No cash for courts [Part 5 of Justice Denied series]

Despite a chorus of voices calling for an emergency infusion of money to unclog B.C.’s critically congested court system, the provincial government has no such plans.

In fact, more cuts are coming.

The B.C. Provincial Court warned in its extraordinary Justice Delayed report last fall that another 17 judges must be hired just to get back to 2005 levels and stop the growth of the case backlog that increasingly lets criminals walk free because of unacceptable delays.

Instead, February’s provincial budget approved more cuts for 2011 – one per cent for the judiciary, eight per cent for court services and six per cent for prosecution services to carve out another $14.5 million – followed by a funding freeze for the following two years until 2014.

Years of attrition have whittled down the number of judges and sheriffs and increasingly complex, longer cases take up more time for prosecutors.

More than 2,100 criminal cases are now at risk of being tossed out of court due to delays that threaten to violate the accused’s right to be tried within a reasonable time.

And the concerns don’t end there.

As recounted in previous installments in this investigative series, longer waits are hurting victims of spousal abuse, children in custody battles and other family law matters.

Defendants are less likely to plea bargain and more apt to go to trial to try to exploit the long delays in the system.

Even repeat speeders are challenging traffic tickets and then getting them quashed when they drag on too long in the courts.

And critics say the the time and resources police spend investigating suspects who never go to trial is an unacceptable waste.

“Clearly we have some challenges in certain areas,” B.C. Attorney General Barry Penner said in an interview with Black Press.

But he confirmed there will be further cuts this year and no new cash for the foreseeable future to add more judges.

“If we had extra dollars available that would be one of the things I’d be interested in considering,” Penner said. “But there’s a limited amount of money in taxpayers’ pockets. We heard that throughout the HST debate. There’s not an unlimited appetite for taxation.”

Instead, he sees relief coming from various reforms that don’t cost more money.

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B.C.’s shift last fall to much tougher administrative roadside penalties for drivers caught with a blood-alcohol level over 0.05 alarmed some motorists who wondered whether they could drink any alcohol at all on an evening out.

Restaurants and bars suffered a drop in liquor sales.

The number of conventional charges police laid against impaired drivers also plunged.

That’s starting to take pressure off the court system.

“If you can get a big reduction – and we’re seeing a 75- to 80-per-cent reduction in the number of new impaired driving cases entering the court system – that creates the opportunity for other matters to be heard sooner,” Penner said.

Impaired cases were taking up to half the time in some B.C. courthouses, he said.

A former lawyer in Chilliwack, Penner recalls drunk driving trials used to take half a day 15 years ago but have ballooned to two days at present.

Eliminating many of the cases may have a profound effect on the court delay problem, Penner said.

According to Penner, in three months from December through February, there were 2,000 fewer impaired driving charges laid in B.C. compared to the same period a year ago as a result of the change.

“It’s not the primary reason we did it,” Penner said, calling the freeing up of court time a “co-benefit.”

The roadside justice may look tougher but some lawyers call it a virtual decriminalization of impaired driving, allowing drunks caught behind the wheel to avoid a criminal record, a Canada-wide one-year driving ban and, if convicted a second time, a minimum 30-day jail term.

Penner counters that the public safety results look promising because fewer people now drive after drinking.

Preliminary figures point to a 40-per-cent drop in the number of impaired drivers on the road and fewer deaths as a result.

“Perhaps 15 people are alive today that wouldn’t be if we hadn’t made this change last year,” Penner said. “Never mind just court time, we’re actually saving people’s lives through this initiative.”

But some observers question how much court time will be saved.

They suggest police officers freed from drunk driving investigations and related paperwork will be back on patrol faster and finding other criminals to charge, adding cases back into the courts.

“We’ll see,” Penner said. “If it’s freeing up the police to pursue other matters and people aren’t drinking and driving as much, I think that’s a very good thing indeed.”

The attorney general is also optimistic other reforms will save time in the courts.

He points to a pilot project underway in Victoria that aims to streamline the court process and reduce the number of pre-trial appearances.

There should be no need, Penner said, to have up to seven court appearances – as now sometimes happens – before a case is actually heard.

“How many pre-trial appearances do you really need to have before you have a trial?”

The change will require cooperation of judges, lawyers and prosecutors.

Penner also said work is underway on new initiatives to settle family law disputes in less adversarial ways, such as mediation and discussion where possible.

“They’re having some success,” he said. “There’s undoubtedly more we can do in that regard.”

