Complacency starts in set-date Court. A solution on how small changes can have profound effects on delay.

Today, across the Province of Ontario, hundreds of lawyers and thousands of unrepresented accused will waste hours waiting to speak to the Court for no more than 30 seconds.  The cost upon the justice system, lawyers fees, lost wages and productivity combined would be astonishingly expensive if ever quantified.

Yet, every day Courts are presiding, this happens.

Every day a colossal amount of time, money, and tax payers’ funding is wasted while people await for “Your Worship, we have received disclosure and now need to schedule a Crown resolution meeting” or, “Your Worship, we have agreed on a judicial pre-trial and have scheduled it for August 31st” or “There is disclosure outstanding and the Crown advised two weeks should be an appropriate amount of time to obtain it.”

And despite the simplicity and non-contentious nature of these appearances, lawyers and accused are required to attend court, park their cars, take time off work, wait, (and wait and wait) only to speak to the matters personally.

It would be the equivalent of attending the bank in 1981 where every transaction must be done in person, through a teller, with a long line, and lots of paperwork. (Well, not exactly, because in Court there is only one teller operating during the business hours of 9:00 to 4:00, with two 20 minute breaks and one 1.25 hour lunch breaks).

Regardless of advancement in banking and every other industry, Courts remain stuck in 1981.

Everything is paper, everything is done in person, technology is not just rejected, but often looked upon with disdain. Pity the lawyer who is ridiculed for naively asking for an internet connection, WiFi password, or even a plug to charge their laptop. But without any meaningful transparency in Court (i.e., cameras not being permitted), there is no way to accurately portray to Ontarians what happens and the offensive amount of resources that is being squandered on a daily basis. It’s only when people are charged, and facing the Court system, does it’s stark neo-luddism form reveal itself.

Even in the face of strong judicial scoldings towards this attitudes of complacency from the Supreme Court of Canada in Jordan and Cody, the Courts remain fundamentally unchanged.

Rather than looking outward of industries and even governmental branches that have embraced technology and management structures for efficient delivery of services, they look inward and wonder what can be sacrificed to save prosecutions. However, if the Courts are to approach this crisis effectively, a paradigmatic shift is required on how justice is delivered.

Like the bail out of the auto industry in 2009, the judicial system cannot be saved by simply hiring more executives and running the same plays. Massive restructuring of wide scale proportions is required in order to deliver a viable, sustainable, and constitutionally compliant system.

Notwithstanding, the tired, and provenly inadequate approaches at speeding up the justice system are repeatedly raised. These approaches invariably take the form of diminishing protections and rights otherwise afforded to accused, promises of hiring more judges and Crown Attorneys, and round and round we go. Since the days of Askov and Moran, where over 15 years ago these issue of delay was chastised, things have only become worse.

What was once 8-9 months of acceptable delay, that number has now at least doubled, if not tripled in some instances. Despite the world moving faster than ever before, the Courts get slower by exponential proportions. It’s hard to imagine the government, in enacting 11(b) of the Charter (the rights to a trial within a “reasonable time”) over 35 years ago, contemplated years, not months, was what they meant.

It’s as if there is an inverse Moore’s Law guiding the system.

Now, there is normalization of delay by the characterization of  18 months delay for a summary conviction and 30 months for an indictable offence.  And even then, there is panic.

The issue, as many lawyers see it (including me) is that complacency is misdirected to a complacency of accused, and of lawyers. It is like a grocery store blaming its customers for not checking out fast enough with one teller open. Lawyers and accused can only move as quickly as the system allows, and right now, it allows nothing but unadulterated stagnation. Even when things are moving smoothly, they are still operating at a glacial pace when compared any any other industry or governmental body.

If there was a proverbial canary in a coal mine, it is that of set-date court.

I have written on many possible solutions that permeate the justice system in another article, but if we are to look at the attitudinal shift, we need look no further than set-date court. It is here where complacency is born.

Complacency towards lawyers’ time. Complacency of breaks and lunch periods. Complacency of individuals who have to attend Court, take the day of work, find child care, and disrupt their lives. In truth, one would be hard pressed to find more complacency towards delay and speed than what happens in set-date Court.

To be clear, I am not placing the blame on the individual players of the game. Individuals can do little to act efficiently when the system is inherently and wildly inefficient. Indeed, judges, justices, and lawyers are now, more than ever, trying to move things through the system quickly.  No one wants to be languishing all day in Court saying the same thing over and over again. To use the supermarket analogy, there is no sense in blaming the one teller who is open at the check out in a long line – they are doing what they can.

