Judges ‘pushing envelope’ amid shortage

Heaviest workload judiciary has faced locally since the late 1970s

Provincial court judges in Hamilton are being stretched to their limit — and the whole system is feeling the pinch.

Judges are exhausted, lawyers are frustrated and the accused are being forced to wait to have their matters heard. None of that is likely to change until the new year, when the understaffed judiciary hopes to be back up to its proper count.

“All of us are pushing the envelope,” says Justice Fred Campling, the administrative judge for the Ontario Court of Justice (OCJ) in Hamilton. He says it is the heaviest workload judges have had locally since he began his career here in the late 1970s. “I’m beat,” he admits. Last week, Campling was the sole judge sitting for the OCJ — the court that deals with the vast majority of all criminal cases. (Superior Court hears the most serious matters, such as murder and treason.)

“The judges are working harder and longer hours than I’ve ever seen in the last 24 years,” says veteran defence lawyer Larissa Fedak, also referencing the ridiculous week when Campling was the only judge around. “I’ve got clients sitting in jail, waiting for a judge.”

There should be seven OCJ judges in Hamilton but that number has dropped to five.

The shortage began in December when Justice Bernd Zabel was suspended after complaints poured in about his wearing of a Donald Trump “Make America Great Again” hat in court. Recently, he had a disciplinary hearing before the Ontario Judicial Council and is awaiting a decision on his future. He could be fired, sent for training or issued a warning.

If he is allowed to return to work, he would still have vacation time to use before the end of the year. If he is fired, the long process of hiring a replacement will begin.

That process has now begun to replace Justice Timothy Culver, an experienced and respected judge who passed away suddenly in July.

Any vacancy attracts about 200 applicants, says Campling, which can take months to pare down. And after a new judge is chosen, they must go to “judge school” for several weeks and, in some cases, job shadow veteran judges before taking on their own case load.

Campling figures the earliest he’ll once again have seven judges is January.

Despite the backlog, Campling is unaware of any local OCJ cases being tossed for violating the new Supreme Court of Canada timelines set out by last year ’s Jordan Decision. Provincial court cases must now be resolved or go to trial within 18 months of arrest or risk being thrown out.

As I wrote in a recent column, 239 Hamilton cases have been in the system longer than 18 months. But Campling says that just one — a case delayed due to Zabel’s suspension — is in jeopardy of being thrown out.

The rest have either been delayed by the defence or have been deemed by a judge to have been delayed for unavoidable reasons.

Clients are usually well aware of the Jordan Decision, says Fedak, and some try to work it to their advantage. But they also don’t always understand the many, many steps that must be taken to get to a trial.

“The judges are trying to move things along,” she says.

Her greatest frustration is the difficulty finding a j udge to take a guilty plea.

The way it works in Hamilton is that lawyers go from courtroom to courtroom trying to find a judge who is free to take a plea. That week when Campling was the only judge, his preliminary hearing was constantly interrupted by lawyers needing a judge.

“We’re running around looking to see where we can do a plea,” says Fedak.

She wants to see Hamilton start a “plea court” like many other jurisdictions have. On certain days, a judge and Crown would be avail- able in a specific courtroom to process pleas exclusively and efficiently.

Campling says many defence lawyers are l obbying for a plea court, but there’s little chance of having one until the judiciary is back to its full complement of judges.

As it stands, Fedak — who has up to 110 clients at any given time — is having to choose which of her clients will have their case dealt with while others are forced to wait behind bars for their turn.

To make matters worse, her regular clients are winding up back in jail more quickly than before because their insatiable addictions to opiates are causing them to steal and rob sooner to feed their habit.

“The recidivism rate seems higher than usual, I think because of the fentanyl,” she says. “It’s a call to them much more than crack cocaine was.”

Five of Fedak’s clients have died this year of fentanyl overdoses.