AS/POLS 4600
  Fall Term 2004
Thursdays, 230 – 430 pm, S125 Schulich
Professors:  Carl Baar and Ian Greene
Offices: 127 McLaughlin College (Baar)
        224 McLaughlin College (Greene) 
tel 416-736-5128 (both)
emails: baar@yorku.ca, igreene@yorku.ca
 

Judicial Administration in Canada


Course Description:

An introduction to trial courts as state actors and court systems as social and political institutions.  The course will consider major concepts and issues in the field of court administration, including: the purposes of courts and the nature of adjudication, judicial independence and accountability, trial court unification, caseflow management, court delay and alternative dispute resolution.  For political scientists, the course will broaden the analysis and understanding of courts and judicial processes; for students of administration, the course will place management issues in a distinctive and complex environment; and for students of law, the course will provide a unique context for examining the divergence between law on the books and law in action.

Classes will focus primarily on Canada, but will draw on the instructors’ research and experience in other court systems, for example the United States, Australia, India, Pakistan, Ethiopia and the Philippines.

Required Texts:

Peter McCormick, Canada’s Courts (Toronto: Lorimer, 1994).

A two-part course kit has been prepared and is available for purchase at Keele Copy Centre, 4699  Keele St. (416-665-9675).  It includes relevant chapters from Perry Millar and Carl Baar, Judicial Administration in Canada (1981, now out of print).

Course Requirements:

· Two papers.  The first is a criminal court observation paper, due Tuesday, Oct. 12.
· Final examination.
· Class participation.

Grading Scheme:

Court Observation Paper (10 pp., due Tues., Oct. 12)   20%
Second Paper – topic and outline                                   10%
                          final version (15 pp.)                            25%
Final Exam                                                                    30%
Class Participation                                                         15%
 
 

Schedule of class topics and readings:


Week One (Sept. 9):  Introduction to the Course         Exercise: The Purposes of Courts

 Required Reading:
  McCormick, ch. 1.
  Millar and Baar, chs. 1-2.
  Exodus, chapter 18, verses 13-27.

 
Week Two (Sept. 23):  Introduction to Criminal Court Organization and Processes
    The Nature of Adjudicatory Processes

Required:
Cornelius M. Kerwin, Thomas Henderson and Carl Baar, “Adjudicatory Processes and the Organization of Trial Courts,” 70 Judicature 99-106 (1986).  McCormick, chs. 2 and 4.
African Canadian Legal Clinic, Anti-Black Racism in Canada, Part III,  pp. 21-35.
 
Other:   Carl Baar and Ellen Baar, “Diagnostic Adjudication in Appellate Courts: The Supreme Court of Canada and the Charter of Rights,” (1989 Osgoode Hall Law Journal 1-25.
  Carl Baar, “Judicial Independence and Judicial Administration: The Case of Provincial Court Judges,” (1998) 9:4 Constitutional Forum 114-19.
 

Week Three (Sept. 30): Court Organization and Trial Court Reform

 Required:
Millar and Baar, ch. 4.
  McCormick, ch. 3.
  Baar, “Trial Court Reorganization in Canada: Alternative Futures for Criminal Courts” (2003).

 
Week Four (Oct. 7):  Court Delay and Criminal Cases

 Required Reading:
  Jane Gadd, “Judge speaks out against court delays”.
  Church, Justice Delayed, ch. 4.
  Regina v. Askov, 1990.
  Baar, “Social Facts, Court Delay and the Charter”.
 

Week Five (Oct. 14):  Judicial Independence and Judicial Administration

 Required Reading:
  McCormick, ch. 8.
  Millar and Baar, ch. 3.
  Baar, “The Emergence of the Judiciary as an Institution” (1999).
  Hamilton, Number 78, The Federalist Papers.
  “Brutus,” Essay XV, from The Anti-Federalist Papers.

Other:  Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995).
 

Week Six (Oct. 21):  Civil Litigation

 Required Reading:
Pound, “The Causes of Popular Dissatisfaction …”
Cowper, “A Canadian Litigator Looks at the American System”.
Olson, “How America Got Its Litigation Explosion”.
Baar, “The Business of the Courts”.
Twohig et al., “Empirical Analyses of Civil Cases … in Toronto”.
McCormick, ch. 10, pp.152-59.
 

Week Seven (Oct. 28): Trial Court Decision-Making:
Judges, Juries, Facts and Law

             Required Reading:
                         Keedy, “A Remarkable Murder Trial: Rex v. Sinnisiak”.
                         McCormick and Greene, chs. 4-5.
 
 

Week Eight (Nov. 4): Appeal Courts and Appellate Litigation

             Required Reading:
                         Greene et al., Final Appeal, chs. 3 and 8.
                         McCormick, chs. 5-6, 9, and ch. 10, pp. 159-67.
 

Week Nine (Nov. 11): Caseflow Management and ADR
 
             Required Reading:
                          Millar and Baar, chs. 8, 5.
                          Solomon and Somerlot.
                          Blair and Lang, Ontario Civil Justice Review.
                          Baar and Hann, “Mandatory Mediation in Civil Cases”.
 

Week Ten (Nov. 18): Trial Court Decision-Making and Administration:
  Gender Issues
             Required Reading:
                          The Queen v. Pappajohn, 1980.
                          “Developer Puts Stake in Border Village”.
                          “Discrimination in the Judiciary”.
  Baar and Moore, “Ineffective Enforcement”.
 
