Discussion Group, Order in the courtroom

Karen Selick
The Next City
December 21, 1996
Discussion

AS I SIT DOWN TO START WRITING THIS ARTICLE, I am about three weeks away from a custody trial. No, it’s not my child I’ll be fighting over. I am a lawyer, and I’ll be handling this for a client.

It has taken us a long time to get this close to trial. Although Ontario law makes special provision for custody cases to be heard within six months, in my experience meeting the deadline is the exception, rather than the rule. This client’s legal ordeal began 16 months ago.

I feel the way an impresario must feel as he organizes a grand theatrical event. I’ve been interviewing potential witnesses, trying to decide who will be the best person for each role, preparing my own script of questions and rehearsing with the witnesses I’ve selected. Their performance will change the life of a little boy, and we get only one chance to do it right.

But I face a problem that no impresario faces: I still don’t know for sure when the show will go on. The theatre can’t be booked for me; no program can be printed. Instead, our case is on a long list, sandwiched in between a nuisance action and some other couple’s divorce. The case at the top of the list will start on Monday morning three weeks from now, but I can only guess at when ours will be reached. It might move up the list if some of the cases ahead of it settle, but it might also be delayed if those cases take longer than estimated. If that happens, we might not be reached during this trial sitting at all. Instead, we’d have to wait until another sitting about two months later.

So here I am, trying to coordinate the schedules of half a dozen people, including one psychologist and two business people, some of them nervous, first-time performers — and I can’t even tell them for sure what month they’ll be needed, let alone what day or what hour. If we get postponed for more than a couple of weeks, I’ll have to interview these witnesses all over again to ensure their evidence will be fresh in their minds. That would be a lot of money down the drain for my client.

There’s another uncertainty, too. Two judges will be sitting that week. The courthouse has given me their names, but I don’t know which one will be assigned to my case. I’ve appeared before both of them before. Their personalities are very different, and I will present my client’s case differently depending on which of them I get. Too bad I can’t find out in advance so that I could focus my preparations more specifically and save my client some fees.

But it might not make much difference. The courthouse has a poor record for predicting which judges will attend. Often, duties are swapped at the last minute with judges from distant towns, and someone totally unexpected shows up. Sometimes I even suspect there’s a policy of giving lawyers deliberate misinformation about who the judge will be. Judge shopping — the tactic of postponing a trial when assigned to an undesirable judge — is definitely frowned upon in our court system. Maybe court administrators are trying to protect the popular judges from being overworked and ensure that the unpopular ones do their fair share. Or maybe it’s official policy not to admit that there are good judges and bad ones.

But lawyers know judges differ enormously. Some judges are consistent in their reasoning from one case to the next; others are like loose cannons on deck in a stormy sea. Some are pleasant and polite to deal with; others are grouchy and rude. Some are hardworking and conscientious; others start court late, knock off early and fall asleep during trials. In this case, I already know that merely because my client is the child’s father, he faces an uphill battle. Both of the judges whose names I’ve been given have clearly stated their bias, in pronouncements made both inside and outside the courtroom, for giving custody of young children to their mothers. I’ve heard other judges in our district say the same thing. I’ve already warned my client of this.

It must be hard for him to keep his spirits up. He is getting a first-hand look at everything that’s wrong with Canada’s court system: backlogs, biased judges and an almost complete disregard for the convenience and satisfaction of those who are forced to use the court system. “If I ran my business this way,” he tells me, “I wouldn’t have any customers.”

“Oh, yes you would,” I respond, “if you gave away your product for free. In fact, you’d have a backlog — just as our courts do.”

An economic problem, not a legal one

UNFORTUNATELY, THIS CLIENT IS NOT THE ONLY PERSON WHO HAS NEVER thought about the connection between the price people pay to use our justice system and its quality and availability. He can be forgiven, however; this is his first involvement with the courts. Others who are involved every day of their lives — lawyers, judges and court administrators — haven’t made the connection either.

It’s not that the problems aren’t well known. The newspapers have been full of reports over the last few years about criminal charges being dropped due to courtroom backlogs and litigants in civil cases waiting years before their cases get heard. The Ontario Attorney General’s office announced last year that 38 of its 61 court districts have such serious backlogs that accused persons might go free without ever coming to trial. A recent task force of the Canadian Bar Association reported that in some Ontario cities, civil cases sit as long as 25 months before coming to trial.

