Ah, the ancient tradition of the opening of the assize; the stentorian voice of the sheriff of the county, dressed in a frock coat, and ringing a bell, flanked by scarlet coated Mounties, summoning us, a gaggle of black-robed barristers, chafing under ill-fitting, starched tab collars, to attend before the bar and draw lots to see who would first do battle:
“Oyez, oyez, oyez. All stand. This Court of General Gaol Delivery is now in session.”
The assize was a legal institution which we inherited, along with long black robes and scratchy starched tab collars, from Great Britain. The term refers to a travelling court that sat at intervals in each county of the realm, the monarch dispatching high court judges on horseback to ride from town to town on a regular circuit, dispensing justice. Assizes had outlived their usefulness and were abolished in Great Britain in 1971, but the system has lingered here in the BC hinterland, and now – in Vancouver and New Westminster – there’s been a revival!
Back in the day, when I was a small-town lawyer, most smaller centres had but one locally-resident County Court judge, who had limited jurisdiction. (And limited patience with younger lawyers, as I recall.) For the serious criminal matters, and for civil matters which you sincerely hoped would involve monetary awards in excess of the jurisdiction of the local judge, one had to await the arrival of a Supreme Court judge, on assize.
Typically, we would have a spring and a fall assize, each of perhaps two weeks’ duration. The local registrar would, in advance of the assize, draw up a preliminary trial list, establishing the rough order in which our cases would be heard. When the travelling judge rode into town (never did see one on horseback, but Mr. Justice Gould used to arrive in a huge, vintage Rolls Royce,) the sheriff would don his frock coat, ring his fancy bell, and we were off to trial.
In an assize, each case follows the one ahead of it on the list, and you are expected to be on deck, gown on and witnesses at the ready, to start your case the instant that the case ahead of you concludes, to make the most efficient use of the precious time of the visiting judge.
As anyone who has ever been exposed to the trial process can attest however, trials are dynamic, and full of chills and spills. Witnesses fail to show, or worse, fail to remember their lines; nasty defendants do double back-flips trying to avoid justice being served; lawyers get sick, their kids get sick, the judge prangs his Rolls on the way to court; plea bargains are struck, or cash settlements agreed to. All of this makes a mockery of counsel’s estimate of trial length, and makes the maintenance of an orderly trial list an impossibility.
For counsel, being on assize meant clearing one’s calendar for the entire period of the assize, and joining the bush telegraph system that grew up amongst colleagues with cases on the list, sharing information as to the progress of each case – are they ahead of schedule, or behind? What are the prospects of settlement? Has the judge yelled at anyone yet? Will closing arguments take two hours, or four?
The assize added a complex additional element to the already complex task of running a trial, and most lawyers were, at best, ambivalent towards the system. It was bloody inconvenient, and emotionally stressful, as you rode the roller-coaster of pre-trial jitters – am I on tomorrow, or not? Dare I risk taking the night off, in case I get a late-night call to advise that the case ahead has collapsed? On the other hand, it gave local counsel a real advantage over those hated, big city lawyers, who either had to camp in a hotel room for the duration, or risk getting caught on the wrong end of a ferry ride.
So why this nostalgic romp down memory lane to reminisce about the good old days? Well, because the assize is back!
Chief Justice Hinkson, in a 20th March 2017 directive to the profession, has decreed the return of the assize, albeit without the wonderful pomp and circumstance of days of yore, to deal with the burgeoning volume of long chambers applications.
These days, no one robes up and runs an old-fashioned trial unless one really has to, since judicial reform has allowed an increasing number of cases to be decided on a summary trial basis, where evidence is presented in written, affidavit form, rather than with live witnesses on the stand. These summary trial applications – which can run from a couple of hours to a couple of days, are jamming the lists in chambers court where such applications are heard.
Henceforth, one can opt to be put “on the assize” committing to being available at least three out of five days, to have one’s application heard during the assize week. The new regime promises to make more efficient use of scarce judge time, and end some of the inefficiencies of the old system, where scheduled trials and applications go down, for a myriad of reasons, leaving courtrooms empty and judges twiddling their thumbs.
So, everything old is new again! (I just hope we don’t see the return of trial by combat – my sword arm ain’t what it used to be!)
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