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'Long in the tooth': Chief judge explains timing of B.C. court cases

COVID-19 impacted regular court operations from March to July 2020.
Melissa Gillespie is the chief judge of B.C. Provincial Court.

This is the second story in a series of articles looking at mental health and how it impacts the operations of B.C.'s courts. The first article can be read here.

While mental health assessments and various sentencing report delays are slowing B.C.’s court system, B.C. Provincial Court’s chief judge says the court’s time-to-trial numbers remain good and fair to accused people.

“Of the just over 23,000 active criminal cases before the court, we have seen only a slight increase of criminal cases older than 18 months from just over 1,100 in 2019 to just over 1,800 in June 2023,” Melissa Gillespie said. “The increase may be in part due to the suspension of regular court operations at the outset of COVID-19 from March to July 2020.”

Moreover, she explained in a written response to Glacier Media's questions, between 2017/18 and 2021/22, the court received anywhere from just under 80,000 to just over 115,000 new criminal, family, child protection and civil cases a year that judges must decide.

Judges in the past year have repeatedly heard concerns that case lengths are becoming cumbersome, with lawyers invoking the word ‘Jordan.’

The courts observe what is known as the Jordan principle that stems from a B.C. dial-a-dope drug operation in Vancouver and Surrey.

In July 2016, the Supreme Court of Canada decided an important appeal, R. v. Jordan. The high court set out rules to decide how long is too long for a criminal trial, saying trials should finish either 18 or 30 months after a person is charged, depending on the type of trial. 

If that does not happen, charges can be stayed or convictions put aside.

Stays of proceedings are possible if a case hits a ceiling of 18 months for those tried in the provincial court and 30 months for cases in superior courts.

On Sept. 26, one judge expressed concern about the delays.

“This is getting extremely long in the tooth,” Vancouver Provincial Court Judge Reginald Harris said of a 16-month-old case.

“We’ve got to get this moving. The community has an interest in matters being dealt with in a timely manner,” Harris said, citing two cases from the Supreme Court of Canada.

Picked at random, the completed case list for Vancouver Provincial Court for Oct. 10 shows more than 30 cases in excess of 700 days. An inordinate number of cases are listed at 401 or 704 days.

However, Gillespie stressed, just because a case is older than 18 months, it doesn’t necessarily mean there will be an application for a judicial stay of proceedings under the Canadian Charter of Rights and Freedoms. 

“To determine if there are Jordan issues, the number of cases where a Jordan argument is made successfully would need to be determined,” Gillespie said. “That would require a case-by-case review.”

Time to trial

Gillespie said the court produces comprehensive time-to-trial reports twice a year and posts these publicly on the court’s website.

“For example, our standard is six months between an arraignment hearing and the first available court date for adult criminal trials that are less than two days, and for criminal trials that are five days or more the standard is eight months,” she said.

Gillespie said the court monitors time-to-trial and pending case data to measure if trials are being scheduled in a timely manner. It also gives staff an opportunity to reallocate judicial resources where possible to assist court locations with the longest delays identified in the reports. 

Gillespie did not address specific questions about the impacts of mental health concerns on the court. She did, though, suggest such questions be addressed to the agencies that deal with such matters.

Timely access to justice

Gillespie said the court has engaged in a number of initiatives to ensure timely access to justice and minimize COVID-related delays. Those include pre-trial conferences, virtual bail and early resolution registries.

The judge said the court instituted mandatory pre-trial conferences in criminal matters, small claims settlement conferences and family management conferences, all conducted remotely.

“These hearings serve to identify cases and issues that do not need trials and shorten trials through admissions of undisputed facts. Remote attendance also improves access to justice, especially for individuals who live in remote areas, and it is a convenient way to attend court.”

The court has also streamlined consent adjournments as cases move forward expeditiously.

Virtual bail

Gillespie said the court has centralized virtual bail hearings in the Northern, Interior and Vancouver Island regions. 

“This allows trials in smaller locations to proceed without being interrupted by bail hearings, reducing trial continuations that previously were needed due to those interruptions, reducing displacement of accused people from their own communities and community supports, decreasing overnight remands in police cells, lessening travel for sheriffs, accused, and lawyers, and increasing access to duty counsel,” Gillespie said.

“Hybrid courts have been created in Vancouver for bail hearings,” the chief judge said.

Early resolution registries for family matters

Further, Gillespie explained, the court must effectively allocate time between criminal, family and civil cases. 

“Therefore, time savings in any division of the court are important,” she said. “In Victoria and Surrey, we have early resolution registries. Before filing an application or reply about a family law matter in an early resolution registry, parties must participate in a family needs assessment, complete a parenting education program, if considered appropriate by the family justice counsellor, participate in at least one consensual dispute resolution session with family justice counsellors, and use special forms at these early resolution registries that contain detailed instructions for self-represented parties.”

What this does, Gillespie said, is help families resolve a number of issues before their first court appearance. 

Such issues, she said, may involve parenting arrangements, guardianship, child support and spousal support.

“Where everything is agreed upon, no court appearances are necessary,” she said. “For those matters that are not agreed upon, the parties can go to court often with narrowed issues so their case can be managed in a timely way.”

And, Gillespie said, an evaluation from Victoria indicated that under the resolution model, there has been a reduction in total court time for new family cases, a reduction in adjournments and a reduction in the length of court time that cases took.