Court Organization and Court Organization and ManagementManagement

March 8, 2012March 8, 2012 The Perspectives of The Perspectives of

AdministratorsAdministrators

Ian Greene

Millar & Baar, Judicial Millar & Baar, Judicial Administration in Canada (1981)Administration in Canada (1981)

Chapter 5: The Function and Role of Court Chapter 5: The Function and Role of Court AdministratorAdministrator When the book was written, the position of “court When the book was written, the position of “court

administrator” was relatively newadministrator” was relatively new Perry Millar was an “administrative judge” in the BC Perry Millar was an “administrative judge” in the BC

Provincial CourtProvincial Court A number of different administrative functions in courts A number of different administrative functions in courts

(eg. clerks, secretaries, counter staff, records (eg. clerks, secretaries, counter staff, records management, case coordinators) were brought together management, case coordinators) were brought together and placed under the direction of the “court administrator” and placed under the direction of the “court administrator” – a new position. Prior to that, they reported to the senior – a new position. Prior to that, they reported to the senior person in that field (eg. clerk) in the provincial capital.person in that field (eg. clerk) in the provincial capital.

Some observers: court administration is about 100 years Some observers: court administration is about 100 years behind other parts of the public service in adopting behind other parts of the public service in adopting organizational change.organizational change.

Professional Court AdministrationProfessional Court Administration

We learn from our mistakes. Courts should be organized to We learn from our mistakes. Courts should be organized to ensure that administrative personnel feel able to inform senior ensure that administrative personnel feel able to inform senior administration (especially judges) of problems.administration (especially judges) of problems.

““A basic purpose of court administration is to reinforce the A basic purpose of court administration is to reinforce the independence of the judiciary and the authority of the courts.” independence of the judiciary and the authority of the courts.” To accomplish this, judges must accept help of court To accomplish this, judges must accept help of court administrators.administrators.

Chief court administrators come from a variety of backgrounds Chief court administrators come from a variety of backgrounds (lawyers, senior public servants, etc.)(lawyers, senior public servants, etc.)

Early years: only accountability to “inspectors of court Early years: only accountability to “inspectors of court services.”services.”

These offices evolved into something more appropriate.These offices evolved into something more appropriate. Canadian Association of Court Administrators: 1975 – perhaps Canadian Association of Court Administrators: 1975 – perhaps

court administrators could learn from other jurisdictions.court administrators could learn from other jurisdictions.

Internal Goal ConflictInternal Goal Conflict Judges: fairness & expeditious justiceJudges: fairness & expeditious justice Defence council (crim): may benefit from delayDefence council (crim): may benefit from delay Prosecutors (crim): need to ensure witnesses are available & Prosecutors (crim): need to ensure witnesses are available &

sufficient evidence collectedsufficient evidence collected Conflicts between accused persons and their lawyersConflicts between accused persons and their lawyers Civil trials: delay may help richer clients likely to lose; smaller Civil trials: delay may help richer clients likely to lose; smaller

parties are often hurt by delay & forced to settle for lessparties are often hurt by delay & forced to settle for less Witnesses reluctant to appear because of adjournments and Witnesses reluctant to appear because of adjournments and

sharp cross-examinations, and fear of reprisalsharp cross-examinations, and fear of reprisal Expert witnesses: professional integrity threatenedExpert witnesses: professional integrity threatened Police: trials often demoralizingPolice: trials often demoralizing Probation officer: may question philosophical base of courtsProbation officer: may question philosophical base of courts Court reporters: harassed for complex transcripts for minimum Court reporters: harassed for complex transcripts for minimum

paypay Court interpreters: worried about attacks on competenceCourt interpreters: worried about attacks on competence Adversary system heightens conflictAdversary system heightens conflict

Link MechanismLink Mechanism See p. 119 of article: individual courtSee p. 119 of article: individual court Trial court administrator’s job is to “draw together” Trial court administrator’s job is to “draw together”

conflicting parties by coordinating attendance.conflicting parties by coordinating attendance. Trial court administrator is accountable to the judiciary, but Trial court administrator is accountable to the judiciary, but

has a fair degree of independence in coordinating has a fair degree of independence in coordinating attendanceattendance

Mostly a communication functionMostly a communication function But the local court administrator is also accountable to the But the local court administrator is also accountable to the

provincial court administrator, leading to Figure 3 on p. 122provincial court administrator, leading to Figure 3 on p. 122 Provincial Link Function: local court administrators report Provincial Link Function: local court administrators report

to the Provincial court administrator, who has a different set to the Provincial court administrator, who has a different set of “link” functions to deal with. Competent Provincial and of “link” functions to deal with. Competent Provincial and Local administrators lead to success, if relationship with Local administrators lead to success, if relationship with judiciary is positive.judiciary is positive.

