of the day. The inherent tension between governments and courts means that a pragmatic government seeking methods of solving current problems is unlikely to involve the courts. Many of the courts' deficiencies, however, are not inherent in their nature; these contribute to their decline, and can and should be dealt with. When a pragmatic problem-solving approach points to public action as a way of dealing with a landlord-tenant matter, consumer affairs or criminal behaviour, the courts are not seen as an expedient path of action. They are too slow and too erratic. They cannot be trusted to make decisions consistent with new government policy; and, in any event, the decisions would come after a period of such prolonged delay that even the strongest decision would have a weakened impact. Thus, once again, weak administration contributes to the decline of the courts. Delay should be reduced to that required for the maturation and preparation of a case. Unnecessary delay, whether caused by the court or by those coming before the court 398

The Future of the Courts (lawyers and litigants), can be dealt with by court initiative. Management techniques are known and often used to deal with unnecessary delay. Other management tools can develop and modernize the court's physical setting, work patterns, and personnel policies, so that the quality of service to the public is improved. Many improvements in court operation require an increase in resources; a well-administered court system is not only better able to use existing resources, but also capable of making a stronger case for more adequate resources. It has been said that the judge is an institution.2© Yet an institution is more than an individual, or even a collection of individuals. It has an organizational dimension. An institution cannot function—it cannot survive—unless it is properly organized to perform its distinctive role effectively. The development of judicial administration will not ensure that courts will play an active role in society, or that they will dispense justice. But without effective management, they can do neither.

399

76944 73307 79504

19 20 21 22 23 24 25 26 27

30

28 29

82028 82249 78853 07147 07147A 82039 81939 80819

01 30280A 01 26280A 01 33213A

MISCHIEF THEFT/UNDER HIT d RUN

DEFENCE COUNSEL

PRESIDING

01 35421A THEFT/UNDER 01 35655A THEFT/UNDER 01 107788 DISTURBANCE 01 IMPAIRED 01 FTA 01 35464A THEFT/UNDER 01 35356A POS. DANG. WEAPON 01 34154A ATT. THEFT

ACC BOOKING OFFENCE NO NO

COURTROOM 516

DEC ONT FT

TGC TGC FT FT FT TGC SC SAC

NIC NIC NIC

NIC NIC NIC MAT MAT NIC LMC VIC

REL AN AN

AN REL REL WX WX AN WX REL

19 20 21

1 2 3 4 5 6 7 8

REASON CUST BAIL STAT PROC NO.

Note: Names of accused persons would normally appear on the daily court list, but have not been reproduced here.

AFTERNOON SITTING

MORNING SITTING

INFORMATION NEW ACCUSED NAME NO SUFF CASE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

NO

JUDGE

APPENDIX A DAILY PROVINCIAL COURT LIST PAGE:

1

***

59

16

159 131

1113%

101 73

-§62

400 358

2E1

78 78

2TØ QUARTER 3RD QUARTER

VAiIIANCE YID

x

170

99

433

77

4TH QUARTER 23 32

ä4Z

11 8

26Z

59 60

382

41 46

Hz

20

23

20

10

34

29

65

57

17

9

3

10

19

1 6

14

22

40

3

10

20

31

24

4

43

13

7

169

• COMPARISON OF PENDING CASELOAD *

CPfPG

5 40

2

4

20

32 46

9

11

12

13

37

FOUND GUILTY

8

80

8

7

***

4

1

36

DISCHARGED/ACQ

COMM FOR TRIAL

51

47

8

GUILTY PLEAS

23

4

15

180

***

48

132

REMOVED

* DISPOSITION *

21

1 49

6 31

9

71

3

36

20

260

B/W ISSUED

COMPLETED CASES

133

65

381

PENDING CASES

1 10

1 72

3 53

7

6

23

BW REACTIVATED

6 26

77 44

53 34

75

77

21

250

*

14% "

4 * 5 *

8

* *

31 1

2 1 2 1

1 1 2 1 2

1 2 1 1

2 2 2 1 2

2 1 1

0 OF CTRM HOURS

100%

592 19

23 28 29 22

24 22 34 38 23

31 30 41 25

36 20 30 31 25

36 21 23

37%

220 7

10 12 15 13

9 8 6 16 13

12 4 14 11

10 8 12 15 6

11 7 8

36%

218 7

6 11 3 6

10 10 14 19 8

8

12 12 20

9 5 9 14 12

10 10 10

20%

119 3

7 4 11 2

4 3 4 2 1

7 10 4 5

14 6 8 2 6

13 3 3

- -APPEARANCESFA PRE-TR TOTAL FT

OUT OF COURT/J.P. SITTINGS

• * DY * 12 * 01 • 02 4 * 03 • 04 • 05 * 06 8 • 07 * 08 1* 09 • 10 7 * 11 * 12 * 13 * 14 * 15 3* 16 • 17 3 * 18 * 19 6 * 20 • 21 • 22 * 23 1* 24 • 25 * 26 * 27 * 28 * 29 1 * 30 * 31 3 * • 21 *

FEDERAL PROVINCIAL SUM TRAFFIC BY-LAW STAT

388

131

CRIMINAL CODE OTHER INDICT M/V

NEW CASES

TOTAL

COURT ACTIVITY SUMMARY REPORT PERIOD NOV 01. 1978 TO NOV 30. 1978

TUE

CASES B' FWD

* CASE ACTIVITY*

COURT A

FOR

-

5%

35 1

1 1 10 1 1

4 3 1

1

3 1 1

2 1 2

POST-TR

100.0%

260

111

100%

PERCENTAGE

21.8%

4

32

3

18

*

TOTAL PENDING TRIALS

6 * 107

7

14

7

* 52 * 22

7

6 * 26 4

21% 14

7 6%

25

7

5

2

1

1

6

2

2

* 17

1

2

3%

3

2

3 6

7

* 69

4

18 1

10 4

13%

16

1

6

1

1 1

3

16 7

3

16

24

43

23

49 24

7

7

1

9

12

6%

7

1

1

1 `

2

1

1

7

7

3 1

7

OVER 180 DAYS

4

7

29

29

30%

36

1

9

7

3

10

6

35

31

6

3

29

SET FOR TRIAL BY-LAWS TOTAL TRAFF

2

PROVINCIAL TRAFF SUM 20

12

28

FEDERAL STATS

151 - 180 DAYS 25

4

5

16

21%

25

3

4

2

5

5

6

23

35

71

36 24

33

11

14

CODE OTHER

*

100.0%

28 10

13

15

8

*****CRIMINAL INDICT M/V

121 - 150 DAYS

170

2.32

16

61 - 90 DAYS

91 - 120 DAYS

9.42

61

35.8%

89

31 - 60 DAYS

52.3%

100.0%

7.5%

5.0%

23.5%

15.1%

10.9%

15.9%

0 - 30 DAYS

*PENDING FOR TRIAL*

119

TOTAL APPEARANCES

9

28

ADJOURNED

OTHER

18

DISMISSED/NO EVID

6

13

STAY OF PROCEEDING

BENCH WARRANTS

26

19

TRIAL PROCEEDED

GUILTY PLEAS

*COURT TRIAL APPR*

116

NO. OP ACCUSED

NO. OP INFORMATION

*SCHEDULED FOR TRIAL*

TOTAL DISPOSED

26.9%

70

DISPOSED AT TRIAL

23.0%

60

50.0%

130

PCT

DISPOSED FIRST APPR

TOTAL

DISPOSED PRE-TRIAL

COURT A

COURT LIST INFORMATION SYSTEM PROVINCIAL CRIMINAL TRIAL REPORT FOR THE PERIOD FROM 01 NOV 1978 TO 30 NOV 1978

5 67 17.58%

1

68

17.84%

1

116

30.445

COURT TOTAL

TOTAL PCT.

MUN. BY-LAW

5

11.81%

45

1

1

1

2

8

6

22

12

4

13

FED. STATUTES

PROV. TRAFFIC

18

5

14

18

CCC OTHER

PROV. SUMMARY

5

28

23

7.612

29

1

12

4

9

3

4 16

11

16

121 - 150 DAYS

91 - 120 DAYS

22

61 - 90 DAYS

34

31 - 60 DAYS

CCC M/V

1 - 30 DAYS

AS OF 30 NOVEMBER

3.93%

15

2

3

10.76%

41

2

10

7

7 15

2

OVER 180 DAYS

8

151 - 180 DAYS

COURT LIST INFORMATION SYSTEM AGING SCHEDULE OF ACTIVE CRIMINAL CASES DAYS CALCULATED FROM FIRST APPEARANCE TO NEXT APPEARANCE

CCC INDICT.

CASE TYPE

COURT A

100.002

381

8

40

10

72

53

133

65

TOTAL

1. Data on the problem situations errors, delays, people, etc. 1.A Identify each record required for each event from information to sentencing. 1.B Identify what records are (a) kept by or (b) received by the court clerk, and to what purpose. 1.0 Identify what records are (a) kept by or (b) received by the assistant court clerk, and to what purpose. 1.D Identify what records are (a) kept by or (b) received by the senior judge, and to what purpose. 1.E Identify what records are (a) kept by or (b) received by the senior prosecutor, and to what purpose. 1.F Identify monitoring information systerns. 2. Measure delays in records entering court.

INFORMATION REQUIRED

APPENDIX B

(Various)

Reports and interviews.

Counting statistics in records, either existent or to be collected.

Interviews.

Interviews of staff and examination of records.

Interviews of staff and examination of records.

Interviews of staff and examination of records.

Interviews of staff and examination of records. Interviews of staff and examination of records.

SOURCE

FORM OF INQUIRY

Criminal Court Model

WORKSHEET FOR LIST OF INFORMATION REQUIRED

Flow chart, showing critical path.

Interview.

What is personnel system?

12.

Construct statistical analysis and look at files. Interview process, check statutes, observation.

Interviews and observation. Observation and analysis.

Interview and analysis.

Requirements and needs imposed by automation, and which ones do not match present system. Where are control points (linkages)? What can be done simultaneously?

(a) Examination of records. (b) Interviews of staff. (c) Consultations with forms specialists.

Chart created from data collected in items above. Interviews with staff and observations of processing procedures.

Number of cases or input changes in recent past and rate of increase. 10. Relationship of all actors (i.e. judges, court administrator, clerk, budget personnel, governing authority, probation, prosecution and bar). 11. Control and feedback on calendars.

9.

7. 8.

6.

4.

Overall job analysis to determine (if possible) optimal clerical functions and combinations of functions. S. Description of each record, used for purposes of (a) improving forms and (b) standardization.

3.

Criminal section of clerk's office, old calendar. Civil service law, rules and manuals.

Statutes, all actors, own means.

Judges, court administrator. Case flow information already collected. Existing statistical reports.

20. What recent changes have been made and what has been their effect?

Sample copies. Judges, court administrator. Judges, court administrator, budget and capital inventory sheets. Microfilm departments and independent work. Judges, court administrator.

Read. Observation and inquiry. Observation and inquiry.

Reading, review, interview, have lunch with chief judge or chief justice.

Observation and analysis.

Court rules, statutes, filing system, court administrator, judge.

Interview, observation, reading.

14. What is a disposition? (a) Closed case; (b) Open case. What types of records are generated when a case is closed? 15. Definitions: (a) Minute order; (b) Action sheet; (c) All other forms and terms. 16. Copies of all documents and records for analysis. 17. Physical location and space of court house. 18. How much, what kind of equipment is available? 19. Evaluation of microfilm use.

Data processing, court administrator, judges, court rules, other agencies. Court rules, statutes, filing system, court administrator, judge.

SOURCE

Interview, observation, reading.

Interview and observation.

FORM OF INQUIRY

13. What is relationship of court to external agencies (data processing, etc.)?

INFORMATION REQUIRED

Appendix B—Continued

How?

Remarks

COMMUNICATES PRECISELY Standard Terminology Supplemented by Written Instructions Self-Explanatory Titles and Captions Company & Source Properly Identified Referral Sources, if Needed Uses Titles, not Names Space for Preparer's Name CONTAINS NEEDED DATA No Other Data Needed to Fulfil Purpose No Unnecessary Data APPEARANCE Well Balanced Good Paper Stock Good Printing Job Professional COST VS. NEEDS Optimum Paper Quality in appearances Optimum Printing Form Serves Purpose Duplicates Data on Other Forms

Reports Action

Remembers Action

—

— — — — — — — — — — —

Yes No

Reviewed by & Date

EASY TO USE Captions in Order of Use Format Standards Same as Other Forms Used Shows Recipient Clearly Copies Easily Identified Clear Copies with Good Register Sufficient Quality Paper for Life of Form Easy to Handle & File Easy to Reproduce Titles & Captions Well Balanced EASY TO PREPARE Items in Work Flow Order Constant Data Reprinted Proper Spacing for Method of Preparation Copies Easily Separated & Handled Uniform Tab Stops Captions Above Filled in Areas Boxes Uses Standard Paper Size Satisfactory Paper Quality Designed for Window Envelopes CONTROL Form Number Printing Authorization Required

ANALYSIS FACTORS

Present Retention Period Ideal Retention Period

Number of Copies Copies to: (Titles)

Number Function

Requests Action

How Often Prepared Revision Date Number Printed

Prepared by

Title

APPENDIX C FORMS ANALYSIS CHECKLIST

APPENDIX D

APPENDIX D ADMINISTRATION OF JUSTICE ACT

(British Columbia) 1. In this Act, unless the context otherwise requires, "administration of justice" means (i) the provision, maintenance, and operation of (A) courts of justice in the Province; (B) court registry and land registry offices; (C) correctional centres as defined in the Corrections Act, and prisons and lockups operated by police forces; (D) the offices of coroner, Crown counsel, probation officers, court workers, and sheriffs, and their officers; and (E) the police forces, for the purpose of their functions, including functions given to the courts or offices, or to any official thereof under an Act or rule or regulation made under an Act; (ii) the prosecution of offences; and (iii) the provision of adequate legal services, including the operation of legal aid offices; "commission" means the Justice Development Commission established by this Act. "minister" means that member of the Executive Council charged by Order of the Lieutenant-Governor in Council with the administration of this Act, and includes a person designated in writing by the minister; "municipality" includes a village municipality. 1974, c.3, s.l. 2. i. There is hereby established a commission, known as the "Justice Development Commission", consisting of such number of members as the Lieutenant-Governor in Council may determine. ii. The members of the commission shall be appointed by the LieutenantGovernor in Council to hold office during pleasure. iii. A person may be appointed a member of the commission notwithstanding that he is a member of a body constituted under any other Act, or is a member of the Public Service of the Province. iv. One of the members shall be designated by the Lieutenant-Governor in Council as chairman of the commission, and one or more of the other members may be designated by the Lieutenant-Governor in Council to be a vice-chairman. v. A majority of the members constitutes a quorum. vi. Each member shall be reimbursed for reasonable travelling or outof-pocket expenses necessarily incurred by him in discharging his duties, and, in addition, may be paid such remuneration for his services as the Lieutenant-Governor in Council may determine. 1974, c.3, s.2. 3.

