Creating A Responsible Justice System Structure

CHAPTER 10

A Unified Administration, Management And Budgetary Model

"Court management is no sport for the short winded"
—Dean Roscoe Pound

The study of court reform and the reform of court administration in Ontario and Canada has a long history. In recent years alone, we have seen the Ontario Law Reform Commission Report on Administration of Ontario Courts, Part I (1973); the Central West experiment which took place thereafter; the Ontario Government's White Paper on Court Reform in 1976; the Deschênes Report, Maîtres Chez Eux/Masters in Their Own House (1981); the Report of the Ontario Courts Inquiry (1987) (Zuber Report); the Report of the Canadian Bar Association Task Force on Court Reform in Canada (1991); and the Joint Committee on Court Reform Report on Ontario Court Administration (1992). [8]

In addition, there have been numerous academic writings on the subject, including those by Perry S. Millar and Carl Baar, Judicial Administration in Canada (1981) [9] ; and by Ian Greene, The Politics of Judicial Administration - the Ontario Case (1983).

We have reviewed these studies, as well as the experience of other countries and jurisdictions, including the United States of America, England and Australia.

Prior attempts in Ontario to make revisions in this area has failed. They have foundered on the rock of judicial independence, smashed against the reef of judicial and political differences, and become stuck in the shifting sands of administrative and political expediency.

In our view, however, the court system can no longer function effectively in Ontario unless and until a single authority, with clear lines of responsibility and accountability, is established to determine all administrative, financial and budgetary, and operational matters relating to court administration in the province. The ship of state must be redirected in this respect.

A Review of the Need, with Reference to Previous Studies

In Judicial Administration in Canada, Millar and Baar described courts administration in Canada generally, in the following terms (pp. 5-6) [10] :

... 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 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 ramshackled 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.

Citing this passage, the Zuber Report noted that it was "apt to the situation in Ontario" [11] . While merger and regionalization of the courts in 1990 have attempted to address the "fractured mosaic" concept -- with mixed reviews, it can be said -- very little has happened since the Zuber Report to change the foregoing description. Indeed, many would argue that the situation is worse.

This is not to say that efforts have not been made to improve the court system. There have been. Lack of an overall vision, as well as fiscal restraints and diminishing resources attributable to courts administration have contributed to the lack of success of these efforts, however.

In mid-1992 the Joint Committee on Court Reform, in its Report on Ontario Court Administration, identified a list of existing problems which, it said, "underline the need for a new management structure". They were (see pp. 5-12) [12] :

  • Inherent conflicts in administrative roles;
  • Present management as crisis management;
  • An inadequately funded administration;
  • Administrative problems preventing the timely processing of cases, and creating delays and costs to the public; and,
  • Defects in the present system causing its participants to be frustrated and not to work optimally together.

In varying degrees these problems continue to exist today. The single most important area which continues to frustrate an effective and co-operative system of administration, however, is that involving the tension and conflict between the administrative roles of judges and government. This, in turn, results in poor allocation of resources and ineffective management, and translates into situations, at the every-day operational level, where things simply do not work.

The judiciary is responsible for matters of administration bearing directly on the exercise of judicial functions. Primarily, this responsibility embraces control over the lists and the scheduling of cases and over the assignment of judges and courtrooms for the hearing of those cases. This responsibility is a necessary adjunct to the preservation of the institutional independence of the judiciary.

On the other hand, the statutory jurisdiction over staff, over budget and financing, over technology, over organization, and over physical facilities, rests for the most part with the Ministry of the Attorney General. At the same time, the Attorney General, and other government ministries and agencies, are major civil litigants in the courts. They are thus affected by, and intensely interested in, matters relating to court lists, scheduling and the assignment of judges. An administration structure which makes government responsible for virtually all aspects of the infrastructure necessary to enable the members of the judiciary to perform those functions gives rise to an obvious conflict.

We wish to be clear. We are not suggesting there are examples of interference by government in such judicial responsibilities. The matters referred to as reserved to the judiciary do provide a bulwark against such interference. When the administration and funding of the system are left in the hands of the Province's major litigant, however, the inherent friction that is created impedes the effective management of that system.

Former Chief Justice Frank Callaghan, of the Ontario Court of Justice, commented on this tension in a speech to the Advocates' Society in June 1991. He said [13]:

.... Nothing I say tonight should be taken as suggesting that judicial independence in decision making in court in this country is any less honoured today than it was in the past. No one has ever sought to apply pressure in a particular way to a superior court judge nor have I heard of any other judge coming under such pressure.
But I do see a different and more insidious threat to the independence of the judiciary as an institution, as opposed to the independence of each judge as an individual: a threat to the independence of the judicial system as opposed to the judges who operate it. The threat arises by reason of the control of finance and administration by the executive branch of government.
At first sight, many would not regard the control of finance and administration as providing any threat to judicial independence. But if the matter is given more consideration, it is to my mind apparent that the control of the finance and administration of the legal system is capable of preventing the performance of those very functions which the independence of the judiciary is intended to preserve, that is to say the right of the individual to a speedy and fair trial of his or her civil claim as well as a criminal allegation by an independent judge. To take a fanciful example for the purpose of illustration, the enforcement of the rule of law by the judges could be wholly frustrated by the refusal to provide courtrooms for judges to sit in or staff to service those courts. To take a much less fanciful example, there is in my view an interference with the enforcement of the rule of law if there is a failure to finance the provision of adequate court facilities and court staff to meet society's current demands for justice. The integrity of the legal system does not depend solely on the integrity of each individual judge. It also depends on the ability of the citizen to come before the independent judge and receive his or her judgment.