The problem of undesirable judges has also become a focus of public concern, as one faux pas after another has been reported by the press. There was Mr. Justice Jean Bienvenue who said Jews didn’t suffer in the concentration camps and women can sink to depths of vileness unattainable by men. There was the judge who reduced a child molester’s sentence because he had penetrated his victim anally rather than vaginally, thereby sparing her virginity. There was the judge who skipped court one day because he was upset about work being done on his car and he wanted to wait at the garage.

There’s been no shortage of ideas from the full-time players in the justice system about how to fix the problems. Typically, suggestions include hiring more judges, paying them higher salaries, sending them on more training courses, building more courtrooms, buying more computers . . . well, you get the idea. Most of the recommendations involve spending even more public money than we’re already spending. In times of budget cuts, ideas like these are non-starters. Besides, they are somewhat suspect — they tend to come from those who have the most to gain from their implementation.

To members of the legal community, these problems may seem novel, but to members of another discipline — economists — they’re simply a concrete example of a most familiar problem: how to allocate scarce resources among competing uses. All the legal expertise in the world can’t solve the problem because it isn’t a legal problem, it’s an economic one. Fortunately, there are economists working on it.

One is Bruce Benson, distinguished research professor in the Department of Economics at Florida State University. He is the author of a book entitled The Enterprise of Law and numerous other articles on this subject. Professor Benson points out that our courts are an instance of what economists call “the tragedy of the commons.”

This phrase comes from the title of a now famous 1968 article in Science magazine. Biologist Garrett Hardin pointed out that where pasture land is open to all nearby farmers free of charge, every farmer has an incentive to keep adding extra animals to his herd, since he can increase his revenues at no cost to himself. Each additional animal pastured in the common field brings closer the day when the field will become exhausted by overgrazing, but that distant cost is not borne exclusively by the individual; rather, it is borne by the group of farmers collectively. In deciding how many animals to pasture, every farmer’s own self-interest will impel him to increase his herd, even though the sum of all such individual decisions will spell tragedy for the field, and ultimately for the group.

This pattern of overexploiting a free or common resource is responsible for such diverse fiascoes as the near extinction of the North American buffalo, the deterioration of public parks and the depletion of fish stocks in the oceans.

There are several ways of allocating scarce resources among competing uses. One method is to sell them for whatever the market will bear. Another divides the resource equally among all claimants at some price less than the market would bear; for example, by way of ration cards. A third method gives the resource to all comers, theoretically for free, but makes them wait in line for it. It is this method that we use in our courts.

Note that the “free” aspect of queuing is true in only a limited sense. Even though litigants pay a negligible amount in cash to the government for use of the courts, there are still costs involved in waiting — some monetary and others not. In medical malpractice suits, for instance, pain and suffering can go unrelieved for years or be aggravated by the ordeal of waiting and the lack of funds for remedial care. Sometimes the patient dies before the trial occurs. In child custody cases, both parents and children experience extreme stress, as everyone’s life is put on hold. Sometimes the delay itself induces a judge to make permanent a less-than-optimal interim arrangement, for fear that change would be more disruptive than maintaining a flawed status quo. In commercial cases, defendants may go bankrupt before judgment is rendered against them, thereby depriving the plaintiff of any practical remedy. In every kind of case, witnesses may move away or even die, increasing the eventual cost of conducting the trial or preventing justice from ever being done.

Free courts as a tragedy of the commons

THE TRAGEDY OF THE COMMONS AFFECTS OUR JUSTICE SYSTEM IN SEVERAL ways. In civil litigation, free courts encourage some plaintiffs to bring actions who would otherwise be dissuaded by the expense of paying for the services of a judge. The resulting backlog helps those whose cases are relatively weak. Sometimes a defendant will choose to pay off a plaintiff (“settle out of court”) simply to avoid the ordeal of waiting and the expense of interlocutory procedures. This phenomenon itself encourages more people to sue. A vicious circle develops.

