British Columbia's justice system is facing a crisis that runs deep. Across the province and here at home on the Sunshine Coast, trial delays have grown long in the face of a choked structure that is being forced to operate with fewer resources. It's a problem that continues to fester, with the legal community issuing warnings that the system itself could collapse. Charter rights, broken families and the accused are being forced to sit in limbo throughout B.C. as those who operate the judicial system worry that the public could lose faith.
Last November, the B.C. branch of the Canadian Bar Association held its annual branch conference at the lavish Cosmopolitan hotel in Las Vegas.
An opportunity for B.C.'s legal community to network, the three-day conference boasted a chance to stay on the edge of the legal field while getting a leg up in today's knowledge economy.
"Our judicial system is one of the best in the world," said Chief Justice Robert Bauman, addressing visitors who had paid as much as $1,665 to hear him speak.
"But it is threatened, if not in peril."
In his opening remarks, Bauman lamented the continued erosion of funding to the justice system, warning that the symptoms of funding cuts were pointing increasingly towards a breakdown.
Even with the most recent appointments of sitting judges in B.C., the province has struggled to stem the tide of retirements, higher appointments and other drains on the resources available to the judicial system. These strains have also been felt by court staff who have found themselves forced to do more with less, threatening judicial independence, Bauman said.
"We are not at the tipping point yet - but we are steadily edging towards it," he warned. "I want to encourage you to reflect on how critical and integral our courts are to the functioning of our democratic society."
Reflecting on our own crisis
The Sunshine Coast is no stranger to judicial crisis.
On Dec. 31, 2009, Judge Ann Rounthwaite announced her retirement, leaving the Coast without a sitting judge for what would be more than nine months.
Several judges began cycling through the Coast, visiting from other areas in order to deal with a backlog of cases that began piling up.
Delays swelled to near-catastrophic levels. Custody hearings and other family matters were continually pushed back. For a half-day child protection trial, the average delay swelled to 22 months from 13 following the loss of Rounthwaite.
Family and civil matters followed suit. Prioritized criminal trails saw another four months added to their average delay, while the accused, guilty or not, awaited their fates.
Representatives from the four Coastal municipalities thus began a campaign to press then Attorney General Michael de Jong to act - as soon as possible.
"We were getting maybe a couple of [trial] days every couple of weeks. It wasn't consistent," said present mayor, lawyer Wayne Rowe, who helped represent the Town of Gibsons in the effort. "The risk that was starting to happen, especially in the criminal trials, is that they could be just basically chucked out or dismissed."
He was referencing the 1990 ruling R. vs. Askov, where the precedent was established that an inordinate trial delay can be considered a violation of an accused's charter right to a fair and timely trial. In 2010, one case would be stayed on this argument in Sechelt.
Along with Sunshine Coast Regional District chair Garry Nohr, then District of Sechelt Mayor Darren Inkster, then Gibsons Mayor Barry Janyk and Chief Garry Feschuk of the Sechelt First Nation, Rowe set off to Victoria to meet with de Jong.
"We explained our situation, how that was impacting our community," Rowe said. "Quite frankly, we weren't too sure what was going to transpire from that."
Together they made the case for the Sunshine Coast. Without a sitting judge who knew the community, cases were not only being delayed excessively, but there was a lack of familiarity between people, their challenges and those passing the sentences.
The Coastal delegation pressed de Jong for an appointment, highlighting the disconnect between the cycle of judges making their way through the community and the cases they were hearing, often novel to them.
As residents of a ferry-dependent community, Coasters found it difficult to take their affairs to other regions for trial. Civil court matters were being placed on the back burner with delays approaching the two-year mark.
But there was hope on the horizon.
"So we went away and weren't too sure what was going to happen, and lo and behold, I don't remember the time gap there, it was probably a couple of months, we did get the appointment," Rowe said.
Judge Steven Merrick
"I was thrilled. The Sunshine Coast is a wonderful place," said 47-year-old Steven Merrick of his appointment as the Coast's next sitting judge.
Merrick grew up in Winnipeg, and after obtaining his law degree there, began his career working in the city. Seven years later he felt the call of life on the West Coast and moved to Prince Rupert where he spent another 15 years practising criminal defence, family law and civil litigation.
"People say life on the Coast is different," he said. "Just things like the produce stands that operate on the honour system. That's a Coastal thing, that doesn't happen in the cities."
The relaxed lifestyle, the familiarity of neighbours, transportation challenges: there are many things that make the Coast unique and deserving of a judicator who gets it, Merrick stressed.
He had first begun the long and winding application to be appointed based on his desire to meet the challenge of being a proper judicator, to be both fair and understanding.
First came the review of an investigator who spent three months turning over every rock in Merrick's life, interviewing his Prince Rupert colleagues and associates and getting a sense of the kind of person he really was.
That investigator decided Merrick was worth an interview, and he was brought before 10 people representing the Judicial Council of B.C. Of those 10, Merrick required at least nine approvals to even be placed on a list for the attorney general to pick and choose from.
It was this extensive process that brought Merrick to the Coast.
"When people talk to me about when there wasn't a resident judge, the thing that I hear the most is there wasn't the continuity for the files or for the people. The one advantage that you have for the community by having somebody who's assigned here is that you get the same person coming back," commented Merrick.
There were other advantages too. The length of delays on the Coast eased back closer to normalcy. Family trials could be expected to get a hearing in under a year while the extensive backlog in civil matters began to ease.
