Radical simple solution to B.C. Supreme Court backlog | Kyla Lee
Thursday, October 14, 2021 @ 11:05 AM | By Kyla Lee
With the conclusion of the federal election on Sept. 20, we expected the federal government to announce a cabinet, appoint cabinet ministers and for the minister of justice to maybe get around to appointing judges. After all, as of Oct.1, the B.C. Supreme Court has a total of seven judicial vacancies. That is seven full-time spaces, where a judge could be expected to sit three to five days a week, hear cases and render decisions.
Sure, filing those vacancies does not solve the problem. Just as quickly as they will be filled, so too will existing judges retire leaving more vacancies. And, of course, the vacancies are spread out across the province. Adding more judges in Prince Rupert will not speed up cases in Vancouver.
And so while appointments are necessary and should come quickly, they are merely a bandage on what is fast becoming an arterial wound.
Before COVID-19, the scheduling system in Vancouver’s Supreme Court chambers was bad enough. But usually with two or three months of trying, counsel could get through to get a hearing date. But when the courts shut down, albeit briefly, for COVID-19, dozens of lengthy cases that had already been booked were adjourned.
Those cases took the places of other cases, increasing the backlog. Meanwhile, challenges to the new ICBC laws, disputes over jury trials, and constitutional questions related to pandemic control measures have impacted the overall number of cases needing to be heard in these chambers applications.
Counsel have attempted to circumvent this broken system by setting lengthy matters on a regular chambers list, hoping for a referral judge, and then taking longer than the two-hour time estimate. But the court quickly became wise to this workaround and began awarding costs against counsel who exceeded their time estimates.
Frankly, I think some clients would be happy to pay just to have their cases resolved. But it clearly is not an ideal solution in its own right. Not only does this create unexpected and unpredictable expenses for clients, and has a nasty air of misleading the court, but it also increases the delays in regular chambers, where matters under two hours are set to be heard. It slows down the movement of those cases through the system and ties up judges, while making other cases that may fit the time estimate wait or get bumped.
So is there a better solution than just waiting it out and grumbling with other counsel and crossing one’s fingers that an appointment will create more hearing times?
I propose a radical solution.
Currently, B.C. Supreme Court judges and courtrooms run from 10 a.m. until 4 p.m. For a one-day chambers hearing, that gives four hours of actual court time, once the two 15-minute breaks and 90-minute lunch are subtracted. And, of course, court only sits on weekdays.
But what if court expanded its hours? What if the court started at 9 a.m. and shortened the lunch break by half an hour, and ended slightly later. What if the regular sitting hours were from 9 a.m. to 12 p.m. and 1:30 p.m. until 4:30 p.m. All of a sudden, the four-hour court day is now five and a half hours.
Sure, that’s not a ton of time. But it’s enough time to have a judge hear an extra 90-minute chambers matter on top of the one-day matter scheduled at that time. It at least opens up the potential of a referral from regular chambers.
If the court took a break from 4:30 p.m. to 5 p.m., it could then reconvene from 5 p.m. until 10 p.m. That’s another five hours of time.
And the court could sit on the weekend. Courts could have judges available for lengthy chambers hearings on Saturday and Sunday.
Yes, this would require judges to sit long hours. It would require counsel to have to change plans or work later or give up a weekend golfing session. But with a few months of extended sitting hours and weekend sittings, the lengthy chambers backlog and even the regular chambers backlog could be put back to something more manageable and more normal.
The only real downsides are the cost — both in paying court staff overtime and likely in having to have some sort of compensation package for the extra hours judges will be sitting. But the cost is worth it, if the delays to civil justice are reduced.
It may be a radical idea to deliver court services for more than 20 hours a week, and it may be a radical idea to ask the government to pay for it, but perhaps our profession is just radical enough to support it.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! and the author of Cross-Examination: The Pinpoint Method. She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.
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