Four months after Chief Justice Winkler’s retirement, the chair of the Chief Justice of Ontario remains unoccupied. Most chatter on the topic of his replacement has focused on names. Will it be so-and-so from the Court of Appeal? How about an appointment straight from the practising Bar? Will it be a woman or member of a visible minority this time?
In every other walk of life, we don’t fill positions by hiring a star and hoping he or she will do well. Rather, we draw up a job description around the purposes of the organization, and recruit the candidate who can best accomplish those purposes.
Whom should we want for the job?
In business, CEO’s are usually chosen from the ranks of sales or from the sales executive ranks of rivals, because the chief organizational goal is to sell products and services in order to generate income for shareholders. Witness the trail of devastation left by engineer/inventor founders of tech companies who refused to allow marketing to rank equally with product development. Sales people are educators of the public, and demand is what they teach.
Sport is another sector where the choice of a leader tends to come from the ranks of sellers rather than performers. In the case of head coaches of NHL hockey teams, we have heard of the superstar hockey players who failed miserably as coaches, and of the host of ex-minor-leaguers with Stanley Cup rings as coaches. To be successful in helping young athletes perform well under pressure, it is axiomatic that coaches must be teachers. But the best coaches not only teach but sell a vision of success. It matters not whether they were ever able to perform at the level expected of their pupils. Retired stars don’t necessarily fit the bill.
Why should the hiring criteria for a chief justice be any different? That the accomplished, highly acclaimed jurist is not necessarily the best candidate to fill the post of chief justice is not a new idea, simply an idea that can be forgotten in the search for a star candidate. Almost forty years ago, Prof. Geoff Gallas of the University of California wrote, in his provocative essay, “The Conventional Wisdom of State Court Administration: A Critical Assessment and an Alternative Approach,” 2 Just. Sys. J. 35 (1976-77):
When court people go about the task of selecting or evaluating state chief justices or administrative directors, they overemphasize the strong, directive and authoritative role model. Persons actually filling these state level positions similarly carry the strongman model around in their heads as mental baggage. The often unarticulated model is sometimes a towering recollection of this or that luminary in court administration or a vague notion of how John Marshall or Arthur Vanderbilt did it. This type of mythical idealization distorts judgments and expectations about leadership throughout American society.
Why not a brain surgeon?
After all, brain surgery is, well, more brainy than sales. Metaphorically, court reform entails a kind of impossible intervention. If the engine of justice should be a receptive and skilled mind, our courts should be organized the way our brains are. The fact that courts are more rudimentary in setup can lead to criticism that it is too hard to effect meaningful changes. Instead of a complex, interdependent network of organic logic switches, the courts are organized around a formalized hierarchy of independent actors.
A judicial friend of mine once remarked how much the courts in Canada are organized along military chains of command. We were talking about discretionary holidays, and about the authority of chief justices and regional senior justices over trial judges’ hearings schedules. We were not talking about decision-making. Let us then talk about decision-making, which is the actual public service on offer, not holidays.
The organizational structure of our courts does indeed exhibit a command structure, with each successive level empowered to affirm or countermand the previous one. Honorifics are employed to denote stature. Thus, Canadian provincial courts resemble the “hierarchical and centralized state court structure with administrative responsibility vested with the Chief Justice and state court of last resort,” examined and criticized by Prof. Gallas (op. cit., p. 1). By analogy to the U.S. state court system of the 1970’s, the organizational formality and rigidity of the 21st-century Canadian provincial court system lacks the ability to be proactive to emergent justice issues, discourages technological innovation, breeds isolated enclaves of human resources (judges, court staff, lawyers and citizens), and effects change through rule amendments that take months and years to formulate.
The unfairness of expecting a chief justice to improve access to justice by way of initiating court reform is nevertheless apparent in dealing with the constitutional requirement of due process. Trials could be shortened by 50% if judges only heard one side. Perhaps many Charter challenges would be eliminated if Parliament invoked the Notwithstanding Clause every once in a while just to speed up criminal trials. Let’s face up to the fact that speed and justice are ultimately a tough fit. A chief justice therefore cannot change the basic cumbersome character of courts because their immutable purpose is to make decisions after careful deliberation. The nodes of bureaucratic blockage are indeed better solved by a class of doctoral candidates at the Rotman School of Management, as I have told senior judges.
So if the Chief Justice cannot and should not change the way the courts are organized, he or she can nevertheless improve justice throughout Ontario in other ways. Because an institution of due process cannot be a slave to efficiency, we must consider how we can deliver due process outside the constraints of the court house. For this, we do not need a great legal mind or an administrator. We need someone who can sell.
Bringing Everyday Justice into the Justice System
The 2013 Canadian Bar Association report, Equal Justice: Balancing the Scales, challenged participants in the legal system to envision a Canada in which justice works in the way other aspects of society work”
The idea of everyday justice is that few problems, in reality, are dealt with in the formal justice system. … Facilitating everyday justice means improving legal capability, taking legal health seriously, enhancing triage and referral systems to navigate paths to justice and taking active steps to ensure that technology is well used to enhance equal, inclusive justice. (Equal Justice, p. 18)
In one sense, this statement reflects a future that it already with us. It is the court system that is stuck somewhere behind. In the context of our discussion, weaving justice into the fabric of everyday life – and not the decision-making function of our trial and appellate courts – is the organizational purpose of the justice system.
The concept of justice as an atomized or quintessential quality of which all human activity is capable of bearing is as old as civilization itself. Plato’s formulation of justice, as described in the Republic, was based on individual virtue. A civil society is built on the premise that most people restrain themselves from offensive behaviour.
Not a new idea, but a new priority
The purpose of this article is not to introduce Everyday Justice as a new part of the Chief Justice of Ontario’s job description. Rather, it is to serve as a reminder that it is an important part, and to propose that it is the most important part. The last two Chief Justices of Ontario have come from the courts’ sales department and not from accounting or quality control. Neither were legal scholars or managers. May that trend continue. Both of them recognized the need for Everyday Justice and have embarked on initiatives that serve this purpose. The Ontario Justice Education Network, which delivers legal education to Ontario’s schools; the OBA Foundation Chief Justice of Ontario Fellowships, which fosters research about ethics and professionalism; and the countless public appearances made by our past chief justices, not to mention the chief justices of our trial courts, are all efforts to fulfill this role.
Our next Chief Justice must “get” the fact that an overburdened court system in times of unprecedented reductions in criminal activity, diversion of most automobile litigation to a no-fault tribunal, and insufficient public legal aid, actually means our courts are experiencing an counterintuitive surge in public confidence. (It is not dissimilar to the love-hate relationship Canadians have with lawyers, as I have written previously in the OBA magazine.) Litigants are clogging our courts even though, intuitively, fewer should be there in the first place. In other words, Chief Justice, demand for your courts’ services is robust. If it were video games or iPhones, the public would be lined up around the block. What will you do to satisfy the demand? An administrator would probably cut supply, by creating rules to block access to a day in court. Turn them away, and they might not return – the philosophy of the manager of a collective supermarket in Soviet Russia.
Believe it or not, the best course in such a market is to create more demand, and to make demand more sophisticated. Chief Justice, go out and be seen in public, go into the schools, and talk up the justice system. Whether or not such a strategy will lead to better use of public judicial resources, it will certainly lead to a more just and safer society. That, at the end of the day, is what the Chief Justice of Ontario is better placed to sell than anyone else.