408

i. The commission is, for all purposes, an agent of the Crown in right of the Province.

APPENDIX D

ii. The commision may, as agent, carry out its powers and duties under this Act in its own name and may, with the prior approval of the Lieutenant-Governor in Council, purchase or otherwise acquire and hold in its own name real property required for the purpose of the commission and likewise may sell, transfer, lease, or otherwise dispose of, such real property. iii. The commission, as agent, is a legal entity. 1974. c.3, s.3. 4. i. An executive secretary of the commision shall be appointed by the Lieutenant-Governor in Council and shall be paid such remuneration for his services on behalf of the commission as the LieutenantGovernor in Council may determine. ii. The commission or, if authorized by the commission, the executive secretary may, notwithstanding the Public Service Act, appoint such officers and employees and engage and retain such specialists and consultants as are considered necessary to carry out the duties and functions of the commission, and may determine their remuneration. iii. The Public Service Act and the Public Service Labour Relations Act do not apply to the commission or its officers and employees appointed under subsection (2); but the Lieutenant-Governor in Council may, by Order, direct that some or all of the provisions of the Public Service Superannuation Act apply to the executive secretary and some or all of the officers and employees of the commission and the provisions of that Act shall apply accordingly. iv. Notwithstanding subsection (3) , where an officer or employee appointed under subsection (2) is, at the date of his appointment, a Public Service employee under the Public Service Act, he shall continue to be, and to be entitled to and to receive all the rights and privileges of, a public servant under that Act and under the Public Service Superannuation Act; but, notwithstanding the Public Service Act, he may be paid and accept remuneration payable under this section, and the provisions of that Act respecting appointments, classification of positions, rates of compensation, and promotion do not apply to him. 1974, c.3, s.4. 5. It is the function of the commission (a) to develop co-ordinated plans for the future development of the administration of justice in the Province in all its aspects; (b) to promote, establish, supervise, and finance research respecting all aspects of the administration of justice within or without the Province; (c) to report from time to time to the minister respecting the results of its research, inquiries, and investigations and make recommendations for change, reorganization, and general improvement of the administration of justice; (d) to conduct research or inquiries into a particular aspect of the administration of justice and to report and make recommendations to the minister thereon;

409

APPENDIX D

(e) to enter into agreements or arrangements with the Government of Canada or any province or agencies thereof, or with universities, municipalities, regional districts, or any other person or organization for the purpose of research, inquiry, or investigation of, or assistance in, the administration of justice; (f) to provide financial assistance to any person or organization undertaking research, inquiries, or investigations under this Act, or operating programmes and projects on behalf of the commission; (g) to develop experimental programmes and projects respecting any aspect of the administration of justice and, with the approval of the minister, to lease buildings, facilities, and employ staff necessary to initiate, develop, and operate such programmes and projects; and (h) to perform any other function respecting the development of the administration of justice as the Lieutenant-Governor in Council may order. 1974, c.3, s.5. 5A. Notwithstanding the provisions of this Act, this Act, or any regulation made under this Act, does not affect the general supervision of the Chief Justice of the Supreme Court over the Judges of the Supreme Court and County Courts under the Supreme Court Act and the County Courts Act, or the jurisdiction of the Chief Justice of British Columbia under the Court of Appeal Act. 1974, c.3, s.5A. 6. For the purpose of section 5 (e), the commission shall not enter into an arrangement or agreement with the Government of Canada, or any other province, or any agency thereof, without the prior approval of the Lieutenant-Governor in Council. 1974, c.3, s.6. 7. The Commission shall submit annually to the minister (a) a report respecting the operation of the commision; and (b) a financial statement showing the financial operation of the commission for the preceding fiscal year of the Government, and the report and financial statement shall be laid before the Legislature within fifteen days after the opening of the first session in the following calendar year. 1974, c. 3, s.7. 8. (1) For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant-Governor in Council may make such regulations and orders as are ancillary thereto and not inconsistent therewith. (2) The commission may, with the prior approval of the minister, make such rules and regulations governing its own procedures as it may consider advisable. 1974, c.3, s.8. 9. The Minister of Finance shall pay out of the Consolidated Revenue Fund, or out of the Revenue Surplus Appropriation Account of the Consolidated Revenue Fund, or partly out of the Consolidated Revenue Fund and partly out of the Revenue Surplus Appropriation Account of 410

APPENDIX D

the Consolidated Revenue Fund, to the commission, upon requisition of the minister, such moneys as it may require for the purpose of this Act, not exceeding the sum of one million, five hundred thousand dollars, in respect of the fiscal year of the Government of the Province ending on the thirty-first day of March, 1974, and thereafter such moneys as may be authorized by an Act of the Legislature for the purpose. 1974, c.3, s.9 (eff. Mar. 31, 1974). 10. (1) This Act, excepting this section and the title, comes into force on a date to be fixed by the Lieutenant-Governor by his Proclamation, and he may fix different dates for the coming into force of the several provisions. (2) This section and the title come into force on Royal Assent. (3) On the coming into force of section 9, it shall be deemed to have come into force on the thirty-first day of March, 1974, and is retroactive to the extent necessary to give it full force and effect on and after that date. 1974, c.3, s.10. Note: Act proclaimed in effect June 28, 1974, but section 9 in effect retroactive to March 31, 1974, B.C. Reg. 453/74, Part II Gazette Vol. 17, p. 753.

411

Notes Notes to Preface 1. From Leslie Scarman's foreword to The Accused, ed. J. A. Coutts (London: 1966), quoted in Law Reform Commission of Canada, Working Paper no. 4, Criminal Procedure: Discovery (Ottawa: 4 June 1974). 2. By 1977, seven different books on judicial administration were reviewed by James J. Alfini. See "Justice System Management: a Critical Review of the Literature," 2 Justice System Journal 293-301 (Spring 1977).

Notes to Chapter One 1. Consider the case of Northern Construction Co. & J. W. Stewart Ltd., Morrison-Knudsen Company of Canada Ltd., Perini Pacific Ltd. and J. A. Jones Construction Co. (Canada) Ltd. v. British Columbia Hydro and Power Authority, British Columbia Supreme Court No. 2572/67. This action commenced September 14, 1970. There were 399 days of sittings. Judgment was reserved on April 16, 1974. Written reasons for judgment were delivered by Mr. Justice J. A. McDonald on December 9, 1974, in favour of the plaintiffs, with quantum of damages to be assessed. In 1978 the British Columbia Court of Appeal, in a 100 page judgment, remitted the case back down to the trial court for further determination with respect to damages. Settlement was reached later in 1978. A solicitor associated with the case reported devoting eight uninterrupted years of his professional life to trial preparation. To our knowledge this is the longest trial in the history of Canadian courts, and serves as an electrifying demonstration of the increasing social complexities with which the courts must deal. 2. One hundred percent of this case inventory cannot be regarded as backlog; a court obviously requires a certain "working float" of cases awaiting trial within a reasonable time. The number of cases in excess of this working float represents true backlog. See chap. 8. 3. This conclusion also emerges from detailed empirical studies of criminal 413

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courts in Toronto and Montreal. See Robert G. Hann, assisted by Lynn Bailey and Marvin Ross, Decision Making in the Canadian Criminal Court System: A Systems Analysis, 2 vols. (Toronto: University of Toronto Centre of Criminology, 1973), and Ejan Mackaay, The Paths of Justice (Montreal: Groupe de Recherche en Jurimetrie, Faculte de Droit, University de Montreal, 1977). 4. See Carl Baar, "Will Urban Trial Courts Survive the War on Crime?" in Herbert Jacob, ed., The Prospects for Reform of Criminal Justice (Beverly Hills, Calif.: Sage Publications, 1974), pp. 331-52. 5. For a fictional examination, see James Mills' novel, One Just Man (New York: Simon and Schuster, 1974). 6. The literature on plea bargaining in the United States is voluminous and increasingly sophisticated. For a recent and definitive collection of studies, reviews and bibliography, see 13 Law and Society Review 189-687 (Winter 1979). Two important current books are Malcolm M. Feeley, The Process Is the Punishment (New York: Russell Sage Foundation, 1979), and Milton Heumann, Plea Bargaining: The Experience of Prosecutors, Judges and Defense Attorneys (Chicago: University of Chicago Press, 1978). Earlier studies analyse plea bargaining as a response to case pressure; see, for example, Abraham Blumberg, Criminal Justice (Chicago: Quadrangle, 1967), and Leonard Downie, Jr., Justice Denied (New York: Praeger, 1971). More recently, however, Heumann has presented data suggesting that guilty plea rates are not a product of case pressure; see his article "A Note on Plea Bargaining and Case Pressure," 9 Law and Society Review 515 (1975). 7. See J. Noel Lyon, "Law Reform Needs Reform," 12 Osgoode Hall Law Journal 421 (October 1974), for a thoughtful and stimulating article on the dynamics of legal reform processes. 8. One of the authors (Millar) was a practising accountant before taking up the law; he found to his surprise that his capacity to carry out accounting functions rapidly deteriorated to the vanishing point under the pressures of a busy law practice. Rather than progressing along a generalized development, the human mind develops in one specialized department at the expense of other departments of the intellect. Thus, our bias, based on personal experience, is that the pursuit of the Iaw, either on or off the bench, vitiates administrative clerical faculties. There are of course exceptions to this rule, as to every other; but the rule and its effect in the present case is of sufficiently general application as to have profoundly retarded the administrative sciences in the courts field. 9. See Robert B. Revere and Virginia L. Revere, "Roscoe Pound, Pragmatist: An Essay in Psychohistory," 2 Justice System Journal 5-18 (Spring 1976). 10. See Carl Baar, "Patterns and Strategies of Court Administration in Canada and the United States," 20 Canadian Public Administration 242-74 (Summer 1977) reprinted in 11 Law Society Gazette 79-110 (June 1977). 11. Perry S. Millar and Carl Baar, "A Management Philosophy for the Canadian Courts," 17 University of Western Ontario Law Review 199-222 (Winter 1979).

414

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12. For a useful survey, see Garry D. Watson, "The Judge and Court Administration," in A. M. Linden, ed., The Canadian Judiciary (Toronto: Osgoode Hall Law School, York University, 1976), pp. 163-91. 13. A final distinction may be helpful to the lay reader. No attempt will be made to discuss problems relating to administrative tribunals. Such tribunals by definition stand outside the court system, so that any discussion would be irrelevant to the present study.

Notes to Chapter Two 1. See, for example, E. Adamson Hoebel, The Law of Primitive Man (New York: Atheneum Press, 1968). 2. Sir William Reynall Anson, Law and Custom of the Constitution, 3rd ed. (London: Oxford University Press, 1907), contains interesting notes on the early beginnings of Anglo-Saxon legal institutions, and has been relied on in the present section. 3. Ibid., 2: 14. 4. We are indebted to Ernest C. Friesen for articulating this concept of the multi-goal court system. 5. Rex v. Sussex (1924) L.K.B. 256, 93 L.J.K.B. at 131. 6. For a review of these and other approaches not discussed here, such as historical jurisprudence (e.g. Henry Maine on legal evolution from status to contract), Marxist jurisprudence, Scandinavian legal realism, and Kelsen's pure theory of law, see Lord Lloyd of Hampstead, Introduction to Jurisprudence, 3rd ed. (London: Stevens, 1972). 7. For the Ieading treatment of the courtroom as an organization, see Herbert Jacob and James Eisenstein, Felony Justice (Boston: Little Brown, 1977); for the effects of case pressure, see sources cited in chap. 1, note 6. 8. Jonathan D. Casper, American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, New Jersey: Prentice-Hall, 1972). 9. Ellen Baar and Dorothy Moore, "Ineffective Enforcement: the Growth of Child Support Arrears," 1 Windsor Yearbook of Access to Justice (Spring, 1981). 10. See Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1965). 11. See Walter Buckley, ed., Modern Systems Rsearch (Chicago: Aldine, 1968) , chap. X by A. D. Hall and R. E. Fagen, p. 81. 12. Ibid., p. 83. 13. For an evaluation of open and closed system concepts in court administration, see David J. Saari, "Modern Court Management: Trends in Court Organization Concepts-1976," 2 Justice System Journal 19-33 (Spring 1976). 14. For the best-known examples in Canada, see the work of Robert G. Hann and Ejan Mackaay, cited in chap. 1, n. 3, above. 415

NOTES TO PAGES 37-46

15. See, in particular, his "Essay on Bureaucracy," in From Max Weber: Essays in Sociology, Hans H. Gerth and C. Wright Mills, eds. (New York: Oxford University Press, 1946), chap. 8. 16. (Chicago: Scott, Foresman, 1972), p. 4. Perrow's book is a concise, highly readable, and penetrating introduction to this subject. 17. For example, Anthony Downs, Inside Bureaucracy (Boston: Little Brown, 1967), and Michel Crozier, The Bureaucratic Phenomenon (Chicago: University of Chicago Press, 1964). 18. The best known application of this approach is the Volvo car company in Sweden. It has been used with success in paperfiow and casefiow management in the federal courts of the United States second circuit in New York City by former Circuit Executive Robert D. Lipscher. 19. None of these categories includes physical force, which is often a reason people obey others, but is frequently employed by those not in authority. Force is regarded as illegitimate unless it can be justified as deriving from traditional, legal-rational, or charismatic authority. For Weber's discusion, see The Theory of Social and Economic Organization, trans. A. M. Henderson and Talcott Parsons (New York: Free Press, 1947), part III. 20. The Academic Community: An Essay in Organization (New York: McGraw Hill, 1962). 21. Victor Thompson, Modern Organization (New York: Knopf, 1961); Leonard R. Sayles and Margaret K. Chandler, Managing Large Systems: Organizations for the Future (New York: Harper and Row, 1971); and James E. Webb, Space Age Management (New York: McGraw Hill, 1969).

