Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Efficiency vs. justice T duced a new triage court for criminal matters. Under that system, the court will hear matters at the preliminary hearing or trial stage at 9 a.m. If the matter is ready to proceed, it moves to trial or preliminary hearings as long as a courtroom is available. Th e idea is to deal with pleas and adjournments outside of trial court in order to improve effi ciency and eff ectiveness, says Ministry of the Attorney General spokesman Brendan Crawley. Th e new system comes as the Newmarket court and the justice hings are changing at the courthouse in Newmarket, Ont., where the justice system has long struggled with notoriously big caseloads. In June, Law Times reported last week, the courthouse intro- COMMENT August 6, 2012 • LAw times system in general have lagged in meeting the time and effi ciency goals set out by the Justice on Target project. With guilty pleas heard separately at 10 a.m., the hope is the changes will reduce the average amount of time to trial. Th ere' system faces continuing pressures to innovate in order to improve ef- fi ciency and cut wait times. And on the face of it, it' there's anything wrong with streamlining the way the courts handle s no doubt that the eff ort is laudable, especially as the justice s hard to see how matters in order to improve the way they prioritize them. If the jus- tice system also fi xes other aspects of the process, especially timelines around disclosure to the Crown, the changes may provide for faster access to trials. Th at would certainly be a welcome result. Th ere is, however, the counter argument that eff orts like the tri- age court and Justice on Target in general are only increasing the pointments — has come under critical scrutiny recently. Given the retirement of Supreme Court Justice Marie Deschamps, now is a good time to refl ect on the con- ventions that have characterized appoint- ments to the top court since its creation. In a nutshell, these conventions began T of naming members of visible minorities to the bench — there were two out of the last 100 ap- he federal government's record with regional, religious (meaning Prot- estant or Catholic), and ethno-cultural (meaning English or French) represen- tation and then slowly broadened aſt er 1970 to recognize gender and multicul- turalism as factors. Ever since the fi rst Supreme Court Act mandated that two of the initial six judges should be from the Quebec bar, there has been an assumption that the court should refl ect the regional variation and ethno- cultural makeup of the country. As Canada became more culturally diverse and wom- en came to play a more important role in public life, it' ventions have evolved to reshape the court. Region, however, remains the strongest s not surprising that new con- convention in Supreme Court appoint- ments. Aside from the current statutory requirement of three Quebec judges, all of the other conventions are unwritten but Law Times pressure on accused people to plead guilty. As lawyer J.S. Vijaya tells Law Times, the Crown oſt en makes a generous plea off er early in the process with an understanding that it'll take a harder posi- tion later on. As a result, an accused who knows this — presumably on the advice of a defence law- yer — may jump at the deal by skipping the trial and instead pleading guilty at 10 a.m. actually guilty. But the justice system needs to care- fully balance the drive for effi ciency with the integri- ty of the plea system and the importance of ensuring a just result. Th ere' Th ere's nothing wrong with that if the person is ance is out of whack, but it's something we all need s no clear evidence that that bal- to be mindful of as we look to resolve the backlogs. — Glenn Kauth Next SCC appointment unlikely to redress judicial diversity gap That's remain no less powerful. Originally, two judges each came from Quebec, Ontario, and the Maritimes, refl ecting the fi rst four confederating provinces. When justice Rob- ert Sedgewick of Nova Scotia died in offi ce in 1906, Lyman Poore Duff of Victoria replaced him in a move that refl ected the growth of the West. Atlan- tic Canadian representation ever since has remained at one member. When the court grew to seven judges in 1927, the position was earmarked for Ontario. Western repre- sentation rose to two when the court ex- panded to nine in 1949, a change that also added a third Quebec judge. Since the ap- pointment of justice William McIntyre in 1979, the western convention has meant one judge from British Columbia and one from the Prairies. Turning to religion and ethno-cultural History in 1954, an anglo-Protestant Montrealer. Henri-Elzéar Taschereau became the fi rst French-Canadian chief justice in 1902, but the convention of rotating English and French chiefs didn't take root until af- ter Duff ' Philip Girard ethnicity until Laskin joined the court in 1970 as its fi rst Jewish member. But no ava- lanche of appointments from various mul- ticultural groups followed. Another Jewish judge didn't arrive for almost 20 years aſt er Laskin' outside Quebec, one was of- ten, although not invariably, a Catholic, and the rest Prot- estant. Th ere was representa- tion from no other religion or Among the judges from s retirement in 1944. background, the conventions were rigid for nearly a century. Th e Quebec judges were almost invariably French and Catho- lic except for Charles Fitzpatrick, who was parachuted from former prime minister Wilfrid Laurier' position of chief justice. He was Irish and Catholic. Th ere was also Douglas Abbott s cabinet in 1906 into the pointment of Justice Morris Fish in 2003 and then Justice Rosalie Abella in 2004 and Justice Michael Moldaver in 2011. It wasn't until justice John Sopinka, who was of Ukrainian heritage, joined the court in 1988 that was there another appointee of non-English or French background. Jus- tice Frank Iacobucci joined soon aſt er in 1991 and, of course, there was Justice An- dromache Karakatsanis last year. Certainly, the most striking change in convention since Laskin's death has been s death. Th at came with the ap- Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . 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Single copies are $4.00 Circulation www.lawtimesnews.com the eclipse of religion as a driving fac- tor in appointments. Our current court, with three judges of Catholic or Ortho- dox background, three Jews, and three Protestants, would have been unthink- able as recently as 1990. But as for cul- tural background, change has been slow, cautious, and Eurocentric. Th e court has no visible minority or aboriginal mem- bers and that' Justice Marie Deschamps leaves this year given the all-white and overwhelmingly pure laine composition of the Quebec Court of Appeal. Th e more acute question is whether a woman will replace Deschamps. It was only with the 1989 appointment of Chief Justice Beverley McLachlin that one-third of the judges were women and it' since 2004 that there have been four. While it would be startling to see fewer than three women on the court, one can't yet say there' s only champs' replacement is a woman, that will help crystallize such a convention. s a convention of having four. If Des- LT uPhilip Girard is a legal historian and professor at Dalhousie University' ich School of Law. He's also associate edi- s Schul- tor at the Osgoode Society for Canadian Legal History. His e-mail address is philip. girard@dal.ca. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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