Reform-Minded BC Ready to Tackle Sacred Cows of Justice System

A Broad and Ambitious Justice Review

BC Premier Christy Clark along with her newly-titled Minister of Justice and Attorney General Shirley Bond announced a broad-ranging review of the BC justice system last week. In conrast to many previous reviews in other jurisdictions, this review is not lacking in ambition or scope. The review includes a Green Paper on Modernizing British Columbia’s Justice System and an internal audit review of the province’s justice system. It also includes a review of BC’s criminal charge assessment process, a Legal Aid Services review and a new plan to post justice system data on the ministry website. Bond appointed well-respected Vancouver lawyer Geoffrey Cowper, Q.C. of Faskens as Chair of the review.

The timeline for this sweeping review is short, perhaps unrealistically so unless the BC Government already has a package of reforms in mind. According to the Executive Summary of the Green Paper, “In July, government will issue the results of the review and consultations, along with an update on ongoing administrative reforms and will develop a plan of action to be outlined in a White Paper on Justice Reform in September 2012” which will also include any plan for legislative changes.

For those unfamiliar with Green/White papers in policy development, the Green Paper explains that:

A Green Paper is issued by government to indicate that:

• it is plain that serious consideration must be given to solving a challenge faced by government
• determining the right course of action first requires bringing the issues to the attention of the public and key stakeholders in a clear manner
• government is committed to announcing legislation or other meaningful action in a subsequent White Paper

While often used by Whitehall in England, White/Green papers have become virtually extinct in Canada. They were frequently used by Tony Blair’s Labour government, especially in constitutional reforms.

Tackling Sacred Cows

The Green Paper identifies “Justice System Culture” as the greatest challenge to change. Specifically,

• how independence is interpreted,
• resistance to systems thinking, and
• practitioner-dominated management.

There is no cow more sacred in the justice system than “independence”: judicial and prosecutorial. The Supreme Court of Canada has elevated both to constitutional status. That has not stopped the BC review from targetting them:

Key parts of the system are, as a part of the rule of law, operationally independent by law. But independence should not be used as a shield against scrutiny on issues related to public administration (for example, where business process improvements are needed). Overbroad concepts of independence that serve no real legal purpose make it harder to understand why process and other justice system inefficiencies occur. They also limit accountability.

Judges will be reading closely and nervously the section on p. 8 of the Green Paper entitled “The principle of independence and why it matters”. Here the importance of independence is explained but clear limits are also asserted:

Where the concept of independence broadens beyond decision-making on cases, and matters such as judicial administration, to include more general considerations of how to manage a publicly-funded system, there can be risk to the public interest. Keeping information about each of the parts of the system in ‘silos’ means that getting to the bottom of puzzling, costly trends becomes very difficult. And independence efforts intended to improve access to justice, more efficient case management, and better outcomes, run the risk of working against each other.

Striking the right balance . . . is the key challenge for our system and the underlying theme of this Green Paper.

The Green Paper does not acknowledge that the independence of prosecutors, judges and counsel represents a real challenge to the success of the review itself. One wonders what degree of consultation has occurred with Chief Justices, judges’ associations, Crown Counsel associations and the defence bar, prior to last week’s announcement and release of the Green Paper.

Independence is only one of ten identified challenges. The others are: Resistance to Systems Thinking; Dominance of Operational Practice in Business Analysis; Scheduling Problems; Crown Case Management; Judicial Case Management; Representation of Accused Persons; Non-resolution of Small Claims; Charge Approval; and Court-Based Behaviour Management of Lower-Risk Offenders.

Data on the Justice System

According to one of the five backgrounders issued with the announcement, “provincial, regional and local court statistics will be posted to a new data dashboard on the Ministry of Attorney General’s JusticeBC website to give the public information about the justice system’s operations and progress. . . . Among data to be made available over the next few weeks are:”

• Individual courthouse sitting hours.
• Number of new cases and court appearances.
• Number of concluded cases by number of days they took to resolve.
• Number of documents filed in civil, family and criminal law cases.
• Number of cases at the B.C. Provincial, Supreme and appeal court levels.

BC justice statistics are currently posted online here but this initiative appears to make the availability of such data more user-friendly. Users can currently search for justice data and statistics such as the number of pending court cases and average time required to conclude a court matter in specific locations. The BC Justice Ministry is developing a mobile version for use on smart phones to be releasted later this spring. It probably won’t threaten Angry Birds™ but it will be of interest to many Slaw readers.