The Supreme Court of Canada, concerned with ever-lengthening trial delays, has set new guidelines. Henceforth, superior-court cases will have to be completed within 30 months, and provincial-court trials within 18 months (though some exceptions will be permitted).
If these deadlines aren’t met, and the prosecution is to blame, the defendant may go free.
This is, regrettably, a replay of the court’s 1992 Morin decision. On that occasion, deadlines (though shorter than these) were placed on trials for the first time.
In the following years, tens of thousands of criminal cases were stayed, meaning the accused simply walked away. As a management strategy, this is the rough equivalent of a traveller in a foreign country shouting louder to make himself understood.
In its ruling, the court blamed trial delays on “a culture of complacency” within our legal system. Wrong. The real culprit is a culture of incompetence. And that scarcely captures the reality.
What we have is a byzantine system with primitive management controls, only the vaguest notions of best practice (such as court-imposed deadlines that no one knows how to meet), inadequate databases to measure performance and, last but not least, no one in charge.
It’s not supposed to be that way. Our provincial justice ministries are meant to manage the court system. But they don’t, and they can’t.
They don’t because judges won’t let them (our judiciary claims to be a separate level of government, like the U.S. system). And they can’t, because they lack almost all of the tools required to do the job.
And yet those tools exist in other fields. Hospital management is a highly developed discipline, because the effort has been made to measure and report nearly every aspect of performance.
If your heart-attack patients die more frequently than best practice dictates, you hear about it. If your nursing ratios are wrong, your infection rates too high, your overhead costs out of sight, ditto.
Too many surgery patients re-admitted, avoidable mortality rates at unacceptable levels, low-risk caesarean sections through the roof? Same thing.
How is this done? Hospitals across the country employ coders who track each performance indicator and report the results to the Canadian Institute for Health Information.
CIHI collates the data, corrects it for distorting factors such as age differentials and poverty levels, and publishes the results.
I don’t suggest this has solved every problem in the health-care system. We have too few GPs and our wait times for elective surgery are far too long.
But where is the justice system’s CIHI? There isn’t one.
Where can you go to compare the performance of provincial courts in B.C. with their counterparts in Ontario? In any meaningful way, nowhere, for the heavy lifting needed to manage a large and complex system hasn’t been done.
Think I’m exaggerating? Here is how the B.C. Justice Ministry described the situation, in a 2012 Green Paper on court reform: “The daily work of the justice system relies on single-case precedents … The result is a culture that uses anecdote to advance discussion, may prefer expert opinion to measurement, fails to apply systems thinking and sacrifices potential system-wide gains due to the risk of failure in a single instance.”
Those are well-nigh-fatal shortcomings. What is being described here is, in essence, a public service being run like a private guild.
And now we have the Supreme Court issuing edicts that would be a challenge to meet, even if the justice system did believe in managing itself.
Karl Marx thought that history repeats itself, first as tragedy, then as farce.
The court’s Morin decision was a legal tragedy. Let’s see what this latest effort leads to.