Notes to Chapter Three 1. See especially Federalist Paper no. 78. 2. John C. Cratsley, Inherent Powers of the Courts (Reno, Nev.: National Judicial College, 1980), pp. 26-28. This outline contains numerous references to the application of the inherent powers doctrine to fiscal and non-fiscal needs of courts. 3. See Ernest C. Friesen, Edward C. Gallas, and Nesta M. Gallas, Managing the Courts (Indianapolis, Ind.: Bobbs-Merrill, 1971), chap. 4. For a thoughtful recent case, see In re Juvenile Director, 87 Washington 2d 232, 552 Pacific 2d 163 (1976) . 4. Nor more vibrant in the United States. Despite occasional resort to court orders, American judicial systems frequently rely on non-court personnel from county administrations to carry out administrative tasks. 5. Bora Laskin, "The Institutional Character of the Judge," in Glenn R. Winters, ed., Handbook for Judges (Chicago: American Judicature Society, 1975), p. 19. 6. See William R. Lederman, "The Independence of the Judiciary," 34 Canadian Bar Review 769, 1139 (1956). Part I follows the development of judicial independence in England. Part II pursues the development of this 416

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concept in the North American colonies. No judge can read these brilliant articles and fail to gain a more profound understanding (and one dares to say, reverence) for the sacred responsibilities which he or she carries with the office. 7. With the exception of courts created by the federal parliament under section 101. The only exceptions thus far are the Supreme Court of Canada and the still-young Federal Court that replaced the Exchequer Court a decade ago. 8. See its Report on Administration of Ontario Courts (1973), part I, p. 22. 9. Federal statutes still extend judicial power to officers of the Royal Canadian Mounted Police. The commissioner and assistant commissioners have had the powers of justice of the peace since 1894 (Can. 57-8 Vict. c. 35), and currently share those powers (exercisable anywhere in Canada) with the deputy commisioners and all chief superintendents. Superintendents and other selected officers are designated as JPs. See Revised Statutes of Canada, c. R-9, s. 17. 10. Note, however, that county and district court judges, as well as provincial court judges, can be and have been removed for misbehaviour by procedures other than joint address (e.g. by order in council). 11. See that department's White Paper on Courts Administration (October 1976), pp. 7-9. 12. This territorial metaphor is adapted from Anthony Downs, Inside Bureaucracy (Boston: Little Brown, 1967), chap. 17, especially p. 214. 13. William Shakespeare, Richard III, Act I, scene 1. 14. Canadian Constitutional Law, 3rd ed. rev. (Toronto: Carswell, 1969), p. 65. 15. The notion of incidental powers is derived from New Jersey Chief Justice and longtime American court reformer Arthur T. Vanderbilt; see his The Doctrine of the Separation of Powers and Its Present Day Significance (Lincoln: University of Nebraska Press, 1963) , p. vi. 16. Gouvernement du Quebec, Ministere de la Justice, Justice Today (Quebec: Editeur officiel du Quebec, 1975), p. 147. The White Paper was originally published in French as la justice contemporain. The same argument was put forward in a 1973 interview with an official of another attorney general's department. In support, note recent decisions of the United States Supreme Court justifying restriction of habeas corpus remedies in federal courts in part on grounds of administrative difficulties. But see also Erich Fromm, The Fear of Freedom (London: Routledge and Kegan Paul, 1942). 17. This contrast in constitutional principles forms the basis of the argument in Baar, "Patterns and Strategies of Court Administration in Canada and the United States," 20 Canadian Public Administration 242-74 (Summer 1977), reprinted in 11 Law Society of Upper Canada Gazette 79-110 (June 1977). 18. James Bryce, Canada: An Actual Democracy (Toronto: Macmillan, 1921). 417

NOTES TO PAGES 55-63

19. Ibid., p. 33. 20. Bryce goes on to note that the Canadian "judiciary is able and respected. Criminal justice is dispensed promptly, efficiently, and impartially" (p. 46). In another passage, Bryce states that "No such complaints as have been made in the United States regarding the cutting down of statutes by judicial decisions are heard in Canada, and this may be one reason why no one suggests popular election as a proper mode of choosing judges" (p. 32). Efficiency may have been related to executive-centred court administration, but so may the absence of judicial activism. 21. For an excellent analysis of the contribution of one of these judges, see Peter G. Fish, "Guarding the Judicial Ramparts: John J. Parker and the Administration of Federal Justice," 3 Justice System Journal 105-25 (1977). 22. Ontario Premier Oliver Mowat (1872-96) also held the position of attorney general, and it is likely that the central court administrative activity that did exist in Ontario centred in the privy council office or its equivalent. 23. The Saskatchewan official later became inspector of legal offices. 24. This event occurred in July 1977 and was recounted in an interview at the time. 25. One whimsical Ontario official suggested that if the NDP were to win a future provincial election, management board would not permit the party to take office. 26. Quoted approvingly in Department of the Attorney General, Province of British Columbia, First Annual Report 1974 (1975), p. T10; and Ministry of the Attorney General of Ontario, Annual Report 1974-75 (1976), p. 10. For McRuer's discussion, see Royal Commission Inquiry into Civil Rights (Ontario, 1968), chap. 61, "The Office of the Attorney General," pp. 932ff. McRuer's argument is derived from John Ll. J. Edwards, The Law Officers of the Crown (London: Sweet and Maxwell, 1964). 27. See N. T. Nemetz, "Comment," in Allen M. Linden, ed., The Canadian Judiciary (Toronto: Osgoode Hall Law School, York University, 1976), pp. 16-17. 28. See section 22 of the Supreme Court Act of British Columbia, Statutes, chap. 374. 29. House of Commons Debates, May 5, 1977, p. 5318. 30. Ibid. 31. The commissioner's office does serve as the secretariat for the council. Information on the operation of the commissioner's office was obtained from a January 1979 interview with Commissioner Sol Samuels in Ottawa. 32. Cf. standards propounded by the American Bar Association, the U.S. Law Enforcement Assistance Administration, the American Judicature Society, and virtually all experts in the field. 33. See Larry Berkson and Steven Hays, "The Forgotten Politicians: Court Clerks," 30 University of Miami Law Review, 499-516 (Spring 1976), revised and updated as "The Traditional Managers: Court Clerks," in Larry C. Berkson, Steven W. Hays, and Susan J. Carbon, eds., Managing the State Courts (St. Paul, Minn.: West Publishing Co., 1977), pp. 175-84. 418

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34. Ontario Ministry of the Attorney General, White Paper on Courts Administration (October 1976), p. 16. 35. Contrast the understanding of former Alberta Attorney General Jim Foster with that of Ontario officials. Foster told a national conference in Ocober 1978 that the "Ontario White Paper approach has now been completely repudiated by Ontario," but Ontario department officials at the conference assured the audience that the approach was just being developed more deliberately. 36. The authors wish to acknowledge Prof. Guiseppe di Federico for sharing his insights into the Italian system. 37. Mr. Desmond Fernando of Colombo, Sri Lanka, secretary of the country's law society, was most helpful in providing this information. 38. For related American practice, see Carl Baar, Separate but Subservient (Lexington, Mass.: D. C. Heath, 1975) , chap. 2. 39. By contrast, one formula of judicial reliance on fees constituted both a threat and an affront to judicial independence; some years ago stipendiary magistrates in one province were paid a stipend for each conviction! 40. The present fragmentation is reflected in Ontario's usage of the phrase "courts administration," with "courts" in the plural. The White Paper is no more optimistic for the future, since it recommends creation of an "office of courts administration" headed by a director of courts administration. 41. See Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973) part I, page 45 ff., which rejects the merger proposal, over one dissent. 42. "Watering the scotch," as one crisp chief justice was heard to put it. 43. See Linden, ed., The Canadian Judiciary, chap. II. The merger issue is discussed further in chap. 4. 44. See the remarks of Jack Sissons in Judge of the Far North (Toronto: McClelland and Stewart, 1968), p. 54. 45. British Columbia superior and county courts have a common chief justice as of 1973. (County Courts Act Stat. B.C., chap. 81., section 8A). This was a positive step toward a unified system. Merger of the chief judge positions has had administrative benefits. 46. Alberta Board of Review, Provincial Courts, Report No. 2, Administration of Justice in the Provincial Courts of Alberta (Justice W. J. C. Kirby, chairman), 1975, p. 59. On the whole, the Kirby Commission produced an excellent report. 47. For a discussion of this issue, see "The Independent Management of Judicial Business," in Jules Deschenes, The Sword and the Scales (Toronto: Butterworth, 1979), pp. 97-105. 48. Ibid., p. 99, translating Bedard's statement of November 17, 1978. 49. Ibid., p. 100. 50. Ibid., p. 101. 51. See Russell R. Wheeler and Donald W. Jackson, "Judicial Councils and Policy Planning: Continuous Study and Discontinuous Institutions," 2 Justice System Journal 121-40 (Winter 1976). 419

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52. Called the Central West Project, it was given "legislative sanction" in The Administration of Courts Project Act, 1975. See the Ontario White Paper, P. 7. 53. See State Court Administrative Systems: Perspectives and Relationships (Denver, Col.: Institute for Court Management, January 1975). 54. Ontario Law Reform Commission, Report on Administration of Ontario Courts, part I, p. 41-44. 55. See "Caseflow Management," chap. 8. 56. See "Introduction: Judges and Court Reform," 3 Justice System Journal 100-102 (1977).

Notes to Chapter Four 1. Federal Court Act, 19 Eliz. II, c. 1. 2. Until 1974, the appellate division of Newfoundland's Supreme Court was composed of judges of the highest trial court who sat on appeals by rotation. 3. Quoting federal Justice Minister Ron Basford in House of Commons Debates, May 5, 1977, p. 5316. 4. The Yukon and Northwest Territories each has a supreme court. 5. Surrogate or probate court judges could be appointed by the province, but would not have jurisdiction over any contested matters above a few thousand dollars (except in Nova Scotia and New Brunswick as authorized by section 96 of the BNA Act) . 6. See, for example, the County Courts Act of British Columbia, chap. 81, s.24. In Ontario, the county court's consent jurisdiction is so routinely exercised that county court judges frequently try civil suits in excess of $100,000, despite a statutory limit of $7,500. 7. The distinction between indictable offences and offences punishable by summary conviction parallels the earlier distinction, still used in the United States, between felonies and misdemeanours. In some American jurisdictions, offences classified as misdemeanours include matters serious enough to be indictable offences in Canada. 8. See the British Columbia Provincial Court management information statistics for the initial period, January 1—June 30, 1976. 9. See H. R. Poultney, "The Criminal Courts of the Province of Ontario and their Process," 9 Law Society Gazette 192-237 (September 1975). 10. Quebec $6,000; B.C. $2,000; Alberta $1,000; Newfoundland, Nova Scotia, and Saskatchewan $500. 11. That section of the BNA Act does not refer to appellate judges, since they are subsumed under the meaning of "superior court" judges. 12. A well-established line of cases has held ultra vires provincial statutes that would confer on provincially appointed judges or tribunals any functions traditionally performed by section 96 judges. See Seminaire de Chicoutimi v.

