Changing Attitudes, Roles and Responsibilities
Four groups, principally, are involved in the justice system. They are:
- the Judiciary;
- Lawyers; and,
- the Public.
The public comes to the justice system in a number of capacities. The members of the public are taxpayers. They are voluntary or involuntary users and clients. They are electors of the political representatives who have ultimate responsibility for the shape and funding of the system.
In spite of these various capacities, members of the public play very little direct role in the design and administration of the system, which exists for their benefit. Their mood, however, is no longer one of acceptance of this state of affairs.
The public is insisting upon a changed and greater participatory role. Such a changing role, we believe, will carry with it the appreciation and knowledge that more public support -- communicated to legislators in a fashion that spurs them to action -- is necessary to ensure that the justice system receives the recognition in terms of resources that its priority requires.
The Judiciary, the Bar and Government (through the Administration) are the "professionals" in the system. Classically, it has been the function of the Judiciary to adjudicate the public's disputes, the function of the Bar to advise and to represent the public in that adjudicative process, and the function of Government -- in this role -- to provide the infrastructure necessary for the administration of justice. These classic roles continue to hold true today. Two observations may be made about this:
- Firstly, this division of responsibility, while generally serving the public well, has led to a divided approach in the administration of justice which, in today's complex society, is placing significant strain on the smooth operation of the system; and,
- Secondly, the clear lines of demarcation between these roles is becoming blurred as judges become more involved in the administration and processing of cases.
In each of these constituent groups -- Administration, Bar and Judiciary -- there are individuals who are working hard to build bridges and to devise co-operative methods of addressing and finding solutions to the problems which have beset the system. In general, however, the Judiciary, the Administration and the Bar have maintained an individuality in their approach to the system which has precluded a sense of collaboration, co-ownership or co-responsibility for these problems. There is a tendency to view the system from the perspective of one's own constituency and to view the failings of the system in terms of the needs of that constituency. Along with this tendency goes a reluctance to admit to being a part of the problems.
Seldom, for instance, did we hear from any representatives of the various groups that their group was responsible for any of the problems or that it might be doing something better, although there were some, to be sure, who did recognize that such was the case. Usually, though, the problems were laid at the feet of the other group.
This attitude has led some to describe the Courts Administration, the Judges and the Bar as "the three solitudes". Indeed, there are times, in our estimation, when those responsible for the workings of the justice system might benefit from looking into the mirror and remembering the old adage,
"We have seen the enemy, and they is us."
Re-configuring the justice system so that it will meet the benchmark tests set out earlier will require changes in attitude, in roles and responsibilities, and in the assumption of leadership, on the part of each of these constituent groups. It will require changes in the level of public participation in the system. It will require changes in the degree of communication between those involved. Finally, it will require changes in the structure of accountability within the system.
While we recognize that some of the changes discussed cut across the boundaries of civil justice, we reiterate that our mandate is "to develop a strategy for the civil justice system as a whole". Implementation of the changes we are proposing are necessary for the development of such a strategy.
Historically, the public has not had a direct role in the justice system, except through their parliamentary representatives. As a result, too little attention has been paid, in a systemic way, to the needs, wishes, and reasonable expectations of the public. While the justice system exists for and is paid for by the public, the public's voice often goes unheard in matters relating to the administration or design of that system.
Members of the public approach the justice system as taxpayers, as electors, as users or clients, as jurors, and in various volunteer capacities. In all of these capacities, we believe, the public recognizes that justice is central to the foundations of society and is necessary for a peaceful, stable, and caring society. Our consultations revealed, however -- as, indeed, does any cursory glance through the eyes of the media -- that the public is close to losing faith in the justice system and in the other three groups which are integrally involved in its management.
We must make changes to reverse this trend.
Citizens are less willing today to place blind faith and trust in institutions, in professionals and in elected officials. They are more demanding of accountability, more insistent on openness, and more determined to be involved in actively shaping what happens in their public institutions.
There is criticism about a perceived callousness on the part of the courts and on the part of those who work within the system, and also a perceived insensitivity to the needs of the very public whom the courts are there to serve. Although people recognize the volume and complexity of the issues before the courts, there is a pervasive belief that the system plays havoc with people's lives and financial resources, often putting the needs of the system and the professionals and staff within it before the needs of the public. There is an enormous sense of frustration and anger about this, and this spreading feeling of discontent was made apparent to the Review during its consultation stage, discussed in Chapter 6 of this Report.
