Court Organization & Court Organization & ManagementManagement

January 10, 2013January 10, 2013

Ian Greene & Lesley Jacobs

Topics for This EveningTopics for This Evening Overview of course outline; guest Overview of course outline; guest

speakers: Carl Baar etc.speakers: Carl Baar etc. Handouts scanned & placed on MoodleHandouts scanned & placed on Moodle PresentationsPresentations Graduate Diploma in Justice System Graduate Diploma in Justice System

AdministrationAdministration Introductions to each otherIntroductions to each other Introduction to the subjectIntroduction to the subject Greene, Ch 1Greene, Ch 1 Greene & Baar, “Judicial Administration”Greene & Baar, “Judicial Administration”

G.K. Chesterton, Tremendous Trifles (in Steve Bogira, G.K. Chesterton, Tremendous Trifles (in Steve Bogira, Courtroom 302: A Year Behind the Scenes in an American Courtroom 302: A Year Behind the Scenes in an American

Criminal Courthouse, Knopf, 2005)Criminal Courthouse, Knopf, 2005)

““The horrible thing about all legal officials, The horrible thing about all legal officials, even the best, about all judges, magistrates, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not barristers, detectives, and policemen, is not that they are wicked (some of them are that they are wicked (some of them are good), not that they are stupid (several of good), not that they are stupid (several of them are quite intelligent), it is simply that them are quite intelligent), it is simply that they have got used to it. Strictly they do not they have got used to it. Strictly they do not see the prisoner in the dock; all they see is see the prisoner in the dock; all they see is the usual man in the usual place. They do the usual man in the usual place. They do not see the awful court of judgment; they not see the awful court of judgment; they only see their own workshop.”only see their own workshop.”

Exodus Chapter 18, 13-27 13 Now on the day after, Moses took his seat to give

decisions for the people: and the people were waiting before Moses from morning till evening.

14 And when Moses' father-in-law saw all he was doing, he said, What is this you are doing for the people? why are you seated here by yourself, with all the people waiting before you from morning till evening?

15 And Moses said to his father-in-law, Because the people come to me to get directions from God:

16 And if they have any question between themselves, they come to me, and I am judge between a man and his neighbour, and I give them the orders and laws of God.

17 And Moses' father-in-law said to him, What you are doing is not good.

18 Your strength and that of the people will be completely used up: this work is more than you are able to do by yourself.

19 Give ear now to my suggestion, and may God be with you: you are to be the people's representative before God, taking their causes to him:

20 Teaching them his rules and his laws, guiding them in the way they have to go, and making clear to them the work they have to do.

21 But for the rest, take from among the people able men, such as have the fear of God, true men hating profits wrongly made; and put such men over them, to be captains of thousands, captains of hundreds and of fifties and of tens;

22 And let them be judges in the causes of the people at all times: and let them put before you all important questions, but in small things let them give decisions themselves: in this way, it will be less hard for you, and they will take the weight off you.

23 If you do this, and God gives approval, then you will be able to go on without weariness, and all this people will go to their tents in peace.

24 So Moses took note of the words of his father-in-law, and did as he had said.

25 And he made selection of able men out of all Israel, and made them heads over the people, captains of thousands, captains of hundreds and of fifties and of tens.

26 And they were judges in the causes of the people at all times: the hard questions they put before Moses; but on every small point they gave decisions themselves.

27 And Moses let his father-in-law go away, and he went back to his land.

Roscoe PoundRoscoe Pound1870-19641870-1964

““American jurist, botanist, and educator, chief American jurist, botanist, and educator, chief advocate of “advocate of “sociological jurisprudence” and a leader in the reform of court administration in the United States. After studying botany at the University of Nebraska and law at Harvard (1889–90), Pound was admitted to the Nebraska bar, and he practiced law while also teaching at Harvard.” (Encyclopedia Britannica). He became Dean of the Harvard Law School. He was a leader in the “judicial realist” movement (contrast to positivism & natural law)

1906 article, “The Causes of Popular Dissatisfaction 1906 article, “The Causes of Popular Dissatisfaction with the Administration of Justice,” led to the study of with the Administration of Justice,” led to the study of judicial administration in the U.S., and later in Canadajudicial administration in the U.S., and later in Canada

Dissatisfaction with any legal Dissatisfaction with any legal systemsystem

mechanical operation of the rulesmechanical operation of the rules friction between law and public friction between law and public

opinionopinion perception that administration of perception that administration of

justice is easy and anyone can do itjustice is easy and anyone can do it impatience of any restraintimpatience of any restraint

