The Canadian judiciary is lobbying to win greater autonomy and a more direct say in how tax dollars are spent in the legal system.
Although judges regularly cite the “three branches of government,” that’s primarily a French republican concept adopted by the U.S. Our bench craves that kind of stand-alone independence.
Under the British parliamentary system, the executive, legislature and judiciary are much more organically interconnected, governed by amorphous constitutional conventions and memes such as the “independence of the judiciary.”
Still, our judges want not only individual independence but institutional independence — to control court support services and administration.
We’ve been going down that road for the past two decades.
Provincial governments, including B.C., have agreed to confer greater administrative independence to courts through informal arrangements as well as written agreements such as memorandums of understanding and protocols.
In 2006, the Canadian Judicial Council published a report entitled Alternative Models of Court Administration and in 2011 commissioned a research study into the subject looking at common law countries such as Australia, England and Scotland. The newly released 243-page report on the study documents the international trend toward administrative independence for the judiciary.
It’s long been favoured in civil law jurisdictions but more and more common-law countries are embracing it.
Federal courts in the United States have been operating autonomously since 1939, when Congress withdrew control from the Department of Justice and gave it to an organization run by federally appointed judges. In the Republic of Ireland, court administration has been provided by an independent agency since 1999 governed by a board dominated by judges. In the U.K., the Supreme Court operates under a limited autonomy model that is not tied to the Ministry of Justice. And, since 2005 in England and Wales, the administration of courts has rested with a Ministry of Justice agency whose leadership and broad direction is set by a board with judicial representation.
In Canada, policy and operational decision-making for court administration is usually the responsibility of an attorney general or minister of justice.
The judicial council — Beverley McLachlin, the chief justice of the Supreme Court of Canada, presiding over 38 colleagues including chief justices and associate chief justices of superior courts, the senior judges of the territorial courts, and the chief justice of the Court Martial Appeal Court of Canada — is a judges’ watchdog and advocate for best practices.
Under the limited autonomy model, the suggestion is for court administrative authority (including financial and human resource management), or a significant measure, to be transferred by statute or written agreement from the executive to the judiciary.
The judiciary may choose to exercise its administrative powers through the chief judge or chief justice or delegate the day-to-day operational management of courts to a chief registrar or court executive officer.
The registrar/CEO would be appointed by the chief justice or a council of judges, and the work assignments and performance appraisals of the executive officer would be the responsibility of the judiciary. All court staff would be under the direction of the court.
The Ontario Court of Justice Ontario runs according to this model after the attorney general and the chief justice of signed a memo of understanding a decade ago.
Its superior and appeal court continue under the traditional executive model, but a 2008 memo of understanding gives the judiciary much input.
Since 2002, as a result of a major battle between the newly elected Liberal government and the B.C. provincial bench, a protocol agreement was signed and a similar limited autonomy model adopted.
There are regular consultations between the bench and government to discuss court administration, such as facilities, staff planning, budget planning and technology. And the provincial chief justice has considerable control over the budget.
The B.C. Court of Appeal and the B.C. Supreme Court operate under the executive model but again that’s changing.
What is troubling, however, is there is little public discussion or data being made available by the courts or government: How much is it costing us per civil or criminal case, for instance? Given the reports of how dysfunctional the legal system has become, how will this move affect that fundamental issue?
Amid all the talk about “institutional independence,” where are the judges and government addressing the lack of institutional accountability?
Last time I looked, judges were unelected and — as the Manitoba scandal involving Justice Lori Douglas shows — their complaints system doesn’t work.
If the judiciary wants greater sway over the treasury and how the tax money is spent, they should also accept a much greater level of transparency and answerability.
The report is available here.