In our opinion a greater participatory role by members of the public in the justice system is both inevitable and appropriate in today's society. It is inevitable because, as noted above, the public is demanding it. It is appropriate because the justice system exists only for the purpose of serving the public, and the members of the public can best understand that they are being well served when they are participating in a worthwhile fashion in the system.
The Ontario Courts Management Committee and the Regional Courts Management Advisory Committees
We do not believe that there presently exists in Ontario appropriate public input into the operation of the civil justice system.
Regional Courts Management Advisory Committees (RCMAC's) in each of the Province's 8 Regions, and the Ontario Courts Management Advisory Committee (OCMAC), were designed to remedy this shortcoming, but in our view have not yet done so. Nonetheless, they have the potential to be excellent vehicles for accomplishing such a task.
These bodies are created by statute, and are required to meet four times annually. Members of the public, court administrators, lawyers and judges, sit on them. Their function, as articulated in sections 73 and 75 of the Courts of Justice Act, is,
to consider and recommend to the relevant bodies or authorities policies and procedures to promote the better administration of justice and the effective use of human and other resources in the public interest.
This mandate is advisory, but very broad. However, it is not being carried out effectively across the Province.
There are some examples of RCMAC's that are operating with meaningful public input, but they are the exceptions rather than the rule. We spoke with public members of RCMAC's in every Region. Without fail they all indicated that they had applied for the position eagerly anticipating a meaningful involvement in the justice system. They had been selected from many applicants -- a signal, in itself, of the widespread interest amongst the public in such participation. Typically in practice, however, they felt isolated from actual decision-making; they were not sure they were being listened to by either the Regional Senior Justice or by the Court administrators; and they were not sure that they receive enough information or support to make even advisory recommendations. As one RCMAC member said to us:
"I don't know where the action is, but I know where it isn't, and that is here."
We believe this can, and must, be altered.
OCMAC -- the Ontario Courts Management Advisory Committee -- is composed of the Chief Justice and Associate Chief Justice of Ontario, the Chief Justice and Associate Chief Justice of the Ontario Court of Justice, the Chief Judge of the Ontario Court of Justice (Provincial Division), the Attorney General, the Deputy Attorney General, two Assistant Deputy Attorneys General, two other public servants, six lawyers and as many as six members of the public. It is hard to imagine a Committee better positioned to make recommendations to "the relevant bodies and authorities" about "the better administration of justice and the effective use of human and other resources in the public interest" than this Committee. In truth, many of the "relevant bodies and authorities" are on the Committee ! Yet there is not a sense that it is working productively, and it appears to have little, if any, ties with the Regional Committees.
The Regional Committees, themselves, are well-positioned to identify regional and local problems, and to contribute to their solutions. They are well-equipped also to feed into the identification and resolution of province-wide issues as well.
OCMAC and the RCMAC's are representative of the four constituent groups involved in the justice system -- the Public, Courts Administration, the Bench and the Bar. The participatory process which they bring to the system is equally as important as the substance of their advice and recommendations.
Both are important.
The Civil Justice Review recognizes and supports the broad advisory role provided by the Courts of Justice Act to OCMAC and the RCMAC's.
We recommend that the Ontario Courts Management Advisory Committee and the eight Regional Management Advisory Committees develop a cohesive structure amongst them for purposes of co-ordinating and enhancing their advisory functions across the province.
We further recommend that these Committees be recognized and accepted by the Bench, the Ministry, the Bar and the Public as an important piece of the justice structure in Ontario, and that efforts be made to ensure that their mandate to consider and recommend policies and procedures to promote the better administration of justice and the effective use of human and other resources in the public interest, be duly carried out.
We understand that a joint meeting of OCMAC and the RCMAC's is presently being organized for Spring 1995. We commend this Spring conference as an opportunity for these Committees to consider their mandate and structure, and how they should relate to each other.
Bench and Bar Committees also exist in most Regions. They concern themselves with day-to-day problems in the Region involving the operation of the courts, and perform a valuable function in this regard. In some Regions and local areas, representatives of Courts Administration also attend the Bench and Bar Committee. We recommend that this practice be extended to all Regions.
We recommend that the practice of including representatives of Courts Administration in regional Bench and Bar meetings be extended throughout the province.
There are other areas in which the needs of the public must be reflected as well.
A Unified System of Administrative, Management and Budgetary Accountability
Elsewhere in this Report we recommend that steps be taken to implement a system of unified administrative, management and budgetary accountability, with clear lines of authority and responsibility. The public must be involved in an effective participatory way in any such structure.