Dissatisfaction with the Anglo-Dissatisfaction with the Anglo-American systemAmerican system

individualist spiritindividualist spirit legal contest is a contentious procedure, which legal contest is a contentious procedure, which

turns litigation into a game (& judge merely turns litigation into a game (& judge merely umpire)umpire)

political jealousy put on the system by political jealousy put on the system by principle of supremacy of lawprinciple of supremacy of law

no generally accepted school of jurisprudence, no generally accepted school of jurisprudence, resulting in tinkering where comprehensive resulting in tinkering where comprehensive reform is neededreform is needed

the bulk of the legal system is based on case the bulk of the legal system is based on case law (rather than a code)law (rather than a code)

American judicial organization and American judicial organization and procedure is archaicprocedure is archaic

multiplicity of courtsmultiplicity of courts preservation of concurrent preservation of concurrent

jurisdictionsjurisdictions waste of judicial power that all this waste of judicial power that all this

involvesinvolves rigid districts of courts or jurisdictionsrigid districts of courts or jurisdictions consuming time with pure practiceconsuming time with pure practice unnecessary re-trialsunnecessary re-trials

Environment of judicial Environment of judicial administrationadministration

popular lack of interest in justice (jury duty a bore)popular lack of interest in justice (jury duty a bore) strain on law because it is also expected to teach strain on law because it is also expected to teach

moralitymorality effect of transition to a period of (more intense and effect of transition to a period of (more intense and

poorly-thought-out or worded) legislation (and poorly-thought-out or worded) legislation (and programs). When the legislated policy doesn’t work, programs). When the legislated policy doesn’t work, the courts get blamed. (eg. Insite decision in the courts get blamed. (eg. Insite decision in Vancouver)Vancouver)

putting courts into politicsputting courts into politics legal profession is a trade: employer-employee legal profession is a trade: employer-employee

relations replace real lawyer-client relationsrelations replace real lawyer-client relations public ignorance caused by inaccurate or sensational public ignorance caused by inaccurate or sensational

reportingreporting

ConclusionConclusion

In spite of all this, courts are not In spite of all this, courts are not corrupt. In fact, they are better than corrupt. In fact, they are better than 200 years ago. Because our law 200 years ago. Because our law schools are so good, and with schools are so good, and with assistance of social sciences, and active assistance of social sciences, and active bar associations, “we may look forward bar associations, “we may look forward to a near future when our courts will be to a near future when our courts will be swift and certain agents of justice, swift and certain agents of justice, whose decisions will be acquiesced in a whose decisions will be acquiesced in a respected by all.”respected by all.”

Greene, ch. 1Greene, ch. 1 Canadian Democratic AuditCanadian Democratic Audit Purpose of courts: dispute resolution, fill in gaps in Purpose of courts: dispute resolution, fill in gaps in

legislation, prevent abuse of powerlegislation, prevent abuse of power History of courts; common law vs civil law systemsHistory of courts; common law vs civil law systems Judges as lawyers in common law worldJudges as lawyers in common law world Structure and function of Canadian courtsStructure and function of Canadian courts

““integrated” system vs. dual system (as in US)integrated” system vs. dual system (as in US) Indictable vs summary conviction & hybridIndictable vs summary conviction & hybrid High rates of settlement: 95% civil, 90% criminalHigh rates of settlement: 95% civil, 90% criminal

Judicial impartialityJudicial impartiality Judicial appointmentJudicial appointment Judicial educationJudicial education Judicial disciplineJudicial discipline Role of courts in democracy & judicial disretionRole of courts in democracy & judicial disretion

____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

Baar & GreeneBaar & Greene Development of court/judicial administration as a Development of court/judicial administration as a

discipline in Canada; Brock program and successor at discipline in Canada; Brock program and successor at YorkYork

Association of Canadian Court AdministratorsAssociation of Canadian Court Administrators Judicial Independence: tenure, financial, Judicial Independence: tenure, financial,

administrative (more detail next week) & relation to administrative (more detail next week) & relation to impartialityimpartiality

Masters in Their Own House (1981): DeschenesMasters in Their Own House (1981): Deschenes Adjudication vs mediation vs arbitrationAdjudication vs mediation vs arbitration Caseflow Management (Feb 16 with Carl Baar)Caseflow Management (Feb 16 with Carl Baar) Restorative justice: eg sentencing circles, victim-Restorative justice: eg sentencing circles, victim-

offender rehabilitation programsoffender rehabilitation programs Integrated justiceIntegrated justice New professionalism of court administratorsNew professionalism of court administrators