As New Brunswick looks to ease the burden on the legal system, a Fredericton defence lawyer says one of the biggest challenges in clearing backlogs in the provincial court system is a lack of courtroom space.
“Certainly if there was another courtroom, there’s a place to put another judge, that might make more trial time available because we have the infrastructure to do it,” said Emily Cochrane, a criminal defence lawyer with The Burke Law Group.
The province has been dealing with increasing wait times for years, particularly in its lower courts. The government has blamed population increase and rising crime rates for the backlogs. Cochrane, who has been practicing law for nine years, says she’s seen the problem firsthand.
“If I were to go in today and enter a not guilty plea for a client not in custody, they are waiting till next year for their trial and I mean May 2025 or April 2025,” she said.
The province is trying to address the issue with several proposed changes. Last year the number of Crown prosecutors was increased by 50 per cent and more recently, a pair of proposed bills look to divert some matters from provincial court.
Proposed changes to the Motor Vehicle Act would give police officers discretionary power to send impaired driving cases through an administrative process rather than a criminal one. Department staff told reporters during a technical briefing earlier this month that while those who go through the administrative process lose due process and the presumption of innocence, they are not criminally charged.
Another piece of proposed legislation would reintroduce Justices of the Peace, who would be responsible for stickhandling bail hearings, which can be time-consuming for judges.
“It takes time away from judges to do other matters more appropriate for them to hear and the result is its backing up and clogging our legal system,” Justice Minister Ted Flemming told a legislative committee last week.
Flemming said there were 8,822 bail hearings last year, up from about 8,000 in 2022 and 7,000 in 2021, which has in caused delays throughout the system. Those delays caused 14 charges to be stayed in 2022.
“Justice delayed is justice denied and we were reaching a situation in the provincial court system that the waiting times were just growing and growing,” he said.
Cochrane says the idea is an interesting one and may help, but says the biggest impediment remains the lack of physical space, particularly in the capital region.
“It’s always great to have more bodies, but where are we going to put them?” she said. “Where is the justice of the peace going to sit if we already have a courtroom shortage?”
The lack of court time has come up at at least two recent hearings. Justice Richard Petrie, who is acting as the motions judge in the Canadian Civil Liberties Association’s Charter challenge of revisions to the province’s school gender identity policy, has noted the lack of court space in the province as an impediment to moving the case to trial before next school year.
Justice Ivan Robichaud also mentioned the lack of court space to hear the judicial review launched by a handful of CUPE locals over legislation forcing them into a new shared risk model.
Cochrane says that in her experience, delays in criminal proceedings can impact the memory of witnesses or participants in a trial, making it potentially more difficult for a defendant facing trial. For those in custody awaiting trial it means more time spent in jail even though they haven’t been convicted of a crime. Cochrane says that some opt to plead guilty as a path to release.
“We have the potentially innocent person who is sitting in jail for no reason if they come out of this not guilty, or we have people who are simply taking a guilty plea to get out jail instead of taking it to trial,” she said.
Fredericton’s aging courthouse is being replaced, but the project isn’t expected to be completed until 2026 at the earliest. While that will likely help, Cochrane says it’s not much comfort while the system is struggling now.
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