Court Organization and Court Organization and ManagementManagement

January 17, 2013January 17, 2013Ian Greene

Class Organizational MattersClass Organizational Matters Group Presentations (class web page)Group Presentations (class web page) Final essay: see Justice on Target Statistics Final essay: see Justice on Target Statistics

(class web page)(class web page) For those who want the Graduate Diploma in For those who want the Graduate Diploma in

Justice System Administration and need to do an Justice System Administration and need to do an internship:internship:

Keele students: on the paper being circulated, Keele students: on the paper being circulated, indicate what kind of internship you would indicate what kind of internship you would prefer, and over what period you wish to do prefer, and over what period you wish to do the internship.the internship.

Glendon students: Download “sign-up sheet for Glendon students: Download “sign-up sheet for internships” from yorku.ca/igreene web page, internships” from yorku.ca/igreene web page, fill it out, and email it to Ian Greenefill it out, and email it to Ian Greene

Greene: section on “Judges” in Greene: section on “Judges” in Ch 3, Ch 3, The CourtsThe Courts

To what extent are judges representative of the To what extent are judges representative of the larger population?larger population? Depends on representativeness of lawyers Depends on representativeness of lawyers

(discussed next week), and appointment procedures(discussed next week), and appointment procedures 18% of judges “supernumerary”18% of judges “supernumerary” Judges currently earn between $150K & $300KJudges currently earn between $150K & $300K Fewer partisan appointments than in past, though Fewer partisan appointments than in past, though

likely about 50% of judges have partisan experiencelikely about 50% of judges have partisan experience Is political experience helpful?Is political experience helpful? Should patronage in apppointments be entirely eliminated?Should patronage in apppointments be entirely eliminated?

GenderGender

1990: 6% judges women; 1990: 6% judges women; 20012001: 25%: 25% Likely closer to 30% today; may not rise higherLikely closer to 30% today; may not rise higher How willing are women to accept judgships?How willing are women to accept judgships? Varies across jurisdictions: p. 61Varies across jurisdictions: p. 61

Do women judges make a difference?Do women judges make a difference? Bertha Wilson talk at York, 1990Bertha Wilson talk at York, 1990 Depends on the area of law. Contract – no. Depends on the area of law. Contract – no.

Areas where presuppositions make a difference Areas where presuppositions make a difference – yes (crim)– yes (crim)

Justice Abella: women judges serve as Justice Abella: women judges serve as examplesexamples

Aboriginal JudgesAboriginal Judges

1988: 2 aboriginal judges. 2001: 18 1988: 2 aboriginal judges. 2001: 18 (.8%), mostly at inferior court level(.8%), mostly at inferior court level

Inuktitut word for lawyers means “the one Inuktitut word for lawyers means “the one who lies for you.” Anglo-Canadian justice who lies for you.” Anglo-Canadian justice system iss seen as a colonial imposition. system iss seen as a colonial imposition. Not “their” justice system.Not “their” justice system.

Aboriginal justice generally emphasizes Aboriginal justice generally emphasizes rehabilitation over proof of guilt & rehabilitation over proof of guilt & punishmentpunishment

Sentencing circles; restorative justiceSentencing circles; restorative justice

Visible Minority JudgesVisible Minority Judges

Not much data, but visible minority judges are Not much data, but visible minority judges are under-representedunder-represented

Justice Tulloch is the only black Superior Court Justice Tulloch is the only black Superior Court judge in Canada; one judge of south Asian judge in Canada; one judge of south Asian descent on Ont Superior Court (out of about descent on Ont Superior Court (out of about 300 judges)300 judges)

Most visible minority judges on the lower Most visible minority judges on the lower courts.courts.

Part of issue: persuade visible minorities to go Part of issue: persuade visible minorities to go to law school when it may not be part of to law school when it may not be part of family traditionfamily tradition

Judges as High AchieversJudges as High Achievers It’s hard to get into law schoolIt’s hard to get into law school 90% of appellate judges have received academic awards or 90% of appellate judges have received academic awards or

honourshonours 17% of appellate judges have an MA; 9% have a PhD17% of appellate judges have an MA; 9% have a PhD Judges’ parents set the exampleJudges’ parents set the example Half of judges have other family members who are lawyersHalf of judges have other family members who are lawyers The higher the education, the more supportive of minority The higher the education, the more supportive of minority

rights, and more tolerance of difference (eg same sex rights, and more tolerance of difference (eg same sex marriage)marriage)

May explain some of the Supreme Court decisions critical of May explain some of the Supreme Court decisions critical of Harper gov’t, such as Insite & Khadr, including Harper Harper gov’t, such as Insite & Khadr, including Harper appointments to Courtappointments to Court

Is it a problem that judges are high achievers?Is it a problem that judges are high achievers? Can they empathize with ordinary Canadians?Can they empathize with ordinary Canadians? Are they transferring their own values, derived from family and higher Are they transferring their own values, derived from family and higher

education, to the rest of the population? If so, is this a problem?education, to the rest of the population? If so, is this a problem?

