Why do the wheels of justice turn more slowly in Chatham courts?

The wheels of justice often move slowly, but perhaps more so in the Chatham court system, which an area lawyer says keeps some of his colleagues outside the municipality from taking cases here.

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“There are a lot of defence lawyers from Windsor and London who are not choosing to work in Chatham anymore,” said Essex County defence lawyer Ken Marley, who has a heavy case load in Chatham-Kent.

“One has to deal with the overly bureaucratized process of case management that happens in Chatham,” he said.

Marley said the local case management system is “more rigorous” than other jurisdictions and some lawyers just don’t want to put in the extra work in order for their cases to be tried.

He said there are times when a client wants to go to trial for a simple case that would only last half a day or less, but before a trial date is set a lawyer has to meet with the Crown and then meet with the judge.

A form has to be filled out before a meeting with a judge is granted, then another before a case is scheduled for trial, Marley said.

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“I’ll be honest. . . “None of them are particularly onerous things to do,” he said.

But when you do them for 200 or 300 cases you might have on the go, “it’s a big deal,” Marley said.

He cites as an example confirmation hearings that are held in most jurisdictions after a trial date has been set but before it begins.

“The purpose of the confirmation hearing when it was originally conceived was that everybody was to confirm that they were ready to go for trial,” Marley said.

If everyone wasn’t ready, the trial would be cancelled and given to another case ready for trial, he said.

A situation that often happens in Chatham is that the Crown is not ready for trial when the confirmation hearing is called because of a development such that not all the witnesses have been served a subpoena.

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If something like this happens, Marley said the way it should go is the judge cancels the trial time and the delay in the case is charged to the Crown.

But what typically happens is judges are giving the Crown another confirmation hearing date and the case gets put over, he said.

“On that next day when we show up in court, everybody else, except the defence lawyer is getting paid to be there,” Marley said. “I’ve had some cases in Chatham where I’ve gone to as many as six confirmation hearings, which Legal Aid will not pay for, if they’re a legal aid client.”

Jerry O’Brien, a partner with O’Brien, Sulman, McGivern, who works on civil cases, said the backup in criminal court is felt down the line.

“That’s creating a burden through the system, because it’s meaning criminal cases seem to go further in Chatham than in other jurisdictions in terms of the amount of court time they occupy and how far they have to go before they do resolve,” he said.

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O’Brien said that means matrimonial and civil cases have to wait.

He noted that criminal cases have priority in the court and there are rules for how long a criminal case can remain outstanding before being resolved. Civil cases have a deadline to start by, but not finish by, O’Brien said.

On the flip-side of the coin, lawyers routinely get chastised by judges for not being fully prepared that also cause delays in the court.

The Ministry of the Attorney General declined a request by The Chatham Daily News for an interview with the Crown regarding this situation.

A step-by-step guide on the attorney general website www.ontario.ca/page/ministry-attorney-general provides details on the several steps required for a typical criminal case before the Ontario Court of Justice. This includes being arrested, having a bail hearing, going to case management court and then on to a judge-led intensive management court.

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From there, the case goes to a Crown-pre-trial where the lawyer and Crown discuss the case, then to a judicial pre-trial where the Crown and defence lawyer meet with a judge to further discuss the case to sort out issues before going to trial or possibly reaching resolution.

The resolution process involves withdrawing the charges or entering a guilty plea where the person gives up the right to a trial. If the case is going to trial, there is a preliminary inquiry held to determine whether there is sufficient evidence to go to trial.

Another situation that was causing delays with the Chatham court is that it was only operating with two Ontario Court Justices for several months. But that was remedied with the appointment of Justice Courtney Harris earlier this month.

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“The Ontario government is investing over $29 million this year to appoint a minimum of 25 new judges to the Ontario Court of Justice and hire up to 190 more Crown prosecutors, victim support and court staff to support the additional capacity on the Court,” Keesha Seaton, a spokesperson for the Ministry of the Attorney General, said in an email.

“The investment will help the court continue to address the backlog, prevent cases from being delayed, and keep pace with a growing number of complex cases,” she said. “It will also improve access to justice for those involved in the criminal justice system, including victims and their families.”

Marley said he is encouraged a new judge has been appointed to bring the Chatham court back up to its full complement.

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“It means, hopefully, that the court can get back to doing everything that is should be doing to move the cases along,” he said.

“Just getting a judge here doesn’t solve all the problems, but it certainly gives us another person who we can count on to help run things.”

When asked about trying to address these issues, Marley said lawyers and judges have informal “bench and bar” meetings to discuss matters of concern.

Noting he’s raised the issue of confirmation hearings, Marley said some judges are sympathetic and often the courts will try to book these hearings when a lawyer will be in town.

“That’s considerate of counsel’s schedule,” Marley said but “it doesn’t change the fact though that we’re burning up court time talking about a case we’ve talked about sometime four or five times before.”

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Another issue locally, outside the courts, is that there are fewer lawyers practising in Chatham-Kent than in past years.

“I would say it’s true that there are few lawyers practicing law full-time in Chatham-Kent,” said Brian Coulter, president of the Kent Law Association.

Coulter recalled when he started practising law in 1990 “there were a huge number of local lawyers from the ’70s” with many who still had 15 years or more to continue practising.

“As the ’90s went on there were relatively few new lawyers starting up in Chatham-Kent,” he said.

Coulter estimates that between 1990 and 2000 there might have been five or six new lawyers starting.

“That wasn’t a big deal at the time, because we still had this huge crowd from the ’70s,” he said.

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Noting many of those lawyers are now retired, Coulter said, “We really haven’t seen an influx of new lawyers since I got on the scene to equal what it must have been like in the ’70s.”

O’Brien agrees there are fewer lawyers practicing in Chatham-Kent, but said, “Quite frankly, I would attribute it more to the productivity increases lawyers have enjoyed as a result of the technologies that are available.”

He recalled when he started practising law in the 1980s, word processing was just in its infancy and computers weren’t a thing.

O’Brien said artificial intelligence has moved into the legal field quickly, helping to speed up research, which has dramatically increased efficiencies for lawyers.

“I think Chatham is well served,” he said. “We have a complement of good lawyers here. I wouldn’t view us as an under-served legal community at all.”

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