 
Week Eleven (Nov. 25): Managing Judges

             Required Reading:
                          Morton, ch. 5.
                          McCormick, chs. 7, 11-12.
 

Week Twelve (Dec. 2): Managing Court Systems

             Required Reading:
                          Millar and Baar, chs. 6-7.
                          Jordan, “Ontario’s Integrated Justice Project”.
                          Baar, “Integrated Justice: Privatizing the Fundamentals”.
                          Rose, “Evaluating the Canadian Centre for Justice Statistics”.
 

First Assignment: Criminal Court Observation
 

 The purpose of this assignment is to examine the relationship between the formal rules/principles governing the criminal court process, the actual practices/procedures in Canadian criminal courts, and theoretical models of the adjudicatory process in trial courts.  The project requires observation, description and analysis.

 Most criminal cases begin and end in the Ontario Court of Justice, a court created by provincial statute with jurisdiction over provincial offences and matters arising under federal criminal law.  An accused person may plead guilty or stand trial in this court.  More serious criminal cases may move on to the Superior Court of Justice following a preliminary hearing in the Ontario Court, but all summary conviction offences and an overwhelming majority of indictable offences reach a final disposition in the Ontario Court.  Only the Superior Court, however, has the statutory authority to conduct jury trials.

In Toronto, criminal proceedings are held in five Ontario Court locations and one Superior Court location.  The largest and most diverse criminal court is downtown at Old City Hall, 60 Queen Street West at Bay.  The best-designed and best-managed criminal court is at College Park (444 Yonge St. at College, 2d floor).  Other criminal courts are located in the former boroughs of North York (1000 Finch Ave. West), Etobicoke (2201 Finch Ave. West), and Scarborough (1911 Eglinton Ave. East).

The Superior Court holds jury trials and judge-alone trials at the University Avenue courthouse, 361 University (just north of Queen Street, behind Osgoode Hall).  If it is more convenient, Newmarket and Brampton have court buildings that house both the Superior Court and the Ontario Court.

 You are required to attend for at least a full half-day (two to three hours minimum), and you may want to observe more than one judge or court.  Often it is possible to speak to court staff, lawyers, litigants or police officers during a recess in the proceedings.

 While you observe the court, think about how the particular proceeding fits into the overall criminal justice process.  Consider the context and consequences of the events, regardless of the type of proceedings you observe.

 Your paper should include the following:

(a) Date(s), time(s) and location(s) of your observations.
(b) A brief summary of the kinds of proceedings you observed.
(c) An analysis of your findings, with appropriate examples.

 Your analysis should apply and evaluate the typology of adjudicatory processes developed in Cornelius M. Kerwin, Thomas Henderson and Carl Baar, “Adjudicatory Processes and the Organization of Trial Courts,” 70 Judicature 99-106 (1986) [in Course Kit—Part 2].  What adjudicatory processes did you observe?  What is the basis for your conclusions?  Would you make any modifications in the typology and in how it is applied by Kerwin et al.?

 You may also use these questions to guide your analysis:

· Were the court proceedings what you expected?  Why or why not?
· Did different judges or lawyers affect the proceedings in a particular way?
· Did prosecutors (crown counsel) and defence counsel act in the same       manner?
· If you observed a series of cases (e.g. bail hearings), were there any patterns?
· Were people treated equally (e.g. regardless of age, wealth, social class, gender, race, ethnicity, and whether they are in or out of custody)?
· Were legal rights set out in the Charter observed?
· Could you see any difference between the formal authority structure and the actual power relations within the criminal justice system?
 

 Length:  2500 words.
 Due date:  Tuesday, October 12.
Late penalty: Two percent per day (out of 100%), including weekends and holidays.

 

Second Assignment: Research and Analysis Paper
 

The purpose of this assignment is to provide an empirical context for the study of judicial administration and the analysis of issues related to the administration of justice.  Therefore students should approach the assignment as follows:

Select an issue about the administration of justice raised by current discussion in the print media.  Go behind the issue to see whether writings in the field of court administration can help inform the issue.  Do court administration writings provide a useful context for understanding?  Do they suggest a critique of how the issue is portrayed in the media?  How does the court administration literature address the issue, or fail to address the issue?

Guidelines for selecting your topic:

You must use an item or items that has/have appeared in print during 2004.  You may consult newspapers and/or magazines (including web-based publications).  You are encouraged to look at professional newspapers and magazines in the field for topics of interest; see the two leading Canadian legal newspapers, The Lawyers Weekly and Law Times, or the leading legal magazines, Canadian Lawyer and The National (published by the Canadian Bar Association).  These professional publications normally focus on substantive legal issues, but often carry stories relevant to judicial administration.

Your paper will follow normal guidelines for political science research papers at York.  The item(s) you have selected as the starting point should be attached as an appendix, as well as cited in your bibliography.
 
Guidelines for submitting your outline:

Your outline (two pages will suffice) must include:
 -your topic
 -your argument
 -at least one news source that you used to determine your topic (eg. newpaper article or internet report), and at least five academic sources.
 -an outline of how you think your paper will be organized.  What are the two or three or four major sections of your paper, and why are they necessary to support your argument?

It is strongly recommended that you refer to Gregory M. Scott and Stephen M. Garrison, The Political Science Student Writer’s Manual, 4th ed. Upper Saddle River, NJ:  Prentice-Hall, 2002).

 Length of final paper: 15 pages (4000 words).
 Due date:  To be established in the first class.
 Weight:  25% of final mark.
Late penalty:  Two percent per day (out of 100%), including weekends and holidays.