Calgary

Alberta judge shortage at 'breaking point,' causing trial delays

Chief Justice Neil Wittmann says Alberta's Court of Queen's Bench is at a breaking point.

Population has nearly doubled in the last decade but only 1 judge has been added

A court sketch of a Queen's Bench trial. Alberta has had only one new judge appointed in the last decade. (Janice Fletcher)

There is concern some criminals could walk free if a backlog in Alberta's Court of Queen's Bench due to a lack of judges isn't addressed.

It's a worst­ case scenario but one that is causing a lot of stress for stakeholders.

"We are literally at the breaking point right now," said Court of Queen's Bench Chief Justice Neil Wittmann.

Queens Bench judges are appointed by the federal government, but only one judge has been added to the province's complement even though Alberta's population has nearly doubled in the last decade.

Alberta has the fewest Queen's Bench judges per capita in the country.

"We just can not keep up with the demands for our services," said Wittmann. 

To match British Columbia's ratio, Alberta would need 11 more judges.

"If I sound frustrated, it's because I am," said Wittmann. "The previous federal government wouldn't even authorize the appointment of the number of judges that the Alberta government had, by statute, said they require. In my opinion that is constitutionally impermissible."

Frustration and fruitlessly fighting for more judges means Wittmann has had to get creative to address the problem.

Jury trials

If both consent to a trial by judge­-alone, Wittmann is allowing Crown prosecutors and defence lawyers to submit a list of five judges that both lawyers would be satisfied with.

Jury trials take longer than trials by judge-­alone and the longer a trial is set for, the further ahead it has to be booked.

"Some people are taking me up on that, some are not," said Wittmann.

Right now, a two-­week trial in Calgary is booking into 2017.

Bypassing preliminary inquiries

It's not a new practice, but one Wittmann is seeing more and more as Crown prosecutors are proceeding by direct indictment on some cases, which means skipping preliminary inquiries.

A preliminary inquiry is an opportunity for defence counsel to explore the evidence and for witnesses to be tested.

At the end of the hearing, a provincial court judge rules on what charges the accused will face at a Queen's Bench trial.

On Friday, prosecutor Jonathan Hak proceeded by direct indictment and set a date for Joshua Mitchell's two-­week murder trial.

"Time is a friend of no one when it comes to running trials," said Hak. "The sooner, the better."

It was booked for April 2017, but Hak said if a preliminary inquiry was to be held, a trial wouldn't take place until 2018.

The consequences of that kind of timeline can be extreme.

Consequences of trial delays

An accused person has a constitutional right to be tried in a reasonable amount of time.

In 2012, a man accused of sexually assaulting an Airdrie woman when she was a child had his charges stayed after the matter took three years to get to trial.

Following that case, an Alberta Justice report made recommendations in order to prevent similar situations in the future.

The report recommended the federal government change the Criminal Code to eliminate preliminary inquiries as a way of expediting trials. 

That would lessen the chance of a defence lawyer applying to have an accused's charges stayed.

"That's a concern the Crown has in every case that we prosecute," said Hak. "We do our best to minimize the delay from the time the charge is laid to the time the case is adjudicated and a direct indictment is one of the ways of trying to expedite that process."

Wittmann is hopeful the new federal government will start appointing judges to the Court of Queen's Bench in Alberta.

"It can't be worse than the last one." 

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