Baar: The Emergence of the Baar: The Emergence of the Judiciary as an InstitutionJudiciary as an Institution

All judicial systems have certain All judicial systems have certain goals in common:goals in common: As state actors, they try to enhance the As state actors, they try to enhance the

credibility of the state, and police credibility of the state, and police governmentgovernment

Value independence and impartialityValue independence and impartiality Promote the rule of lawPromote the rule of law Desire for institutional effectivenessDesire for institutional effectiveness

Courts as State ActorsCourts as State Actors Unless citizens have faith in courts as impartial dispute Unless citizens have faith in courts as impartial dispute

resolution institutions:resolution institutions: The regime’s legitimacy is eroded (eg. Egypt today)The regime’s legitimacy is eroded (eg. Egypt today) No confidence by internal or external investors, so No confidence by internal or external investors, so

standard of living is diminished, further discrediting standard of living is diminished, further discrediting the regimethe regime

But if courts are seen as to integrated with the state, they But if courts are seen as to integrated with the state, they lose credibility (eg. Michael Mandel’s critique of court lose credibility (eg. Michael Mandel’s critique of court systems in capitalist countries; critical legal studies)systems in capitalist countries; critical legal studies) Baar’s point: judges in every country (democratic, Baar’s point: judges in every country (democratic,

authoritarian, Marxist) want their courts to be seen as authoritarian, Marxist) want their courts to be seen as credible (eg. Cuba, Ethiopia, former Czeckoslovakia)credible (eg. Cuba, Ethiopia, former Czeckoslovakia)

Issue of resources or all Courts, especially in non-Issue of resources or all Courts, especially in non-Western countriesWestern countries

Independence & ImpartialityIndependence & Impartiality Courts need independence from political branches of Courts need independence from political branches of

government in order for judges to be as impartial as government in order for judges to be as impartial as possible.possible.

Baar’s observation: judges everywhere strive to Baar’s observation: judges everywhere strive to maximize independence & impartiality (eg. Cuba, maximize independence & impartiality (eg. Cuba, Pakistan, Ethiopia)Pakistan, Ethiopia)

Baar: independence & impartiality recognized in Baar: independence & impartiality recognized in continental Europe & US only for past 2-300 yearscontinental Europe & US only for past 2-300 years

My observation: struggle for independence & My observation: struggle for independence & impartiality in England is at least 1000 years old.impartiality in England is at least 1000 years old.

Concepts of adequate ind/imp vary in jurisdictions. Concepts of adequate ind/imp vary in jurisdictions. Civil law countries: OK for senior judges to Civil law countries: OK for senior judges to “supervise” lower court judges. US: elections for “supervise” lower court judges. US: elections for judges the norm in some states. US: administrative judges the norm in some states. US: administrative independence is essential; not so in Canadaindependence is essential; not so in Canada

Judges everywhere struggle Judges everywhere struggle with threats to courts’ legitimacywith threats to courts’ legitimacy

Ronald Regan’s efforts to influence a judge while Ronald Regan’s efforts to influence a judge while California governorCalifornia governor

Jean Chretien telephoning judges: disciplined by Jean Chretien telephoning judges: disciplined by Trudeau. Jean Charest I disciplined by Mulroney.Trudeau. Jean Charest I disciplined by Mulroney.

Jason Kenney: last February in a speech at U Jason Kenney: last February in a speech at U Western Ont, ridiculed individual judicial Western Ont, ridiculed individual judicial decisions! No discipline by Harperdecisions! No discipline by Harper

Not just in authoritarian regimes where there is Not just in authoritarian regimes where there is sometimes interference with jud independencesometimes interference with jud independence

Baar’s point: judges worldwide generally strive Baar’s point: judges worldwide generally strive for independence and impartialityfor independence and impartiality

The rule of lawThe rule of law

Individual rights can only be limited if Individual rights can only be limited if authorized by law: a generally accepted authorized by law: a generally accepted principle world-wide.principle world-wide.