The commons problem is held in check to some extent by the fact that litigation has other expenses attached to it — primarily, the fees paid to lawyers. But even there, political trends over the past decade or more have been toward subsidizing or eliminating legal costs in circumstances that some mandarin, somewhere, has deemed worthy. Complaints under human rights legislation, for example, cost nothing to the complainant to prosecute. The legal services are provided free of charge by human rights commissions. Not surprisingly, there have been enormous backlogs of human rights cases. Similarly, constitutional challenges have been subsidized either directly by the federal government’s Court Challenges Program or indirectly by the intervention of tax-funded groups such as the Women’s Legal Education and Action Fund. Predictably, constitutional cases have burgeoned. Would-be litigants with low incomes have become eligible for free or subsidized legal services through provincial legal aid plans. Not coincidentally, the number of people demanding assistance has skyrocketed, and many provincial plans have experienced funding crises. The combined effect of free legal services and free courtroom services is at least one component of the litigation explosion.

Many Canadian courts serve as both civil and criminal courts, with judges assigned interchangeably to both types of cases. When civil litigation is encouraged by below-market pricing, the extra demand for courtrooms and judges inevitably starts to create backlogs in the criminal justice system too.

One might expect the number of criminal trials — unlike the number of civil trials — to be independent of the fact that courts don’t charge for their services. After all, criminal defendants don’t pay for their trials even if they’re found guilty, so an individual’s decision to participate in crime should not be affected by the possibility of having to pay for his own judge. However, it is not the criminals whose demand for court services should be considered here — it is the rest of the population.

Economist David Friedman points out, in his book The Machinery of Freedom, that a country’s citizens hold varying opinions about what actions should constitute crimes. Some people want laws prohibiting others from engaging in “victimless crimes” — activities such as drug use, gambling, pornography, prostitution and, not that long ago, homosexual practices. But, says Friedman, “People who want to control other people’s lives are rarely eager to pay for the privilege.” Under our criminal justice system, they don’t have to. By supporting laws banning their pet peeves, the puritans in our society can shift the cost of their preferences to the whole of society. In other words, the commons system of criminal law enforcement creates an artificially high demand for more laws prohibiting more things.

Consider, for example, Bill C-47, the proposed Human Reproductive and Genetic Technologies Act given first reading in the House of Commons in June 1996. It will make illegal such transactions as surrogate mothering contracts and the sale of sperm for artificial insemination, even though the individuals involved may be fully informed, willing participants. Most Canadians have little interest in preventing these activities and even less in seeing their tax money spent to prosecute transgressors, especially if it will mean diverting scarce courtroom resources away from the prosecution of murderers, thieves and rapists. But a small group that feels strongly about this subject has campaigned for legislation that everyone else will pay for — just like the farmer who decides to pasture another animal on the common field.

In the United States, Benson says, “an estimated 30 to 50 per cent of the criminal justice system’s resources are employed against people who have not harmed persons or property.”

Our system of supplying free judicial services affects not only the availability of court services, but also the quality. Once hired, judges are very difficult to discipline. Only Parliament can remove a federally appointed judge from the bench. The recent recommendation of the Judicial Council that Justice Jean Bienvenue be removed from office was a first in Canadian history. Lawyers are reluctant to complain about a judge who is biased, rude, lazy, inefficient or unintelligent for fear of reprisals the next time they have to appear before that judge. A system that makes us all beggars when it comes to eking out some court time also says we can’t be choosers about which judge we get.

Another problem is that judges are paid an annual salary. With incomes that are not tied to performance in any way, they have little incentive to provide efficient or high quality service. If they make bad decisions and are overruled on appeal, no consequences befall them. If their dockets become backlogged, they are not required to work overtime. There is nothing except their own integrity to keep them hard at work. Even the saintliest individual will be inclined to slow down when nothing motivates him to do otherwise and he observes his less saintly brethren working at a more leisurely pace for the same salary.

More public funding won’t shorten the queue

“THE RULE OF LAW IS NOT A FREE GOOD,” WRITES CANADA’S CHIEF JUSTICE Antonio Lamer in the Canadian Judicial Council’s annual report. This sentence gives me a brief moment of encouragement. Perhaps a light is dawning in the upper echelons of our justice system. Eagerly I read on. “It requires the expenditure of public resources, the amount of which must be adequate to maintain the quality of justice and public confidence in the system of justice.”

Darn. He hasn’t caught on. Yes, we all know justice isn’t free. Money is required to pay for judges, court staff, buildings, paper and so on. But why do we let businesses and individuals who use the system treat it as if it were free? Why assume that public resources are required to maintain the quality of justice?

