Canadian Lawyer

of the Constitution," says Neudorf. "In most countries, that' sion, but in Canada, it's perceived as legal. s a rhetorical discus- The judges are also the ones interpreting and applying the Constitution, so it really opens the door to a virtually unlimited veto power over reform." The elevated status of judicial indepen- dence in this country has made Canada a world leader when it comes to the rights of an accused, says Neudorf, but the flip- side is increased delay and administrative bureaucracy. Ironically, the criminal justice system B.C. Supreme Court. The amended rules, which injected the concept of proportion- ality into the process, and dramatically cut the scope and time allowed for discovery, were intended to make the civil and fam- ily justice systems more accessible and efficient. The court' off on the new rules before they were implemented in 2010. "I'm not sure the judiciary as a culture s chief justice signed in the U.K., to which the Supreme Court decision traced its concept of judicial inde- pendence, would never pass constitutional muster in Canada. Around 97 per cent of criminal matters in England and Wales are dispensed with by an army of 28,000 lay magistrates. They are unpaid volun- teers, serve for about five years, and have no control over their schedules. When large-scale riots broke out in London last summer, the flexibility and speed of the system meant magistrates were hearing cases and sentencing offenders in all-night sittings within days of the trouble. That stands in stark contrast to the situation in Vancouver, where the first sentences were handed out close to a year after the Stanley Cup riots. Allan Seckel, a former deputy attor- ney general in British Columbia, says he couldn't help agreeing with the late chief justice Hugh Stansfield when he told him that "all successful change was judge-led. Seckel says: "It's very difficult tute any kind of reform without judi- cial engagement. It' to insti- revert to the status quo. Ultimately, if it's s too easy for them to a process thing, they get to manage their own courtrooms, and how they actually operate is probably in many respects more telling than what the official rules are. Still, the idea rankled with him. "I " didn't think that we could always wait for judges to get around to leading reform. They would see the system in a very differ- ent way than I would in the administrative role that I had. judicial buy-in to a reform effort, Seckel says results can be mixed. During his time at the ministry, he was involved in the process to change the rules of the Even when there is an element of " " has yet embraced that rule change, and I think that inhibits the degree to which the principles behind the change are brought to bear. I'm not saying their concerns are illegitimate, but at what point do people move on and implement the rules that have been enacted, policy for breakfast, and unless you have the culture aligned with those rules, you have a very suboptimal state. Judges are more definitive of the culture in which the system operates than any other player in it." In Ontario, government-led reform City Hall courthouses in Toronto were handicapped by inconsistent implementa- tion and judicial skepticism, according to the report. "Some feel that the judges were awaiting signs of progress and change driven by the ministry to support what was viewed as a high amount of initial fanfare surrounding the initiative. When progress was slow to come, the skepticism remained and participation in JOT among judges was low, The initiatives at College Park and Old " he says. "Culture eats the Ontario Bar Association, says judicial skepticism has also partly frustrated an earlier attempt at justice reform on the civil side. In his 2007 Civil Justice Reform Project, Ontario' Lee Akazaki, a former president of " reads the Deloitte review. justice Coulter Osborne said summary judgment was an underused tool that should be made more available through rule changes. But Akazaki says the prov- ince' s former associate chief formed for the ministry by auditors Deloitte, and obtained by Law Times, showed stakeholders at a number of court locations were concerned about the lack of funding and communication from the ministry, as well as judicial skepticism. In Brampton, Ont., the review said judges approached the program "with caution, with a view to not creating unintended consequences." Other participants inter- viewed wanted to see "increased judicial leadership for the process to be effective. of the justice system has also run into its problems with judicial buy-in. Then- attorney general Chris Bentley launched Justice on Target in June 2008, aiming for a 30-per-cent reduction in the average num- ber of days and court appearances needed to complete a criminal case by June 2012. Using 2007 numbers as the baseline, that would cut the average number of days to deal with a case to 144 from 205. At the same time, the average number of appear- ances would fall to 6.4 from 9.2. In fact, according to the most recent available statistics, in 2011, the average number of appearances to disposition was 8.6 days, a seven-per-cent reduction. The average number of days to disposition actually increased over the same period to 210, up by just over two per cent. A post-implementation review per- " 44 A U GUST 2012 www.CANADIAN Lawyermag.com summary judgment, and never changed its judicial allocation to meet the higher demand as a result of the new rule. "There has not been, for example, a specialized summary judgment motions court. You would have thought that if you were going to encourage the bringing of summary judgment motions to have more efficient judicial determinations for people who are litigating, you would actually divert judges away from short trials," he says. Instead, he says a recent decision of the province' s judiciary has historically opposed role of summary judgment even further by making it difficult to obtain prior to discoveries. Akazaki says an infusion of young s appeal court has limited the group that is distinctively middle aged," he says. "It's difficult in any occupational s an occupational setting to get people to adopt to new ways of thinking, especially when their success is borne out of yesterday's ways of doing things. That' prestigious position in the first place." In B.C., Seckel says a culture change s what has got them to this is a necessity in the judiciary. He says a genuine focus on proportionality and timeliness would have a huge impact on the efficiency of the system, by cutting out blood is needed in the judiciary to chal- lenge the modern problems in the system. "At a very basic level there has to be a generational change. It'

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