Court Organization

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Court Organization ManagementJanuary 10, 2013

• Ian Greene Lesley Jacobs

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Topics for This Evening

• Overview of course outline guest speakers Carl
  Baar etc.
• Handouts scanned placed on Moodle
• Presentations
• Graduate Diploma in Justice System Administration
• Introductions to each other
• Introduction to the subject
• Greene, Ch 1
• Greene Baar, Judicial Administration

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G.K. Chesterton, Tremendous Trifles (in Steve
Bogira, Courtroom 302 A Year Behind the Scenes
in an American Criminal Courthouse, Knopf, 2005)

• The horrible thing about all legal officials,
  even the best, about all judges, magistrates,
  barristers, detectives, and policemen, is not
  that they are wicked (some of them are good), not
  that they are stupid (several of them are quite
  intelligent), it is simply that they have got
  used to it. Strictly they do not see the
  prisoner in the dock all they see is the usual
  man in the usual place. They do not see the
  awful court of judgment they only see their own
  workshop.

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Exodus Chapter 18, 13-27

• 13 Now on the day after, Moses took his seat to
  give decisions for the people and the people
  were waiting before Moses from morning till
  evening.
• 14 And when Moses' father-in-law saw all he was
  doing, he said, What is this you are doing for
  the people? why are you seated here by yourself,
  with all the people waiting before you from
  morning till evening?
• 15 And Moses said to his father-in-law, Because
  the people come to me to get directions from God
• 16 And if they have any question between
  themselves, they come to me, and I am judge
  between a man and his neighbour, and I give them
  the orders and laws of God.
• 17 And Moses' father-in-law said to him, What
  you are doing is not good.

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• 18 Your strength and that of the people will be
  completely used up this work is more than you
  are able to do by yourself.
• 19 Give ear now to my suggestion, and may God be
  with you you are to be the people's
  representative before God, taking their causes to
  him
• 20 Teaching them his rules and his laws, guiding
  them in the way they have to go, and making clear
  to them the work they have to do.
• 21 But for the rest, take from among the people
  able men, such as have the fear of God, true men
  hating profits wrongly made and put such men
  over them, to be captains of thousands, captains
  of hundreds and of fifties and of tens
• 22 And let them be judges in the causes of the
  people at all times and let them put before you
  all important questions, but in small things let
  them give decisions themselves in this way, it
  will be less hard for you, and they will take the
  weight off you.

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• 23 If you do this, and God gives approval, then
  you will be able to go on without weariness, and
  all this people will go to their tents in peace.
• 24 So Moses took note of the words of his
  father-in-law, and did as he had said.
• 25 And he made selection of able men out of all
  Israel, and made them heads over the people,
  captains of thousands, captains of hundreds and
  of fifties and of tens.
• 26 And they were judges in the causes of the
  people at all times the hard questions they put
  before Moses but on every small point they gave
  decisions themselves.
• 27 And Moses let his father-in-law go away, and
  he went back to his land.

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Roscoe Pound1870-1964

• American jurist, botanist, and educator, chief
  advocate of sociological jurisprudence and a
  leader in the reform of court administration in
  the United States. After studying botany at the
  University of Nebraska and law at Harvard
  (188990), Pound was admitted to the Nebraska
  bar, and he practiced law while also teaching at
  Harvard. (Encyclopedia Britannica). He became
  Dean of the Harvard Law School. He was a leader
  in the judicial realist movement (contrast to
  positivism natural law)
• 1906 article, The Causes of Popular
  Dissatisfaction with the Administration of
  Justice, led to the study of judicial
  administration in the U.S., and later in Canada

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Dissatisfaction with any legal system

• mechanical operation of the rules
• friction between law and public opinion
• perception that administration of justice is easy
  and anyone can do it
• impatience of any restraint

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Dissatisfaction with the Anglo-American system

• individualist spirit
• legal contest is a contentious procedure, which
  turns litigation into a game ( judge merely
  umpire)
• political jealousy put on the system by principle
  of supremacy of law
• no generally accepted school of jurisprudence,
  resulting in tinkering where comprehensive reform
  is needed
• the bulk of the legal system is based on case law
  (rather than a code)

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American judicial organization and procedure is
archaic

• multiplicity of courts
• preservation of concurrent jurisdictions
• waste of judicial power that all this involves
• rigid districts of courts or jurisdictions
• consuming time with pure practice
• unnecessary re-trials

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Environment of judicial administration

• popular lack of interest in justice (jury duty a
  bore)
• strain on law because it is also expected to
  teach morality
• effect of transition to a period of (more intense
  and poorly-thought-out or worded) legislation
  (and programs). When the legislated policy
  doesnt work, the courts get blamed. (eg. Insite
  decision in Vancouver)
• putting courts into politics
• legal profession is a trade employer-employee
  relations replace real lawyer-client relations
• public ignorance caused by inaccurate or
  sensational reporting

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Conclusion

• In spite of all this, courts are not corrupt. In
  fact, they are better than 200 years ago.
  Because our law schools are so good, and with
  assistance of social sciences, and active bar
  associations, we may look forward to a near
  future when our courts will be swift and certain
  agents of justice, whose decisions will be
  acquiesced in a respected by all.

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Greene, ch. 1

• Canadian Democratic Audit
• Purpose of courts dispute resolution, fill in
  gaps in legislation, prevent abuse of power
• History of courts common law vs civil law
  systems
• Judges as lawyers in common law world
• Structure and function of Canadian courts
• integrated system vs. dual system (as in US)
• Indictable vs summary conviction hybrid
• High rates of settlement 95 civil, 90
  criminal
• Judicial impartiality
• Judicial appointment
• Judicial education
• Judicial discipline
• Role of courts in democracy judicial disretion

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Canadian Court Structure

• 
  
  ____________________________ federal
  appointments
  Supreme Court of Canada
  and administration
  9 judges
  
  
  ___________________________
  
  _____________________
  
  _______ ________ __________________
  ______
  federal
  
  federal
  appointments Tax Federal
  10 provincial 3 territorial
  appointments,
  admin. Court Court
  courts of appeal provincial
  
  27 js 47 js
  128 judges
  administration
  ______ ________
  _______________________
  
  
  
  _____________ ______
  
  federal
  
  appointments provincial
  superior
  provincial
  trial courts
  
  administration 829 judges
  
  
  __________________
  
  ___________________
  
  
  
  
  
  
  ___________ __________
  
  (All counts as
  of 2001)
  provincial pure provincial and
  appointments
  territorial courts
  admin.
  984 judges
  
  ______________________

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Baar Greene

• Development of court/judicial administration as a
  discipline in Canada Brock program and successor
  at York
• Association of Canadian Court Administrators
• Judicial Independence tenure, financial,
  administrative (more detail next week) relation
  to impartiality
• Masters in Their Own House (1981) Deschenes
• Adjudication vs mediation vs arbitration
• Caseflow Management (Feb 16 with Carl Baar)
• Restorative justice eg sentencing circles,
  victim-offender rehabilitation programs
• Integrated justice
• New professionalism of court administrators