Not everyone who has a gripe with someone else is on the court’s waiting list. Some people, looking at the backlog, decide that their dispute is just not important enough to pursue; the harm of being involved in protracted litigation outweighs the benefit they might finally achieve. They decide to suffer in silence. Others look at the backlog and decide their dispute is far too important to wait. They’ll lose more by delaying than by paying privately for dispute resolution services. They arrange for arbitration or mediation.

Increasing the public funding of our courts won’t make the backlog disappear. What it will do is change the results of the cost-benefit analysis for some potential litigants. Some of the people who previously opted out because of the delays will be encouraged to get back into line when they perceive a shorter wait. Soon the line will be as long as it was before. This is inevitably the result when the queuing method of resource allocation is selected over the market method.

Would the last litigant out please turn off the courtroom lights?

AS THE PRESSURE ON THE COURTS MOUNTS, FRUSTRATED USERS of the system have started taking matters into their own hands. An ad hoc privatization of the justice system has begun. Litigants have been dropping out of the public court system and turning to procedures such as mediation and arbitration. ADR (alternative dispute resolution) has become a popular buzzword in the legal community. Lawyers, psychologists and others from many different walks of life have been flocking to courses on ADR — some to learn how to represent clients at such proceedings, others to learn how to conduct the proceedings themselves. The Law Society of Upper Canada recently adopted a change to its Rules of Professional Conduct, making it mandatory for Ontario lawyers to consider the appropriateness of ADR in every case and to inform clients of ADR options.

In Toronto, several companies offer dispute resolution services in open competition with the public courts. One has adopted a name that offers a bold challenge to the status quo: The Private Court Inc. Litigants can purchase adjudication services in many different forms: settlement conferences, mini-trials or binding arbitration. The companies contract with retired judges and respected senior lawyers to preside over the proceedings.

The private courts offer many advantages over public courts. The first is simply the ability to choose one company versus another. The mere existence of competition gives companies an incentive to offer those services that best suit the customers’ needs. Some disputants may choose to streamline the process in order to save money. Others may want a more detailed inquiry. Some may want an informal atmosphere; others may prefer rigid rules.

Having chosen a company, customers then get their choice of adjudicator. The adjudicators are paid an hourly rate, so they have to ensure a demand for their services in order to make a success at this business. Biased, lazy or rude adjudicators will quickly be rooted out as they fail to attract customers. The legal community is a small world in which gossip about an adjudicator’s conduct can travel quickly. And lawyers can now complain about an adjudicator’s bad performance without fear; the lawyer can choose never to appear before that adjudicator again.

Forget about booked-up courtrooms. The private court will conduct its business on your own premises if you wish. Forget about lingering anxiously on a waiting list. The only time constraint is finding a day convenient to all the participants.

Worried about privacy? Unlike the public courts, the files of private adjudicators aren’t available for curious strangers to paw through. Spectators won’t be sitting at the back of the courtroom as your dirty laundry is aired.

Even after paying for the services of the judge, private adjudication may turn out to be less expensive. With a time, date and location booked exclusively for your case, little of your lawyer’s time will be wasted. By contrast, litigants in the public courts are often amazed at how many billable hours their lawyers spend hanging around the court house, simply waiting for the case to be reached on the docket, or for the judge, seated in his chambers, to get off the telephone.

A two-tiered legal system — a step in the right direction

IF CURRENT TRENDS CONTINUE, WE CAN EXPECT TO SEE A RIFT DEVELOP in the justice system. The nature of the public courts’ caseload will change. Criminal cases will, of course, remain in the public system, since no one will be willing to pay to have them adjudicated elsewhere, but more and more civil cases will move into the private court system. The civil cases left behind will be those whose litigants don’t consider important enough to pay for adjudication, or who feel they can’t afford to pay.

This development has its critics. Lawyer Clayton Ruby, for instance, writes: “We have created in law what we abhor in medicine: a two-tiered legal system.” While the majority of the population may agree with Ruby that two-tiered medicine is abhorrent, two important differences make the comparison inappropriate. First, consumers of medical care are all individual human beings, unlike the consumers of civil court services. Some litigants are giant corporations. Why should Mr. and Mrs. Joe Average pay to provide free court services for two enormous multinational companies who can’t agree on the interpretation of a commercial contract? For litigants like this, the cost of dispute resolution is a cost of doing business. It should come out of their profits, just as wages, utilities and other business expenses do.

