Rumpole and the Scales of Justice

Problems in Court. Again.

Things are so bad in the courts that to keep the criminal cases going, the judges running the show decided before Christmas to shut down civil cases.

The problems are not new.

They have been festering for years through one justice minister after another, none of whom could be arsed to do anything.

There are plenty of excuses and by God the bureaucrats already smothered the new government with its useless advice on that one. The answer to the latest crisis was to stay silent for as long as possible - an old uncommunications ploy - and then announce formation of a committee, which will report back sometime this year. On what, no one knows. The one thing you can be sure of: it will fix nothing.

To figure out what’s wrong, you’d have to understand the problem.

The problem is people.

All people.

Not enough of them in some jobs, for one thing and, with the Sheriff’s crowd, they are apparently also prone to calling in sick as a sort of work-to-rule game. Pull enough of them out and the Sheriff has to start closing courts. Since the criminal ones cannot do with any more delays than the ones the judges and lawyers already routinely use up, that means closing down the civil side of things lest criminals start walking out free as birds thanks to the implications of the Jordan decision.

That was the excuse last year when the new justice minister announced a “working group” to deal with the decision to shut down civil courts across the province. Not officially but under their breath.

That 2016 decision by the Supreme Court of Canada re-jigged the old measure judges used to decide what “a reasonable time” means when it comes to constitutional rights. Justice delayed is justice denied, as the saying goes, but the Charter of Rights and Freedoms says flatly that “any person charged with an offence has the right … to be tried within a reasonable time” but until Jordan there was no real limit.

Arrested in 2008, a guy named Jordan wound up not getting the preliminary review of evidence finished to decide if he should stand trial until 2011. The trial lasted through the winter and summer of 2013, a total of almost 50 months, only 10% of which were Jordan’s fault.

Not good enough the nine Supremes said.

From now on, 18 months in provincial court if there’s no preliminary inquiry and 30 months if there is one in a provincial court of if the trial is in the Supreme courts.

Newfoundland and Labrador has struggled to meet the new time limits anyway. Courts in Newfoundland and Labrador are notorious sluggish, as reports from this corner have noted from time to time. Check out the Rumpole series at the old site for some examples. Judges have retired from the bench without issuing a decision at all in some cases. In others, like the never-ending legal battle between Provincial Court judges and Cabinet over pay, we have the shagging around by Cabinet after Cabinet with pay as well as the reluctance of the federally-appointed judges in the Supreme Court’s General division to issue rulings. One issued judgements in one legal action brought by the PC judges about 24 hours before the next one was due for a hearing and that was 18 months after the earlier hearing.

Then we have the ones that really stand out, like the special ballots case from the 2011 election. It took seven years to get through the court. Another one in Sin Jawns East after 2021 took until last year to figure out that there was an issue to go to trial over. That's appalling.

In that one, the Liberal caved in, effectively admitting they’d shagged around with the rules but no public voice save this one has ever pointed out that this is not merely incompetence in the courts themselves but also a Trumpian contempt for the constitution and democracy by the courts, lawyers, and all else involved.

Even the smallest and most vulnerable among us are not immune to the callousness of the local legal system. Under the province’s child welfare laws, social workers in the child welfare business can take custody of children with a judge’s permission. In the most horrific examples, we are talking of newborns of addicted moms. We have had a few of those cases pop to light in the last five years, mostly as a result of social workers going to a Provincial Court outside town to get custody of an addicted or otherwise desperate waif who was in a Sin Jawns hospital with mom. There was one last week.

Around da bay, the local PCJ is the work-a-day court for just about everything including child welfare. But the northeast Avalon, the only court with jurisdiction is the Family Court, as determined by no less an authority than the House of Assembly itself in a thing called the Judicature Act. Social workers tend not to bother the Family Division of the Supreme Court if for no other reason than the Family Division is only available during working hours and, unlike other courts, has no duty system that makes a judge available outside normal hours for the emergency stuff that comes up. Safe abed on a winters night, the pink-cuffed lot can snooze away while letting the PCJs handle things even if - when the case is inside the Family Div’s exclusive jurisdiction - the other courts legally cannot.

And don’t.

The social workers caught in this bind inevitably rely on their own emergency powers under the Act far more often than anyone in the House of Assembly ever intended and get custody of the child anyway.

There are plenty of judges both at the Provincial Court level and in the federally appointed courts in Newfoundland and Labrador who work hard and work diligently. There are others who are not quite so keen. And at the same time, it was not so long ago that one politically connected Chief Judge refused bereavement leave to a couple and then, in a still unexplained bit of shenanigans as judges started rebelling about that and other arseholery, resigned quickly and judges wound up with his wife - shit-yiu-not, but a much better administrator, to be fair - appointed to the top judge’s job in his place.

Alongside the Sheriff’s crowd now and all the other sorry tales told in this corner over the past 20 years, these episodes tell us that the Courts in this province fall far too short of a minimum standard of decency and justice far too often and have gotten away with it for far too long. There are good reasons why we do not allow politicians to interfere with judges but at some point something has to push someone far enough to sort the lot out.

Perhaps the current minister can do a better job of it than her predecessors going back to at least Tom Marshall in 2003. None tried. Some were part of the problem. We could go back further but there have been so many justice minister in the past 23 years, their number alone is a staggering testament to the political indifference to the pathetic state of justice around these parts.

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