Organizational ModelsOrganizational Models

Traditionally, there have been separate Traditionally, there have been separate administration services in the provinces for administration services in the provinces for courts with provincially-appointed judges, courts with provincially-appointed judges, and the supererior courts with Federally-and the supererior courts with Federally-appointed judges. Chief administrator of a appointed judges. Chief administrator of a superior court usually known as “registrar.” superior court usually known as “registrar.” As of 1980s, political appointments.As of 1980s, political appointments.

Recommended – integration between the Recommended – integration between the two court services both in terms of function two court services both in terms of function and supervision. Weberian model of merit.and supervision. Weberian model of merit.

Provincial Court AdministratorProvincial Court Administrator

What should duties be? (127-130)What should duties be? (127-130)

What should qualifications be? (130-What should qualifications be? (130-132)132)

Sossin, Democratic Sossin, Democratic AdministrationAdministration

1991 York conference (Greg Albo, David Langille & 1991 York conference (Greg Albo, David Langille & Leo Panitch) – A New Kind of State? Popular Power Leo Panitch) – A New Kind of State? Popular Power and Democratic Administration (1993)and Democratic Administration (1993)

““participatory democracy;” democratizing the public participatory democracy;” democratizing the public service & moving away from the military modelservice & moving away from the military model

Graduate Diploma in Democratic AdministrationGraduate Diploma in Democratic Administration Osborne & Gaebler (1993): Osborne & Gaebler (1993): Reinventing GovernmentReinventing Government Citizens Charter (1993) in UK: all public services had Citizens Charter (1993) in UK: all public services had

to publicize standards & establish complaints to publicize standards & establish complaints mechanismmechanism

1990s: Democratic admnistration overtaken by 1990s: Democratic admnistration overtaken by “new public management”“new public management”

Citizen Empowerment (1)Citizen Empowerment (1)

Critiques of conventional bureaucracyCritiques of conventional bureaucracy Accountability (infuse democracy into Accountability (infuse democracy into

administration)administration) Ministerial responsibility (difficult to make work Ministerial responsibility (difficult to make work

effectively with a very large & complex bureaucracy)effectively with a very large & complex bureaucracy) Judicial review (can be effective for individual Judicial review (can be effective for individual

accountability but expensive)accountability but expensive) Ombudsman? (**Ont omb inv courts?)Ombudsman? (**Ont omb inv courts?) Police oversight bodies (internal accountability, Police oversight bodies (internal accountability,

Toronto Police Services Board, Special Investigations Toronto Police Services Board, Special Investigations Unit, Civilian Commission on Police Services)Unit, Civilian Commission on Police Services)

Citizen Empowerment (2)Citizen Empowerment (2)

ParticipationParticipation What degree of participation is appropriate What degree of participation is appropriate

for different administrative settings? for different administrative settings? (Courts?)(Courts?)

Forms:Forms: Town hall meetingsTown hall meetings SurveysSurveys Public hearingsPublic hearings Public interest group and/or stakeholder Public interest group and/or stakeholder

consultationsconsultations Referenda Referenda

Origins of Democratic AdministrationOrigins of Democratic Administration Max Weber: for efficiency and effectiveness (“ideal type”) – Max Weber: for efficiency and effectiveness (“ideal type”) –

impartiality, legal relations between employees & impartiality, legal relations between employees & supervisors, neutrality, tenure so as to speak truth to power supervisors, neutrality, tenure so as to speak truth to power (Gary Webster from TTC fired?), merit, hierarchy, rule of law, (Gary Webster from TTC fired?), merit, hierarchy, rule of law, separation between administration & politics.separation between administration & politics.

Much better than other types tried (eg charismatic) – but Much better than other types tried (eg charismatic) – but Weber was aware of the downside: impersonalization: “iron Weber was aware of the downside: impersonalization: “iron cage constructed by specialists without spirit, sensualists cage constructed by specialists without spirit, sensualists without heart.” Domination through knowledge.without heart.” Domination through knowledge.

Politics-administration dichotomy – not realistic. Patronage Politics-administration dichotomy – not realistic. Patronage generally overcome, but public servants have discretion – not generally overcome, but public servants have discretion – not recognized in the “ideal type” or . Necessitated by growth of recognized in the “ideal type” or . Necessitated by growth of welfare state.welfare state.