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City of Chicoutimi (1973) S.C.R. 681, and Re the Constitutional Questions Act, 11 Alberta Reports 451 (1978). 13. Fragmentation of family law matters between federal and provincial jurisdictions bristles with problems; for an example of a procedural problem, see Moir v. Moir, 4 B.C.L.R. 370, decided in 1977. 14. Ontario Law Reform Commission, Report on Administration of Ontario Courts (1973 ), part I, p. 88. 15. See Frankfurter's concurring opinion in Lumbermen's Mutual Casualty Co. v. Elbert, 348 U.S. 48 (1954). 16. Quoting Jack Sissons, Judge of the Far North (Toronto: McClelland and Stewart, 1968), p. 54. 17. Note that the concept of a central court of high court judges has been eroded in England since the 1971 Courts Act. Under that act, high court judges are assigned for long periods (even permanently) to each of six judicial circuits. 18. Alberta Legislative Debates, November 2, 1978, pp. 1675-76, 1679. 19. Sissons, p. 54. 20. Ibid. 21. See Carl Baar, "The Federal Role in the Creation of Judgeships," paper presented at the annual meeting of the Canadian Political Science Association, Montreal, June 1972. 22. Alberta Legislative Debates, November 2, 1978, p. 1676. Saskatchewan's merger plans received federal statutory authority even before the provincial legislature approved the enabling act. 23. Darrell Roberts, "The Structure and Jurisdiction of the Courts and Classification of Offences," paper prepared for the Law Reform Commission of Canada, 1973, pp. 34-35. Pages were not numbered in the original typewritten report, but were added by the present authors. 24. Ibid., p. 33. Proposals to abolish trial de novo are discussed in the closing section of chap. 8 below. 25. Ibid., p. 23. 26. A more flexible distribution of criminal trials has been achieved in England under the 1971 Courts Act; Queen's Bench judges, circuit judges, and recorders all take a share of trials on indictment. 27. Roberts himself denied having a copy when asked for one in July 1978. 28. Even if the federal parliament were bound by the doctrine that section 96 ensures that superior court judges retain their traditional jurisdiction, it might still be able to create one criminal court with provincially appointed judges, because historical evidence indicates that at the time of confederation some jury trials were presided over by provincially appointed judges. In Ontario cities, quarter sessions courts-which were jury courts-were presided over by provincially appointed recorders (county court judges did so in rural areas). While Ontario abolished city quarter sessions and the office of recorder in 1868, provincially appointed recorders presided over quarter sessions in several cities in Quebec for many years after confederation. 29. Roberts, pp. 60-61. 30. Ibid., p. 51. 421

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31. Ibid., p. 62. 32. Ibid., p. 38. 33 Ibid., p. 35. 34. Note however that in some provinces, provincial offences may cover matters (e.g. violation of anti-pollution laws) carrying more serious punishment than any summary conviction offence-or even some indictable offences. 35. Globe and Mail (Toronto), November 16, 1978, p. 22. 36. See the findings and recommendations of a major United States study, Small Claims Courts: A National Examination, by John C. Ruhnka and Steven Weller (Williamsburg, Va.: National Center for State Courts, 1978), chap. 3, especially pp. 78-79. 37. Terence G. Ison, "Small Claims," 35 Modern Law Review 18-37 (January 1972). 38. Valley Credits Ltd. v. Key [B.C.], [1977] 2 W.W.R. 422. 39. Seminaire de Chicoutimi v. City of Chicoutimi (1973) S.C.R. 681. 40. Reference re Adoption Act (1938) S.C.R. 398, which upheld an expansion of the jurisdiction of provincially appointed judges over family law matters. 41. Alberta Legislative Debates, November 2, 1978, pp. 1678, 1676. 42. Noel Lyon, "Provincial Courts and the Administration of Justice," unpublished paper, January 1978, p. 10. 43. Ibid., pp. 15-16; italics in original. 44. Ibid., pp. 13-16. 45. Ibid., p. 14. 46. Ibid., pp. 17-18. 47. Quoted from page 6 of a seven-paged typed submission by the Provincial Judges Association of Ontario [probably early 1978]. 48. Quoting from the preamble of "Proposals of the New Brunswick Association of Provincial Court Judges on the Matter of Re-constitution of the Courts of Canada," June 26, 1978, p. i.

Notes to Chapter Five 1. Recall that the Ontario White Paper argued that the failure of executivedirected court administration in the Central West Region was most apparent on matters of caseflow management. 2. Quoting Francis E. Dosal, in a concept paper on court personnel administration prepared for the National Center for State Courts, North Central Regional Office, St. Paul, Minn., August 1977. 3. At trial court level, the court administrator may also take on specific legal functions akin to those of a special master or justice of the peace. 4. For statutory language, see section 22 of the Supreme Court Act, B.C. Statutes, chap. 374. 5. Oral interviews, 1975. 6. Cy Huggett interview, Winnipeg, September 1975. Huggett described a 422

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similar incident when a judge was elevated to the court of appeals in Regina: "So he went and moved down the hall and he wanted a new chair; so this fellow from government services came up with a different chair, and I think he got the one from Moose Jaw." 7. Dorion left in December 1978 to become a judge of the newly created Tribunal de la jeunesse (youth court) in Montreal. 8. Millar returned to the provincial court bench in September 1976. 9. A highlight was an unscheduled after-dinner chat with English Lord Chancellor Elwyn Jones, following a reception with the Manitoba Bar in the same hotel. The lord chancellor was obviously pleased that the group knew that court administration was one of his principal functions. 10. Addressing the National Conference on the Judiciary held at Williamsburg, Va., in March, 1971. This conference produced a "Consensus Statement" that may be found in Justice in the States (St. Paul, Minn.: West Publishing Co., 1971). 11. The authors are especially indebted to Ernest C. Friesen for the basic concepts set forth in this chapter, and in particular for the "link model" concept of court administrator. Friesen's pioneer thinking is acknowledged throughout the entire literature of court administration. 12. Report on Administration of Ontario Courts, I: 41-44. 13. Ibid., p. 27. 14. Ibid., pp. 30-32. 15. Ibid., pp. 32-33. 16. These concepts are developed in an articulate and striking fashion in Warren G. Bennis and Philip E. Slater, The Temporary Society (New York: Harper and Row, 1968).

Notes to the Introduction to Part Two 1. The authors are indebted for much of the background material in this introduction and in chapter 6 to Alexander Cloner's lectures on personnel management at the Institute for Court Management in Aspen, Colorado. 2. Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era 1890-1920 (Chicago: University of Chicago Press, 1964), chap. V. The authors are indebted to Blair Wilson of the British Columbia Justice Institute for stressing Taylor's contribution to the development of management theory, and contrasting his contribution with the abuse of his work by others. 3. See Warren G. Bennis and Philip E. Slater, The Temporary Society (New York: Harper and Row, 1968) .

Notes to Chapter Six 1. Since the drafting of this chapter, two lengthy and useful studies of court personnel management have been produced in the United States: Harry 423

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140-60

O. Lawson, H. R. Ackerman, Jr., and Donald E. Fuller, Personnel Administration in the Courts (Washington, D.C.: American University Law Institute, Criminal Courts Technical Assistance Monograph No. Two, February 1978); and Robert Tobin, Trial Court Management Series: Personnel Management (Washington, D.C.: American University Court Management Project, February 1979) . 2. Provincial Governments as Employers (Montreal: McGill-Queen's University Press and the Institute of Public Administration of Canada, 1974), chap. 2. 3. Farmer Premier: Memoirs of the Honourable E. C. Drury (Toronto: McClelland and Stewart, 1966), p. 187. Drury shares anecdotes about his twenty-five years in the office-he retired at age eighty-on pp. 188-93. 4. Ontario White Paper, October 1976, p. 13. 5. Peter H. Russell and Garry D. Watson, "A Quiet Revolution in the Administration of Justice," 11 Law Society Gazette 111-15 (June 1977) at p. 113. 6. National Task Force on the Administration of Justice, Justice Services in Canada 1977-78 (Vancouver, B.C., August 1979), p. 87. 7. Many small claims court judges in Ontario are also hired on short-term contracts. While small claims cases are often heard by county court judges, or in Toronto and Ottawa by full-time, provincially appointed small claims court judges, it is not unusual for lawyers to be hired for $142.50 per day for a three-month period to sit as judges in small claims court. 8. Ontario White Paper, p. 14. 9. Saskatchewan again said "yes and no," while Manitoba reported that serious delay "sometimes" occurs. 10. Steven W. Hays has argued that American state court systems could use MBO to establish overall system goals that could be implemented by a variety of locally determined methods. See his article, "Should Courts Try Management by Objectives?" 62 Judicature 85 (August 1978) . 11. For a discussion of collective bargaining developments in the public sector, see Hodgetts and Dwivedi, Provincial Governments as Employers, chap. 10. 12. Based on data from 1977 mail questionnaire to provincial chief court administrators. 13. Manitoba reports that contact is "partially" direct and "partially" indirect. 14. Interview sources, 1975. 15. All data from provincial chief court administrator questionnaires, 1977. 16. An Institute for Court Management was established in British Columbia in 1975 for the training of senior management personnel. 17. Douglas McGregor, The Human Side of Enterprise (New York: McGraw-Hill, 1960). 18. Abraham H. Maslow, Motivation and Personality (New York: Harper and Row, 1954). 19. Rensis Likert, New Patterns of Management (New York: McGraw Hill, 1961) . 424

NOTES TO PAGES 161-84

20. Robert R. Blake and Jane S. Mouton, The Managerial Grid (Houston, Texas: Gulf Publishing, 1964), especially p. 10. 21. Robert Tobin, Trial Court Management Series: Personnel Management, pp. 160-74. 22. Bakke v. Regents of the University of California, 46 U.S.L.W. 4896 (1978). 23. Interview with Shelagh Day, Vancouver, July 1978. 24. Interview with C. A. Huggett, Winnipeg, September 1975. Notes to Chapter Seven 1. Even the salaries of federally appointed judges are included in estimates subject to approval of the federal parliament. However, they are "statutory payments" regarded as fixed items; failure to approve salary monies would likely violate principles derived from the Act of Settlement of 1701 (see chap. 3) . 2. See chap. 13. 3. Spearman's rank order correlation: .83. 4. Spearman's rank order correlation: .17. 5. Carl Baar, "The Limited Trend toward Unitary Budgeting and Judicial Financing in the States," in Larry C. Berkson, Steven W. Hays, and Susan J. Carbon, eds., Managing the State Courts (St. Paul, Minn.: West Publishing Co., 1977), pp. 269-80. By 1980, more states have replaced local with state financing, but the general pattern noted in the text persists. 6. Other provinces, such as Ontario and B.C., have only recently shifted the last of their municipal funding responsibilities to the provincial government. 7. The rank order correlation between table 12 and provincial contribution percentages is .66; between table 12 and federal contribution percentages, —.73. 8. In his questionnaire response, the P.E.I. court administrator explicitly endorsed "less control by AG Dept. and a direct appeal to Treasury Board." 9. See 1977 questionnaire response. 10. Geoffrey C. Hazard et al., "Court Finance and Unitary Budgeting," 81 Yale Law Journal 1286-1301 (June 1972). 11. Unified court budgeting is designed to facilitate the use of program budgeting techniques, and enhance the planning function of the budget process—both of which are discussed in later sections of this chapter. 12. Interview with E. Pucasz, formerly general manager, Ontario Department of the Attorney General, in Toronto, June 1975. 13. For the classic analysis of incrementalism in the United States, see Aaron Wildaysky, The Politics of the Budgetary Process, 2nd ed. (Boston: Little Brown, c. 1974). For discussion of the concept of incrementalism in administrative decision making more generally, see Charles E. Lindblom, "The Science of `Muddling Through,' " 19 Public Administration Review 79-88 (Spring 1959). 14. Cf. Allen Schick, Budget Innovation in the States (Washington, D.C.: 425

NOTES TO PAGES

184-92

Brookings, 1971), especially chap. 1; and G. Bruce Doem's chapter on the budget process in Doern and Peter Aucoin, The Structures of Policy Making in Canada (Toronto: Macmillan, 1971), pp. 79-112. Schick identifies three functions—control, management, and planning—while Doern discusses two— control and planning. The difference seems to reflect the fact that in Canada the Glassco Commission's emphasis on performance budgeting occurred only a few years before adoption of program budgeting by the federal government in the form of PPBS, thus collapsing the last two of Schick's functions into one. For an attempt to define a fourth function that operates prior to any of these three, see Carl Baar, Separate but Subservient (Lexington, Mass.: D. C. Heath, 1975), pp. 21-22. 15. See Alice M. Rivlin's excellent brief overview of systematic decision making, New Approaches to Public Decision-Making, prepared for the Economic Council of Canada in January 1972. 16. The authors are indebted to Monty C. Lish, county executive, Ventura County, Cal., for this argument. 17. Allen Schick, "A Death in the Bureaucracy: The Demise of Federal PPB," 33 Public Administration Review 146-56 (1973) . 18. See Peter A. Pyhrr, Zero-Base Budgeting (New York: John Wiley, 1973). Phyrr developed the approach while working for Texas Instruments. 19. D. M. Wallace, "Budget Reform in Saskatchewan: A New Approach to Program-based Management," 17 Canadian Public Administration 586-99 (Winter 1974). 20. The Judiciary, State of Hawaii, Annual Report for 1973-74, p. 3; and Baar, Separate but Subservient, pp. 29, 177-78. 21. The authors are indebted to Mal G. King, formerly executive director of the Ventura County (California) Criminal Justice Planning Board, for this example, and for organizing and directing our thinking in this section. 22. Robert M. Carter, director of the Center for Administration of Justice and associate professor of public administration, University of Southern California. 23. Responses to 1977 mail questionnaire. The prothonotary in P.E.I. conceded that he was "just getting experienced" at budgeting. 24. Ibid. 25. John H. Jackson and Cyril P. Morgan, Organization Theory: A Macro Perspective for Management (Englewood Cliffs, N.J.: Prentice-Hall, 1978), pp. 268-70. 26. Ibid., p. 270. 27. Richard H. Hall, Organizations: Structure and Process, 2nd ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1977), pp. 297-98. 28. Rivlin's essay, note 15 above, refers to the specific use of systematic decision making for allocation of new monies. 29. Chap. 2 offered a brief analysis of the concept of entropy, a physical concept which has also been adopted in systems theory and planning to denote the inclination of an organization to disintegrate in inverse ratio to the quality and quantity of negative information fed back to it.