Second, if we compare the need for medical services with the need for judicial services, the former is far less likely to arise because of the person’s own actions. Diseases often strike through no fault of one’s own. Some people simply have the bad fortune to be afflicted with a genetic condition or a disease for which there is no behavioral cause. Civil litigation much more frequently arises because of the litigant’s unwise actions.

In the field of family law, for example, some couples split up, divide their assets and make custody arrangements for their children without ever seeing a lawyer or a judge. The separation may be painful, but they swallow their hurt and deal with each other in a mature way to resolve their differences inexpensively. Other couples fight it out for years, using courtrooms as the battlefield on which they can vent every petty grievance that ever occurred during their married lives. Why should couples in the former group have to pay for the judicial services consumed by couples in the latter group?

THOSE WHO BELIEVE PRIVATE COURTS ARE AN UNDESIRABLE DEVELOPMENT face a dilemma: What do they propose to do about them? Outlaw them? Forbid people from settling their disputes quickly and privately? Force everyone to use the already overcrowded and problem-ridden public court system? The proposition is so patently unpalatable that no one has yet dared utter it.

No, the most popular alternative they advocate is an increase to the funding of the public courts. But an examination of the recent history of court funding does not show that the courts have been systematically starved of funds. On the contrary, a study done by the Fraser Institute shows that from 1973-74 to 1993-94, expenditures on court and justice personnel and related courtroom costs have increased at the average rate of 5.2 per cent per year, after adjusting for inflation. This is more than twice the rate of increase in law firm revenues, and several times the increase in per capita GDP.

Ironically, it may well be that pouring money into the public court system is the very thing that has caused the problems. The tragedy of the commons teaches us that the more common property is available for use free of charge, the more people will try to make use of those resources.

For those who like compromise

IF SUPPORTERS OF THE PUBLIC COURT SYSTEM DON’T WANT TO SEE their cherished institution left in the dust by the private courts, there are several policies they should consider.

The first would be to reallocate judicial time and courtroom availability toward those cases most likely to leave the system in the absence of improvements. This means, of course, toward civil cases. The corollary is that fewer resources would be available to devote to criminal cases. Decisions will have to be made about what crimes are important to prosecute. Priority will have to be given to crimes that injure others: murder, assault, rape, theft and the like. Victimless crimes — acts that are entirely consensual but have been decreed criminal because they offend somebody’s sensibilities — will have to be legalized.

The second measure would be to take a page out of the books of the private courts and offer litigants more control over the choice of adjudicator. There is no reason to insist that judicial services can be provided only by people who make it their full-time occupation. There is also no reason judges have to be paid a fixed annual salary. Instead, courts could make a panel of judges available for litigants to choose from. Some members of the panel might be individuals who do nothing else but provide adjudication services. Others might be lawyers in private practice who wish to offer part-time judicial services as an extension of their legal careers. Every member of the panel could be required to take preparatory courses and to pass examinations, to ensure (insofar as this is ever possible) a uniform standard of knowledge and competence among panel members. They would then be paid an hourly rate by the government for the time they actually spent judging cases.

When the need for a judge arises, litigants would select a judge from the panel. Many different mechanisms could be adopted to ensure that the selection process itself did not become a stalemate. For example, if no agreement could be reached on a single candidate, each side could nominate its top choice and the two nominees themselves would decide upon a third person who would serve as the judge. Or perhaps each side would rank the entire panel in descending order of preference, and the job would be given to whichever candidate got the best combined score.

My own experience leads me to believe that litigants would usually have no difficulty deciding on a mutually satisfactory choice of judge with the help of their lawyers. Some members of the judicial panel would quickly develop a reputation for wisdom, impartiality, courtesy and efficiency, which others would lack. The best choices would soon be obvious. It is common even now for litigants who are in bitter opposition to each other to agree on the choice of an arbitrator, mediator or appraiser.

This suggestion is a variation of what is usually called “contracting out,” but with a twist. Most proposals for contracting out involve turning over a former government service lock, stock and barrel to a single private company. In other words, a private monopoly is substituted for a public monopoly, with the only opportunity for competitive cost cutting or improvements in service arising every four or five years when the contract comes up for renewal.