The importance of the judiciary having control over matters of judicial administration, in the context of judicial independence, was confirmed by the Supreme Court of Canada in Valente v. The Queen, [1985] 2 S.C.R. 708. There, Mr. Justice LeDain, speaking on behalf of the Court, said:

The third essential condition of judicial independence ... is in my opinion the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. The degree to which the judiciary should ideally have control over the administration of the courts is a major issue with respect to judicial independence today. Howland C.J.O. drew a distinction, for purposes of the issue in the appeal, between adjudicative independence and administrative independence which is reflected in the following passages in his reasons for judgment at pp. 432-433:
'... In Ontario the primary role of the judiciary is adjudication. The Executive on the other hand is responsible for providing the courtrooms and the court staff. The assignment of judges, the sittings of the court and the court lists are all matters for the judiciary. The Executive must not interfere with, or attempt to influence the adjudication function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls. The heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration ...'
Judicial control over the matters referred to by Howland C.J.O. -- assignment of judges, sittings of the court and court lists -- as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or 'collective' independence ... .

A unified court administration structure, with single line accountability and responsibility, raises difficult questions in this regard. By definition, these "judicial administration" functions must be incorporated into the system. How can this be done, while preserving at the same time the principles of an independent judiciary and of public and governmental accountability ?

The 1991 Canadian Bar Association Task Force Report, Court Reform in Canada, summarized the dichotomy in this fashion:

The question of where the responsibility for court management and administration should lie is an intricate one which raises questions about judicial independence, public accountability and jurisdictional cooperation. With respect to judicial independence, one view is that it is the judges' function to adjudicate, not administer. Involvement by judges in administration and management, it is argued, may undermine judges' independence because the administration and management functions will inevitably involve discussion with government about budgets and policies and may lead to the involvement of judges in such matters as staff relations and contract administration. Others take the opposite view. Judges, it is argued, must be masters in their own house to protect their capacity to administer justice independently, fairly and efficiently. Moreover, almost everyone agrees that judges must retain control over such matters as case assignment and the list and it would be sensible on both logical and pragmatic grounds to add to that necessary core of judicial control other administrative responsibility.

In concluding the section of its 1992 Report on Ontario Court Administration dealing with this subject, the Joint Committee on Court Reform stated:

"The present separation of control over the different elements essential to providing the service frustrates the application of traditional management concepts and, in the absence of a very high degree of communication and cooperation, leads to serious problems."

With this statement we agree. Even with the "very high degree of communication and cooperation" which the Joint Committee envisaged as necessary, and which we urge is essential to the viable operation of the civil justice system, however, the bifurcated -- or "two-headed monster" -- approach to courts administration will not be effective in today's resource-constricted environment.

The Ontario Law Reform Commission Report in 1973, the Ontarian Government White Paper in 1976 and the Deschênes Report of 1981 all recommended the transfer of primary responsibility for the administration of the courts to the Judiciary. The Zuber Report of 1987 did not.

The Zuber Report recommended the establishment of an Ontario Courts Management Committee comprised of members of the Judiciary, and representatives of the Ministry and of the Bar and of the Public. The Committee was to be responsible "for setting operational policies for all the courts and provincial standards for the operations of the courts, subject to,

  • the ultimate authority of the judiciary in matters relating to assignment of judges, sitting standards for judges, assignment of particular cases and the establishment of sitting schedules: and,
  • the ultimate authority of the government of Ontario in matters relating to the budget for the courts, remuneration and working conditions for provincial employees and the geographic locations in which court services [were] to be provided."

This recommendation was not implemented by the Ontario Government.

Two years after merger and regionalization were introduced to Ontario, the Joint Committee's Report on Court Administration was released. This Committee came to a different conclusion than did the Zuber Report, and recommended that the judiciary assume primary responsibility for the administration of the Ontario Courts, in a fashion consistent with that proposed by the White Paper on Courts Administration in 1976 and the Deschênes Report in 1981. The Joint Committee proposed a two stage implementation program, as follows [14] :

  • the immediate implementation of an ad hoc court administrative structure whereby the Ontario courts would be jointly administered in all respects by the judiciary and Courts Administration Division of the Ministry of the Attorney General; and,
  • the enactment of legislation, in the medium term, to provide for the judiciary to take responsibility for the Ontario courts and related services through a non-partisan process involving a Courts Administration Council (the governing arm) and an Ontario Courts Service (the civil service adjunct).