426

NOTES TO PAGES 197-211

Notes to Chapter Eight 1. We are indebted to Maureen Solomon, a court management consultant based in Denver, Colorado, for this and subsequent material on casefiow management. Her essay, Caseflow Management in the Trial Court (Chicago: American Bar Association Commission on Standards of Judicial Administration, 1973), is basic reading on the subject. 2. Thomas Church, Jr., et al., Justice Delayed: The Pace of Litigation in Urban Trial Courts, Executive Summary (Williamsburg, Va.: National Center for State Courts, 1978), p. 13. 3. Maureen Solomon, Caseflow Management in the Trial Court, p. 1. 4. Ibid., pp. 1-2. 5. The principles that follow are adapted from ibid., pp. 30-47. Capitalization within sentences in the original has been eliminated. 6. Federal courts in the United States have applied a series of successively stricter time deadlines, through the provisions of the Speedy Trial Act of 1974. But even there the timetable was not properly phased, and the Justice Department had to secure postponement of the 100-day deadline scheduled to take effect July 1, 1979, claiming that more than 5,000 criminal cases would be dismissed unless the deadline stayed at 180 days. 7. Data are taken from the appendices to a typewritten "Project History" of the civil litigation case study directed by staff of the British Columbia Justice Development Commission. 8. The base year of 1970 was selected to insure that nearly all of the cases sampled would be concluded by the date of the research. 9. Note also the sharp reduction in the number of cases as the process goes on. Of 298 cases in which a writ was issued, notice of trial was given in eightyseven, and only twenty-six actually went to trial. 10. Cause books are large and heavy loose-leaf bound books, containing forms approximately two feet wide by two and one half feet long, each of which summarizes detailed information relating to an action. 11. Regina v. Beeman, British Columbia Supreme Court filing number C.O. 101/75, dated January 31st, 1975, a judgment of Mr. Justice Munroe. 12. Globe and Mail (Toronto), May 10, 1979, p. 1, and May 11, 1979, p. 5. 13. Both of the lawyers involved subsequently went to the bench, the lawyer who caused the delay to a higher court. 14. Although it is not suggested that the abuse exists, judges are occasionally suspected of being accommodating in granting an adjournment of a case in the hope that some other circuit judge will eventually have to take it. These ungenerous suspicions can be reinforced by apocryphal incidents such as that of the United States federal district judge who, when faced with complex utility litigation, bought ten shares of telephone company stock and disqualified himself from the case, requiring the court to bring in a judge from another state to handle it. 15. Bear in mind that an assignment judge need not be sitting in court; he can be sitting in his chambers (office) with a trial list in his hand, in the presence of counsel. 427

NOTES TO PAGES 212-32

16. The individual cited is Robert G. Hann; see his Decision Making in the Canadian Criminal Court System: A Systems Analysis (Toronto: University of Toronto Centre of Criminology, 2 vols., 1973) . 17. Note that this is a percentage of cases set down for trial, not a percentage of all cases brought before the court on first appearance. Note also that these percentages are suspect for certain reporting reasons; however, other sources have confirmed instances of lower trial rates, and the admitted average is well under 50 percent. 18. Responses to 1977 provincial chief court administrator questionnaires. 19. Alberta questionnaire response. 20. Ontario questionnaire response. 21. Harold R. Poultney, "The Criminal Courts of the Province of Ontario and their Process," 9 Law Society of Upper Canada Gazette 192 (September 1975), at 211-12. 22. Ibid., pp. 201, 202, and 229. 23. Thomas Church, Jr., et al., Justice Delayed: The Pace of Litigation in Urban Trial Courts, p. 14. 24. Based on responses to 1977 provincial chief court administrator questionnaires. Ontario reports that "in some places trial coordinators are not permitted by the judiciary." 25. Sarah Cox, "Court Scheduling Made Easy?" 59 Judicature 353-55 (February 1976). 26. In some provinces, for example, the writ and appearance have been eliminated. 27. An analysis of the supreme and county courts in Vancouver for the years 1970 and 1973 revealed that, on the average, appearances were never filed in 37 percent of all writs issued, and that at some stage between issuance of the writ and final disposition, 56 percent of all case became dormant. Data on county court civil actions (1970) disclosed that appearances were never filed in 50 percent of cases of actions brought, while 41 percent of all actions became dormant at some stage between issuance of the summons and disposition. 28. Michael Stevenson, Garry D. Watson, and Edward J. Weissman, "The Impact of Pre-Trial Conferences: An Interim Report on the Ontario Pre-Trial Conference Experiment," 15 Osgoode Hall Law Journal 591 (December 1977). 29. Exceptions occur in small claims matters. The Alberta small claims court uses a summons procedure which has a returnable date of approximately sixty days; Manitoba reports thirty days; and Ontario's small claims court has no set time limit. 30. Data in this paragraph were obtained from the 1977 provincial chief court administrator questionnaires. 31. See Law Reform Commission of Canada, Working Paper no. 4, Criminal Procedure: Discovery (Ottawa: June 1974). 32. The preliminary hearing originated for a different reason, namely to inquire into the granting of bail in cases involving custody awaiting trial, and possibly even as an inquisitorial proceeding providing for the arrest and 428

NOTES TO PAGES

232-44

questioning of persons in the investigation of offences in the manner still in use in some continental European countries. Reasonably full disclosure by the crown would presumably eliminate the need for time-consuming and expensive preliminary hearings in many cases. See the federal Law Reform Commission's working paper on discovery, cited above. 33. In a controversial decision, the United States Supreme Court allowed the use of trial de novo and lay judges in criminal cases. See North v. Russell, 96 Sup. Ct. 2709 (1976). 34. See Jonathan D. Casper, American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, N.J.: Prentice-Hall, 1972), and his later and more extensive comparative study, Criminal Courts: The Defendant's Perspective (Washington, D.C.: U.S. Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, February 1978) . 35. Since 1973, the federal Law Reform Commission has been experimenting down this road with a draft code of evidence, but to date it has enjoyed little acceptance by either the legal profession or the judiciary. 36. The Christian Science Monitor, November 27 to December 1, 1978, and January 1979, offered interesting discussions on the proliferation of extra-judicial agencies.

Notes to Chapter Nine 1. This definition, as well as a number of useful perspectives adopted in this section, are derived from a lively and perceptive article, "Court Records Management: `The Mitten' Revisited," by Robert C. Harrall, 2 Justice System Journal 77 (Spring 1976). The article begins with a charming story of bears, lions, alligators, and other forest animals crowding into a commodious forest shelter which always appears to provide room for one more animal, until suddenly the entire hoard finds itself homeless with the addition of one very small ant which bursts the shelter—thus, the author archly reminds us, rendering the inhabitants "victims of their lack of planning and their assumption of unlimited capacity." Most courthouses, without realizing it, are awaiting the entry of the last very small ant. 2. Ernest H. Short and Charles Doolittle, Trial Court Management Series: Records Management (Washington, D.C.: Court Management Project, American University Law School, February 1979)—highly recommended reading as a clear, practical, and well-organized introduction to this subject. This and succeeding sections borrow liberally from this document. 3. Ibid., p. 48. 4. Ibid., pp. 102-8. 5. Ibid., pp. 55-57. 6. Ibid.; exact language taken from a preliminary draft of the report. 7. Based on personal interviews conducted in Ontario in the summer of 1975 and subsequently updated.

429

NOTES TO PAGES 245-87

8. Information in this section is derived largely from responses to 1977 provincial chief court administrator questionnaires. 9. A Records Management Report submitted by H. B. Fraser (May 1974) to the attorney general of British Columbia, proposing a records management program, provides an excellent example of the methodology involved. The authors are indebted to Mr. Fraser for material used in this section of the chapter. 10. This change process is discussed in chap. 13. 11. "Trial Court Records Management," unpublished manuscript of , the American University court management project, 1978. 12. Responses to 1977 provincial chief court administrator questionnaires. 13. Much of what follows in this chapter is borrowed from "A Records Management and Forms Control Centre: Cost Benefit Analysis Report" dated June 24, 1976, prepared by James Taylor on behalf of court administration for submission to the attorney general.

Notes to Chapter Ten 1. Robert G. Murdick and Joel E. Ross, Information Systems for Modern Management (Englewood Cliffs, N.J.: Prentice-Hall, 1971), p. 292. 2. For a general overview, see Aaron Wildaysky, "The Self-Evaluating Organization," 32 Public Administration Review 509 (September/October 1972). 3. Figures 13 to 15 are based on charts prepared in 1974-75 by the Vancouver office of Woods, Gordon and Company, management consultants, in conjunction with studies prepared at that time for the government of British Columbia. 4. Policy implications of the widespread use of social insurance numbers by criminal justice agencies are touched on later in this chapter. 5. E. A. Bird, Electronic Data Processing and Computers for Commercial Students (London, England: Cox and Wyman, 1972), p. 30. 6. Chief Justice W. G. Howland (Ontario), "Is the Appellate Court System Cost Efficient"? address to the Canadian Institute for the Administration of Justice, Conference on the Costs of Justice, Toronto, Ontario, November 15, 1979. 7. Down time is not the problem it once was. The Canadian police information system (CPIC) is reported to be operational 99.95 percent of the time. 8. Privacy and Computers (Information Canada, 1972), p. 19. 9. Dennis M. Hartman, "Policy Issues for Privacy: Personal Information Systems within the British Columbia Corrections Branch," mimeographed paper presented to the Ministry of the Attorney General of British Columbia and to the British Columbia Systems Corporation, August 31, 1979, p. 13. 10. Ibid. 11. Ibid.

430

NOTES TO PAGES

290-326

12. Data in this and the following three paragraphs were obtained from the 1977 provincial chief court administrator questionnaire. 13. David H. Mead, "Inventory of Canadian Juvenile and Adult Court Information Systems," prepared in association with the Association of Canadian Court Administrators and presented to their annual meeting, Banff, Alberta, April 20-23, 1980. 14. Burton Kreindel et al., Court Information Systems, National Evaluation Program, Phase I Summary Report (Washington, D.C.: U.S. Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, March 1977). 15. Quoting from a letter to Millar from Provincial Court Judge A. Leslie Bewley. Notes to Chapter Eleven 1. These seven functions are derived from a presentation of Ernest C. Friesen at the Institute for Court Management. 2. See Ernest C. Friesen, Jr., Edward C. Gallas, and Nesta M. Gallas, Managing the Courts (Indianapolis, Ind.: Bobbs-Merril, 1971), chap. 6; and Leonard Sayles, Managerial Behavior (New York: McGraw-Hill, 1964), chaps. 5 and 6, for interesting models of coordination mechanisms. For a fuller discussion of British Columbia's approach, see chap. 13. 3. Material on planning is drawn from presentations by Mal G. King, formerly executive director of the Ventura County (California) Criminal Justice Planning Board. 4. See Carl Baar, Separate but Subservient (Lexington, Mass.: D. C. Heath, 1975) , pp. 139-42. 5. Olaf Helmer, "The Use of the Delphi Technique" (Santa Monica, Calif.: The Rand Corporation), pp. 1-2. 6. This axiom was stated and developed by Jay W. Forrester. See his "Counterintuitive Behavior of Social Systems," in Dennis L. Meadows and Donnella H. Meadows, eds., Toward Global Equilibrium: Collected Papers (Cambridge, Mass.: Wright-Allen Press, 1973) . 7. The authors wish to acknowledge Michael Gurstein, a socioeconomic and rural development consultant in Ottawa, for emphasizing the problemdefining role of the outside consultant. 8. The authors are especially indebted for the following material (and appendixes B and C) to Joseph C. Jordan, Jr., a California systems consultant with extensive experience in court systems. (Jordan's appendixes have been slightly modified.) 9. Peter Drucker, The Practice of Management (New York: Harper and Row, 1954), p. 284. Notes to Chapter Twelve 1. Historical Atlas of Halton County (Toronto: Walker and Miles, 1877), 431

NOTES TO PAGES 326-30

p. 76. Among the magistrates are such names as Socrates Center and George Hardbottle, Jr. This atlas and those cited below were reissued during the past decade in Toronto. 2. Historical Atlas of Peel County (Toronto: Walker and Miles, 1877), pp. 59-60. Examination of six other historical atlases from the same period provided some judicial information, but no similar list of magistrates. 3. Historical Atlas of Wentworth County, Ontario (Toronto: Page and Smith, 1875), p. vi. "The earliest sentence recorded was that passed at this session upon a Joseph Cole, convicted of petit larceny. He was `sentenced to be kept in jail till the first day of the next quarter sessions (a period of three months), when, at mid-day, in the town of Hamilton, to be publicly whipped with forty lashes, lacking one, on the bare back, and then discharged.' " 4. "Historical Sketch of the County of Haldimand," in Historical Atlas of Haldimand and Norfolk Counties (Toronto: H. R. Page and Co., 1877, 1879), p. 18. At p. 17, that sketch describes Agnew Patrick Farrell as follows: "Mr. Farrell has never interfered in politics, contenting himself with being a useful member of society, as Commissioner of the Court of Requests, Notary Public, Issuer of Marriage Licenses, Reeve of his Township, Justice of the Peace, etc." 5. For a recent history of Ontario courts that emphasizes structural and jurisdictional changes, see David H. S. Thornton, "A History of the Courts in Ontario" (Denver, Col.: Institute for Court Management, unpublished internship report, 1977). 6. This is Karl Mannheim's distinction. See his Man and Society in an Age of Reconstruction (New York: Harcourt, Brace and World, 1940), pp. 5157. For drawing our attention to this and a number of other sources, and for stimulating our thinking on organization theory, the authors are indebted to Prof. Geoff Gallas, whose teaching and writing on the applications of organization theory to the courts has influenced a generation of court administrators in the United States. 7. See "Administrative Theory and Changes in Organization," in Malcolm Miles, ed., Innovations in Education (New York: Teachers College Press, 1964). 8. Ibid. 9. Brian Grosman makes this point about police departments in Police Command (Toronto: Macmillan, 1975), chap. 1. 10. Raymond E. Miles, Charles G. Snow, and Jeffrey Pfeffer have divided officials into four categories, based on their reactions to change: domain defenders, reluctant reactors, anxious analysers, and enthusiastic prospectors. See their article, "Organization-Environment: Concepts and Issues," 13 Industrial Relations 244 (October 1974). For another classification of officials, see Anthony Downs, Inside Bureaucracy (Boston: Little Brown, 1967), chap. 9. 11. Warren Bennis, The Unconscious Conspiracy: Why Leaders Can't Lead (New York: American Management Association, 1976), p. 87. Our thanks to Blair Wilson of the British Columbia Justice Institute for this reference and other material on the human relations approach to change. 432

