A serious shortage of judges is putting B.C.'s legal system on trial

On a sunny Tuesday in Gastown, the happiest creature in Ashley Syer’s legal office is Sadie. A three-year-old golden retriever, Sadie is pleased that Syer is around to offer cuddles and to distribute drool-covered toys. Syer herself is not so thrilled. She’s supposed to be in court. In a disturbingly common situation for Vancouver-area lawyers, her trial has been bumped. No judges are available.

These days, trial dates in B.C. are more precious than a downtown Vancouver parking space. Vacancies on the B.C. Supreme Court (in early March there were 12) mean many lawyers and their frustrated civil clients cannot have their scheduled day. “On average, 25 percent of all civil trials in Vancouver are bumped,” says Amanda James of Burnaby-based Apna Law LLP. “And they don’t go to the top of the list, because the next 12 to 18 months are already booked with other trials. There’s nowhere to put them back in. There’s no guarantee for next time—I have had a case bumped three times.”

Syer wasn’t the only one who got bumped on that Tuesday—five trials were postponed in the same courthouse. Witnesses may have flown in, sometimes translators have been hired and lawyers’ billable hours are always ticking away. With a delay, all those costs go down a sinkhole. “When you start tallying up,” Syer says, “even at a very conservative estimate, you’re talking about a minimum $100,000 worth of preparation that got wasted last Monday, just in one courthouse. Multiply that by all the weeks it happens and we are talking about waste in the millions. We’ve reached a crisis point.”

The pandemic didn’t help. “When COVID hit they adjourned every trial for three months,” James says. “We’ve never really caught up.”

Meanwhile, the Judicial Advisory Committee, the body that evaluates judicial applicants, went dark for about five months last year after all the members’ terms expired. “That’s definitely a factor,” says Scott Morishita, president of the Canadian Bar Association of BC.

Criminal cases, at least, are being heard fairly promptly. “There was a recent Supreme Court of Canada case called R v. Jordan,” James says. “The court said if you don’t try someone within 18 months, charges are automatically stayed. That means no criminal trials get bumped. And that means they take judges away from civil trials.”

James acknowledges that criminal matters are likely to be of more importance. But, she stresses, civil cases can also be crucial: consider a single mother seeking support payments, for example. While the system does not keep records on how many civil clients give up, James notes that she has seen it happen a lot.

“Court is a lot like triage right now,” she says. “It’s like going to the surgery ward and saying ‘Whose leg looks worse? Who’s going to bleed out first?’ It shouldn’t be how we administer justice in this province.”

The shortage of judges causes delays at both ends of the process. Not only are trials and hearings delayed—so are decisions. Fewer judges handling more cases means more decisions for those overburdened judges to write. “I have waited over a year for reasons for judgment,” James says.

Outside of the Lower Mainland, the situation is even more dire. “Kelowna, Kamloops and the north have it worse,” says James. “They only have judges certain weeks of the year. Everyone rushes to fill the spaces, and only a fraction of people get on.”

Judicial appointments are a federal responsibility and a nationwide problem. “With the greatest respect, the Court finds the Prime Minister and Minister of Justice are simply treading water,” Ottawa-based Justice Henry Brown wrote in a recent decision.

It has previously been suggested by former federal justice minister David Lametti and former B.C. chief justice Robert Bauman that there may be a shortage of suitable candidates. “I have a hard time believing that is the case,” Syer says. “I have heard of applicants who would be excellent judges and have been rejected.”

Still, there are factors that could discourage applicants, Morishita says. One is the increased workload. “There’s burnout. I think a lot of people who would be exceptional judges are reluctant to apply. They are expected to travel eight weeks out of the year. So that can create challenges for people who have younger families.”

Then there’s the lifestyle. “When you’re a judge, you’re a judge 24/7,” she explains. “Their schedules are tightly controlled. It does require a fair amount of sacrifice in your day-to-day life.”

Could the backlog be reduced through other means? “I’d love to see mandatory mediation,” Syer says, pointing out that mediation had a high success rate in the past, before B.C. courts moved away from the approach. Another possible remedy would be the creation of more associate judges (formerly known as masters), who can handle matters not requiring a trial.

“My concern is people will lose faith,” says James. “People are going to think the court system can’t be trusted. There’s a lack of interest in addressing the problem. It’s lawyers who are complaining about this. Nobody likes lawyers that much, so we don’t get a lot of traction.”

Syer thinks her office mate could be helpful, though. “Sadie is a mediation dog,” she says.

But, for better or worse, Sadie doesn’t judge.

On the Radar

Sixteen percent of trials in B.C. were bumped in 2022 (the latest year data was available by press time), from 13.5% in 2021.
The Lower Mainland was the region with the most bumped trials, accounting for 69% of the province’s bumped trials.
The Southern Interior region, which includes Kamloops, Kelowna and Vernon, saw an increase in the number of bumped trials in 2022, accounting for 20% of all bumped trials in British Columbia, compared to 8% in 2021.
There were 202 criminal jury trials booked to start in 2022, versus 154 in 2021. However, just 39, or 19%, went ahead as jury trials on their original dates.