He said another potential avenue to reduce court congestion is through greater use of technology – from electronic filing of documents to more quickly distribute information to participants, to increased use of video conferencing.

* * *

How much money would it take to simply do what the judges recommend and bring court staffing levels back up to what existed six years ago?

Adding 17 judges costs more than strictly their annual salaries of about $235,000 each plus pensions and benefits.

Additional sheriffs, prosecutors, court clerks and even janitorial staff must accompany them.

All in, the cost is about $1.5 million per judge.

Solving the problem would therefore cost roughly $25 to $30 million a year in additional funding – as well as a decision to forestall the further cuts now planned.

That’s roughly a six-per-cent increase in the $458-million operating budget of the attorney general’s ministry.

Advocates describe it as barely a rounding error in terms of the multi-billion-dollar health care budget.

But Penner said increased funding is not an option right now.

He cited twin uncertainties clouding the province’s finances: the tepid economic recovery that could falter due to rising oil prices or other factors; and the fate of the Harmonized Sales Tax, which if defeated in this summer’s referendum could force B.C. to repay $1.6 billion in transition benefits provided by Ottawa.

“If the HST is rejected, that will have significant financial consequences to the treasury in future years,” Penner said.

Was he implying victims of crime who don’t want to see more criminal cases quashed by delay need to root for the HST to survive the referendum if they want to see more provincial money flow into the court system?

“No,” Penner replied. “But those are some of the variables that are out there when we’re talking about our future budget plans. In order to fund government programs, you need tax revenues.”

Court disarray ‘deplorable’, NDP critic says

The fact the B.C. Provincial Court has even taken on the issue of the faltering justice system is remarkable.

Several judges – who rarely comment on political matters – have also directly criticized the backlogs, delays and chronic underfunding in recent rulings in which they have thrown out charges against accused criminals.

“No justice system should be in such a state of disarray that the judges have to be begging for help from the government,” said Leonard Krog, NDP critic for the attorney general.

He said the system has been bled on multiple fronts.

In addition to the lack of judges, prosecutors, clerks and sheriffs, Krog pointed to past funding cuts to legal aid and the closure of courthouses, community law offices and poverty offices that have pushed the justice system in B.C. into a “deplorable state.”

When Crown prosecutors are stretched too thin, he noted, errors happen and criminals go free.

“Defence counsel will quite properly take full advantage of every mistake that is made,” he said. “You’ve got to stop sending people into gunfights packing knives.”

Provincial politicians tend to emphasize law enforcement.

When gang violence flares up, they often move quickly to add more police to ease public concern.

This month Victoria announced much stiffer animal cruelty penalties in response to outrage over the sled dog slaughter in Whistler.

But such measures ring hollow, Krog said, if the courts can’t deal with the resulting cases.

“The Liberals talk tough on crime but they’re not prepared to walk that talk,” Krog said.

“It is a money and priorities issue. This government clearly doesn’t place the justice system high on its priorities.”

Not everyone is stuck in the slow lane.

Family law matters can be shifted from the clogged provincial courts to B.C. Supreme Court, but it’s very expensive.

“There’s a Lexus lane for people with money,” Krog said. “For ordinary British Columbians, the court they rely on is under-judged and under-funded.”

And Victoria actually extracts money from users of the justice system.

A legal services tax created in 1992, originally to fund legal aid, now generates $145 million per year for the government – far more than what it would take to revive the court system.

The tax, part of the old Provincial Sales Tax, has since been rolled into the HST, so clients now pay 12-per-cent tax on lawyers’ fees, with seven per cent still flowing into provincial general revenue.

Krog said it’s frustrating for police to risk their lives catching criminals, do all the paperwork involved and then see the case dismissed for delay.

So far most of the cases tossed have been standard impaired driving cases.

But public tolerance is waning, he said.

“Wait until the first very serious crime is dismissed, involving deaths, drugs or serious penalties,” Krog said. “How much are British Columbians prepared to tolerate?”

jnagel@surreyleader.com

JUDGES BY THE NUMBERS:

Full-time equivalent (FTE) Provincial Court judges in December 2005: 143.65

Number as of September 2010: 126.3

Number of new judges appointed since September: 6

Number of FTE judges lost to retirement, part-time program or promotion to B.C. Supreme Court: 5.2

Number of FTE judges at end of March: 127.1

HAVE YOUR SAY: Our Justice Denied series is concluded, but you can continue the debate on our letters page. Email your letter to the editor with name and city to newsroom@surreyleader.com.