Questioning the monoculture: Observations in Calgary

One of the stickiest judicial concepts of the last ten years, as least as far as criminal procedure goes, is the idea that there exists a culture of complacency that must be rooted out. This culture is the root of many evils but principally it is blamed for much of the delay in the pre-trial process and for triggering hundreds of stays since R v Jordan. I wrote earlier about why I thought it was risky to assume such a monoculture on a national scale. After spending a couple of days in Calgary observing their case management process and investigating the changes they’ve made in the last 8 years, I am doubly convinced. Calgary is still struggling with the same problems of timeliness and efficiency that I’ve seen in Ottawa but the machinery is subtly, but fundamentally, different.

As of writing, I’m visiting the Calgary courthouse and watching the progression of cases through their case management process. I’m sitting in their docket courts taking notes about the matters that proceed and any developments that are mentioned on the record. It’s extremely unlikely that I will have sufficient data to make any quantitative conclusions but the time I’ve spent here will allow me to make some observations about the existance of a monoculture. I have also had an opportunity, usually in the downtime while waiting for defense cousel to arrive, to chat with judges and clerks about how their process works and where it’s falling down.

I’ll highlight a handful of differences between eastern Ontario and Calgary’s process: the use of a counter service for the early appearances, the use of digital systems that bridge many of the stake holders, and much shorter (at least in my short observation) times to get a trial date.

Counter Service

In Calgary, the first several appearances are done with a Justice of the Peace over-the-counter. This counter is tucked into the back corner of the fourth floor of the courthouse building. The release documents for accused people will direct them for their first appearance to that counter rather than a courtroom. Accused people and their counsel appear there for the first handful of appearances. They can obtain information about disclosure and take initial steps toward completing the case. In theory, this frees up court time in docket courts for those rote appearances.

There are obvious tradeoffs here. These initial appearances happens outside of an open court. They are impossible to observe. I haven’t found any information yet on how effective the process is for saving court time or how much progress happens in those initial counter visits. The one observation I have been able to make is that at around 2pm every day a large pile of informations are brought into docket court for failures to appear. The desk is open from 8am until 2pm. After 2pm the files that remain outstanding are sent to court for warrants. My count is that between 30 and 40 warrants were issued like this each of the three days I was in that court room. On Friday there were 35 warrants issued for 71 people on the case management counter’s list.

Digital Systems

The second thing I noticed, and it was hard to avoid when the halls outside the CMO desk are plastered with QR codes for one such system, is that there are a number of technological systems that serve as a bridge between the stakeholders. One such system, the Remote Courtroom Scheduling (RCS) system aids in scheduling certain types of appearances. It’s been in use since 2010. It seems to have access to both Crown and courtroom schedules¹. Another system, the adjournment digital service (ADS) allows lawyers and agents to adjourn initial appeareances before they happen². Email is used far more extensively in Calgary than I have observed in Ottawa. Counsel are expected to have checked in with their list of matters ahead of time, documents are emailed between all parties including the clerks.

I haven’t had a chance to dig in more extensively on the use of these tools but they seem to have been effective at increasing the velocity of information moving around the courthouse. These development efforts seem to be ongoing and actively look for places to improve. There are systems specifically for the Crown (I think it’s called PRISM but I’m not completely certain on that yet) and there is a digital system for requesting publication bans before appearances³. I can’t say how this leveraging of technology
has impacted the process because of my short time here, but it is different than the scheduling silos that exist in Ottawa.

Trial Scheduling Times

The last thing I’ll mention that was strikingly different between my time in Ottawa and Calgary is the time between setting a trial date and that trial date. Out of custody trials in the Ontario Court of Justice were averaging, during my observation, 12 months after they are scheduled in Ottawa and slightly less than that that in Perth and Kingston.

After 5 days observation in Calgary, the average is well under 6 months to the first offered trial date and usually they’re scheduled and on the books in that time. The onus is also on defence to list the dates that the court and Crown were available for trial but counsel was not. Ottawa Crown’s routinely had to pull those teeth by listing each date on the record.

A judge and Crown told me during a break that part of this timeliness was that their approach to trial scheduling is to overbook the courthouse but schedule all the trial into one courtroom. This courtroom then acts as a home base and trials are dispatched from there to the eventual trial court. I will spend a bit of time in that dispatch court next week. They mentioned that there is a case collapse rate and a not-reached rate that the case management office try to balance.

Next steps

I will only be here for 2 weeks in total. That’s not enough time to draw any reliable quantitative results but it is enough time to see that things are different here than in Eastern Ontario. I’ve managed to collect data regarding 500 appearances in 3 different types of court including federal matters, in-custody matters, and regular provincial docket court. The machinery is similar enough that it was not alien to me as an observer in the pews. But the subtle differences are enough to see that Calgary is approaching their challenges differently than Ottawa is facing theirs.