NOTES TO PAGES

331-41

12. Ibid., pp. 86-87. 13. James D. Thompson, Organizations in Action (New York: McGraw Hill, 1967), p. 7. 14. Ibid., pp. 33-34. 15. Quoted material is from Richard H. Hall, Organizations: Structure and Process, 2nd ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1977), pp. 294-95, drawing on Gerald Zaltman, Robert Duncan, and Jonny Holbeck, Innovations and Organizations, 2nd ed. (New York: John Wiley, 1973), pp. 33-45. 16. Selected from Jerald Hage and Michael Aiken, Social Change in Complex Organizations (New York: Random House, 1970), pp. 30-61, as enumerated in Hall, Organizations, pp. 295-96. 17. Downs, Inside Bureaucracy, chap. 13, fully develops the notion of a rigidity cycle. 18. Raymond T. Nimmer, The Nature of System Change: Reform Impact in the Criminal Courts (Chicago: American Bar Foundation, 1978), p. 185. 19. Paul Berman, "Knowledge Utilization: A Policy Approach" (Santa Monica, Calif.: The Rand Corporation, unpublished Xerox, January 1979), p. 5. 20. Ibid., pp. 15-16. For the main work on institutionalizing planned change, see Robert K. Yin, Changing Urban Bureaucracies: How New Practices Become Routinized (Lexington, Mass.: D. C. Heath, 1979). 21. Warren G. Bennis and Philip E. Slater, The Temporary Society (New York: Harper and Row, 1968) , pp. 72-75. 22. For a thorough empirical study of the effects of leadership change in major league baseball, see Oscar Grusky, "Managerial Succession and Organizational Effectiveness," 69 American Journal of Sociology 21 (July 1963); William A. Gamson and Norman A. Scotch, "Scapegoating in Baseball," 70 American Journal of Sociology 69 (July 1964); and Oscar Grusky, "Reply," 70 American Journal of Sociology 72 (July 1964). 23. Definitions of parallel and alternate structures derive from the work of Ellen Baar and Evelyn Kallen in the field of inter-ethnic relations. 24. For discussion of the miniature replica, see Foreign Direct Investment in Canada, usually known as the Gray Report (Information Canada, 1972), pp. 409-11; and, generally, Arthur J. Cordell, The Multinational Firm, Foreign Direct Investment, and Canadian Science Policy, Science Council of Canada Special Study no. 22 (1971) . 25. Paul Tennant, "The NDP Government of British Columbia: Unaided Politicians in an Unaided Cabinet," 3 Canadian Public Policy 489 (Autumn 1977). 26. G. Bruce Doern, "Recent Changes in the Philosophy of Policy-Making in Canada," 4 Canadian Journal of Political Science 243 (1971). 27. Gouvernement du Quebec, Ministere de la Justice, Justice Today (Quebec: Editeur officiel du Quebec, 1975), p. 147. This volume, usually referred to as the White Paper on Justice, was originally published in French as La justice contemporain. 28. See chap. 8, text accompanying note 25. 433

NOTES TO PAGES

345-83

Notes to Chapter Thirteen 1. See Summary Report, p. 43. 2. For an analysis of how the system concept developed by the United States Law Enforcement Assistance Administration threatened the persistence of American state courts, see Baar's discussion of "service trial courts" in "Will Urban Trial Courts Survive the War on Crime?" in Herbert Jacob, ed., The Prospects for Reform of Criminal Justice (Beverly Hills, Calif.: Sage Publications, 1974), pp. 336-41. 3. Figure 22 shows one of an evolving series of organizational charts. While JDC organization was in flux, it was based on the integrated model shown in Figure 21. 4. The First Annual Report of the Department of the Attorney General, dated December 31, 1974, contains an interesting summary of these programs. 5. McMinn was a partner of Woods, Gordon & Co., management consultants, with an impressive background in systems analysis and computer techniques. He later was instrumental in organizing the British Columbia Systems Corporation. 6. See his text, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971) . 7. One of the authors (Millar), appointed by the commision as chief court administrator for the province, found himself hard pressed to stay informed of all developments touching the area of his own responsibility. 8. Report on Administration of Ontario Courts, Part I, p. 22. 9. Section 2(4), Administration of Justice Act (Ontario). 10. The distinction between a technical assistance function and a supervisory function for a central court administrative office was made by Geoff Gallas and Ernest Friesen, in an unpublished paper prepared in 1974, "Once Again: Centralized Hierarchical Management for State Trial Courts?" Gallas developed this and other ideas in his important article, "The Conventional Wisdom of State Court Administration: A Critical Assessment and an Alternative Approach," 2 Justice System Journal 35 (Spring 1976) . Notes to Chapter Fourteen 1. Ernest C. Friesen, Edward C. Gallas, and Nesta M. Gallas, Managing the Courts (Indianapolis, Indiana: Bobbs-Merrill, 1971), pp. 205-37. 2. See Edward H. Levi's address to the Bar Association of the City of New York, "The Crisis in the Nature of Law," 25 Record of the Bar of the City of New York 121 (March 1970). 3. This has been a major function of American court staff at the appellate level. See for example, Steven Flanders and Jerry Goldman, "Screening Practices and the Use of Para-Judicial Personnel in a U.S. Court of Appeals," 1 Justice System Journal No. 2 (March 1975) ; reprinted in Russell R. Wheeler and Howard R. Whitcomb, Judicial Administration: Text and Readings (Englewood Cliffs, N.J.: Prentice-Hall, 1977), pp. 241-58. 434

NOTES TO PAGES 384-97

4. The Law Reform Commission of Canada even commissioned a project in the Toronto Borough of East York to divert people prior to arrest. The project was directed by Professor John Hogarth, who later became the first chairman of the British Columbia Police Commission. See Law Reform Cornmission of Canada, Studies on Diversion (Ottawa: Information Canada, 1975). 5. "A 'hang-litterbugs' philosophy of criminal law does little more than ensure that our statute books as well as our roadways are filled with trash." Quoted in the Globe and Mail (Toronto), February 19, 1977, p. 1. 6. Ibid. 7. Levi, "Crisis in the Nature of Law," n. 2, above. 8. Friesen, Gallas, and Gallas, Managing the Courts, pp. 216-21. 9. Ibid., p. 221. 10. These terms are drawn from Kenneth Culp Davis, Discretionary Justice (Baton Rouge: Louisiana State University Press, 1969). 11. Memorandum from Gerald G. Smeltzer, courts division of JDC, to Perry S. Millar, chief court administrator, April 14, 1975. 12. Memorandum from Gerald G. Smeltzer, courts division of JDC, to W. A. W. Neilson, deputy minister, Department of Consumer Services [April 1975]. 13. Ibid. 14. Smeltzer to Millar, April 14, 1975. 15. Toronto: Methuen, 1978. 16. Regina v. Hutt, (1978) 2 Western Weekly Reports 247, a decision of the Supreme Court of Canada, has temporarily eliminated soliciting as a high volume offence. It may confidently be predicted that federal legislation will restore it to its former status. 17. See the Heroin Treatment Act (chapter 24, Statutes of British Columbia, 1978), and Judge A. L. Bewley, "The 'Heroin Treatment Act'-and the Courts," News Letter (B.C. Provincial Court Judges Association), August/ September 1978, pp. 11-12. 18. Liaison (a monthly newsletter of the criminal justice system published by the Department of the Solicitor General of Canada), vol. 1, no. 5, May 1975. 19. Canadian sociologist Lynn McDonald cites a half-dozen sources "showing that rehabilitation programmes do not rehabilitate," including Irwin Waller, Men Released from Prison (Toronto: University of Toronto Press, 1974). See Lynn McDonald, The Sociology of Law and Order (London: Faber and Faber, 1976), p. 15. 20. Liaison, May 1975. 21. Edward C. Gallas, "The Courts as a Social Force," 31 Public Administration Review 125 (March/April 1971). 22. Friesen, Gallas, and Gallas, Managing the Courts, p. 212. 23. Ibid., p. 207. 24. See Judge Guy Goulard, "Alimentary Obligations and their Enforcement in Ontario and France," 13 Reports of Family Law 281 (1974) at p. 284; and "Third Status Report on Automatic Enforcement, Provincial Court 435

NOTES TO PAGE

397

(Family Division), Province of Ontario, 1974/75-1976/77," prepared by the Office of the Chief Judge, Provincial Court (family division), November 1977. 25. Compare chapter IV (Social Intervention) with chapter V (Judicial Intervention) of Loi sur la protection de la jeunesse (Youth Protection Act), 1977, c. 20. 26. Bora Laskin, "The Institutional Character of the Judge," in Glenn R. Winters, ed., Handbook for Judges (Chicago: American Judicature Society, 1975).

436

Index

Act of Settlement judicial independence derived from, 46 Adjournments criminal courts, in, 212 significance for administrator, 116 Administration alternate structure adoption, 341 Justice Development Commission. See Justice Development Commission bureaucracy, role in, 39 central system, 124 constitution problems, 53 provisions, 48, 49 court system, effects of, 123, 124 crown agency, suitability of, 65 executive, by caseflow management improvement, 50 fragmentation, 57 judicial consultation systems, 56, 59-62 judiciary, relationship, 124-27 nature, 45 problems arising, 49-52 provincial variations, 49, 57 separate department, 56, 61 source of power, 49 trend away from, 108 fair and expeditious, fundamental right, 26 judicial consultation systems, 56,

59-62 judicial control bar involvement, 72 court administrator, effect on, 108 partial, 56, 60 problems accountability, 66-68 continuing, 109, 110 internal reform, 68-70 systems, 56, 63, 64 trends towards, 73, 108 judicial council, 63, 64 judicial function distinct from, 15 judicial involvement, methods, 64, 65 judicial responsibility, distinction, 5, 6 Justice Development Commission. See Justice Development Commission leadership change, 340, 373 levels of, 121-23 meaning, 17, 18 models approaches, 118, 119 court administrator. See Court administrator executive-based, development, 53, 54, 56-59 factors influencing choice, 54, 55 international examples, 64, 65 judicial consultation, 56, 59-62 judicial control, 55, 56, 63, 64 judicial partial control, 56, 60 link role, 119-23 437

INDEX New England method, 72 ombudsman, analogous method, 65, 66 range of, 55, 56 separate executive department system, 56, 61 separate level responsibility, 72 transitional systems, 56, 60, 61 variability, 107, 108 parallel structures, 341 professionals, by, standards required, 109 reform. See Reform regional. See Regioral administration relationships, variability, 124-27 reorganization, effects, 100, 101 separate executive department, by, 56, 61 unification. See Unification Administrative system. See Systems Administrative tribunals expansion, effects, 383 Administrator. See Court administrator Adversary system management, in, 303 problems created by, 11, 118 Affirmative action programs, functions, 165-67 Aiken, planned change theory, 334 Alcohol abuse increase, effect on courts, 3 Alternate structures budgeting, 343 change method, 339, 340 court administration, 341, 342 meaning, 339 personnel administration, 343 Appellate courts, structure of, 76 Arbitration, growth of, 234 Assignment, cases. See Caseflow management Assize system, assignment method, 208 Attorney general, role of, 58 Audit, function of, 184 Austin, positivism theory, 29 Authentication, documents, of, 238 Authority division 438

alternative proposals, 52, 53 problems created by, 52 judicial, 41, 42 obedience to, bases of, 41 reinforcement, organization theory, by, 42 unification, single officer, in, 52 Backlog. See Caseflow management Barnard, management theory, 159 Bennis human factor in change theory, 330 task force analysis, 336, 337 Bentham, positivism theory, 29 Berman, planned change analysis, 335 Blake, managerial grid concept, 161 British Columbia Systems Corporation, functions of, 58 British North America Act constitutional source, as, 43, 44 distribution of powers, 46-48 judicial appointments, 48, 49 Budget See also Systems administrative change methods, 343, 344 analysis, methods, 170 constitutional considerations, 170, 175 division of powers, 169 effectiveness, 191, 192 expenditures courts justice service, proportions, 174 provincial figures, 172 justice-related Canada wide, 171, 172 provincial figures, 173 external intervention, problems from, 193 feedback control, 191 feedforward control, 191 fiscal audit method, 184 forms of, 183-88 functions of, 183-88 funding levels, 171-74 sources, analysis, 174-77 independent court budget, introduction of, 179, 180

judicial, introduction of, 179 judiciary, exclusion of, 170 line-item method, 183 management goals, 185 persons involved, 170 planning from, 191-93 Planning-Programming Budgeting Systems, 183, 186, 187 preparation, 177, 178 process generally, 169 judicial involvement, 181-83 organization, 177-79 program method advantages, 189, 190 decentralization, 188 disadvantages, 189, 190 evolution, 184, 185 nature, 185 varieties of, 186-88 Program-based Management Information System, 188 reforms, practical example, 369 unification, 180 Zero-Base Budgeting, 183, 187 Bureaucracy administrator's role, 39 advantages of, 39 characteristics of, 38 computer, effects of, 39 court systems, in, 37 decline, 137 development of, 38 disadvantages, 38, 39 meaning, 37 professional interface with, 42 Weber theory, 37 Canadian Association of Court Administrators, formation of, 114 Canadian Police Information Centre, function, 352 Case papers, management of, 237, 238 Case processing schematic, examples civil cases, 271-73 criminal cases, 268-70 Caseflow management See also systems assignment

current procedure, 208 hybrid calendaring, 199 individual calendaring, 197 master calendaring, 198 problems in, 210, 211 backlog, computation, 196 calendar methods criminal courts, 211, 213, 214 problems of, 210, 211 types of, 197-99 Canadian system, problems in, 208-11 computer use, 287, 288 co-ordination necessity for, 218-20 trial co-ordinator. See Trial coordinator court involvement, delay in, 209 criminal courts adjournment problems, 211, 212 calendar methods, 211, 213, 214 current practice, 212 expediting methods, 232, 233 judicial control, illusion of, 216, 217 monitoring, 215 responsibility for, 213-15 definition, 201 discovery, criminal, 232 expediting procedures, 229-34 functions involved in, 15 goal of system, 298 hierarchical model, 216, 217 importance of, 195 information required, 225-28 inquisitorial trial method, 233, 234 inventory backlog distinguished, 196 control, 260 judicial control, illusion regarding, 216, 217 judicial responsibility criminal courts, 213-15 limitations on, 210, 211 jury trial abolition, 230 lawyer delays, reduction methods, 231, 232 lawyer schedules, 207, 208 legal aid, effect, 233 methods, 16 models 439

