BarTalk October 2000
Volume 12, Number 5

What are you hoping to accomplish during your term?

The Honourable Chief Judge Baird Ellan

A lot of my work has been largely cut out for me in terms of completing the implementation of the case management program and initiatives that were started back when Chief Judge Diebolt was in office. His small claims revisions and the addition of settlement conferences were followed by a family court initiative, and then the current criminal caseflow management program (CCFM). The latter two were spearheaded by Chief Judge Metzger, and implemented with the instrumental assistance of Associate Chief Judges Schmidt and Stansfield. I should add that I am very grateful that Judges Schmidt and Stansfield have agreed to stay on as Associate Chiefs. They provide much needed continuity and experience.

I see my role initially as completing the implementation of the final phases of the case management rules. They are operating in most places in the province, with the last two larger communities, Surrey and Vancouver, starting in November. I also recognize that I have a larger role down the road in performing a review of that process, as was promised by my predecessor, probably commencing in January. That would include fielding concerns of the Bar. I am well aware that there are some mixed reviews about the new rules and the implementation process, and I am very receptive to talking to lawyers about those issues.

The objectives of these changes were that we wanted to identify trials that wouldn’t proceed, and deal with them earlier in the process than on the trial date, (with all the witnesses in attendance, counsel having prepared unnecessarily, and court time wasted). The preliminary analysis of caseloads and trial lists in jurisdictions where CCFM has been in place is extremely encouraging and favorable. In terms of the effect on trial predictability and backlogs, we have experienced significant cutbacks in the delay to trial, and court days in many of these jurisdictions are much more workable. They’re setting a more realistic caseload, and those cases tend to be proceeding more predictably.

The concern is that we want to be very careful that this isn’t occurring at the expense of fairness to participants in the process, or at great inconvenience or hardship to counsel.

We’ve had a very supportive response from the Ministry of Attorney General and the Legal Services Society. The Attorney General dedicated another $1.4 million, and he made it clear in his announcement that this includes funding for duty counsel for the initial appearance portion of this process. This should help address what I know was one concern of the Bar.

I also expect, for the first while, I am going to travel around to as many of the locations of the provincial court as I can, and see the judges and justices of the peace in each area to get a handle on what the concerns are in their communities and what sort of changes, if any, need to be made.

We are actively investigating other kinds of courts. For example, there’s a drug court committee in which I’ve been peripherally involved, and I know the Ministry has expressed ongoing interest in that. I think the fundamental problem is funding, but it is not a dead issue by any stretch. We’re actively interested in that and in any other potential improvements to the delivery of justice and/or crime prevention. The Associate Chiefs have looked at many different models of courts, with a view to any improvements that can be made to improve access to justice and expediency. We always want to keep looking at ideas for improvements, so we’ll keep sending feelers out and investigating what they do in different places.

I’m also looking forward to my role on Judicial Council, and the good work that they do in fielding and screening potential judges for provincial court. They have been concentrating on this court being more representative of the Bar and our society, I think they’ve been doing a pretty good job of that in the last little while.

How is your court dealing with new technologies?

We’re fairly technologically proficient at this point, but we certainly have a ways to go. There are a number of committees, one dealing with electronic filing, for instance, on which we participate with the other levels of court. I expect that those activities will heat up and we’ll be involved in the process of deciding how best to achieve technology and more flow of communication, without excluding access to those who aren’t necessarily technologically literate or who do not have easy access to technology.

I do have some visions for the Web site and the judgment database. The database is floundering, and I recognize that it’s a source of embarrassment to this Bench that we haven’t yet got it up and running to a point where the public or counsel can access many decisions from our court online. There are very good people in this office, including systems personnel, working on the database and putting the judgments onto it. We don’t have large resources to dedicate to it, so we are to some extent reliant upon judges taking the initiative in putting their decisions onto the database.

One of our difficulties is that judgments aren’t always in written format – we don’t have the automatic transcript and/or typed reasons that come out of Supreme Court. A huge proportion of our decisions are oral, and to proceed to a written judgment from that requires a judge to order a transcript, proofread it and get it onto the format necessary to put it onto the database. We’re trying to change that, with a new protocol and procedure to be followed in connection with getting more decisions on there. I am hopeful that it will be up and running more effectively soon. So that’s going to be a high priority for me. We are also doing some wholesale revisions to our Web site and the database. It may be found at www.provincialcourt.bc.ca.

What about the issue of unrepresented litigants, which is a major concern of the Bar?

It is a growing issue, certainly, with there being many more unrepresented litigants than there used to be. I saw this personally in provincial court at Vancouver, where I sat before this appointment. There is now case law, dictating the very large extent to which the court has to be involved in assisting people when they’re unrepresented. That is troubling, to say the least, because in addition to our adjudicator role we are now playing the role of counsel to a large extent in some of these matters, and in others we are faulted for not playing enough of a counsel or advisory role. The Bench is also concerned because it reduces the efficiency of the courts – when you’re spending time trying to tell people which direction to turn on a particular matter, you’re not doing what judges get paid to do. In some cases it gets uncomfortably close to a perception of bias, because you’re jumping in to cross-examine where the litigant isn’t able if you feel it’s appropriate. This is an area in which the court must consider what role it should take in assisting litigants and disseminating information to them.

At the CBA’s public forum broadcast on CBC, one of your judges spoke of the sheer volume of cases handled by the provincial court system. Is that part of the stress placed on your courts?

That’s a good point. Recently, the Chief Justices and I addressed the first year law students, talking just generally about what our courts did. In the context of that, I looked at some statistics about this court and found that the volume of criminal cases in provincial court are about 96 per cent of the whole. The other four per cent go on to Supreme Court, but 96 per cent get finished at provincial court. So that gives you some idea of the volume, the sheer massiveness of it. The Court of Appeal might have 1000 cases in a year. At Main Street alone, we would easily have 100 in a day. So when you talk about efficiency and expediency and delivery of justice and access and that sort of thing, the provincial court is really on the front line. We have to be efficient – again, not at the cost of fairness and focusing on an individual matter – but when and if we get bogged down it turns very quickly into significant backlog.

We benefit greatly from organizations like the Mental Patients Association, Native Courtworkers, the First Nations Legal Clinic, and Law Courts Education to name a few “friends” of the court. They’re essential to our courts running smoothly, and when their funding is limited or cut back, it hurts the system.

Your predecessor was quite active and proactive in working to develop a relationship between the courts and the media and public. Is that a role you intend to continue?

Yes, although it’s a new role for me. As a sitting judge I didn’t deal with the media so there’s a definite learning curve, but I do intend and hope to be as accessible as Chief Judge Metzger was. I think it is very important that judges take an educator role with respect to media inquiries, so that at the very least, media coverage includes accurate information about the court system. I think it’s important to be clear about what I can speak to them about. I’m not going to speak about an individual case, it would be inappropriate for me to do so, but I can tell them about the bail provisions of the code for instance, or the context within which a particular decision took place, and what judges do generally.

When there is a specific case which requires media comment, or a judge or judgment which is being attacked, I look to the CBA to continue its role in speaking out as you have done in the past. I think that is a valuable contribution that the Bar has historically made, and one where we all benefit. I look forward to meeting and working with lawyers in all of our court locations, and I invite any input and ideas you might have about the provincial court system in BC.

This article was published in the October 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.