Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE rein in runaway concepts of judicial inde- pendence, put the judges in their place, and bring some proper management practices to a system that is broken. The ball got rolling in February, when T to modernize its justice sys- tem. Let' he B.C. government is on a collision course with the province' s judges over plans s hope B.C. can Premier Christy Clark announced a jus- tice system review, noting, "the crime rate is dropping but we're still seeing increases in the number of cases delayed and stayed. This tells us systemic changes are needed. The ministries of the Attorney General Showdown over justice reform justice system relies on single-case prec- edents and on the facts and opinions offered by experts. The result is a culture that uses anecdote to advance discussion, may prefer expert opinion to measure- ment, fails to apply systems thinking, and sacrifices potential system-wide gains due to the risk of failure in a single instance. The green paper states independence " " and Solicitor General have been put in the hands of non-lawyer MP Shirley Bond. She appointed lawyer Geoffrey Cowper to conduct a review by July on how to make the system work better, based on a provin- cial green paper, which relies heavily on an unflattering internal audit of the justice system by the Ministry of Finance. It pro- vides insightful analyses of the problems. No one — police, Crown, corrections, or judiciary — is spared from scrutiny. The analyses could easily apply across Canada. The green paper says current efforts to fix the system "may not be sufficiently bold. ing courts by judges puts pressure on Crowns and police to prepare for trials that may not take place; Crowns vet police charges before they are formally laid yet there are no metrics examining the time spent; a lack of metrics on management decisions. A key problem is "culture, " It cites numerous flaws: overbook- ing "how independence is interpreted," "resistance to systems thinking," and how " includ- it deploys a "practitioner-dominated man- agement" system. "The daily work of the "should not be used as a shield against scrutiny on issues related to public admin- istration (for example, where business process improvements are needed)." The province' Robert Bauman, and Thomas Crabtree responded quickly with a curt three-para- graph statement. They welcomed open dialogue, but noted, "Any recommenda- tions for reform must respect the consti- tutional framework in which we operate. They followed it up later with a finger- s chief judges Lance Finch, " wagging treatise on judicial independence, stating the Constitution protects not only security of tenure and financial security, but administrative independence, includ- ing: assignment of judges, scheduling, and direction of registry staff. Administrative independence appears to be culled from Supreme Court of Canada rulings on the judicial pay cases, which applied warped logic to Constitutional preamble and read in language that is clearly not there. The notion that bureaucratic under- takings — such as court scheduling and courtroom allocation — impedes judicial independence goes too far in an Internet age, where technology can make better decisions when it comes to such minutiae. The judges are telling the province to public, the judges circled the wagons, and trotted out the Constitution Gatling guns. They will no doubt become adver- sarial, because that's the comfort level former litigators have. (Expect Crowns and cops to also dig in.) Each arm of the justice system runs separately with little to no integration or sharing of information, data, or manage- ment practices. Operational standards vary from region to region or even court to court, all in the name of independence. It' perplexing. Imagine a corporation or non- profit saying to its divisions, "run your ship entirely the way you see fit." The report is bang on when it says the s ludicrous and for outsiders looking in, justice system culture relies too much on anecdote and practitioner management. Is that a surprise when it comes to judges? They are appointed from prac- tising lawyers — most of whom worked in small law firms with few staff. They are not used to managing large, com- plex operations. They are reluctant to step beyond their comfort levels, instead relying on an outmoded way of doing business. The green paper proposes establish- ing a "clear understanding of the scope and limits of operational independence of police, the judiciary, corrections, and Crown counsel in a way that respects that independence while enabling a meaning- ful capacity to plan, implement, and ana- lyze justice system services." I say, bring it on, the sooner the bet- mind its own business. Instead of lead- ing the drive to modernize and propose creative solutions to tackle the growing challenges of case delay and a frustrated ter. Be bold, aggressive, and don't back down." Jim Middlemiss blogs about the legal profes- sion at WebNewsManagement.com. You can follow him on Twitter @JimMiddlemiss. The McKellar Structured Settlement™ 50 M AY 2012 www. CANADIAN Lawyermag.com Untitled-2 1 12/8/10 3:45:27 PM

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