The system of on-call judges offers the advantage of continuous competition among the service providers within a publicly funded system. Those already on the panel will have to maintain high standards in order to keep busy. Newly qualified judges will always be waiting in the wings for a chance to demonstrate their talents.

A system of pricing is the third innovation that public courts will have to adopt if they wish to become efficient players in the administration of justice. Civil litigants should pay the actual cost of the court services they consume. Like private firms, the public courts could tailor their fees to the services provided. A less experienced or less popular judge might be charged out at a lower rate, while a judge with particular expertise in an uncommon area of law might command a higher rate. In civil cases, the loser of the lawsuit could be ordered to pay the court costs, just as the loser can currently be ordered to pay the winner’s lawyer’s fees.

In criminal cases too, it could become a standard part of sentencing to require all individuals convicted of a crime to pay for the costs of their trials. Doing so would make prosecution of white collar crimes profitable for the criminal courts, addressing another common complaint about the criminal justice system.

The simple requirement to impose fees might go a long way toward making public court administrators focus more critically on exactly how they are spending their money. If the amount they had to charge in order to break even turned out to be greater than the fees being charged by private adjudication services, it would be obvious that there still would be fat to be trimmed from their operations. We would then have to ask, too, whether it’s necessary to have government providing this service at all, or whether it could be handled entirely by private enterprise.

It is easy to predict that there will be resistance to implementing these suggestions. There are many people with vested interests in the status quo — for example, today’s salaried judges and court staff. But whether they like it or not, change is inevitable. In fact, it’s already here. The best and brightest from the old system will adapt and continue to excel in their new environment. The stodgy and inflexible will tarry as long as they can in a deteriorating system and eventually pass into history. And that’s as it should be.


Letters

,

      Vineland, Ontario, responds: January 21, 1997

,

      Ottawa, responds: January 26, 1997

, Olds

      , Alberta, responds: February 17, 1997

,

    Burlington, Ontario, responds: March 11, 1997

Dr. Derek C. Askey, Vineland, Ontario, responds: January 21, 1997

Well, you got the judges’ robes right in your cartoons accompanying “Order in the courtroom,” but the gavels are WRONG. What gives here? More Americanization of Canada? Six cartoons of gavels, seven counting the cartoon in the table of contents, but only two scales of justice? And as if this wasn’t insult enough, another gavel pops up on page 18, this one in the left hand of, presumably, a British Judge of the High Court, in full periwig. In Canada, gavels are used only by auctioneers and chairpersons of committees, never by judges in courts of law.


G. Allan Taylor, MD, Ottawa, responds: January 26, 1997

I agreed with most of the points in your very thought-provoking article on the problems in our courts. I respectfully suggest however, that you may have strayed from the normally logical and informed line of thought, which I have become accustomed to as a reader of your articles, in your comments on the two-tiered legal system. I refer to your statement that the individual’s need for medical services, compared to legal services, is far less likely to arise because of his own actions.

I submit that, contrary to your assertion, most of the costs incurred in our so-called health care system are the consequence of voluntary acts of a self-inflicted nature. I base my opinion on 35 years experience in the practice of medicine both here in Ontario and the U.K. Take by way of example the huge toll of injury on our highways due primarily, but not exclusively, to alcohol abuse and the various diseases caused by cigarette smoking and substance abuse. I could name many others but these examples alone serve to place your statement in serious question.

Your very cogent and clear arguments for a two-tiered legal system are therefore the identical ones which make it imperative that we proceed in the same direction in medicine, Clayton Ruby notwithstanding!


Norbert M. Salamon, Olds, Alberta, responds: February 17, 1997

Introduction:

The monogram describes a minor and two major facets of the problems of courts in and for Canada. First, the author alludes to the overwhelming importance of the profession. Second, she describes certain shortcomings in the judiciary; and finally, she proffers some solutions to the problem of procedure within the system.

Discussion:

Without any ill feeling (which would be undeserved) towards Ms. Selick, I must take exception to her proposed notions on court processes, on judges, and on costs.

Part I: Unjustifiable egoism in the profession

In the opening Ms. Selick compares herself to a major conductor of affairs (“impresario”), which to my way of analysis describes the self-defined, self-importance of the legal profession (a.k.a. professional ego-centrism).