But the near-crisis that took hold in Sechelt Provincial Court during those nine long months revealed the dangers wrought by a judicial system starved for resources, and the immediate catastrophes that could take shape should it fail.
A wider cause for concern
Don Fairweather has been involved in the Coastal legal community as a lawyer for some 30 years. Having practised primarily in the areas of defence and family law, Fairweather has also represented the Crown on occasion.
Like other lawyers and residents on the Coast, Fairweather said the appointment of Merrick was needed to stem the tide of a growing judicial crisis.
"I think what we were all doing was just expressing the urgency of the appointment of a local judge," Fairweather said of the campaign to return a sitting judge to the community.
While the Sunshine Coast emerged from the difficult months somewhat unscathed, if not more aware of the dangers wrought by delays, the larger problem of a provincial crisis in the legal system continued to take its toll on the region.
Across British Columbia, the number of full-time equivalent judges had been on a steady decline over the past six years as the system found difficulty in responding to retirements and Supreme Court appointments.
The province has been quick to point to the 23 new judges who have been appointed to the Provincial Court since February of 2010.
But even with this month's announcement of nine appointees to the bench, the province has continued to struggle to compensate for retirements and senior appointments.
This downward trend has placed pressure on sitting judges like Merrick, who found himself having to leave the Coast to support other regions where delays are also a reality.
"During 2011 the Honourable Judge S. Merrick sat in Sechelt Provincial Court 59 per cent of his sitting time. During 38 per cent of his sitting time, Judge Merrick presided in North Vancouver Provincial Court," said legal officer Gene Jamieson of the Office of the Chief Judge.
In comparison, when Rounth-waite presided in Sechelt, she spent 97 per cent of her sitting time locally.
In the coming months and years, the Office of the Chief Judge is expecting more retirements, more full-time judges switching to part-time and further appointments that will continue to place pressure on the province to compensate.
It is an evolving crisis that the Attorney General has acknowledged.
"We know that during these difficult economic times, there is not an unlimited supply of funding government can provide," said Minister of Justice Shirley Bond. "We must continue to ask the tough questions about a system that needs reform."
The symptoms hit home
During 2011, three cases were stayed in Sechelt Provincial Court because of extensive delays using the Askov argument.
"Sometimes I've ruled that there has been an infringement [of a person's Charter Rights] and granted a stay," Merrick said. "I've also said society's interest in prosecution took priority over the right of the individual to have a trial within a reasonable time, and I haven't granted a stay."
Three cases were stayed on the grounds of a delay last year: a youth charged with stealing money from cars and possession of break-in tools, a person alleged to have been producing marijuana for trafficking, including possession of over 3kg of the drug, and another, who stood accused of night prowling and performing indecent acts.
Prosecutor Trevor Cockfield represented the Crown in one of the cases.
"I would say in the next year we're at risk of having more delay arguments made by the defence and the potential is, yeah, the court could stay those cases," he said.
While Rounthwaite often held court four days a week on the Coast, Cockfield said the current situation sees the number of court days alternating between two and three per week. Those available days are also being overbooked, he said.
"I can't see it getting better, and I can only see it getting worse as things get busier," he said.
On the family law side of things, the symptoms being reported are largely the same.
"People are not respectful of the system," said lawyer Alison Sawyer, who deals with family matters and takes legal aid referrals.
Family problems and disputes continue to fester while custody matters go undecided. Those facing criminal charges sit in wait, sometimes obliging bail conditions, as they await their sentence.
"It's as if they're guilty even though they might not be," Sawyer said.
Judith Wilson also deals with family matters and legal aid referrals.
According to her, the situation is having dire consequences on people who find themselves locked into a cycle of delays. All too frequently, she said, a person will lose an entire day of work only to have their case adjourned, their legal fees piling up.
Several access applications for Christmas couldn't be heard before the holiday came and went, overbooking means people have to spend more time in court, simply waiting, and family stability has been threatened while parents and children wait months to get their matters addressed.
"People are starting to get stressed, really stressed by everything," Wilson said, pointing to discussions in the B.C. legal community of holding job action and withdrawing certain legal aid services.
"You get there, you've spent your client's money to be there, and guess what? There's nobody there that can actually do what has to be done, because court staff are also becoming a scarce commodity," she said.
"The whole system is squeezed."
Moving forward
In recent days, Premier Christy Clark has set her sights on the judicial system, announcing nine new judges and initiating a reform initiative that includes the appointment of Bond as Minister of Justice.
Bond has promised dialogue with the judiciary, saying "by working together we can ensure the justice system is more transparent, more accessible, more responsive."
The Ministry of the Attorney General has maintained that the current aim is to increase court efficiencies by looking at opportunities for reform, moving disputes out of court when possible and using new technologies to help reverse the trends affecting areas across the province.
"The government continues to invest critical resources in the justice system," Bond said.
But those who work in the system have been singing a different tune, painting a picture of a system in crisis and continued decline.
Even with the nine new appointments, the complement of judges remains lower than it was in 2005, but more resources will be needed to not only compensate for losses, but to improve the system overall.
Back in Las Vegas when Bauman was addressing his colleagues, it was this fear that coloured his words pressing for action.
"In nature, the process of erosion takes time - sometimes its pace and impacts are barely perceptible," he said.
"Then comes a tipping point when that gradual, insidious process of incremental damage yields its dramatic finish - the structure is diminished and collapses."
