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(JOHN LEHMANN/THE GLOBE AND MAIL)

Gary Mason

B.C.'s justice system faces a reckoning with modernity Add to ...

Like many long-standing institutions designed for another era, the B.C. court system wouldn’t look the way it does if it was being built today.

Many of the country’s legal edicts have changed over the decades, which have had unintended consequences on the administration of justice. The rights of the accused have grown. Accordingly, so has the length of time it takes people to work their way through an ever-complex court system.

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The wheels of justice in B.C. are now grinding under the weight of a confluence of factors: underfunding by provincial authorities, new laws that have complicated and drawn out the court process and a lack of creativity and critical thinking by those responsible for the system itself.

Of those reasons, the last one may be the most distressing because changes that could immediately help alleviate pressure on the system need not be expensive. What they take is a new way of thinking, of setting aside historically entrenched positions and musty attitudes for the sake of the common good.

Considered another way, the B.C. justice system is a $1-billion industry in which few of the 21st century business models apply. The legal system in B.C. and those across the country have mostly been resistant to change and modernization because stakeholders with vested interests have been successful in arguing that reforms driven in the name of efficiency might somehow undermine the central tenets of the system itself; the rights of the accused and the independence of the judiciary.

Consequently, money, and more hiring, has often been used to address problems that might have been solved more cheaply with some ingenuity.

But governments are running out of money and taxpayers are running out of patience with governments that are continually asking them for more of it. So now, jurisdictions like B.C. really have no choice but to innovate and the justice system really has no choice but to co-operate.

And there are some early encouraging signs that this may already be happening.

The B.C. provincial court, in concert with the attorney-general’s ministry, has quietly started to redesign the court scheduling process similar to the way Alberta did a couple of years ago. (The B.C. initiative is under way in Provincial Court in Victoria.) The idea behind it is to reduce the amount of time judges are spending on brief appearances by an accused ahead of a trial.

As we have heard in recent weeks amid the debate that has flared up around critical backlogs in the B.C. court system, an accused can appear before a judge, six, seven, eight times before his or her trial begins. This takes a judge away from more meaningful work, such as preliminary hearings and the actual trials themselves.

But getting access to a forever-busy judge for these administrative appearances – which are often housekeeping matters – can be a scheduling nightmare. Consequently, some cases get dragged out for so long they get thrown out because timelines have violated the rights of the accused.

Alberta was struggling with the same issue, and decided to effectively set up two courts: an assignment court, which, provided the administrative judge agrees that the case is ready to proceed, leads to the designation of a courtroom; and a low-complexity court for those wishing to plead guilty. (Almost a third of defendants in B.C. do plead guilty on first appearance.) This court also deals with other summary matters that don’t require a trial and more minor, administrative legal matters involving the Crown and defence that don’t really require a trial judge’s opinion.

This way a trial judge’s valuable time isn’t taken up by brief appearances in which, in some instances, the Crown might hand over a few documents to the defence. There is a range of other administrative matters, much of them related to scheduling, that once occurred in the presence of a judge and that now take place at the courthouse registry.

The Alberta program hasn’t solved all of the province’s court-pressure problems. But it’s a start. And it demonstrates the kind of collaborative, imaginative problem-solving that will be increasingly necessary in a world where money isn’t available to solve every public-policy dilemma that crops up.

Necessity may be the mother of invention. A lack of cash can be too sometimes.

Follow on Twitter: @garymasonglobe

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