Thus, we have judicial review on Thus, we have judicial review on constitutional grounds in many countriesconstitutional grounds in many countries

Even without a constitutional bill of rights, Even without a constitutional bill of rights, courts can and do try to protect the Rule courts can and do try to protect the Rule of Law: Roncarelli case in Quebec (1959)of Law: Roncarelli case in Quebec (1959)

Rule of law audit Can police search and seize court files? Can prosecutors set trial dates without judicial

supervision? Are search warrants required? Are search warrants authorized by a judicial

officer on a fixed salary, or does payment vary according to # of warrants approved?

Are judges competent, and do they have independence?

Is a bail hearing available to all those in custody? Do courts rely on police for personnel,

administration, facilities or security?

Institutional effectiveness: a challenge for all courtsInstitutional effectiveness: a challenge for all courts Courts must be organized and administered to ensure they can Courts must be organized and administered to ensure they can

fulfill functions as state actor with independence & impartiality, fulfill functions as state actor with independence & impartiality, and can defend the rule of law.and can defend the rule of law.

Who assigns judges to courts and to cases?Who assigns judges to courts and to cases? Are court orders & judgments enforced?Are court orders & judgments enforced?

Marbury v. Madison: Madison (AG) refused to deliver commission Marbury v. Madison: Madison (AG) refused to deliver commission to Marbury. CJ Marshall knew he couldn’t enforce. So claimed to Marbury. CJ Marshall knew he couldn’t enforce. So claimed Court’s power to interpret the constitution, and said constitution did Court’s power to interpret the constitution, and said constitution did not give SC of US the power to hear Marbury’s case.not give SC of US the power to hear Marbury’s case.

Manitoba “official language” act unconstitutional, but gov’t refused Manitoba “official language” act unconstitutional, but gov’t refused to comply with lower court decisions until 1980s.to comply with lower court decisions until 1980s.

Adequate financial resourcesAdequate financial resources Adequate record keepingAdequate record keeping Qualified court staffQualified court staff Court governanceCourt governance Measuring outcomesMeasuring outcomes

Peter McCormick: Judicial Independence

1701: Act of Settlement in UK Judges appointed according to good behaviour Salaries established Judges not accountable to politicians or bureaucrats Part of tradition: judges are lawyers with

experience, and judges don’t challenge the supremacy of Parliament

Reform of judicial appointments in 70s & 80s enhanced independence

Valente decision of SCC (1985): 3 essential components of JI: a legislated right to a salary, judges can’t be removed unless recommened by an impartial inquiry, & judges must control those aspects of administration that affect caseflow

1990s & beyond Beauregard (1986): judicial pensions. Addition to

Valente: judges require “institutional independence”

MacKeigan v. Hickman: Judges can’t be forced to testify in an inquiry.

Remuneration Reference (1997): “the blockbuster.” Judicial independence requires “Judicial Compensation Commissions.” Govt’s must give recommendations “serious consideration.” Four decisions after that set the standard for “serious consideration” very high. Reliance on preamble to CA, 1867. Hogg: worst decision ever made by SCC.

Bodner (2004): SCC seems to set lower standards for “serious consideration,” perhaps in reaction to criticism.

Ell (2003): independence of sitting Justices of the Peace in Alberta not threatened by requiring them to be lawyers with 5 year experience, sitting for a fixed term of 5 years.

What is judicial independence?

From dissertation research: No interference in adjudication outside

proper procedures in court Independence not absolute Impartiality Autonomy Freedom from coercion Aloofness

Canadian Jud Council:Models of Court Administration (2006)

Authors included Carl Baar, Lorne Sossin Report a result of concern of perhaps a majority

of judges about both independence, and institutional effectiveness

“Australian jurisdictions [after looking at Deschenes Report] feature different models of self-governing Courts with impressive records of improved effectiveness and efficiency. Canada, by contrast, now ranks as one of the last common law jurisdictions in which court administration continues to be controlled by the executive branch of government.”

Models considered 1. Executive Model: Traditional model that exists

in all provinces regarding administration of pure provincial courts, superior courts, and courts of appeal. In Ontario, the Court Services Division of the Ministry of the AG administers the courts, but judges control scheduling of cases and assignment of judges to cases. Each Chief has an Executive Legal Officer to liaise with senior officials in Court Services Division.

2. Independent Commission Model: An independent commission or board would be established with oversight of a separate court administration agency. The head of the court administration agency would take direction from the judiciary with regard to matters directly affecting adjudication, but would be formally accountable to the commission. The commission might consist of members appointed by the judiciary and by the government, but would be independent from both once appointed.