INDEX

circular method, 219 co-ordination principles, 218-20 linkage method, 218 modifications necessary, 205 monitoring criminal courts, 215 delay in, 209 ineffectiveness, 210 management information systems, 259, 260 methods, 228, 229 necessity for, 229 points for, 228, 229 systems, 205-7 preliminary hearing, 232 pre-trial conference, 230 principles centralized responsibility, 203 consultation system, 202, 203 judicial collective responsibility, 202 periodic modification, 205 periodic review, 205 practical application, 208-11 schedule conflict minimization, 207, 208 standard procedures, 203 status monitoring, 206 time and performance standards, 204 problems in, 14 procedural simplification, 230, 231 reform program, Justice Development Commission, 369 reporting, computer methods, 288, 289 responsibility, 15, 16, 202, 203 settlement agencies, 234 standards, 204, 205 trial co-ordinator. See Trial coordinator trial de novo, elimination, 232 Central trial court appellate functions, 104 constitutional problems, 103 functional model, 101, 102 hierarchical model, 103-5 proposals for, 101, 103 Centralization, court system, of, 34 Certification, documents, of, 238 Change agent

440

effectiveness, 374, 375 Justice Development Commission. See Justice Development Commision meaning, 346 necessity for, 376, 377 Civil jurisdiction increase, proposals, 94, 96, 97 nature of, 94, 95 small claims courts, 95, 96 Commerce, complex trials, effect, 3, 4 Commissioner for federal judicial affairs, 61, 62 Common law origin, 23 particularity principle, 25 Community service programs, establishment, 393 Community work orders, introduction of, 393 Compartmentalization, court system, of, 34 Computers accessibility, requirements, 282 adoption, considerations affecting, 281 advantages of, 277 bureaucracy, effect on, 39 cathode ray tube display, 279 central processing unit, 278 confidentiality concerns, 283-87 control of access, 283-87 cost, 282 data flow methods, 278, 279 development of, 277 disc packs, 278 input methods, 278 magnetic tape equipment, 277, 278 mass storage methods, 280 output methods, 279, 280 personnel factors, 283 privacy problems, 283-87 punch cards, 277 reporting method, example of, 288, 289 security concerns, 283-87 software design, 282, 283 types of, 277-81 use of caseflow management, 287, 288

INDEX

conditions for success, 287, 288 court lists, 291, 294 current status, 290-93 examples of, 315-18 implementation, 290, 291 introduction of, 245 practical example, 287, 288 problems requiring solution, 294, 295 records management, 241 transcript applications, 280, 281 Confidentiality computer use, effects of, 283-87 Constitution British North America Act. See British North America Act distribution of powers, 46-48 effect on reform, 13 Consultants advantages of, 304, 305, 318 reporting, systems analysis, 311, 312 techniques, 306 use of, systems implementation, 303-6 Co-ordinated Law Enforcement Unit functions, 352-54 Corrections reform, Justice Development Commission, by, 353, 354 County courts abolition trend, 8 jurisdiction, 78 structure, 77 superior courts distinguished, 78, 79 Court administrator budget implementation, 180, 181 preparation, 177, 179 bureaucracy, role in, 39 Canadian association, formation of, 114 common characteristics, 107 constitutional limitations, 107 co-ordinating role, 107 development of, 113 duties, 127-29 evolution, 59 executive intruder, as, 51 functions co-ordinating aspects, 120

generally, 107 implementation, status of, 110, 111 inter-provincial communication, 114 judicial authority reinforcement by, 41, 42 judicial control, effects, 108 judiciary, relationship to, 124-27 jurisdictional limitations, 107 legal training, 111 link role functions, 120-23 meaning, 119, 120 local, provincial administrator distinguished, 121-23 management styles, 162, 163 origins of, 111, 112 personal characteristics, 132 personnel. See Personnel planning function, 302 professionalism, emergence, 113, 114 provincial development of, 113 duties, 127-29 establishment, Justice Development Commission, by, 360 local administrator distinguished, 121-23 origins of, 111, 112 status of implementation, 110, 111 purpose, 109 qualifications, 130-32 regional, functions, 123, 129, 130 responsibility, 120 role of, 31, 115 standards required of, 109 systems analysis, involvement in, 314, 315 theories motivating, 32 training, 131 unions, relationship with, 154-57 Court books management of, 238 Court reporters administration, Justice Development Commission, 370 importance of, 164 methods used, 163 problems of, 117 remuneration, 163, 164 441

INDEX

Courts alternate structures, use of, 339, 340 administration, judicial administration distinguished, 17 administrative change, approaches, 338-41 appellate functions limited to, 383 role as, 383, 384, 398 structure of, 76 books, management of, 238 budget. See Budget central trial. See Central trial court civil jurisdiction. See Civil jurisdiction computer application. See Computers concepts dominating function, 25 conflict between, effect, 68 county. See County courts criminal. See Criminal courts crisis, operational, 3-6 daily lists computer use, 291, 294 examples of, 400 summaries, examples of, 403 decline, trends, 397-99 differences between aspects of, 81 effects of, 81 organization, 78 district abolition trends, 8 structure, 77 Divisional, structure of, 77 effectiveness, necessity for, 396 enforcement of orders, necessity for, 397 expenditures. See Budget facilities, responsibility for, 57 goals conflicts, effect, 115 displacement, 4, 5 interaction between, 27, 28 nature of, 27 variation, 28 hierarchy of, 77 historic functions, 23 inefficiency, effects of, 28 inherent powers, doctrine, 45 internal conflicts, 115

442

jurisdiction, distinction by, 78 leadership change, 338 local, function of, 22 management philosophies, 137 merger. See Merger native workers, introduction of, 355 operational crisis, nature of, 3-6 operations, management information system, 259 orders, enforcement, necessity for, 397 organization, general nature, 76 parallel structures, use of, 339 personnel. See Personnel planning, management information systems, 261 priority between, effects, 68-70 probate, 77 provincial statutes, under, 77 public information, management information systems, 261, 262 records. See Records referee. See Referee registry, sharing of, unification by, 71, 72 reorganization. See Reorganization responsibilities, active role, 396, 397 role active decrease in, 397-99 effects, 397 increasing, methods of, 396, 397 necessity for, 395, 396 appellate, 384, 398 decline, 383, 384 expansion, 381-83 factors affecting, 381-84 law contrasted, 381 small claims court, 388, 389 variations of, 381, 382 services, reforms, 370, 371 small claims. See Small claims courts social, development of, 383 specialization, origins of, 23 structure, general nature, 76 superior. See Superior courts surrogate, 77 system. See Legal System; Systems task force process, 336, 337 unification. See Unification

INDEX

unified family. See Unified family court working float of cases, 413 n2 Crime increase, effect on courts, 3 Criminal cases alternative programs, 391-93 decriminalization. See Decriminalization diversion. See Diversion increase in time, causes, 4 trends, philosophy of, 393-95 Criminal courts adjournment, problems of, 212 case processing, schematic, example, 268-70 caseflow management. See Caseflow management judicial control, illusionary nature, 216, 217 management information systems, 263, 275, 276 minor offences tribunals, 94 unification constitutional problems, 91, 92 federal court, as, 92 models, 92 need for, 90 proposals, 91 purposes of, 93, 94 Crown agency administration by, suitability, 65 Crown counsel reforms, Justice Development Commission, 354 Cybernetics theory, development, 35 Data management information. See Management information systems Decriminalization development of, 394 effects, 394, 395 function, 394 reform of system by, 7 Delay, management. See Caseflow management Delegation, administrative powers, unification by, 53 Delphi technique of planning, 302, 303

Detention, alternatives to, 393, 394 Deterrence, methods, 393 Directeur generale des greffes, functions, 113 Discovery, criminal cases, in, 232 District courts See also County courts abolition trends, 8 structure of, 77 Diversion community service programs, 393 community work orders, 393 effects, 394, 395 expansion of, 384 function of, 394 high-volume offences, for, 391-93 Justice Development Commission projects, 358-60 labelling theory, effect, 389, 390 meaning, 389 pre-arrest, 435 n4 pre-trial intervention, 384 problems of, 390 purpose of, 389 social court context, 384 timing of, 389 trend towards, 391 Divisional court, structure, 77 Documents authentication, 238 certification, 238 court. See Records Drucker, management theory, 314 Drug abuse increase, effect on courts, 3 Drug addiction, diversion programs, 391, 392 Due process doctrine, 26 Enforcement, court orders, necessity for, 397 Entropy, court system, of nature, 34 problems of, 329 Evidence, rules of, reforms required, 233, 234 Exchequer court, function of, 76 Executive administration by. See Administration separate function, 43 443

INDEX

Exhibits, storage, 238 Expediting, procedures caseflow management by, 229-34 Expenditures. See Budget Family court, unified. See Unified family court increased problems of, effect on courts, 3 Federal court function of, 76 origin, 23, 24 provincial reorganization, effects, 99 Federal government reorganization involvement mergers, 87 unified family courts, 89 Feedback control budget process, in, 191 Feedback loop theory application to court system, 36 development, 35 Feedforward control budget process, in, 191 Filing systems, methods, 242 Fines, civil enforcement introduction of, 356 Flexibility, necessity for, 25 Forms, design analysis, 239, 240 Gallas, court role analysis, 395, 396 Gaol delivery authority derived from, 215 Goal, courts, of. See Courts Griffiths, organization theory, 327, 329, 373 Hage, planned change theory, 334 Hartman, privacy studies, 284 Hegel, application of theory, planning, to, 303 Individualism law, of, problems created by, 10 Impaired driving offences diversion programs, 393 Inherent powers doctrine, 45 Inquisitorial trial problems of, 233, 234 Inspector of legal offices

444

administrator, becoming, 112 functions of, 111 role of, 59, 113 Interpreters, problems of, 118 Inventory control, caseflow, in, 260 Judges authority. See Authority functions, development of, 24 institution, as, 399 lawyers, relationship, 24 lay, phasing out, 357, 358 origins, 24 salaries, court expenditures, proportion, 141 Judicial activism nature of, 382 Judicial administration court administration distinguished, 17 reform. See Reform Judicial council appointment of members, problems in, 69-71 proposals, 63, 64 Judicial function administration distinct from, 15 Judicial review court function limited to, 383 Judiciary See also Judges administration consultancy involvement, 56, 59-62 control, partial, 56, 60 control, total, 56, 63, 64 administrators, relationship to, 124-27 appointment conflicts arising from, 70 constitutional provisions, 48 judicial council systems, in, 70, 71 methods, 76-80 authority. See Authority budget process exclusion from, 170 involvement, 181-83 caseflow management, responsibility, 202, 203 court reorganization, effect of, 98 increase in numbers, appellate

INDEX

courts, 76 independence court administrator, effect, 109 development of, 45, 46 executive influence, 50 principle, 43 information required by, effectiveness, for, 225-28 institutional nature, 399 management by, problems in, 14 reform, involvement in, 11 reorganization, participation in, 106 responsibility caseflow management criminal courts, 213-15 generally, 202, 203 illusion regarding, 216, 217 limitations on, 210, 211 planning, for, 301 salaries, fixing of, 169 separate function, 43 tenure, constitutional guarantee, 49 Jurisdiction civil. See Civil jurisdiction Jurisprudence function of, 28 theories of, 28-31 Jury trial, abolition, effects, 230 Justice overriding principle, 327 Justice Development Commission administration reforms implementation, 362-71 objectives, 361, 362 purpose, 360, 361 change agent, as, 346 Co-ordinated Law Enforcement Unit, 352-54 corrections reforms, 353 courts planning group, 351 courts referee project, 359 criminal justice model, 348 crown counsel reforms, 354 diversion projects, 358-60 fines, civil enforcement, 356 functions, 409-10 impact of, 371 information systems, 352 Justice councils, 351, 352 lay judges, phasing out, 357, 358 legal aid reforms, 354, 355

mandate of, 349, 350 manpower training, 352 native court workers, 355 origins of, 345-47 paralegal program, 355 police reforms, 352, 353 pre-trial services, 355, 356 purpose, 345, 346 rentalsman project, 359 small claims court reforms, 388 mediation project, 358, 359 statutory creation, 349, 408 systems theory application, 372-79 task force basis, 346 traffic commissioner system, 360 Juvenile delinquency increase, effect on courts, 3 Killeen, mediation project introduction, 388 Labelling theory, nature, 389 Labour relations, unionization, effects, 154-57 Law leverage replacing, 384 role, courts contrasted, 381 rule of. See Rule of law Lawyers delays by, reduction methods, 231, 232 judges, relationship, 24 origins, 24 responsibility, caseflow management, 207, 208 Lay judges, phasing out, 357, 358 Lay referees. See Referees Legal aid effect, caseflow management, 4, 233 Justice Development Commission reforms, 354, 355 Legal profession influence on reform, 9 specialization problems, 414 n8 Legal system growth of continuing pattern, 22 historical context, 22-25 nature, 21, 22 Legislature, separate function, 43 445

