Reforming the courts #nlpoli

The numbers in Tuesday's post showed all the time spent in the court in each seat,  totalled up for the month, averaged,  then divided by seven to give an estimate of full-days the courts in the province actually sit.

Judges do other work besides sitting in their courts.  But you really have to wonder if the courts are as overtaxed as some would have it when you have so many of the judges spending as little as three days or even six days a month, in total, actually sitting in court hearing evidence or motions or what have you.

The truth is the Provincial Courts  are not burdened at all. According to people familiar with the operations of the courts, about 85% of the charges laid in Provincial Court never go to trial.  There are either plea deals or the charges are withdrawn.

How many days does a Provincial Court sit? #nlpoli

If you listen to some people,  Provincial Courts in the province are seriously overloaded such that with the loss of a couple of court houses - not judges, but buildings - we could see cases running upwards of 49 months or more and therefore causing massive constitutional problems.

Nothing could be further from the truth, of course, as statistics on Provincial Courts show.

Some others would have you believe the courts cannot become any more efficient than they are.

Again.  Truth.  That claim.  Not even close to the same thing.

So what is the sitch in the courts?

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. 

Rumpole and the Judge’s Wage #nlpoli

How hard can it be to figure out what Provincial Court Judges should get paid to do their work dispensing justice all around the province?

Apparently, it can be quite difficult.

There’s a teeny amendment bill in the House that sets a new date for a report from a commission that has to be set up to figure out the judges’ pay and benefits:

(1.2) Notwithstanding subsection (1), the next report required under subsection (1) after September 30, 2010 shall be presented to the minister not later than December 31, 2015.

Once the thing gets through the House,  this “Act is considered to have come into force on September 29, 2014.”

That’s six months ago.

What the heck has been going on all this time?

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...

English v. Pike: Game on! #nlpoli

Supreme Court Trial Division, Court Room 7, Duckworth Street.

10:00 AM.

Be there or be squarer than you’d normally be as a lawyer or person interested in lawyer stuff.

William J. English vs Mark D. Pike et al.

Bench Mark #nlpoli

The names of two lawyers who might appear in an upcoming news release:

• James Walsh
• Lori Marshall

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Court docket now online

Word-for-word, the release issued by Provincial Court:

Effective March 3, 2010, the Provincial Court of Newfoundland and Labrador began providing improved public access and greater transparency by posting its daily Adult Criminal Docket online. The dockets are found online at http://www.court.nl.ca/provincial/adult/dockets.htm

The public and media now have the capability to go online and access, at their convenience, the daily Adult Criminal Docket for any Provincial Court location in the Province.

By providing this service the Court eliminates the need for the public, and particularly the media, on a daily basis to call or visit a court centre in order to confirm that a particular matter is scheduled for the following day. This access not only benefits the public and media, but improves the efficiency of the court by reducing phone calls and visits to the Court Registries.

The Small Claims Docket will also be available online in a few short weeks. As regards Youth and Family cases, there is specific legislation that prohibits the information contained in these dockets from being published.

Chief Judge Mark Pike said, “I am pleased that our Court Services Director has taken this innovative step to improve the efficiency of the Court’s daily operation and to make it more convenient for the thousands of people who have contact with us every year”.

Prominent St. John’s criminal lawyer, Randolph J. Piercey Q.C. stated “For many years lawyers, witnesses and those accused of crimes were required to crowd around a printed listing of the schedule posted outside the court door every morning. This was cumbersome and confusing. By having the docket posted and accessible online, all parties can confirm their schedules in advance.”

Pamela Goulding QC, Director of Public Prosecutions said “All too frequently, people went to the wrong courtroom or were mistaken about when their case was scheduled to proceed. Those who work in the courts such as police officers, lawyers and media personnel upon whom the public relies for information about what’s happening in our courts every day, were especially affected. Now, anyone with internet access can check the docket at their convenience. This will make it a lot easier for everyone. It just makes sense”.

The Provincial Court of Newfoundland and Labrador is the first Provincial Court in Canada to offer online daily Adult Criminal Dockets. The open court principle can be significantly enhanced through the appropriate use of existing information technologies.