Models 3 & 4 3. Partnership Model: This model “involves different

decision-making mechanisms through which the judiciary and executive would collaborate in setting the direction for court administration. Neither the judiciary nor the executive under this model could impose a decision on the other. …However … it fails to resolve the key concerns with the executive model in a number of dimensions; for instance, the absence of a clearly defined decision maker and the dependence on the particular characteristics of the different partners….”

4. Executive/ Guardian Model: This model involves “a lead executive role in court administration decision-making but allows for judicial intervention in certain circumstances. This model partially resolves the key concerns with the executive model, by giving the Court power to order either that certain court administration activities take place or that certain activities be stopped. However, this model … does not incorporate any ongoing mechanisms to facilitate effective Court involvement in larger strategic decisions that will have fundamental impacts on judicial independence, and the effectiveness and efficiency of court administration. The judiciary could veto decisions, but not initiate them.”

Models 5 & 6 5. Limited Autonomy Model: This model “provides for

judicial control and autonomy over certain areas of court administration decision-making. The executive continues to control the setting of overall court administration budgets, but the Court is self-governing within that global budget. This model resolves many of the key concerns with the executive model. While consistent with a Westminster system of Parliamentary supremacy, and while maintaining democratic accountability over resource allocations, this model is based on judicial control and autonomy over core areas of court administration. However, this model does not address dispute avoidance or dispute resolution between the judiciary and executive over court budgets.”

6. Limited Autonomy & Commission Model: This model “incorporates the features of the limited autonomy model but joins that model with the use of an independent commission on issues surrounding the global budget, which falls outside the scope of limited autonomy, and in this way provides self-governing Courts and the executive with a mechanism for avoidance and resolution of budget disputes.”

Model 7 7. Judicial Model: This model “establishes judicial

control over virtually all court administration decisions, including the setting of the global budget. It resolves some of the key concerns with the executive model, but gives rise to a different parallel set of legitimacy and accountability concerns over the role of the judiciary in self-governing Courts.” Judicial control could be exercised by the Chief Justice or a committee of judges. This model has been adopted by several state court systems in the United States. It has been found to be deficient because the judiciary has often had to become involved in politics in order to try to acquire sufficient funding for the court system, and this has put judicial independence at risk.

Conclusions of Report (1) Canada has fallen behind peer jurisdictions such

as Australia in innovations in court administration. Although the trend in most Canadian provinces is toward an enhanced judicial role within the executive model, the deficiencies of the executive model continue to impair the ability of courts to fulfill court administration goals and objectives.

The analysis of the evidence indicates that there is a compelling constitutional rationale for changing the executive model of court administration in Canada to a model or models which feature a greater degree of judicial autonomy.

This change ensures judicial independence. This change also enhances the accountability of

the judiciary in court administration, as well as achieving improved effectiveness and efficiency in court administration.

Conclusions, cont’d There is significant support for a model of court

administration based on limited autonomy for the judiciary within an overall budget for court administration set by the appropriate legislative authority. Support extends further to linking this limited autonomy to the use of an independent commission for the prevention and resolution of disputes related to the overall size of the budget allocated to the judiciary.

There is also a need for a professional court administration with a chief executive officer responsible to the Chief Justice. The existence of a CEO to handle day-to-day operations will be important in ensuring that the judiciary is not preoccupied with those matters and can focus on overall strategic direction of court administration.

This report concludes that an optimal model of court administration would be one which provides the judiciary with autonomy to manage the core areas of court administration while ensuring (by the carefully considered use of an independent commission) that the authority of the political branches over resource allocation is not used arbitrarily.

Comparing existing judicial-centred models Canada Courts Administration Service for the 4

specialized federal courts: Court Administrator reports to the 4 Chief Justices. CA presents CAS budget to Treasury Board.

Trinidad and Tobago Dept of Court Administration: Chief Exec Administrator reports to the CJ, and liaises with the Administrative Sec to the CJ. CEA presents Dept’s budget to Ministry of Finance.

Ireland Courts Services: Chief Exec Officer reports to a 17-member Board, 9 of whom are judges. CEO presents Board’s budget to Dept of Finance.

South Australia Courts Administration Authority: Senior Court Administrator reports to a committee of 6 judges – State Courts Administration Council. Council recommends budget; not accepted in times of restraint.

Next class

Jan. 24 Judicial Independence: The Challenge of Race & Gender

Class will be led by Prof. Jacobs “Handout” scanned and posted on

class web page.