The BC Government has started to respond to the widespread concern about the growing gridlock in the Province's justice system. Earlier this week, it released a green paper titled "Modernizing British Columbia's Justice System". Anyone concerned about the future of BC's courts needs to review the green paper, because it will frame the coming debate.
"Decreasing Case Loads and Soaring Costs"
The authors of the paper - a working group of deputy ministers - set the stage by describing a situation in which they argue costs and delays are rising, in spite of the fact that crime rates are dropping and case loads are stable or falling. The numbers relied on are contrived, according to Les Leyne of the Victoria Times Colonist:
Some of the numbers in the paper are contrived to maximize the impression of a paradox. The 13,000 fewer cases cited, for instance, is measured from 10 years ago. But the audit found the number of new cases has increased by 15,000 in the past five years.
The justice system has been deprived of resources by the government for years, but framing the problem as a "paradox" absolves the government of responsibility. That is the first clue that the focus of the government's attention will be on how the existing level of resources is used, rather than raising funding back to minimum levels.
Justice System Culture
The green paper is critical of the culture of the justice system, and calls for reforms in three areas: how independence is interpreted, the perceived resistance to "systems thinking", and practitioner dominated management.
Some of these concerns seem valid. I have never understood why, for example, all of the justice system's critical decision makers come from an identical background - they are lawyers with years of success in the practice of law. There is little or no input into day-to-day decisions from people with expertise in fields like public administration or business management.
But if the authors of the green paper intend to "reform" the justice system through the wholesale replacement of lawyer/managers by business school grads, they risk the loss of the characteristics that make the system work. Principles like judicial independence and prosecutorial discretion will not translate easily into a business plan, and seem absolutely antithetical to what the green paper calls "systems thinking".
Inefficient System Management
Anyone exposed to the daily workings of the BC justice system will find it hard to argue that the system is riddled with inefficiency. Proposals for greater continuity of file responsibility in Crown Counsel's office, for narrowing the focus of judicial case management to the cases that can actually benefit from judicial intervention and for a new model of trial scheduling all seem promising.
Processes That Don't Work
A proposal to create a civil disputes resolution tribunal for small claims matters with little monetary value and no substantive issues may be fruitful, although most claimants will probably need to be convinced that their claim is not valuable or full of issues. Another proposal for increased use of alternative measures is consistent with new policies already being applied by Crown Counsel.
One proposal that will be controversial is to return to the old practice of having police lay charges, rather than having Crown Counsel review police reports and approve the charges to be laid. Gerry McCuaig, a senior prosecutor from Alberta, has been asked to make recommendations about which practice would be best for BC.
Justice System Review
The green paper proposed a short review, to be completed by July 2012, to identify ways to improve the system. Geoffrey Cowper, QC, has been appointed to chair the review. His mandate will be to make recommendations on:
- the most appropriate ways to safeguard independent decision-making authority within the system;
- the most appropriate ways to safeguard and allocate financial decision-making authority;
- the need for consultation with other participants regarding independence and best expenditures;
- the areas in which justice agencies should have shared or collaborative decision-making authority;
- practical and effective means by which consultation and shared decision-making can best take place; and
- the steps, including legislation if any, within the constitutional authority of the province that would be needed to implement the recommendations.
(Curiously, his mandate does not appear to extend far enough for him to offer input into many of the proposals in the green paper.)
Some of the changes proposed could have a fundamental impact on the independence of the justice system, and the discretion of key players within it. The phrase "systems thinking" is used liberally throughout the document, and if it means what it sounds like, the justice system could be radically altered. All members of the justice system - lawyers, Crown Counsel and the judiciary - need to monitor the debate and get involved when appropriate in order to ensure that principles of independence and discretion are given the weight they deserve.