“Innovative step”?

Just goes to show how far things have to come where something as patently obvious as posting a docket online is innovative.  Still it’s a good first step.

Of course, this isn’t the first court in the province to do this.  Trials Division of the Supreme Court has had its docket online for the better part of a year or more.

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Rumpole and The Way through the Woods

Great howls came from the clerk’s room at Number 3 Iniquity Court this morning.

Over steaming mugs of Red Rose and a few cream crackers, the b’ys were having a laugh at the goings on over at the Provincial Court in Gander.

It is, for those who haven’t been following such things, the story of a court which has been one judge short since December 2008.  That’s when one of the two judges flew up to the Supreme Court leaving his benchmate, one Judge Short – Bruce, by name – to handle the unending tide of misbehaviour from Suburbia in the Woods and its environs. 

The matter should have been settled with a few appointments to the Christmas Honours List but something appears to have gone off the rails.

A lawyer in Gander, one Juan O’Quinn, turned up in a CBC News story on Friday bemoaning the problems with getting cases heard in a timely way under the circumstances.  The CBC story is still not correct on the whole picture since it links Don Singleton to the goings on.  That, as local Rumpole followers know, is a horse of an entirely other colour.

To return to the matter at bar, the clerks were quick to point out that O’Quinn is a former law partner of the health minister and the chairman of the Memorial University board of regents.  His talking publicly is not to be taken lightly especially when it is to complain about stuff not being done by cabinet appointment:

"If you have a situation where you want to get access to your children and your spouse is not permitting that and you need to get in front of a court, if the court is busy then obviously that's problematic," said defence lawyer Juan O'Quinn.

The problems in Gander are an old old story.  A year ago, the town council raised the issue with the local member of the House of Assembly for the district Gander is in.  As the Beacon put it in a story on the ongoing court problems:

The Town of Gander received a letter dated Feb. 17, 2009, from government services minister Kevin O'Brien, MHA for Gander. In it, the minister said the interview process for the provincial court judge position was underway and the it would be filled in the not too distant future.

O’Brien’s logic on the delay is  - characteristically - incomprehensible:

Minister O'Brien said he is not surprised the matter has taken this long, given the amount of interest in the position and the prominence of the provincial court.

In any event, the CBC story confirms what your humble e-scribbler had heard early, namely that Provincial Court Chief Judge Mark Pike sent a list of nominees along to the justice minister last November.  Normally that would be plenty of time to select as many qualified appointees as might be needed and to let the chosen few celebrate their good fortune over the holidays.

Not this year, as it turned out.

The clerks offered two versions of why not.

In the first version, the Chief Judge had been heard talking about appointing his team and setting things on the course he had chosen for the court.   The list went from Pike to justice minister Felix Collins who dutifully passed it along to He who Must be Obeyed.

He was not amused at all by the Chief Judge’s confusion over who actually makes the appointments and sent the list back to be re-worked.

In the second version, the list went up with only the list of people recommended by the judicial council to fill the vacancies.  There were no other names of those interviewed, as used to be the custom, broken down into categories of highly recommended, recommended (meaning they met the requirements set out in the Act but lacked some qualities the council sought) and not recommended.

There was not even a list of the type demanded for the mess that became l’affair Singleton, namely putting everyone into one of two categories:  Recommended -  which jumbled together in one undifferentiated mess the highly qualified and experienced as well as those who met barely met the minimums set down in law - and Not Recommended, which was all those who didn’t even meet the minimum requirements.

The November list apparently left off some names of individuals reputedly known to the political powers to have applied.

The list was sent back to be re-worked.

The two versions are not incompatible, it should be noted, and regardless of the precise reasons the end result is the same:  the bench in Gander as well as three other spots remain short of judges.

The cabinet is working its way through the woods and may eventually find someone to sit in Suburbia alongside Judge Short.

But in the meantime,  Bruce is on his own.

If Juan applied, he can cancel plans to lay up his shingle.