INDEX

Leverage, law, replacing, 384 Liberty, development of, 44 Likert, management theory, 160 Local administrator. See Court administrator Local government, administration by, 57 Lord Chancellor, unification of authority in, 52 Lyon, central trial court proposals, 101-3 Magna Carta function of, 25 principles established by, 26 Magnetic tape, information storage, 277, 278 Management information systems. See Management information systems necessity for, 14 personnel. See Personnel philosophies, 135-37 services, provision of, 57, 58 Management by objectives function, 192 Management information system See also Systems computers. See Computers confidentiality factors, 283-87 criminal courts, 263 Dallas experiment, 287, 288 data aggregate exceptions reports, 274 flow charts in conjunction with examples of, 268-73 use of, 266, 267 matters included, 265, 266 elements required, 274-77 design of, 262-65 exceptions reporting, 274 function of, 257 implementation current status, 290-93 increase in, 289, 290 Justice Development Commission, 369 meaning, 258 operations assisted by, 259-62 policy factors, 263, 264

446

privacy factors, 283-87 purposes, 258 reporting method, example of, 288, 289 security factors, 283-87 stages of, 265 utility of, 294, 295 Managerial reform methods, 8 necessity for, 11 Mannheim, rationality theory, 372 Maslow, management theory, 159 Mason's Dialectical Approach, planning method, 303 Master of the rolls, function, Quebec, 214 Mayo, management theory, 159 McGregor, management theory, 159 Mediation services growth of, 234 initiation of, 358, 359, 388 Merger advantages, 82 disadvantages, 82, 85 effects, 86 federal involvement, 87 implementation attempts, 82 status of, 83, 84 increase in civil jurisdiction by, 96 problems in, 67, 68 purpose of, 81 trends towards, 85, 86 Microfilming adoption of, examples, 315, 316 costs of, 250 use of, 241 Ministry of Government Services administrative role, 57 Minor offences tribunals, role of, 94 Models, organization theory uses, 31, 32 Monitoring. See Caseflow Management Motor vehicle cases, increase in, effects, 384, 385 Mouton, managerial grid concept, 161 Native court workers Justice Development Commision

INDEX

introduction, 355 Natural law natural justice distinguished, 29 theory of jurisprudence, 28 Natural justice natural law distinguished, 29 Nimmer, planned change theory, 335 Obedience, bases of, 41 O'Donnell, pre-trial meeting project, 388, 397 Ombudsman, administrative model, 65, 66 Omega project, records management, 245 Ontario Law Reform Commission Report levels of administration, 122 provincial director's duties, 127-29 qualifications, 130-32 regional administration proposal, 124 regional director's duties, 129 training, 131 Operation Musk Ox, calendar system, 214 Operational crisis, courts of, 3-6 Organization theory approaches, 32 authority reinforcement, 42 bureaucracy. See Bureaucracy change responses, 331-33 courts, application to, 40 domain concept, 333 models, 31, 32 nature of, 31 physical sciences theories in, 34-37 practical application, 372-79 systems. See Systems Over-judicialization, nature of, 283, 384 Ownership documents, management of, 238 Paradigm, meaning, 31 Paradigmatic crisis, justice system, of, 31 Paralegals, introduction of, 355 Parallel structures change method, 339 court administration, 340, 341

meaning, 339 personnel administration, 342 Parliamentary government, source, 43 Particularity, common law concept, 25 Patronage abolition of, 143 continuance of, 147 Personnel See also Systems administrative change methods, 342, 343 affirmative action programs, 165-67 appraisal, 154 central agencies, problems of, 146, 147, 148 civil service, in, 144-46 contractural, 147, 148 court reporters. See Court reporters education, 157, 158 equal opportunity, 165-67 hiring, problems in, 143, 144 inadequacies, 5 job analysis, 150 classification, 151, 152 descriptions, 150, 151 evaluation, 151, 152 management affirmative action, 165-67 approaches, 158, 159 equal opportunity, 165-67 goals, 142, 143 human needs, 159, 160 linking pin concept, 160, 161 managerial grid concept, 161, 162 objectives, by, 192 principles, 139, 140 style variation, 162, 163 techniques, 139 merit principle. See Public service commissions numbers, provincial comparisons, 140 patronage abolition of, 143 continuance of, 147 procedures, responsibility for, 57 public service commissions. See Public service commissions 447

INDEX

records management, requirements, 246 reforms, practical example, 367, 368 salaries accountability factor, 142 court expenditures, proportion, 141 objectives, 149 policies, 153 public service commission role, 149 re-evaluation steps, 149-53 rules, establishment, 153 structure, 153 surveys, 152, 153 selection, 154 systems analysis, involvement in, 314, 315 training Justice Development Commission project, 352 practical example, 367, 368 requirements, 157, 158 unionization, effects, 154-57 Physical sciences systems concepts, application to courts, 34-37 Planned change. See Systems Planning court administrator functions, 302 Delphi technique, 302, 303 involvement in, persons included, 314, 315 judicial responsibility, 301 levels of, 301 Mason's Dialectical Approach, 303 methods, 300, 301, 303 problems of, 302, 303 process, nature of, 319 systems analysis method. See Systems analysis Planning Programming-Budgeting System, 183, 186, 187 Plea bargaining increase in, 5 meaning, 4 Police reorganization, Justice Development Commission, by, 352, 353 role, conflicts, 117

448

Positivism, theory of jurisprudence, 29 Pound, administrative defects analysis, 10 Precedent, role of, 25 Preliminary hearing caseflow management effects, 232 function of, 428 n32 Premises, problems of, practical solution, 367 Pre-trial conference functions of, 230 Pre-trial services introduction of, 355, 356 Privacy, computer use, effects of, 283-87 Privy Council, appeals to, 23 Probate courts, structure, 77 Professionals, bureaucracy, interface with, 42 Program-based Management Information System budgeting, 188 Project 222, reorganization program, 317, 319 Project 800, reorganization program, 317, 319 Prostitution, diversion programs, 392 Provincial administrator. See Court administrator Provincial courts proportionate coverage, 80 Quebec, 96, 97 section 96 courts distinguished, 79 structure, 77 Provincial records centre establishment of, results of, 251-55 functions, 248 Public, information provided to, management information systems, 261, 262 Public defender, system, nature of, 233 Public service commissions administrative role, 57 goals, 143 merit system adoption, 145, 146, 165-67 origin of, 143 salary role, 149 treasury board intervention, 143

INDEX

Public works departments administrative role, 57 Punch cards, use of, 277 Quebec master of the rolls, 214 provincial courts, 96, 97 Records See also Systems categories of, 237-39 computer use. See Computers creation, process, 239 design of system, 309, 310 destruction control of, 238, 243, 244 program, 248 disposal, 243, 244 document flow, examples, 271-73 filing systems, 242 intake, control of, 240, 241 maintenance, control of, 242 management authentication functions, 238 computers. See Computers cost factors, 249-51 creation of documents, 239 destruction control, 238, 243, 244 program, 248 development of, 235 disposal, 243, 244 forms design, 239, 240 information systems. See Management information systems intake procedures, 240, 241 maintenance methods, 242 Omega program, 245 programs central, 251-55 cost factors, 249-51 development, 244-46 functions of, 246, 247 local, 249 personnel required, 246 practical example, 251-55 stages in, 247 technological improvements, utilization, 241 retrieval methods, 242 meaning, 237

microfilming adoption, examples, 315, 316 costs, 250 use of, 241 provincial centres, 248, 251-55 reform, necessity for, 236 retrieval, control of, 242 significance of, 235 systems, problems of, 235-37 Referees diversion by, 359 training programs, 104 utilization, small claims courts, 97, 104, 388 Reform Canada, United States compared, 12 constitutional questions, 13 delay in, causes, 8-10 factors affecting, 9 historical context, 10 judiciary involvement, 11 Iegal profession, influence of, 9 managerial, nature of, 8 necessity for, 10, 11 purpose of, 19 sociological, nature of, 7 structural, nature of, 7 types of, 7, 8 United States, achievements, 11, 12 urbanization, effect, 11 Regional administration advantages, 124 development, 123 effects, 124 system, 72 Regional administrator. See Court administrator Regionalization justice system agencies, scheme for, 349-51 practical experiment, Justice Development Commission, 364-67 Registry sharing of, unification by, 71, 72 Rentalsman, establishment of, 359 Reorganization central trial court hierarchical structure, 103-5 single court, 101-3 Federal court, significance of, 99 federal-provincial relationship, sig449

INDEX

nificance of, 75, 76 general functional model, 101, 102, 105 proposals for, 101-5 judicial participation, 106 Lyon proposals, 101-3 methods civil jurisdiction, increasing, 94-97 merger, 81-87 single criminal court, 90-94 unified family courts, 87-90 partial, effects of administration, on, 100, 101 system, on, 98-100 problems, federal-provincial interface, 81, 106 proposals, status, 106 systems analysis, by. See Systems analysis Reporters, court. See Court reporters Rule of law doctrine, 43 enforcement, 396 nature of, 44 Salaries court personnel. See Personnel Section 96 courts See also County courts; District courts; Superior courts differences between jurisdictional, 78, 79 organizational, 78 proportionate coverage, 80 provincial courts distinguished, 79 reorganization, role in, 100 Security, computer use, effects of, 283-87 Separation of powers, principle, 43, 44 Settlement agencies, function, 234 problems created by, 299, 300 Sheriffs, training program, 371 Shoplifting, diversion programs, 392, 393 Slater, task force analysis, 336, 337 Small claims courts alternatives to, 97 development, 387, 388 internal diversion methods, 388

450

jurisdiction, 95 mediation project, 358, 359 services, 388 pre-trial meetings, 388, 397 procedures, 95, 96 referee system, 388 role, 388, 389 structure, 94 Social change effects, 3, 6, 325 legal rules, divergence, 10 response to, effect of failure, 328 Social courts development of, 383 unified family court. See Unified family court Social engineering, growth of, 30, 31 Social insurance numbers, abuses of, 284 Sociological reform, methods, 7 Sociology, theory of jurisprudence, 29, 30 Solomon, caseflow management principles, 201-8 Stability, preservation, change, by, 35 Star chamber, process, problems of, 233 Status documents, management of, 238 Structural reform, methods, 7 Superior courts county courts distinguished, 78, 79 jurisdiction, 78 structure of, 77 Supreme Court of Canada, function of, 76 Surrogate courts, structure, 77 Systematization, court system, of, 34 Systems administrative, functions of, 298, 299 analysis. See Systems analysis budget, administrative change methods, 343, 344 bureaucracy. See Bureaucracy change dynamics, 329-31 factors influencing, 329 human factors, 330 planned. See planned change, infra

INDEX social changes, with, 325, 326 collapse aversion method, 373 effect, 328 consultants, use of, 303-6 co-ordination mechanisms, 298, 299 courts bureaucracy. See Bureaucracy interface problems, 33 nature of, 33-37 definition, 32 design, methods, 309-11 entropy nature, 34 problems of, 329 evolution, 34, 35 goals identification of, 325 maintenance, 327 implementation general principles, 297 methods, 312, 313 judicial administrative, functions of, 298, 299 justice principle, 327 monitoring, function of, 299 personnel, administrative change methods, 342, 343 physical science concepts application, 34-37 planned change approaches, 338-41 necessity for, 338 practical example, 372-79 processes, 334 task force method, 336, 337 theories, 334-36 planning. See Planning rationality of, 327 records analysis, 309 reorganization, analysis by. See Systems analysis reporting, 313 routine tasks in, 37 social change, response to, 328 stability, 325, 326 systematization, 34 theory assumptions of, 323 change effects, 323 equilibrium mechanics, 331

open systems, 325 organizational aspects, 331-33 rationality, examples of, 372, 373 Systems analysis consultants, use of, 303-6 design methods, 309, 310 dynamic process, 319 fact-finding, 308 function of, 36 implementation method, 312, 313 stages in, 316-18 information compilation method, 307 worksheet, 404-6 involvement of court staff, 314, 315 meaning, 298 planning methods, 300-303 practical examples, 315-18 problem identification, 299, 300, 307 Project 222, 317, 319 Project 800, 317, 319 records analysis, 309, 407 reporting method, 311, 312, 313 stages in, 307-13 Task force functions, 336, 337 principle of, 346 Taylor, scientific management, 135 Technicalities, problems created by, 10 Territories courts See also Provincial courts proportionate coverage, 80 structure, 76, 420 n4 Thompson, organization theory, 331-33, 374, 378 Traffic commissioner, establishment, 360 Traffic courts, operational crisis, 4 Traffic offences, diversion programs, 392 Transcripts, computer use, 280, 281 Treasury board administrative role, 57 composition of, 169 influence of, 169 personnel management, effect on, 143 451

INDEX

Trial co-ordinator advantages of, 220, 221 caseflow management by, 225 co-operation with, necessity for, 221, 222 experiments with, examples of, 221, 222 functions of, 221 potential effectiveness, 223 skills required, 224 success of, conditions for, 221, 222 support required for, 222 Trial de novo elimination, effect, 232 Tribunals administrative, expansion, 383

Unified family court constitutional questions, 88 functions, 386, 387 implementation methods, 89, 90 problems, 88 judicial involvement, 387 philosophy of, 386 purpose, 87, 88 social court, as, 385 structure, 88 Unionization, effects, 154-57 Urban life style, effects, 12 Urbanization effects, 12 reform necessitated by, 11

Unification administrative common court registry, by, 71, 72 constitutional problems, 53 court conflicts, 68 effects, 378, 379 executive control, by, 50 necessity for, 66 practical experience, 362-64 problems, 53, 68, 377, 378 proposals, 52 courts advantages, 33 criminal. See Criminal courts effect, 328 family. See Unified family court criminal courts. See Criminal courts

Weber authority theory, 40, 41 bureaucracy theory, 37 obedience analysis, 40, 41 Witnesses frustrations of, 116 management program, initiation, 371 Writ of summons abolition trends, 231 delay by, 231, 232

452

Yin, planned change analysis, 336 Zaltman, planned change theory, 334 Zero-Base Budgeting, 183, 187