The Three Solitudes
Underlying a veneer of co-operation amongst the Judiciary, Government and the Bar, there is a deep chasm of mistrust and defensiveness. This is particularly so between Government, on the one hand, and the other two consituencies, on the other. Government is seen as having fallen down in its obligation to provide for the administration of justice. The Bench and the Bar are seen as being unduly resistant to changes which will make the system run more efficiently.
Statutory and historical responsiblity for the operation of the Courts is divided between Government and the Judiciary, a bifurcated approach to the administration of justice which leads to confusion, to indefinable lines of authority and responsibility and accountability, and ultimately to ineffectiveness. What it leads to is "confuzzlement" -- to advert once more to the world of Winnie the Pooh.
The miracle of the civil justice system is that it works at all. That it does is attributable to the energies and efforts of judges, lawyers and administrators who every day do more than we have any reason to expect of them. Much of this work is done "after hours" and on a "volunteer" basis. Indeed, one person noted that the system is held together "by the bailing wire and chewing gum of volunteerism". The civil justice system cannot be placed on a sound footing if it must continue to rely on such "extra" efforts for its long term viability.
What is required is a significant change in the attitude of judges, court administrators and others who work within government, and members of the Bar who practice in the courts. These participants must take responsibility for ensuring that the civil justice system operates in a spirit of co-operation and co-proprietorship which does not now exist. From our public hearings and other submissions, we believe the public is only too aware of the chasm between the court administration bureaucracy and the judges -- witness, in this respect, the frequent repetition of the question: "Who's in charge here?". The Bar will from time to time side with one group or the other as its members believe their interests dictate. This has led to a diminution of public respect for the Court, and to a sense that the justice system is leaderless.
Leadership is important. The civil justice system is in crisis, in large part due to an absence of co-ordinated and co-operative leadership on the part of its participants.
Many of the recommendations which we make in this Report are premised on the willingness of Government, Judiciary and the Bar to exhibit a new form of co-operation and co-management of the justice system and its problems. Such an attitude must permeate throughout the system -- from Chief Justices and Attorneys General and those with leadership in the Court and Government, and from those in positions of leadership within the Bar, throughout the entire ranks of their colleagues. This leadership must demonstrate that a new order is afoot and that the operative philosophy of the day is co-operation and co-management. It must demonstrate that changing the way in which the constituent groups in the justice system have dealt with each other in the past is imperative for the creation of a renewed and effective civil justice system in the future.
There are encouraging signs, in recent times, that this is happening. The Joint Committee on Court Reform ("JCCR") is a composite group of several legal associations which works with the Judiciary and with Courts Administration on matters relating to the reform of the courts and the justice system. Bench and Bar Committees remain active in many centres, and some are now beginning to incorporate Ministry representatives into their deliberations, as we have indicated. The case management pilot projects and the ADR Centre pilot project, to which we will refer later in this Report, are other examples of efforts that have engendered close collaboration and co-operation on the part of those who are involved in the system.
The common characteristic of these inititiatives is the recognition of a shared responsibility for defining the problems and for creating solutions to those problems together. This is exactly the sort of co-operative approach to responsibility for the system which we believe is essential if we are to advance the potential for a successful civil justice system for Ontario.
The changes in attitudes and roles will be reflected, in varying degrees, in each of the constituent groups in the system.
Judges and lawyers will have to adapt to the modifications in their traditional approaches to the processing of litigation, with the Judiciary assuming the ultimate responsibility for the movement of cases through the process. Lawyers will have to become accustomed to adhering to stricter time parameters. Judges will have to be prepared to enforce those parameters.
Those working in Courts Administration will be required to adapt to new, more streamlined, procedures, and to become more technologically proficient. They will also require the training which will qualify them to perfom their revised roles in the new system, which will call upon them to assume more responsible positions and to accept the accountability which accompanies such responsibility.
Government, in the broader sense, must accept that a new approach to assuring proper and adequate funding for the civil justice system is necessary. "Courts Admininstration" should not be buried amongst the other competing demands of a Ministry budget. It must stand alone, and be assessed on that basis.
The public will play a more participatory role in the civil justice system. With that greater participation will come a greater responsibility to hold their legislators responsible for providing proper and adequate funding for the system, and for providing, generally, "for the administration of justice in the Province".
People do make a difference. It is within the grasp of those who are in leadership roles in Government, the Judiciary, the Bar and the Public to make the system work better and more effectively. However, the collective and individual will to do so is of central importance.
Our consultations have persuaded us that this collective will currently exists.