And there should be no question in any one’s mind about who appoints judges in Newfoundland and Labrador.

Well, at least that’s what the clerks said as they drained the last drop of Carnation from the tin and got back to their work, mugs full of a fresh brew.

-srbp-

Imagine if they were senate vacancies…

Seems that something is holding up the announcement of four appointments to the provincial court.  The clerks’ room at Number 3 Iniquity court was abuzz before Christmas with anticipation of an announcement ‘round about the first anniversary of l’affair Singleton.

Don Singleton’s appointment was announced on December 23, you may recall, and withdrawn in a storm of controversy on January 12.

Since then, there has been no sign of new appointments and the number of vacancies is four times larger.

Four empty seats on the provincial court doesn’t look very good, especially when a couple of them have been vacant for a year or more and after things got rather squirrely out in Gander in the middle of 2009.

So unless there is something akin the shenanigans last time that is causing some sort of massive last minute re-think of the whole announcement, maybe it is time for justice minister Felix Collins to take the list that showed up in the department some time ago,  tick off four names and get the release out there. 

After all, it’s already been checked over to see who’s been naughty and who’s been nice and the only ones left have passed the sooper dooper clearance checks supposedly imposed by Collin’s predecessor after said predecessor got caught out in the whole Singleton business.

After all, at some point, even the conventional media might notice that the provincial court is short a few judges and that the vacancies are getting older and older with each passing day.

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Rumpole and the Christmas Honours List

Word coming from the clerks’ room at Iniquity Court has it that on Tuesday next the province’s justice minister will announce recipients of the cabinet’s appointments to the provincial court bench.

There are four slots open, as Bond Papers readers already know. Some of them have been vacant for a year.

Who will make the Honours List?

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Rumpole and Justice Delayed

 

There is no question that our system provides a great method for adjudicating questions of fact and law, but given the expenditure of public funds we are obliged to the people of Newfoundland and Labrador to provide the best possible system in terms of the efficiency of the process.

Report on of the Task Force on Criminal Justice Efficiencies, February 2008

Administrative changes recommended by a committee of lawyers and judges to improve the province’s justice system still haven’t been implemented over 18 months after they were made public.

In December 2007, newbie justice minister Jerome Kennedy appointed a task force that included deputy minister Chris Curran, then Chief Provincial Court Judge Reg Reid and Mark Pike, the current associate chief judge, among others.  They issued their report in February 2008 because they were specifically directed “to make recommendations and to meet any necessary budgetary deadlines for the ensuing fiscal year.”

The committee agreed that “with appropriate leadership, goodwill and resources, its recommendations could be fully implemented by the fall of 2008.”

Some 18 months and two budgets later there is still no sign of some of the major changes, including a new system for assigning court time.  Kennedy was replaced as justice minister in late 2008 in a sudden cabinet shuffle.

In its report, the panel noted that:

Court sitting times in St. John’s have been declining for the last two years. It is a fact that in 2007, on average, in St. John’s, only 31% of the available courtroom time was utilized. For 2006 and 2007, on average in St. John’s, some 40% of the judge’s available sitting time was lost primarily due to collapsed cases.

The panel recommended use of a  Case Assignment and Retrieval System (CAARS), appointment of part-time (per diem judges) and appointment of a trial co-ordinator to oversee the efficient scheduling of cases.

In May 2008, Kennedy described the system for the House of Assembly:

So this system would be called the Case Assignment and Retrieval System, or the CAAR system, and would allow for flexibility. Essentially, what happens in Provincial Court today, if a trial is commenced, if that trial does not finish in the two days allotted then it goes to the six or eight months in the roster down the road when it next comes up to court.

Consistent with the committee recommendation, Kennedy told the legislature the target date for implementing CAARS was the fall of 2008. 

However, as cases like the Walsh trial indicate, the system is apparently still not in place. A trial co-ordinator position, also recommended by the panel to manage court schedules apparently hasn’t been hired.

One thing recommended by the panel has been implemented and that is the creation of per diem judges.  Essentially these are part time judges who are available on call and only used as needed. 

