Nova Scotia Provincial Court Chief Judge Pamela Williams.

Does the Houston government have it in for the province’s judicial system? And, if so, what impact is that having on the timely but carefully considered delivery of justice in Nova Scotia?

There is much to discuss here.

But let’s start with Chief Provincial Court Judge Pamela Williams. In late May in an inaugural State of the Nova Scotia Courts speech, Williams genteelly chastised the government, complaining that its judicial appointment process had failed to keep pace with changing demographics and that the growing number of cases was overloading judges’ already heavy workloads. The lack of judges, she said…

… has significant impact on members of the public and the rest of the system and there is increasing pressure to book more cases, to hear more matters, deliver more decisions, judges sitting more days, and what does that result in? More work in the evenings and weekends.

One guesses from the undercurrent of frustration in her words that this was not the first time Judge Williams had raised this concern. The concern is real.

There are supposed to be 28 full-time judges for the provincial court. But the number of judges “hasn’t changed in many, many years, while things around the court, the environment, has changed radically,” as Martin Herschorn, the former head of the province’s public prosecution service, told the CBC last month.

To exacerbate pressure on the system, there has rarely been an official full complement of judges on the bench in recent years.

That matters for all sorts of reasons, not the least of which is the Jordan ruling. In 2016, the Supreme Court of Canada said cases in provincial courts must be dealt with within 18 months of the charges being laid.

Consider two recent cases in which justice delayed became justice dismissed.

In March 2020, a Cole Harbour teacher named Sean Patrick Palmer was charged with sexual assault and sexual exploitation in a case involving a 14-year-old student. He pleaded guilty and was to be sentenced in November 2021. But that hearing was suddenly postponed because Judge Rickcola Brinton went on leave “for undisclosed reasons.”

By the time his sentencing hearing finally took place in front of a different judge a year later, Palmer’s lawyers argued that his charter right to be sentenced in a timely fashion had been violated. The defence claimed that, in the circumstances, the mandatory minimum of six months in jail for each offence represented “cruel and unusual punishment.”

In December 2022, a new judge agreed and sentenced Palmer to eight months house arrest instead. The Crown has appealed that sentence.

But the Palmer case isn’t the only trial-gone-awry involving Judge Brinton.

In 2021, Brandon William McNeil was charged with two counts each of sexual exploitation, sexual interference and sexual assault, all involving children.

Judge Brinton heard the case in the summer of 2021. She was supposed to announce her decision on November 25, 2021, but went on leave for “medical reasons” before she could render a verdict.

Rescheduled court dates came and went — “with little to no information regarding return of the trial judge” — until another judge declared a mistrial in February 2023. Last month, the charges were finally “stayed” because of the excessive delays.

In her decision, Judge Bronwyn Duffy said she was “wholly satisfied” the Crown did what they could to prioritize the case and that the defence “cannot be faulted,” but that there was “no easy answer to this quandary.”

One could argue that these were both own-goal situations in which those in charge of scheduling judges failed to work around the absence of one judge.

(“Leaves of absence are an HR issue,” Jennifer Stairs, the communications director for the Nova Scotia Judiciary, wrote in response to my questions about the reasons for Judge Brinton’s absence and when, or whether she might return. “To protect the privacy of the individual on leave, no further information on the situation can be provided.”)

Justice Minister Brad Johns certainly blamed the judiciary — read the chief judge — for the problem. “It’s easy to throw shade and say, ‘We don’t have enough judges, we don’t have enough judges,’” Johns told reporters in response to Judge Williams’ concerns, “but some of this is the responsibility of the judiciary as well, I think.”

That might seem reasonable — except for this.

For at least some of the period in question, the provincial court was down four judges plus Brinton. 

It wasn’t until February that Johns did finally appoint new judges to bring the total back to 28 — minus, of course, Brinton who remains on leave.

But as if to highlight the impact of not having enough judges to hear cases, one of new Judge Byrna Hatt’s first decisions had to be to dismiss charges of distributing child pornography against an Antigonish man. The man had been charged more than two years earlier, and Judge Hatt said delays in dealing with the case had been caused primarily by the absence of a judge — not Brinton — to hear it.

Johns didn’t simply dismiss the concerns raised by Chief Judge Williams in her end-of-May speech. He dismissed her — and dismissively in the bargain.

“I’m not committed to doing this right now,” Johns told reporters of appointing additional judges. “I do know that Chief Judge Williams’ term is almost up, and I’m anticipating there’ll be a new chief judge, and so hopefully we’ll have an opportunity at that time to have some of the issues that may be there reviewed as well.”

Blame it on the chief judge for complaining.

Blame it on the judiciary for not scheduling properly.

Just don’t blame anything on Brad Johns.

Meanwhile, the judicial carousel keeps turning. In June, with two more new vacancies on the provincial court bench, Johns appointed one more new judge. If you’re counting that means there are 26 judges hearing cases in a system over-stretched with 28.

Oh, and one more related note.

Last week, Johns ordered the chief judge to dismiss the judge presiding over the inquiry into the Lionel Desmond murder-suicide and assign another provincial court judge to finish his report.

Judge Warren Zimmer, who had been presiding over the COVID-delayed inquiry since it was appointed in February 2018, was supposed to retire in March 2022 when he turned 75, but the government extended his term four times to allow him to finish his report.

And then… he was suddenly, summarily fired.

“The family and loved ones of the Desmond family, their community, as well as all Nova Scotians, have been waiting more than five years for answers,” Johns declared in a statement, adding that another judge was needed to “step in and complete the report in a timely manner.”

Again, the decision might seem reasonable. Except…

Zimmer had already told Johns in a letter obtained by Saltwire that he was just a month away from delivering his final report and had already proofread 200 pages of it.

And, instead of the “five years” Johns claims Nova Scotians have been waiting for Zimmer’s report, the fact is that public hearings didn’t even wrap up until the spring of 2022. If his final report had been delivered this summer as Zimmer intended, writing the report would have taken “approximately 14 months,” hardly an outrageous time frame for such a massive inquiry.

The Desmond inquiry, in fact, occupied 56 days of public hearings, and produced 10,447 pages of transcripts and another 128,605 pages of documents.

What now?

Judge William is supposed to assign another judge from among her current reduced roster of 26. That judge will need time to acquaint her or himself with the material — it’s not simply a matter of cobbling a new ending onto Zimmer’s work-to-date — and then rewrite a report that was a month away from being submitted.

How much longer will the families and loved ones have to wait now?

And how many more cases will end up dispatched unsatisfactorily because there aren’t enough judges to hear them?

Justice delayed, justice denied, justice dismissed, justice ignored.