11 June 2018

Rumpole and the Ticking Clock #nlpoli #cdnpoli

There are rules about how long a judge may take to issue a decision.

Now, now.

The lawyers among you are already spitting their morning coffee across the breakfast table at their long-suffering spouses but it is true.

There are rules.

"The Canadian Judicial Council",  its website tells us, "is a federal body created under the Judges Act with the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada."

Superior courts - the Supreme Courts in each province - are appointed by the federal government.  They handle trials, in the case of the Trial Division, and Appeals, in the case of the mysteriously named Appeals Division.  The Trials crowd also handle appeals in the first step from the Provincial Court, which is appointed provincially.

One of the CJC's efforts at fulfilling its mandate is the Ethical Principles for Judges.  Slide on down to page 17 where, in the section titled "Diligence",  the third principle states that "Judges should endeavour to perform all judicial duties, including the delivery of reserved judgments, with reasonable promptness."

A little farther along, after noting that decisions can be sometimes quite difficult and complex,  the statement of ethical principles notes that in 1985 the CJC decided that reserved judgment should be delivered within six months of a hearing, except in special circumstances.  There's even a helpful definition of what constitutes special circumstances:  illness,  the complexity of the case, or an unusually heavy workload in the court.

Six months.

With that in mind, note the decision delivered last month on a case that was heard in 2015.  A panel of three judges consisting of the Chief Justice (Green),  and two others (Harrington and Hoegg) got around to issuing a decision written by Harrington on the question of whether judges and the accused had to be physically in the same room for a summary conviction criminal trial involving witness testimony. 

To be precise,  the court heard arguments on 15 May 2015 and Harrington filed the decision on behalf of his colleagues on 08 May 2018.  That's about a week less than three years later and, by the CJC standards, about six times longer than the ethical standard established before these judges went to the bench.  That standard was probably set before some of them bought their first set of court duds. Certainly, even the oldest among the three had likely not worn the arse out of his first set of court pants. It was a while ago, to be sure, so there was no chance they had not heard mention of the six months rule.  

As for special circumstances,  let's just say that the Appeals Division has not be overly busy the past three years and the three judges involved appear to all have been in fairly good health as this relatively important sat untended.

One could even argue that, given the subject matter, this case should have received special attention.  After all, it is about how the courts themselves are supposed to operate dispensing justice in a time when delays in trials and judgments has been a touchy subject.  The Supreme Court of Canada  - as busy a court with complex cases as there is in the country - handed down its judgment in R. v Jordan the summer after Green, Harrington, and Hoegg heard this case.  They managed to get their judgment out in about eight months.

Bear in mind, too, that the case here is not a trivial matter and in the greater scheme of things,  it bore directly on the issues in Jordan. The provincial Crown prosecutors got their gowns in a bunch over a tongue lashing received from Judge Porter of the Provincial Court in Grand Bank.  Porter was, at the time,  filling in for the not-very-busy court in Clarenville that was missing its judge.  Porter had spent one too many days in Clarenville where, having cleared the docket in Grand Bank so he could come up to Clarenville, he found a line-up of local lawyers all begging to have the Clarenville docket for the week postponed because they were not prepared to go ahead.  

So Porter started hearing cases in Clarenville by teleconference.  The provincial Crown applied to the Supreme Court in Grand Bank to have quashed Porter's decision in a case heard by teleconference.  The Supreme Court judge in Grand Bank  - the first stage of the appeals process - backed Porter's decision. The provincial Crowns took it to St. John's and, after three years,  lost again. It may well wind up in the Supreme Court of Canada.

But  it took three years to get a decision out of the Appeals Division in Newfoundland and Labrador. 

And that's on a fairly big issue.

Nor is this the only case that is taking long than elephant gestation to produce a result.


As SRBP told you at the time, the provincial government was having a problem deciding what to pay Provincial Court judges.  The House of Assembly amended the law to push off the date for action a bit further.  The review panel issued a decision in December 2015 and in December 2016,  the judges took the matter to Supreme Court in St. John's asking for a judicial review of the government's decision.

Look at your phone.  

As of last Thursday, no decision some 18 months later.

18 is way more than six.

There's another one.  

A couple of accountants got into a racket over a complaint of professional misconduct that dragged their professional regulatory body into court along with the pair back in 2016.  Green, White and Hoegg heard the appeal in May 2016 and White delivered a decision on behalf of the panel a week shy of two years later.

These are but a few cases where decisions have been delivered, albeit waaaaay beyond the six months standard set down in 1985. There are others, so lawyers will tell you, of cases heard long ago and still awaiting a decision.

Are these delays justified?  

In all likelihood not. 

What it does tell you is that there is a problem in the courts across the country.  The problem is why cases like Jordan existed in the first place, let alone caused such a stir.  The issues vary from province to province and they are certainly not confined to the superior courts.  The provincial courts in Newfoundland and Labrador have issues as well, most of which relate to management of the courts' time and resources.  The shenanigans in 2015 involving a husband and wife swapping jobs in an affair that had more than a whiff of partisan swamp gas associated with it as well did not help matters or bolster the public view about the administration of justice in the province.

Who can fix it?

Well, this is not an issue for the politicians.

This is one for the judges themselves.    When they have a problem, they alone must put matters right.  Justice delayed is justice denied,  as the old saying goes,  and in the same way the justices must clean up their own mess to ensure the public has confidence in the courts and the justice system.

In the process, they could set an example for the politicians in the House of Assembly who are, after all, another branch of the government that must run their own affairs. And over  in the House of Assembly these days,  the politicians are most definitely not doing a good job of running their own affairs.   That is reflected in the public view  - as revealed by a public opinion poll - that a scandal is best handled by giving the matter to unelected, unaccountable people with neither the ability nor the mandate to resolve it than it is to let the politicians clear things up themselves.

When the people of Newfoundland and Labrador think that the politicians they elected to run things are not fit to do the job  - 44% negatives for one of them alone !!!! -  we have something much more worrisome than a mere democratic deficit.