The Joint Committee's rationale for this proposal was based upon it belief that there existed a widespread recognition of the seriousness of the problem, and willingness to address it, and upon its conclusion that the inherent conflict in the present structure required fundamental change [15].

Although Government has not officially responded to the Report of the Joint Committee, there have been a number of recent initiatives designed to advance the concept of co-management of the system. For instance, a Heads of Court Committee has been established which meets regularly to address issues of mutual concern in relation to court administration. It consists of the "heads" of the various Courts in the Province together with the Deputy Attorney General and the Assistant Deputy Attorney General in charge of Courts Administration.

We agree that fundamental changes must be made to the structure which is courts administration. Establishment of a unified system of management, administration and budgetary responsibility, which will eliminate these conflicts to the extent that is possible, is necessary.

The need applies across the justice system in the Province as a whole -- to a structure for both civil and criminal matters. That there is such a need is readily apparent, not only from the numerous Reports and studies relating to the problem already mentioned, but also from our own examination of the system and our consultation process. As we have previously mentioned, a common theme expressed during that process was the one encapsuled by the question: "Who's in charge here?".

Although the Civil Justice Review is not in a position to recommend a specific structure, we are in a position to understand, and therefore to urge, that any global strategy for the creation of a civil justice system which meets the benchmarks of this Review must include a solution to the problem of bifurcated and conflicting administration. That the problem reaches beyond the civil aspects of the court system alone, and encompasses the whole of the court system, merely heightens the importance and urgency of dealing with it.

We urge that it be done.

What is needed is a structure that incorporates and balances the following key elements:

  • judicial independence;
  • strong community input and public involvement;
  • accountability to the public, through the Legislature, for the expenditure of public funds;
  • the ability to attract adequate public funding; and,
  • smooth, professional, effective, and efficient management.

RECOMMENDATION:

We therefore strongly recommend that steps be effected immediately to establish a single issue task force -- comprised of representatives of Government, Judiciary, Bar and Public -- mandated to develop an implementable proposal for the creation of a unified administration, management and budgetary structure for the justice system in ontario.

Such a structure must have clear lines of responsibility and accountability for all administrative, all financial and budgetary, and all operational matters within the system; and it must possess at least the following minimum characteristics:

  • It must be consistent with, and guarantee, the preservation of an independent judiciary.
  • It will feature a governing body or council which is broadly accountable and representative of the Public, the Judiciary, the Government and the Bar.
  • To ensure the preservation of an independent judiciary, any decisions affecting the independence of the judiciary will require a majority vote by the judges on the governing body of the new structure.
  • The role of the governing body -- which, as noted, will include Government, Bar and Public representatives as well as Judges-- will be primarily of a supervisory and overall management nature. Day-to-day and direct operational responsibility for the system will be assigned to full time professional court administrators and their staff.
  • The new system must be properly and adequately funded from the outset, to preserve the integrity of the justice system. This is essential.
  • The Attorney General and the Chief Judicial Officers of the province should be members of the governing council, to ensure that they are supportive of, and accountable for, representations made to the legislature. As well, the governing body must be provided with the necessary supportive linkage with Treasury Board to enable it to make effective representations to the legislature.
  • The new system must ensure ultimate accountability to the Legislature for the expenditure of these public funds, and preferably will feature direct reporting to that body and direct approval by it of budgetary matters.

We cannot overstate the importance, in our view, of Government and the Judiciary, together with the Bar and the Public, designing and implementing a unified and accountable administration structure with the minimum characteristics outlined above. We believe the effective administration of courts in Ontario for the 21st century depends upon it.



Footnotes:

[8] Report on the Administration of Ontario Courts, Vols. 1-3, Ontario Law Reform Commission, 1973; White Paper on Courts Administration, Ministry of the Attorney General, 1976; Maîtres Chez Eux/Masters in Their Own House: A Study on the Independent Judicial Administration of the Courts, The Hon. J. Deschenes, Canadian Judicial Council 1981; Zuber Report, supra note 2; Report of the Ontario Bar Association Task Force on Court Reform in Canada, Ottawa, 1991; Joint Committee on Court Reform Report on Ontario Court Administration, submission to the Attorney General of Ontario, June 1992. See also, Chief Justice Frank W. Callaghan, Remarks to the Advocates' Society, published in the Advocates Journal, Vol 11, Number 1, 1992, at page 3.

[9] P.S. Millar & C. Baar, Judicial Administration in Canada (McGill-Queen's University Press: Montreal & Kingston, 1981) [hereinafter "Millar & Baar"]

[10] Millar & Baar, supra, note 15 at pp. 5-6

[11] Zuber Report, supra, note 14, p. 140

[12] Joint Committee on Court Reform on Ontario Court Administration 1992, supra, note 14, pp. 5-12

[13] Callaghan, supra, note 14, pp. 3-4

[14] Joint Committee on Court Reform Report on Ontario Court Administraion 1992, supra, note 14, pp. 20-26

[15] ]id at pp. 2-3