The problem is the entrenchment of inefficiency across the entire justice system.

It lies in attitudes, in perceived limitations, in refusals to adopt technology and methods to change, in refusals to believe there are other ways things can be done. In refusals to let go to other professionals who can help.

It does not need to be this way.

In Ireland, “the Courts Service of Ireland has slashed its running costs by more than half in just nine years, according to its annual report for 2016.” Most remarkably, these “[n]ew, [and] more efficient practices were established in the Court of Appeal and the Service the second Special Criminal Court, realising a reduction in waiting times from two years to 15 months.”

And yet, here in Canada, we succumb to delay as if there is nothing else that can be done. We reject other methods, technology, and contemporary insights on system management. In essence, we are saying “the steam engine is perfectly fine, just put more coal in!” while jets fly overhead.

Getting back to set date Court, and what this post is about, I see a very simple solution to this that I hope many lawyers would see the value in.

The fundamental problem with set-date court is that issues are discussed, raised, and agreed upon in Court. These banal, non-contentious discussions should happen outside of court. There is no need, whatsoever for wasting judicial resources on something that all parties agree upon. Only when there is disagreement on an issue, should the matter come before the Court to insist on a particular position.

Therefore, if both parties can sign off on an agreed upon date, for example, “Let’s schedule this judicial pre-trial for August.” then why in the world are we forcing lawyers, judges, justices of the peace, unrepresented individuals, etc. to stand around for hours on end waiting to repeat this phrase “on the record” in Court?

This approach is not only wildly inefficient, but entirely incomprehensible to Ontarians who are paying taxes and legal fees to perpetuate this system.

If only they knew…

A proposal for the solution to set date Courts:

1) A presumption that judicial resources should be used sparingly, and only when it is necessary for settlement of contentious matters. This important legal principle is long standing, but has been wrongly reprioritized by a competing principle of placing everything “on the record” and the instinctive nature of litigators to be heard in Court proper – even when entirely necessary.

2) A mechanism to allow counsel, and unrepresented accused to discuss their intentions with the Crown Attorney before Court opens and not while it is proceeding.

a) Have several Crown Attorneys available, in person, before Court opens (from 9-11) outside of the courtroom to do set-date intake. These scheduling Crowns can meet with lawyers and accused, hand off disclosure, schedule judicial pre-trials, deal with administrative matters, etc.

b) Adoption of the model of a) would also easily allow for the integration of technology to those who have counsel whereby a lawyer could contact the scheduling Crown in advance by email and express intentions.

2) If all parties agree on the adjournment, purpose, etc., then the scheduling Crown could then attend set-date Court and simply read the list of agreed upon dates and corresponding docket numbers. In essence, a model whereby non-contentious matters are simply read into the record when it is appropriate to do so without need for justification, amplification, or quarrel.

3) In the “listing method”, purposes need not be stated as all parties would “signed off” in verifiable form (writing, digital acknowledgment, etc.) by both parties in any event for their respective files. Lawyers and unrepresented accused could then leave (or not attend at all) and get on with their days very early and therefore not wasting fees, wages, and limited judicial resources.

4) If parties cannot agree, only then is there a requirement to attend set-date Court in person or through counsel and make submissions on the issue(s) for a ruling. Only when parties “sign off” does the presumption of court attendance become lifted.

5) If desired, this system could be made by an even greater efficiency by implementing technology that integrates with the official Court record so that once there is mutual agreement, the file is simply noted up in the electronic file and no appearance is required at all (subject to 4).

The more such a system is integrated, the easier it is to utilize it beyond set-date Court and make the overall system far more efficient by cutting down in-person appearances that do nothing other than clog up the courts and squander resources, funds, and fees. In turn, this would free up resources for more trials, pleas, and other contentious matters that bring conclusion to matters.

The additional benefit is that the more efficient the system becomes, the more access individuals have to justice.  Lawyers fees are reduced, navigating the system is more intuitive, and limited resources like duty counsel and social support programs are redirected to where it is needed most.

No matter how one looks at it, the model of set-date court is embarrassingly out-dated, inefficient, and wasteful. Simple, inexpensive changes can have profound effects, and in my view this is one of them. The days of paying legal fees and dedicating judicial resources to administer calendars must come to and end if we wish to have a viable justice system.