Court disorder
And Chief Judge Mark Pike wants to fix Courtroom No. 5.
Provincial Chief Judge Mark Pike knows Courtroom No. 5 is a bit of a monster, administratively speaking.
With the room packed to the gills each day with harried people — lawyers and clients — there often seems like there are too many cases and far too many delays as they wind their way sluggishly through the system.
So, Pike came up with the idea of a standard deferral process for criminal cases. What that means is that once a person has been charged and released from custody and has found a lawyer, their case will be set over for one year.
Pike said that would provide plenty of time for lawyers to request and exchange documents, negotiate pleas, file applications, provide evidence and otherwise prepare the case, without a need to return to court simply to ask for an adjournment to do so.
“This way, lawyers and accused persons don’t have to make repeated and unnecessary trips to court,” said Pike, adding people would save money by not having to pay their lawyers for repeat court appearances.
“Why keep coming back when the case isn’t ready for any judicial adjudication?”
The responsibility of managing the cases would shift to the lawyers, which means the Crown and defence would need to communicate outside court to prepare cases for trial. It would only be brought to a judge when action was needed.
“It’s only a matter of calling down to court and saying, ‘We’re ready,’ and we’ll call it,” Pike said.
“There’s only so much you can do as a judge. I can put a judge in No. 5 and they can bawl at people to get the case moving, but that’s not going to work. We’re adjudicators, we’re not case managers. We’re not shepherds controlling the sheep.
“It’s not my job to make all the lawyers go out and do their job. I can’t do that. It’s up to them.”
He knows it’s radical, but believes it will work.
“This wouldn’t make the cases necessarily move more quickly,” he said, “but it would make them more efficient without so much wasted effort.”
Default date
Implementing the change would require the co-operation of everyone involved in the justice system. But not everyone is on board. Pike tabled the idea in September 2012 at a meeting of the Criminal Justice Committee, which was developed in the wake of the 2006 Lamer Inquiry into the administration of justice.
The committee has representatives from throughout the justice system, including a judge and representatives of the minister of justice, defence counsel and prosecutors, the Legal Aid Commission, the RNC and the RCMP.
Pike followed up with a letter to committee members in October 2012.
“There are many systems in criminal justice in this world which move far more speedily than our own,” Pike wrote.
The response wasn’t promising.
In a letter obtained by The Telegram, Andrew Brown of public prosecutions, public prosecutions director Donovan Molloy and then-Legal Aid Commission deputy director John Duggan expressed concerns about the proposal.
“Due to the workload of counsel, delays in obtaining disclosure from the police, issues with either retaining or assigning counsel and other factors, often a number of appearances are inevitable before a matter is ready to proceed to trial/disposition,” they wrote.
“While we want to work with the court to reduce appearances in Courtroom No. 5, we cannot support a plan whose goal is to eliminate them entirely by using a period of one year as a default next-appearance date.”
They argue cases should be called regularly “to have the parties account for why matters are not moving forward.”
The letter also said court appearances are often the only way lawyers can stay in touch with their clients. They warned that Pike’s proposal might be a way for some people to slip through the cracks.
“In effect, the court’s current proposal creates an incentive for accused persons to break off contact with counsel and evade any attempts at personal service by the prosecution for at least one year.
“Victims and the public will lose confidence in the adminis- tration of justice when the system itself creates unavoidable delay that results in cases being dismissed.”
Other options
They also suggested other measures instead of Pike’s proposal, such as moving first appearances to No. 5, and using Courtroom No. 7 —which is at least twice as big — for bail hearings.
And, people needing to apply for legal aid could have their cases set over until later in the day to give them time to file their application.
They also said the court should press lawyers harder for justification when vague reasons are given for why cases should be set over.
“Perhaps more importantly,” they wrote, “ensure a consistent judicial presence/message in Court No. 5 such that a high standard of practice is demanded of counsel and that unrepresented accused understand that dithering will not be permitted.”
Still, Pike hasn’t given up on his idea.
“I’m just trying to make things better and run more smoothly,” he said.
“I want to make the system work better. That’s what I’m concerned about and what I lie awake in bed thinking about.
“Maybe I’ve got it all wrong, but I’m trying to save people money, make the system more efficient.
“I’m really hoping the committee will come around.”