““bottom up” approach in strategic planning recommended. bottom up” approach in strategic planning recommended. Take governments away from the bureuacrats & return to the Take governments away from the bureuacrats & return to the people.people.

State of democratic administrationState of democratic administration Frequently appauded; rarely implemented. Frequently appauded; rarely implemented.

Why?Why? New Left: increased participation of usersNew Left: increased participation of users

Transition from old leftTransition from old left Feminist analysisFeminist analysis

New Right: increased competition, choice, New Right: increased competition, choice, privatizationprivatization New public managementNew public management Departure from its originsDeparture from its origins Experimentation and failureExperimentation and failure

Future of Democratic AdministrationFuture of Democratic Administration Citizens engagement modelCitizens engagement model Deliberative democracyDeliberative democracy

Facilitate public deliberationFacilitate public deliberation Consult with citizensConsult with citizens Relationships of mutual trustRelationships of mutual trust Accountability to citizensAccountability to citizens

Attachment rather than detachmentAttachment rather than detachment Impact of globalizationImpact of globalization My view: integrityMy view: integrity

Marian Tyson, Trial Court Restructuring: Marian Tyson, Trial Court Restructuring: A Court Administrator’s PerspectiveA Court Administrator’s Perspective

When reforms are introduced into courts, it is court staff When reforms are introduced into courts, it is court staff who need to implement them; thus staff need to be who need to implement them; thus staff need to be involved in planning reformsinvolved in planning reforms

Reforms already taking place: family court reunifications; Reforms already taking place: family court reunifications; procedures to assist self-represented litigantsprocedures to assist self-represented litigants

Trial court unification: no progress in 20-30 years (except Trial court unification: no progress in 20-30 years (except for merger of country/district courts with superior courts) for merger of country/district courts with superior courts) because there are so many divergent and strongly held because there are so many divergent and strongly held views (Superior court judges, provincially-appointed views (Superior court judges, provincially-appointed judges, Canadian Bar Assoc, CJC, Canada Law Reform judges, Canadian Bar Assoc, CJC, Canada Law Reform Commission)Commission)

Gov’ts postpone difficult decisions (such as trial court Gov’ts postpone difficult decisions (such as trial court unification)unification) Hoping stakeholders will find a solutionHoping stakeholders will find a solution Hoping the problem will go awayHoping the problem will go away

Trial court unificationTrial court unification Mid-1990s: every provincial AG supported itMid-1990s: every provincial AG supported it 3 prov’s ready to start pilot projects & New Brunswick 3 prov’s ready to start pilot projects & New Brunswick

started; gave up when SCC ruled that the way NB tried it started; gave up when SCC ruled that the way NB tried it was unconsitutitional – s 101 issue. What would be required was unconsitutitional – s 101 issue. What would be required would be federal appointments for all trial court judges would be federal appointments for all trial court judges hearing cases falling within definition of “superior court”hearing cases falling within definition of “superior court”

Instead of trying this new approach all provinces just gave Instead of trying this new approach all provinces just gave up; likely because of strong opposition of CJC, CBA & CJCup; likely because of strong opposition of CJC, CBA & CJC

Purpose of reform: reduce delay & confusion & simplify Purpose of reform: reduce delay & confusion & simplify process. Must determine whether the reform is likely to process. Must determine whether the reform is likely to result in these improvements, or may make things worseresult in these improvements, or may make things worse

Nova Scotia: reforms have allowed senior court officials to Nova Scotia: reforms have allowed senior court officials to take on some minor adjudicative duties. Small claims court take on some minor adjudicative duties. Small claims court given expanded jurisdiction & can sit evening with part-time given expanded jurisdiction & can sit evening with part-time judgesjudges

Other reformsOther reforms Superior courts: process-heavy, while small claims Superior courts: process-heavy, while small claims

courts very informal and quickcourts very informal and quick Room for courts that expect preparation from lawyers Room for courts that expect preparation from lawyers

but the process is streamlinedbut the process is streamlined Nova Scotia moved to fewer JPs but ensured that they Nova Scotia moved to fewer JPs but ensured that they

are properly trainedare properly trained Uncertainty about reform leads to stress and is a Uncertainty about reform leads to stress and is a

cause of unnecessary delaycause of unnecessary delay Reforms of administrative processes can take place Reforms of administrative processes can take place

without larger structural reforms and can reduce without larger structural reforms and can reduce delaysdelays

Politics is the art of the possiblePolitics is the art of the possible Creativity and realization of what is feasible (given Creativity and realization of what is feasible (given

appropriate interventions and their likely success)appropriate interventions and their likely success)