Justice Efficiencies and
Access to the Justice System

2. Leadership: The court has a leadership role in effective case management.

A system that can’t be managed must be lead. Leadership among autonomous players requires the application of influence and in the justice system that requires moral authority. Without a leader, cooperation is less likely to happen and is unlikely to become the norm.

Some judges are uncomfortable with an active role in case management. A judge must, above all else, be above all else. The judge is the impartial apex of the adversarial system’s triangle, deciding guilt or innocence in each case without regard to external considerations.

But in our adversarial system, judges have the independence and authority to lead the other players. In short, their impartiality gives judges a unique opportunity to lead effective case management.

We believe good leadership does not detract from impartiality. The judicial leadership we are calling for is less about managing the cases than it is about ensuring the parties are prepared for an effective hearing. While some of the skills and activities required by case management are fundamentally different than the traditional role of judges, case management is not inconsistent with it. Judges have always controlled procedures to ensure hearings are fair and effective. Extending this role “upstream” is only sensible since the effectiveness of a hearing is largely dependent on the preparedness of the parties. We believe judges and court administration can oversee cases to ensure they are managed in accordance with commonly accepted norms while retaining the flexibility to respond to the unique needs of individual cases.

Judicial leadership does not absolve other players of their responsibility to contribute to an effective justice system. Leadership does not work in isolation. It requires cooperation, respect and the frank exchange of ideas and concerns. Once sectors have forged cooperative relationships and a genuine regard for the roles of each participant, a procedure to effectively manage cases in accordance with appropriate principles becomes a common goal because the relationship makes it impossible to blame the others for common problems.

In short, it is not so much a matter of judges managing cases as seeing to it that cases are managed in accordance with generally accepted standards. Our vision is not that judges manage more. It is that they will manage less because effective case management by each sector will be the norm.

Good case management practices can be established without judicial leadership but judicial support is essential to the application of case management. Consistent enforcement of rules, forms, and expectations for pre-appearance preparation is key to each sector managing cases efficiently.

Efficiency, effectiveness and access to justice are all interconnected. The court, through judges and court administration, with the assistance of other justice system participants, has a leadership role to play in meaningful case management.

Implementation Examples

Active case management by the court

• In B.C, Criminal Caseflow Management Rules were developed and implemented with active participation by the judiciary, and are now integrated into criminal case processes.
• In Ontario, a criminal case management protocol has been developed.
• In Ontario, and several other jurisdictions, Judges regularly participate in educational sessions on their role in the management of cases.

Case preparation

• Prosecution policies should guide and encourage early resolution.
• Requirements for early and complete disclosure expedite the process. BC’s Rules require counsel to assure the court that they are ready for trial and have stated a preliminary position on sentencing in advance of the trial date.
• Police can expedite disclosure by vetting, within legal parameters, sensitive witness information and providing duplicate copies of Reports to Crown Counsel for disclosure.