The legal profession has a logically unfounded rosy picture of itself. Its authority and its importance, from the Chief Justice of Canada to the lowest ranking bit player:
• a lawyer is an “impresario”(by self-definition)
• a judge has “constitutional powers” (notwithstanding epistemological contradiction: contingent v. essential nature/being)
•The Chief Justice (with his cohort at SCC) indicated that a judge (in regard to the Homolka tape case) has a constitutional right regarding evidence suppression. How could that be? In Canada all courts and judges are contingent creatures of legislatures and parliament. Neither a court nor a judge (as opposed to the U.S.) is a constitutional entity. Only constitutional entities have constitutional rights (or responsibilities/authorities).

Part II: Judges

Regarding judges, their behavior, their judgments’ lack of precedent based consistency, lack of logical/epistemological consistency, etc., Ms. Selick is rather quiet as to proffered solutions. Her desire for further education of judges seems to be a desire for political correctness, rather than logical or epistemological consistency. Ms. Selick does not point to the responsibility of the profession to charge judges for ill behavior at the Judiciary Council of Canada, nor does Ms. Selick propose a demand for punishment of judges by the Judiciary Council.

Part III: Court process

With respect to the process of court cases Ms. Selick suggests (as lately proposed/enacted by Ontario) a different venue as a deus ex machina. The question arises: What is her justification for such an optimistic prognosis?

l. The process:

The proffered civil dispute resolution service will have its own party defined rules – disposing on the present Rules of Civil Procedure. She indicates that the parties (we know she means the parties’ lawyers) will settle on the rules. What is the difference between the “new” and the “old” procedure?
• The “old” court system: Lawyers, benchers, law review commissions, and judges (also all lawyers) through attorney generals (a lawyer) write the rules – not for the benefit of the parties, not for the benefit of speedy conclusion for the disputes; but to ensure that members of the profession have large incomes. It is certain that in Canada, except for small claims court, 90 per cent or more of the population would not be able to make sense of the rules – another case of over-regulation by the state to ensure a minority’s distinct advantage.

• The proposed “new” system: Rules by lawyers.
Conclusion: The foxes are in charge of the chicken coop. No change!

2. Civil cases involving Constitutional provisions:

Ms. Selick has also conveniently glossed over any civil case which involves Constitutional provisions. The SCC and other courts have defined (for their own powers’ benefit what constitutes a court of competent jurisdiction. Dispute resolving services (privatized or Crown funded) are not competent to hear such cases.

3. The costs:

The lawyers would still charge the same, but the clients’ costs would go up, as they would be double billed for civil cases – the more than 50 per cent marginal tax-rate paid by taxpayers for the justice system and other services, of course, does not behoove the attorney generals of Canada to provide efficient court systems – in Ms. Selick’s view.

Moreover, it is possible that judges will decide that the proposed process is only a preliminary to “real court cases,” thereby just creating another step in bureaucratic mismanagement of the citizen’s interest.

Conclusion:

The article is right as far as pointing out shortcomings within the so-called justice system of Canada. The article is prejudiced in favor of lawyers, judges and their bureaucratic empires when discussing any reform of any shortcoming. There is no assurance that the proposed dispute resolution service would be faster, would be cheaper or would be more effective. Without a basic rewriting of rules, and of Court/Judges Acts there is no hope that the justice system would improve.

My proposals:

My proffered solution to non-criminal court procedure (as criminal procedure is under the authority of the Parliament of Canada)

1. All rules are written by non-lawyer citizens (chosen by lot?????) in the two official languages which must be comprehensible for at least 80 per cent of population (from age 16 on, excluding senility)

• The plea “no cause of action” is deleted from the rules (especially when against the Crowns)

• Judges are forbidden to change the rules.

• Truth (not scene construction – as in the O.J. Simpson trial) is the basis of a rational justice system.

2. Major fines for lawyers or other client representatives for not admitting to facts in dispute (e.g. the lawyer would end up paying – without offsetting billing to client – for any costs (including that of the Crown) due to negligence (or omission) in admitting to facts.

3. Any “knowledge of science” referred to in dispute must be unfalsifiable (a la Sir Carl Popper) – as the U.S. Supreme Court has lately demanded.

• would get rid of all “bogus” disputes (and bogus “experts,” e.g. breast implant, e.g. controversy over when a person is a person (from conception to death as defined by the Second Law of Thermodynamics and the DNA molecule).

