CANADA FOCUS B.C.

Gentle justice

Court reforms aim at pretrial settlements

CHRIS WOOD February 1 1999
CANADA FOCUS B.C.

Gentle justice

Court reforms aim at pretrial settlements

CHRIS WOOD February 1 1999

Gentle justice

Court reforms aim at pretrial settlements

CANADA FOCUS B.C.

CHRIS WOOD

Court is in session in Vancouver, Judge Rosemary Gallagher presiding. Except that in Conference Room 114 of the downtown provincial law courts building on this grey December morning, there is no sheriff crying “Order!” There is no bar, no bench and very little formality, either. Instead, there is a round table with chairs—where Gallagher welcomes litigants with a bowl of candy—and a small desk at one side staffed by a clerk. The judge is a personable woman who laughs often, kidding the other people at the table out of their nervousness.

One is the plaintiff, whose complaint is with a car dealership. Gallagher hears him assert that his new car’s hood support was faulty because it squeaked. He has had to replace it at his own expense and wants $255—the price of the new parts plus the cost of taking his claim to court. The service manager objects that paying the claim would amount to acknowledging that the

support was faulty, which he denies (according to the manufacturer, it seems, the squeak is not a malfunction). After listening to both sides, Gallagher tries to ease the two towards an understanding: “I’m not hearing that anybody’s wrong here,” she assures the parties. “You can both be right. I’m hoping somebody here is going to recognize a way to solve this.”

Welcome to the new face of justice, and not only in touchy-feely British Columbia. With backlogged cases clogging dockets in almost every legal jurisdiction in the country, courts are struggling to respond. Some have sought, and received, more resources. In several provinces, courts are also looking for new ways to dispense the law more efficiently, to bring cases to a conclusion more quickly and more cheaply— but no less fairly. But no other court system has taken the idea as far as the provincial court of British Columbia, whose judges dispense about 80 per cent of criminal, civil and family decisions in the province (the rest fall under the jurisdiction of Bri-

tish Columbia’s Supreme Court). ‘We started with a novel assumption,” says chief provincial court Judge Bob Metzger, who has championed the changes. “Let’s pretend that we’re the litigants, and the rules should be designed for us as users, not for the judges and the lawyers. What do we want?”

A step back from courtroom drama, for one thing. Pretrial settlement conferences aimed at keeping cases out of court wherever possible—such as the one presided over recently by Gallagher—have been mandatory for small claims (under $10,000) in British Columbia since 1991. The low-budget conferences now resolve nearly three-quarters of all such cases before trial. Tie province has steadily extended similar concepts to other areas of the justice system. Two years ago, mandatory pretrial conferences conducted by judges were instituted for child-protection cases. And on Dec. 1, they began to be applied to many other family law disputes: parental access, child custody and support payments. More than 120 of the court’s judges have so far received special mediation training to equip them for their new role.

Not all were initially enthusiastic about the new, less structured style of conducting judicial business. “There was real resistance,” acknowledges associate chief Judge Hugh Stansfield, a Kelowna-based magistrate. But most judges, Stansfield insists, have slowly been won over. “Sometimes,” he says, semiformal mediation can produce “a result that could not have been achieved in a trial.” In one case, Stansfield recalls, “I had two businessmen suggest a coin toss to get over the last point.”

Now, a rare judicial vote being conducted this week could open the door to even more sweeping change. By Jan. 29, the 140 judges of the B.C. provincial court will pass collective judgment on whether to recommend adoption of dramatic new rules for criminal trials (last year, there were 115,000 in British Columbia). Constrained by charter of rights and Criminal Code considerations, the new rules would not brook as much informality as Gallagher enjoys in civil cases. But they would provide encouragement for prosecutors and defence council to agree on a plea bargain before any case reached court, and discourage them from delays once it does.

Both measures are aimed at redressing what judges say is a critical problem: the number of cases scheduled for trial that do not proceed when their day in court finally comes. According to court records, roughly 70 per cent of trials scheduled in British Columbia are aborted at the last minute—in

roughly equal proportions because an accused has failed to appear, or pleads guilty at the last moment, or because the Crown drops the case. Whatever the reason, so many cases collapse on trial day—even after witnesses have been called and are in attendance—that court staff routinely book three or even four cases into the same courtroom on the same day, in order to ensure the space does not stand idle. “That,” says Stansfield, who has been involved in drafting the new rules, “is an incredible waste of resources, and an incredible imposition on the public and the police.”

The proposed changes would require Crown prosecutors to discuss with defence lawyers what sentence a defendant could expect in return for a guilty plea. They would also institute a proceeding new to British Columbia: an arraignment hearing at which both sides would have to assure a judge that all pretrial manoeuvring was done—while the defendant would have to show that he can be relied on to appear in court. Only then would the case receive a docket date. The goal, says Metzger, is a more predictable and swifter process. “It is the same justice,” he insists, “but earlier.” Lawyers who have watched the B.C. reforms at work so far have mixed feelings about their extension into new areas of justice. In family disputes, the emphasis on out-of-court settlements “has worked well,” says Vancouver lawyer Robin Stewart. “They reduced the number of cases that go to a hearing. That’s always positive in family cases.” Stewart expects the new rules in other areas of family law to be “helpful.” But defence lawyer Greg Delbigio has reservations about the new requirements being contemplated for criminal cases. Pleabargain discussions, he insists, “already take place between responsible counsel in any event.” And he questions whether adding a new procedural step—the arraignment hearing—will reduce court work loads. “My perception of the reforms which have worked,” Delbigio says, “is that they have centred on more flexibility and accommodation, rather than more formality.

I remain unpersuaded.”

Back in Gallagher’s conference room, the mediation efforts continue. After 20 minutes of discussions between the car buyer and service manager, she senses an opening. “Here’s a client who may well buy more cars,” she reminds the service manager, pointing out that the buyer, overall, likes his car. “Is there any way to twist this into a satisfied customer?” The service manager considers this. Minutes later, the two men shake hands on an exchange of $120—and no further claim that the part was faulty. “It’s providing an environment,” Gallagher reflects on her work, “where people can take back the problem and solve it themselves.” British Columbians may soon discover whether the same spirit can bring swifter justice to criminal cases as well. □