Let Judges Manage the Courts


by Peter Russell

It sounds counter-intuitive to suggest that judges should manage the courts.

Shouldn’t judges stick to judging and let professional managers manage?

Yes, the main job of judges is judging, and yes, the day-to-day administration of the courts should be the hands of persons skilled in the technology of modern court management.

But, still, we would be much better off if responsibility for the management of the courts rested with a body on which the judiciary is well represented.

A news story filed this week by the Globe & Mail’s Kirk Makin, one of Canada’s top court journalists, explains why.

The story is about a section of the Canadian Charter of Rights and Freedoms – section 11(b). This section speaks to the adage that “justice delayed is justice denied.” It gives any person charged with an offence “the right to be tried within a reasonable time.”

You might well ask - what is a reasonable time?

When the Supreme Court of Canada first answered this question in the 1990 Askov case, it said eight to ten months is the permissible limit of delay resulting from the court system.

If a case dragged on longer than that before coming to trial, charges against the accused must be dropped.

In the wake of the Askov decision, charges in tens of thousands of cases were dropped, and, assuming that police and prosecutors sometimes get their man, a lot of guilty people walked away free.

Despite significant increases in the number of judges and prosecutors as well as  improvements in court infrastructure, the application of section 11(b) of the Charter continued to slay many criminal cases.

In response the Supreme Court raised the permissible time before trial to where it is now – 15 to 18 months.

Even with the time period extended, criminal cases in Ontario are folding because they are delayed by the system beyond the extended Charter standard.

Wouldn’t it be good to know how many criminal cases in Ontario are collapsing for this reason?

That is precisely the question that Norman Boxall, president of the Canadian Lawyers Association, put to Ontario’s Ministry of the Attorney General, which is responsible for court administration.

The ministry’s inability to answer Boxall’s question is the news story.

Ruth Maillard, on behalf of the Ministry, simply replied that the Ministry doesn’t keep statistics on cases that collapse because of failure to meet the Charter’s requirement to bring cases to trial in a “reasonable time”.

May I be so bold to suggest that one reason the Ministry of the Attorney General does not keep track of the volume of cases abandoned because the court system is working too slowly is that the data might embarrass the government.

We might secure more accountability if judges had a major role in directing court administration.

Judges might serve as better directors of court administration for two reasons.

First, they know a lot more about what is going on in the courts than the Attorney General and members of that ministry.

Second, they care more about deficiencies of the judicial system. They experience the court system’s inadequacies every day and are anxious to fix them.

The same kind of reason explains why a government ministry should not directly run universities and colleges. Added to knowledge and commitment is the threat to independence. Academic freedom would be severely threatened if government ran universities and colleges. Likewise, judicial independence is threatened when government, which is a party to all criminal cases and many civil cases, runs the courts.

It is for these reasons that, south of the border, US management of state judicial systems and the federal court system are in the hands of judges.

Accountability is maintained by chief justices and their staff appearing before legislative committees to report on the state of the courts, and if need be, make the case for additional resources.

Canadian judicial scholars have long favoured increasing the role of judges in court management.

Some years ago Professor Martin Friedland, a former Dean of Law at the University of Toronto, recommended that a Board of Judicial Management be responsible for running the courts in a province like Ontario. The Board would consist of judges, lawyers, lay people and government representatives.

Like the governing board of a university, such a judicial board would not carry out the day-to-day administration of the courts, but would be accountable to the public and those who use the courts for their performance.

That would include their effectiveness in bringing criminal cases to trial in a reasonable time. 

Peter Russell is one of Canada's leading constitutional experts, advisor to Governors-General and Professor-Emeritus in Political Science at the University of Toronto.

About Peter Russell

Peter H. Russell is Professor Emeritus of Political Science at the University of Toronto. He is one of Canada’s leading constitutional scholars, has published widely in the fields of aboriginal policy, the judiciary and parliamentary democracy, and is a frequent commentator on Canadian government and politics. He is the founding Principal of Senior College at the University of Toronto. Peter Russell is an Officer of the Order of Canada and a Fellow of the Royal Society of Canada.
Posted date : November 20, 2012

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