Ottawa lawyers lambaste Harper bench boost
Monday January 28, 2008
By Tim Naumetz
OTTAWA — A bill tabled by the Harper government to add 20 seats to the
federal superior court benches across Canada is under attack by Ottawa lawyers.
They say the addition is a “drop in the bucket” of what is needed to cope with
growing caseloads and that it ignores a critical shortage of family court judges
in the national capital.
The legislation, bill C-31, has received little public notice since Justice
Minister Rob Nicholson quietly tabled it for first reading last Nov. 28.
But a leading family lawyer, along with criminal and civil lawyers in Ottawa,
say the bill fails to meet pressing demands that have grown with the country’s
population since the superior court ranks were last increased 10 years ago.
A notable mystery surrounding the legislation is Nicholson’s decision to drop a
provision in a similar bill introduced by the previous Liberal government that
would have addressed growing problems in family courts by giving them a total of
27 new judges.
Criminal, civil, and family lawyers agreed the greatest need in Ottawa is family
court, which has only four judges.
The situation there is “horrendous, people are waiting two years to get to
court; there are children involved and property and everything else. It’s
alarming,” Mark Ertel, president of the Defence Counsel Association of Ottawa,
tells Law Times.
The Liberal bill died on the Commons order paper when former prime minister Paul
Martin’s minority government fell in November 2005, and Governor General
Michaëlle Jean dissolved Parliament for the January 2006 election.
Exacerbating the superior court bench shortage, the Harper government wants the
provinces to designate six of the 20 new judges to be available for duty with a
new aboriginal Specific Claims Tribunal.
“It’s kind of a drop in the bucket when you look at what the need is,” Jane
Murray, a family law specialist with Burke-Robertson LLP, tells Law Times. “You
could put all 20 of those judges into Ontario and it might be sufficient; that’s
what they’re suggesting for the whole country.”
A total of 606 of the country’s superior court judges are currently sitting in
all provinces and territories, including chief justices and associate chief
justices, with a further 59 family division judges, 30 of them in Ontario. There
are 19 superior court vacancies nationally.
Ontario Superior Court now has 197 judges, aside from the family court justices,
with a further seven vacancies.
Ontario Attorney General Chris Bentley wrote Nicholson last December urging him
to amend bill C-31 to expand the number of family court judges for the province
in addition to the other appointments contemplated by the legislation, says
Brendan Crawley, Bentley’s communications director.
The province had urged the previous Liberal government in 2004 to add 12 judges
for the family court component of Ontario Superior Court, Crawley said in an
e-mail response to questions.
Although Ottawa’s criminal and civil cases are also straining superior court,
Murray said the court’s family bench is struggling because it has only four
judges to cope with mounting cases and pressure.
The demand on the family court judges is made worse by the high number of cases
involving people who represent themselves because they can’t afford lawyers,
says Murray. Judges must guide clients through their cases. As well, the level
of conflict in family court is intrinsically “very high.”
Because of the stress and demand, superior court judges are rotated in and out
of the family court, says Murray. A County of Carleton Law Association study
found Ottawa has up to 30 per cent fewer family court judges per capita compared
to London, Ont. and Windsor.
“To do an exclusively family court diet would be pretty taxing for the judges,”
she says, adding that the appointment of full-time judges with family law
expertise would ease the burden.
Murray blames the high number of clients who represent themselves on Ontario’s
flagging legal-aid program, which she says is “grossly underfunded.”
“Trials that are supposed to be taking place in a very timely way because the
issues affect young children are delayed and are taking much longer to be heard
because we don’t have enough judges,” she said.
The Ottawa criminal bench is also currently under pressure because of an
“inordinately large” number of cases for which the Ontario Court of Appeal has
ordered new trials, says Ertel.
He adds more murder cases are “in the queue then they ever had before.”
Tom Conway, past president of the County of Carleton Law Association, agreed
Ottawa’s family courts are in crisis and criminal and civil caseloads are also
high.
He says management of existing judicial resources and schedules is an important
element in coping with the shortage.
“You go down there [to the court house] at 2 o’clock on any given day and you
can basically bowl in the hallways and you won’t hit anything because there’s
nobody there,” he says. “But in the morning when cases are being adjourned,
there’s pandemonium.”
He nonetheless adds that the shortage of judges has resulted in precarious
schedules for hearings that are booked with the hope there will be
cancellations.
“They’ll double-book, sometimes triple-book with judges, hoping that two or
three matters that had been scheduled to be heard by the judge will collapse or
settle or go away somehow.”