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Ottawa lawyers lambaste Harper bench boost

|Written 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.”

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