Efforts to reduce trial delays won’t succeed without factoring in the informal rules of behaviour among attorneys and judges. They drive everything.
The Supreme Court’s 2016 Jordan decision brought a renewed focus on how long it takes for criminal cases to come to trial in Canada. A lack of resources in the system is commonly cited as a central source of delays. For instance, CBC News reported that “advocates say governments must provide more funding for every facet of the system, including judges, Crown attorneys, legal aid and infrastructure.” Various other potential causes for delay have also been raised, including the increasing complexity of criminal cases. Rarely, however, is local court culture identified as a possible explanatory factor (a 2017 Senate committee report is an exception).
We argue, on the basis of our research at four provincial courthouses in Ontario, that courthouse culture deserves more attention. If it is not factored in, adding resources or making changes to criminal law might not have the desired impact on cutting delays in the system.
The four courthouses in the sample (labelled A, B, C, D) did not include the Toronto courthouses, with their unique challenges, nor very small jurisdictions (with under 2,000 cases a year). From there, courthouses were chosen to reflect variation in case processing times, based on statistics provided by the Ontario Court of Justice for 2012. Courthouse D served the largest population of the four, processed the most cases and had relatively good resources — judges, Crowns and funding — according to data we obtained from the Ontario Court of Justice and the Ontario Ministry of the Attorney General. Figure 1, however, suggests that it did not use those resources as efficiently as the other courthouses.
To measure efficiency, we first counted the number of cases each courthouse disposed of in 2012 in each of five categories: crimes against the person, crimes against property, administration of justice (for example, breach of probation), other Criminal Code matters and Criminal Code traffic cases. Then we divided those numbers by the number of full-time judges and provincial Crowns (added together) at each courthouse. This calculation reveals the average number of cases completed by judges and Crowns at each courthouse.
Next, to see how quickly cases were processed at each courthouse, we divided the average days to disposition by the average number of cases disposed of. The lower this ratio, the more efficiently the court is using judicial and prosecutorial resources to dispose of cases. Courthouse A is the most efficient overall and, for the most part, the most efficient within each category of cases; and courthouse D is the least efficient.
According to the 1978 report of the U.S. Pretrial Delay Project, “Both speed and backlog are determined in large part by established expectations, practices, and informal rules of behavior of judges and attorneys. For want of a better term we have called this cluster of related factors the ‘local legal culture.’” To probe whether there were differences in local legal cultures among the four Ontario courthouses that might help explain case processing times, we conducted semi-structured interviews with three court administrators, five defence counsel (a combination of duty and external counsel), five Crown attorneys and two judges at each courthouse in fall 2013. These interviews were supplemented by observations by one researcher (Totino) of each courthouse over ten consecutive weekdays in 2014.
The data do not uniformly show an association between local legal culture and case processing times, but there are enough correlates to show that local court culture deserves to be given greater consideration. For example, expectations and practices relating to how long a court is in operation each day can impact case processing times. We found that courthouse D, the least efficient courthouse, had the second-lowest number of operational hours per day. Moreover, interview respondents from courthouse D had the lowest estimates as to how long their courthouse was in operation each day.
Figure 2 reveals that there are also some parallels between the perceptions of the interviewees, based on their experience, about how long it should reasonably take to process a case (“from charge to imposition of a sentence in a criminal trial”) and the relative efficiency with which their courthouses actually dispose of cases (as seen in figure 1).
We asked interviewees to say what does the most to speed up the pace at which cases are processed at their location. What stands out immediately (figure 3) is the importance of collegiality at courthouses A and B, the two most efficient in this study. Approximately two-thirds of the interviewees at those two locations believed that collegiality was the leading positive contributor. The responses were accompanied by comments such as “Good relationships minimize the problems that could arise” and “Tight-knit courthouse with a lot of open communication between the different actors.”
Although most participants in courthouse D cited a good “work ethic” as a positive feature at their location, interview responses and courthouse observations suggested that the hard work was being done in silos. This came through most notably in how Crowns described their courthouse: “processing plant,” “factory,” “sweatshop.”