4. All implied or actual contracts with citizens must meet the comprehensibility requirement of the rules in point 1 above.

5. Responsibility for one’s actions is a main notion within the system.

• e.g. the attorney general is responsible for consistency with constitutional provisions, if he attested that the statue, regulation, etc. (laws in general) are consistent with the Constitution, then he personally (not the Crown) is responsible for the court costs – running at approximately $6,000 per hour for federal judge presided courts in Canada (counting four hours of sitting time per day).

• e.g. the offending police officers, the Crown prosecutor of the recent Latimer SCC case should bear the costs of the last trial fiasco, as they knowingly aided and abetted in corrupting the court process. Such would be applicable to civil cases, too.

• A smoker is responsible for smoking, for it has been known for 200 to 300 years that smoking is unhealthy, not the tobacco companies.

6. Any laws which directly affect civil cases – be they personal (Divorce Act) or impersonal (Insurance Act) must meet the requisite of point 1 above.

It is probable that the above proposal would be called simplistic, especially by the profession, however, the proposed rules would certainly speed up the process – and cut costs.

Thank you for your time and consideration of the above.


Frank Gue, Burlington, Ontario, responds: March 11, 1997

Permit me to expand on your key point that the backlogs are not a legal, but an economic problem. As a factory production management specialist (with a hard-cover book out on the subject), I’ve recognized this for years as a straightforward production proposition, which is about as economic a problem as you can get, dealing with returns on investment, economic incentives, alternative uses of resources, and so on.

You will know, of course, that technology transfer is one of the most potent of improvement tools. I can offer some technology to help you.

1. Work in process (read: court backlogs) equals production rate times cycle time. “Rate” is cases cleared per period, while cycle time is from the opening to the closing of the court docket. Return on investment depends on turnover of assets, which is an algebraic restatement of the above “cycle time.” Successful firms keep cycle times low. Cycle times consist of as much as 99 per cent or more idle time — completely wasted slack time during which nothing whatever adds value. On behalf of Taxpayers Coalition I have just been through a conflict of interest case which illustrates this starkly. The case consumed eight months and forty thousand dollars, then was dealt with in about nine minutes of court time. In factories, ROI improvement is in large part a determined search for, and elimination of, slack or idle time. Schedule uncoordination, inattention to timing, suboptimization for local convenience, lack of consideration for other departments, and lack of overall firm objectives are among the main problems and should sound familiar to you; I could change a few words in parts of your article and any production planner in any factory would understand exactly what you are saying. Lesson: Find and remove the slack time . . . in either factories or courts.

2. The Backlog Syndrome causes human beings to want what we factory people call “the security blanket” — lots of work on hand. This enables us to mess up the sequence of production, inconvenience everyone for miles around, miss ship dates, waste labor moving unwanted stuff out of the way — I could go on for pages. You would recognize every word of it. Lesson: Plan the work to be done just in time, then work the plan.

3. The law of supply and demand (page 5 of your Economics 101 notes) fails to deal with an important special case. If a desirable service is thought to be “free” (health care, court services), the demand for it will tend toward infinity. We see this happening all around us and wonder why things like health care are out of cost control. Lesson: Introduce a visible, appreciable price into use of any system such as health or courts. No news to you; you say as much in your article.

4. Here’s one that is covered by Einstein’s remark of long ago, “Any sound principle, correctly stated, appears obvious.” The Economist once pointed out one of these obvious (except that I didn’t think of it, darn it) principles: The suppliers of a good or service must not be the ones to determine how much of the good or service shall be provided, and at what cost. Now think about public education. . . .

5. In any large organization there is a performance bell curve (page 46 of your statistics text). From five to 20 per cent of your personnel are incompetent or burned out or both. Five per cent for capable, hotly competitive private industries; 20 per cent or more for moribund, tenured, non-competitive monopolies or public enterprises (Public school teachers? University professors? Judges?) Lesson: Have a continuous program of performance evaluation and an objective of eliminating the bottom x per cent of personnel every year, where x is anything from five upward.

Hope this integrates a few ideas from another field of knowledge into whatever thought experiments you’re working with. Your interest in the efficiency and effectiveness of the Canadian court system is most welcome and doesn’t come a moment too soon.

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