03 November 2015

Rumpole and the Noble Judge #nlpoli

The provincial justice ministry had to increase spending to put a new judge in the Provincial Court in Clarenville even though the caseload in the court didn’t justify the decision, government documents reveal.

Director of Public Prosecutions Donovan Molloy e-mailed then-deputy justice minister Paul Noble on September 6, 2014 about a news story in the Telegram.  Finance minister Ross Wiseman told the Telegram that plans were in the works to appoint a judge in Clarenville. 

Noble replied that he “literally and figuratively” had no idea what Wiseman was talking about. 

But in another e-mail sent on August 28,  Noble had asked assistant deputy minister Heather Jacobs and departmental controller Deborah Dunphy to “trace the evolution” of the issue.  Specifically,  Noble said he was trying “to unravel the details” about how many judge positions the department had and how much funding went with them.  

“It boils down to why we cannot appoint a judge in Clarenville, which in turn is connected to” an issue the departmental censors blacked out. 

Regular readers will be familiar with both the Clarenville judge issue. As Dunphy’s reply to Noble says,  the department eliminated funding for a position as part of budget cuts.  A ministerial briefing note from October 2014 gives greater detail.

The department eliminated funding for a position, anticipating that a judge would retire.  As it turned out, one judge didn’t retire as expected. Another judge did. That relieved the problem of judge pay but created cascading problems for legal aid and the Crown prosecutors' office, both of which had made changes anticipating a reduction.  As it turned out another judge in St. John’s retired, thereby allowing the department to pay for the Clarenville judge out of  the St. John’s salary money.

Problems continued.  One of them was an ongoing racket between Judge Harold Porter, who sat in Clarenville on circuit, and the Crown prosecutors. The Crowns wanted Porter to come up to Clarenville.  Porter preferred to hold court with him on video conference.  Part of the problem was the frequency with which Porter wound up in Clarenville only to have an entire week’s worth of cases postponed. 

Another part of the problem was the lack of work in Clarenville.  As Porter noted in one decision,

[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.

A second background note, prepared in November 2o14 confirms Porter’s assessment.  The list of problems with the court in Clarenville included the lack of caseload:  819 cases in 2013, down from 865 the year before.  By contrast, the one-judge court in Stephenville heard almost 2,000  cases in 2013.  While the work in Clarenville was going down, work in Stephenville was increasing.

While the access to information request asked for all information about the judge position in Clarenville, the documents released by the department are suspiciously confined to a very short period of time. They also have some irregularities in the information deleted under exemptions permitted by the Access to Information and Protection of Personal Privacy Act.

Notably missing from the department’s reply is the appointment of a new judge in Clarenville.There’s nothing about the decision at all and what changed in a year to justify spending money to put a judge in Clarenville when the department’s own information showed the caseload didn’t warrant it.

Maybe the secrecy had something to do with who got the job.

In September 2015, the provincial Conservatives appointed deputy minister Paul Noble to be the new  Provincial Court Judge in Clarenville.