When we asked about the top reasons slowing the pace of criminal case processing, the answers did not produce such immediately discernible patterns (figure 4).
Interestingly, though, participants in courthouse D were more likely to point to resource and workload issues compared with those at courthouses A and B, who pointed to lawyers being “not ready to proceed” as the biggest challenge. This perception existed even though courthouse D has more judges, Crowns and overall funding.
Improving courthouse culture
Although more research needs to be conducted about the concept of local legal culture and its effects, these results suggest that there is a connection between case processing times and “established expectations, practices, and informal rules of behavior.”
Of course, altering entrenched organizational culture is difficult. The sheer size of some courthouses, for example, may make creating a collegial atmosphere more difficult than in smaller ones. As one Crown noted to us, collegiality in smaller centres might be fostered by necessity because personnel interact frequently with each other every day. Moreover, although efficiency is important, other key values — like judicial independence and fairness for the accused — must also be considered in the criminal court system.
While recognizing these challenges, we offer some suggestions for promoting a court culture that facilitates case processing. Various models of court organizational culture are available as guides. One analysis sees court culture as either “proactive” or “passive.” Although this categorization is oversimplified, its straightforwardness is also a virtue for training and implementation purposes. Among other things, the proactive culture has low tolerance for multiple appearances and adjournments without adequate justification; promotes standardized processes; underscores the need for a cooperative courtroom work group; and proposes accountability for actors.
Regardless of the model that is followed, it is important for the system’s leadership to set clear expectations for how cases should be processed and to establish benchmarks for processing performance. Data collection, which began in Ontario with the government’s Justice on Target initiative and is now carried out under the umbrella of the Ontario Court of Justice Criminal Justice Modernization Committee, is critical. Furthermore, stakeholders need to be made more aware of the actual data about processing times (which can differ from the perceived times, as seen in figure 2).
Performance targets are needed, because shared expectations are important to organizational culture. The Modernization Committee does not currently set targets; but since it includes representation from various stakeholder groups (Ministry of the Attorney General, courts, Legal Aid, defence counsel and police), it would be a good mechanism through which to consult and then create appropriate benchmarks. The next step would be to introduce — to the extent that it is feasible and while taking into account other criminal justice values — a component of job performance review for Crowns and court staff that is linked to facilitating case processing.
Evaluating judges and justices of the peace, of course, would be a more controversial proposition, given the importance of judicial independence. Nevertheless, judges and justices of the peace have a pivotal role in influencing court culture, and some form of feedback associated with performance is needed. A well-designed survey that focuses on process issues (communication skills, case management abilities, work habits) rather than on the substance of judgments could be used to elicit confidential feedback from Crowns, defence counsel, courtroom staff and people who appeared in court, while not threatening judicial independence. The results of the survey could be provided to individual judges as well as to their regional and chief justices. Given the importance of leadership to promoting culture change, the attorney general and the chief justice should consider judges who have demonstrated skills in managing their courtrooms and cases effectively when deliberating about candidates for positions of administrative leadership.
Finally, all actors within the courtroom work group (judges, court staff, Crowns and defence counsel) should be encouraged to fill out confidential annual surveys assessing the organizational climate of the courtroom. Following the lead of other large organizations that use such measures, such as school boards, these surveys could help assess how actors perceive what the espoused values are and the degree to which such values are put into action (in the nature of dialogue among actors and in the quality of the scheduling process, for instance). Comments would be encouraged as to what specific actions could be undertaken to improve the organizational climate. A working group, such as the Ontario Court of Justice Criminal Justice Modernization Committee, could review the results from courthouses, distribute results to stakeholders and develop plans to address areas in need of improvement.
Few would dispute that the system needs more resources: not only judges and Crown attorneys but also support staff, interpreters, legal aid and technology. Our research suggests, however, that simply adding resources might not have the anticipated impact. Developing a positive, proactive organizational climate at courthouses in Ontario (and other provinces) would enhance the value of any new resources injected into the system as a result of R. v. Jordan.
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