Court Organization and Management March 8, 2012 The Perspectives of Administrators

1. Court Organization and ManagementMarch 8, 2012The Perspectives of Administrators Ian Greene

2. Millar & Baar, Judicial Administration in Canada (1981) • Chapter 5: The Function and Role of Court Administrator • When the book was written, the position of “court administrator” was relatively new • Perry Millar was an “administrative judge” in the BC Provincial Court • A number of different administrative functions in courts (eg. clerks, secretaries, counter staff, records management, case coordinators) were brought together and placed under the direction of the “court administrator” – a new position. Prior to that, they reported to the senior person in that field (eg. clerk) in the provincial capital. • Some observers: court administration is about 100 years behind other parts of the public service in adopting organizational change.

3. Professional Court Administration • We learn from our mistakes. Courts should be organized to ensure that administrative personnel feel able to inform senior administration (especially judges) of problems. • “A basic purpose of court administration is to reinforce the independence of the judiciary and the authority of the courts.” To accomplish this, judges must accept help of court administrators. • Chief court administrators come from a variety of backgrounds (lawyers, senior public servants, etc.) • Early years: only accountability to “inspectors of court services.” • These offices evolved into something more appropriate. • Canadian Association of Court Administrators: 1975 – perhaps court administrators could learn from other jurisdictions.

4. Internal Goal Conflict • Judges: fairness & expeditious justice • Defence council (crim): may benefit from delay • Prosecutors (crim): need to ensure witnesses are available & sufficient evidence collected • Conflicts between accused persons and their lawyers • Civil trials: delay may help richer clients likely to lose; smaller parties are often hurt by delay & forced to settle for less • Witnesses reluctant to appear because of adjournments and sharp cross-examinations, and fear of reprisal • Expert witnesses: professional integrity threatened • Police: trials often demoralizing • Probation officer: may question philosophical base of courts • Court reporters: harassed for complex transcripts for minimum pay • Court interpreters: worried about attacks on competence • Adversary system heightens conflict

5. Link Mechanism • See p. 119 of article: individual court • Trial court administrator’s job is to “draw together” conflicting parties by coordinating attendance. • Trial court administrator is accountable to the judiciary, but has a fair degree of independence in coordinating attendance • Mostly a communication function • But the local court administrator is also accountable to the provincial court administrator, leading to Figure 3 on p. 122 • Provincial Link Function: local court administrators report to the Provincial court administrator, who has a different set of “link” functions to deal with. Competent Provincial and Local administrators lead to success, if relationship with judiciary is positive.

6. Organizational Models • Traditionally, there have been separate administration services in the provinces for courts with provincially-appointed judges, and the supererior courts with Federally-appointed judges. Chief administrator of a superior court usually known as “registrar.” As of 1980s, political appointments. • Recommended – integration between the two court services both in terms of function and supervision. Weberian model of merit.

7. Provincial Court Administrator • What should duties be? (127-130) • What should qualifications be? (130-132)

8. Sossin, Democratic Administration • 1991 York conference (Greg Albo, David Langille & Leo Panitch) – A New Kind of State? Popular Power and Democratic Administration (1993) • “participatory democracy;” democratizing the public service & moving away from the military model • Graduate Diploma in Democratic Administration • Osborne & Gaebler (1993): Reinventing Government • Citizens Charter (1993) in UK: all public services had to publicize standards & establish complaints mechanism • 1990s: Democratic admnistration overtaken by “new public management”

9. Citizen Empowerment (1) • Critiques of conventional bureaucracy • Accountability (infuse democracy into administration) • Ministerial responsibility (difficult to make work effectively with a very large & complex bureaucracy) • Judicial review (can be effective for individual accountability but expensive) • Ombudsman? (**Ontomb inv courts?) • Police oversight bodies (internal accountability, Toronto Police Services Board, Special Investigations Unit, Civilian Commission on Police Services)

10. Citizen Empowerment (2) • Participation • What degree of participation is appropriate for different administrative settings? (Courts?) • Forms: • Town hall meetings • Surveys • Public hearings • Public interest group and/or stakeholder consultations • Referenda

11. Origins of Democratic Administration • Max Weber: for efficiency and effectiveness (“ideal type”) – impartiality, legal relations between employees & supervisors, neutrality, tenure so as to speak truth to power (Gary Webster from TTC fired?), merit, hierarchy, rule of law, separation between administration & politics. • Much better than other types tried (eg charismatic) – but Weber was aware of the downside: impersonalization: “iron cage constructed by specialists without spirit, sensualists without heart.” Domination through knowledge. • Politics-administration dichotomy – not realistic. Patronage generally overcome, but public servants have discretion – not recognized in the “ideal type” or . Necessitated by growth of welfare state. • “bottom up” approach in strategic planning recommended. Take governments away from the bureuacrats & return to the people.

12. State of democratic administration • Frequently appauded; rarely implemented. Why? • New Left: increased participation of users • Transition from old left • Feminist analysis • New Right: increased competition, choice, privatization • New public management • Departure from its origins • Experimentation and failure

13. Future of Democratic Administration • Citizens engagement model • Deliberative democracy • Facilitate public deliberation • Consult with citizens • Relationships of mutual trust • Accountability to citizens • Attachment rather than detachment • Impact of globalization • My view: integrity

14. Marian Tyson, Trial Court Restructuring: A Court Administrator’s Perspective • When reforms are introduced into courts, it is court staff who need to implement them; thus staff need to be involved in planning reforms • Reforms already taking place: family court reunifications; procedures to assist self-represented litigants • Trial court unification: no progress in 20-30 years (except for merger of country/district courts with superior courts) because there are so many divergent and strongly held views (Superior court judges, provincially-appointed judges, Canadian Bar Assoc, CJC, Canada Law Reform Commission) • Gov’ts postpone difficult decisions (such as trial court unification) • Hoping stakeholders will find a solution • Hoping the problem will go away

15. Trial court unification • Mid-1990s: every provincial AG supported it • 3 prov’s ready to start pilot projects & New Brunswick started; gave up when SCC ruled that the way NB tried it was unconsitutitional – s 101 issue. What would be required would be federal appointments for all trial court judges hearing cases falling within definition of “superior court” • Instead of trying this new approach all provinces just gave up; likely because of strong opposition of CJC, CBA & CJC • Purpose of reform: reduce delay & confusion & simplify process. Must determine whether the reform is likely to result in these improvements, or may make things worse • Nova Scotia: reforms have allowed senior court officials to take on some minor adjudicative duties. Small claims court given expanded jurisdiction & can sit evening with part-time judges

16. Other reforms • Superior courts: process-heavy, while small claims courts very informal and quick • Room for courts that expect preparation from lawyers but the process is streamlined • Nova Scotia moved to fewer JPs but ensured that they are properly trained • Uncertainty about reform leads to stress and is a cause of unnecessary delay • Reforms of administrative processes can take place without larger structural reforms and can reduce delays • Politics is the art of the possible • Creativity and realization of what is feasible (given appropriate interventions and their likely success)