But with four vacant seats on the Provincial Court bench  - three of which are in St. John’s – the per diem judges likely wouldn’t make much of a difference to solving the problems noted in 2006 and 2007.

While Kennedy indicated in the House that the section of the act creating part-time judges wouldn’t be proclaimed until CAARS is ready, the judge positions already exist without the new scheduling system.

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Rumpole and the Summer of Discontent

There is disquiet in the sleepy hamlet of Gander.

The provincial courthouse is short one judge since Judge David Peddle was appointed to the Trials Division of the Supreme Court last December.

Justice Peddle’s former bench-mate  - Judge Bruce Short – is on something of a work-to-rule, as it seems, to protest the delay in appointing someone to help with the load of cases parading before him in the Gander courthouse.

Court is held only on Tuesdays, Wednesdays and Thursdays, with Judge Short repairing the rest of the time to his home, which is, it should be noted noted, more than the maximum 70 kilometres from his bench required by the statute.

Judge Short is reportedly so peeved that he has told counsel appearing before him that they are free to call their members in the House of Assembly and impress upon the politicos the need to send a second judge out to share the burden in Gander.

One wonders what might happen if no one can rouse the appropriate authorities to fill the spot in Gander not to mention the other three seats on the provincial court bench that currently sit vacant. 

Perhaps Judge Short might be compelled to start tossing  cases out the door based on delays in hearing them and the resultant constitutional issues arising.

Perhaps justice minister Tom Marshall is holding off on any new appointments out of embarrassment over last winter’s Singleton fiasco. It’s not everyday someone turns down a judge’s appointment once details of his past emerge.

Bond Papers discussed this earlier in “Rumpole and the Blind Tasting”,  “Rumpole and the Minister’s Choice” and “Rumpole and the Doddering Old Man”.

The politicos tried to push the whole thing off as a failure of the selection committee, but that story turned out to be a bit of a nose puller.

Whatever the reason, Gander is experiencing a summer of discontent in 2009 with a very special cause. 

It will carry on, one suspects, until someone manages to get a few names in front of Tom Marshall the next time he comes into the office from his home in Corner Brook.

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Rumpole and the Minister’s Choice

For the record, here is the section of the Provincial Court Act, 1991 under which cabinet appointed Don Singleton to be a Provincial Court Judge.

Remember:  the Judicial Council didn’t make the appointment.  Tom Marshall – justice minister and attorney general – picked Don singleton from a list of applicants some of whom were highly recommended and others of whom, including Singleton were “recommended”.

Appointment of judges

5. (1) The Lieutenant-Governor in Council, on the recommendation of the minister, may appoint persons to be judges of the court.

(2) No person shall be appointed as a judge unless he or she

(a) has been a member in good standing of the bar of one or more of the provinces of Canada for a total of at least 10 years; and

(b) is at the time of the appointment a practising member in good standing of the Law Society of Newfoundland.

(3) No person may be recommended by the minister under subsection (1) without the recommendation of the judicial council under paragraph 18(a).

For comparison, here is the section from the old act, circa 1974 and amended in 1978 and 1988,  on appointment of judges:

Appointment of Provincial Court judges

6. (1) The Lieutenant-Governor in Council, upon the recommendation of the minister in consultation with the judicial council, may appoint, by Commission under the Great Seal, those persons that the Lieutenant-Governor in Council considers appropriate and necessary, to be judges of the Provincial Court of Newfoundland.

(2) A person appointed as a Provincial Court judge shall be a member in good standing of the Law Society of Newfoundland.

(3) A Provincial Court judge shall be paid, out of the Consolidated Revenue Fund of the province, a salary fixed by the Lieutenant-Governor in Council by regulations made under section 25.

(4) The terms of the appointment of Provincial Court judges shall be judicially noted.

(5) Where a new Provincial Court district is made under section 14 or where a Provincial Court judge dies, resigns or is removed from office leaving a Provincial Court district without an appointed Provincial Court judge, the Lieutenant-Governor in Council may appoint a new Provincial Court judge to that Provincial Court district.

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