Determining direction of judicial reform hampered by lack of data

  • July 09, 2012

Source: Vancouver Sun
Byline: Ian Mulgrew

The much-lauded and heavily funded Vancouver Community Court is impossible to evaluate because, like many legal system initiatives, the data isn't available.

From the experimental pilot court to how you determine the number of judges on the provincial bench, there is a lack of information about what is actually happening in the legal system.

In a frank submission to the provincial government's one-man justice reform initiative, a Canadian Bar Association B.C. branch panel says the legal system needs more money and probably an overhaul, but determining where and how to make changes is tough because of this lack of solid data.

The blue-ribbon group of lawyers and retired judges say in a report titled Justice in Time that reform is hampered because performance management in the legal system is inconsistent, not integrated and there are no criteria to assess the success of pilot projects and initiatives.

The panel's 60-page submission to Geoffrey Cowper, who is conducting the review for Victoria, makes 25 recommendations ranging from more legal aid funding to forgiving student loans for lawyers agreeing to practise in rural areas.

The panel consisted of Stephen McPhee, Eric Got-tardi, Sharon Matthews, Raymond Phillips, Jennifer Reid, retired Supreme Court justice Duncan Shaw, Sandra Watson, retired Provincial Court judge Herb Weitzel and Janet Winteringham.

At its core, though, the organization that represents nearly 7,000 B.C. judges, lawyers and law students, blames the cur-rent crisis on the fallout from dramatic funding cuts made a decade ago by the newly elected Liberals.

And it cited the Community Court, established with much fanfare in 2008, as one example of an experiment that has seemingly produced no usable information about efficacy or efficiency.

Situated in the renovated former downtown pre-trial centre, the court was supposed to be a pilot project involving 14 agencies aimed at reducing recidivism and petty crime associated with drug use and mental illness.

It was to be evaluated over three years and its first report was released in August of 2010, but dealt primarily with the court's birth.

The second interim evaluation report was planned for the spring of 2011, with the final report sometime in the spring of 2012.

"A disappointing fact is that no followup evaluations have been released despite the acknowledgment in the first report that it was a fundamental component of the project," said the CBA-BC panel.

"Unfortunately, other justice initiatives in the past have suffered from the same lack of evaluation."

For instance, it said the Crown counsel operational review project, completed in 1999, introduced a new model of case management. But for reasons that are obscure, the panel says, that system has since been dismantled.

Similarly, the Provincial Court case management sys-tem that was supposed to address many of these scheduling issues is a failure and is being replaced.

The number of cases in the five-year period from 2006-07 to 2010-11 increased from roughly 216,000 to 232,000.

That's about seven per cent, yet waiting times increased by 25 per cent, or two months, from 8.3 months to 10.3 months; and the number of cases older than 180 days rose to 18,391 from 17,862.

Why? Well, it's hard to figure out - consider just the shell game over the number of judges.

In the last decade we have seen an increase in the number of part-time senior judges and fewer full-time judges. Why does that matter?

Senior judges only cover 45 per cent of a full-time judge's sitting time, yet two are considered the equivalent of one full-time judge.

It's harder to schedule a judge who sits part-time and is paid only for the time he or she is sitting.

The effective reduction in the number of actual full-time judges makes meaningful case management less and less likely because it is more difficult to schedule those judges who are only available at certain times.

So, if you only consider the number of "full-time equivalent" judges, the total number on the bench is misleading. The hidden increase in the number of part-time judges masks a loss in judicial capacity.

From a high of 145 full-time equivalents in 2001 we have fallen dramatically to 127.25 full-time equivalents in 2012.

But worse, in 2001, we actually had 145 judges working full time; today we have only 107 full-time judges and 45 part-time. We have five per cent more judges but 12 per cent less capacity.

You can see what the panel means: There is no easy fix here.

The report can be found on the CBA website