24 November 2014

Judge Headroom #nlpoli

The Crown Prosecution Service lost an application last week to overturn a decision by a Provincial Court judge.

That’s not the newsworthy thing.  The Crown wins applications and loses them all the time.  What’s important about this is the back-story
The Telegram covered the decision itself, although you can read the whole decision for yourself. The Crown applied to the Supreme Court in Grand Bank to overturn a decision by Judge Harold Porter on a case in Clarenville on the grounds that Porter had presided over the case in Clarenville from his courtroom in Grand Bank by teleconference. 

The Crown wanted to force Porter to sit in Clarenville.  There’s been no judge there for the past six months ago since the judge there retired.  There’s a relatively light case load in Clarenville so Porter has been handling Clarenville.

And that’s where the rest of the story begins...

Porter had been travelling up to Clarenville to hear the cases in person.  “had been” is the key bit of that sentence. Last summer, Porter issued a decision in the case of a fellow named Gibbs who is facing three charges of simple possession of marijuana.

As part of that case,  the provincial Crown attorney had filed an application to set a date to have Porter come up to Clarenville to hear the case in person.  The federal Crown prosecutor and the defence didn’t make a similar application.  Porter denied the application but he didn’t stop there.

In his decision, Porter laced into the lawyers in Clarenville. 

[15] In March, 2014, the court in Clarenville was open for business  for 19 days. It sat for a total of 26.5 hours, less than 90 minutes per day. In April, 2014, it sat 18 days, but only for 33.3 hours, less than 2 hours per day. In May, 2014, the court was open for 20 days, and sat 34 hours, again, less than 2 hours per day.
[16] This small sample suggests that all of the matters being heard in the Clarenville court could be done in one week. Instead, they are scheduled out over the span of a month. That schedule is directly caused by the representations of counsel, which clearly have over-estimated the time required on the docket to hear matters.
[17] In that context, it is difficult to justify having a judge travel for two hours (one way) to preside over matters which, more often than not, did not proceed to trial. As a matter of efficiency, the court has been making use of modern technology.
Now for its part, the provincial Crown effort to force Porter up from Grand Bank is a curious one.  The idea that a judge has to be physically present in the same place as the person up on charges would create a bit of problem, if it was successful. 

You see,  the Provincial Courts have a thing called WASH court.  In order to make sure that people appear before a judge within 24 hours of their arrest,  court on the weekends and statutory holidays is held by video conference.  There’s one judge in the province,  a duty counsel from the Crown, and a duty counsel for legal aid all of whom appear by video conference with the accused appearing from whatever detention facility he or she is locked-up in at the moment.  The result is that judge could be in Goose Bay,  the Crown in Clarenville, the legal aid in Corner Brook and the accused in Stephenville, Goose Bay or St. John’s.

If the Clarenville Crown got its way,  any of those bail hearings would have to be heard where the accused is.  Think for a second and you can see the cost implications of keeping all those courts running on statutory holidays or over the weekend with judges, lawyers, clerks,  Sheriff’s Officers,  and penitentiary staff shuttling people back and forth to court for their few minutes with a judge.

With the government facing financial problems,  you can see why all this extra cost might be a bit of an issue.  The use of video technology doesn’t harm the search for justice, as the Supreme Court justice just ruled.  Here’s a bit of the decision, as quoted by the Telly:
"We are no longer limited by technology. ... Many courts hear matters regularly by video conferencing, and the technology that serves those courts is easy to use, gratifyingly intuitive and facilitates sensitive and fulsome participation in the proceedings," Handrigan wrote.
"Video conferencing is neither novel nor intimidating, and it does not impede or impair the truth-seeking function of the court."
There’s another part of this story too.  Note the bit of Porter’s decision where he talks about the relatively light workload for a judge in Clarenville.  There’s local pressure for a new courthouse in the town, for one thing.  But more curiously,  newly appointed finance minister Ross Wiseman wasted no time in September in telling The Packet that  Clarenville would have a new judge soon.

“The temporary arrangement of video conferencing obviously creates some inconvenience,” Wiseman told The Packet. “I had a recent conversation with the minister [Terry French, before he legged it] to find out where they are in the process. He’s indicated to me that there is no question around the intent to fill Judge Kennedy’s position and there are some internal things the department needs to deal with first.”

There are only two ways to get a judge in Clarenville.  Chief Judge Mark Pike could try and persuade one of the existing judges to shift body and bones and go to Clarenville.   Rumour has it that Pike tried that one already and even Pike’s wife the provincial court judge would not be moved.  Mark could close a busy courtroom in St, John’s for a political dog and pony show but there are limits even to the power of a Chief Judge, it seems. 

The other way would be to appoint a new judge.  Wiseman’s comment fuelled all sorts of speculation when Premier Paul Davis stuck the seat-less Judy Manning in the job of justice minister.  Some people thought she’d appoint Felix Collins to the seat in Clarenville, thereby creating a chance for her to represent the people of a district where she grew up but where, as far as anyone knows,  she hasn’t lived for some time.  Some others tossed around the idea that Darin King, himself a former justice minister, might work some magic to get an old Q.C. friend of his appointed to the job. 

For good measure, some people have been pushing the idea that Paul Davis might help out an old friend and make Jerome Kennedy a judge.  All wonderful speculation, but there’s nothing more to it, at this point, than just local chatter.

The speculation has died off a bit lately, but the job in Clarenville is still open.  Wiseman’s commitment still stands.  And, as the Supreme Court appeal shows, the provincial justice department  - via the local Crown prosecutor  - is still actively trying to make the case that Clarenville needs a full-time judge even if the evidence of the actual workload doesn’t.

As politics in this province holds,  actual need or financial necessity cannot stand up against political expediency. In that light, it will be interesting to see what happens in Clarenville when the whole shebang is finished.