N.S. court backlog 'worse than ever' after pandemic shutdown

A pile of legal aid applications, people lining up outside of courthouses and a persistent backlog are just some of the challenges facing Nova Scotia's justice system in the months after the first wave of COVID-19.

Months worth of upcoming matters in Nova Scotia courts were adjourned in the spring as the justice system ramped up measures to slow the spread of the virus.

As the courthouses reopened, those matters needed to be rescheduled along with a steady stream of new cases.

"Backlog has always been an issue in provincial court," said Pam Williams, chief judge of the provincial and family courts for Nova Scotia. "It's a very busy place.

"With the pandemic, it halted court proceedings almost completely between March and May with limited opening of the court in June and July. So the backlogs are worse than ever now."

Megan Longley, CEO of the Nova Scotia Legal Aid Commission, said this was not unexpected, as the adjourned matters would have to be rescheduled eventually. 

There is an expanding wait list for service within legal aid, which can range from no wait to as much as eight weeks, depending on different areas of the province and whether someone is applying for criminal or family law.

"Several months worth of people with legal issues are coming to us all at the same time," Longley said, adding that certain matters are prioritized, such as those involving domestic violence, or a criminal matter where a person is in custody.

"The files aren't closing at a rate fast enough to necessarily accommodate all of the people applying for service."

A COVID working group was established within the legal system to try to address the backlog and other issues cropping up because of the pandemic.

The group, chaired by Williams, brings together members from the justice system as well as community groups, other government departments and an infectious disease expert.

"It requires a lot more collaboration among the stakeholders to come together, do problem solving and come up with solutions for better ways of doing business," Williams said.

For the backlog specifically, Williams said the group has been assessing how to try to resolve matters earlier in the process, whether that's using a restorative justice approach or coming to a plea agreement.

There are also discussions around making sure that only essential witnesses need to be called at a trial. That would help reduce the time needed in court.

There could be a move to take certain matters out of provincial court altogether, such as motor vehicle or bylaw matters that could be dealt with by justices of the peace.

Williams said the hope is to create better communication between the Crown and defence on which matters are proceeding and which ones need more time.

Reduced numbers in courthouses

Courthouses in the province are continuing to restrict the number of people inside in order to ensure physical distancing.

For certain matters, counsel can appear on behalf of clients to reduce the numbers, but Longley said some people are unaware of this — especially if they don't have a lawyer.

Because of this, courthouses have experienced people lining up outside of the building waiting for a chance to get in. Longley said that can cause delays and "some hardship for people" if they have had to get childcare or take time off work to appear.

She said there are services available particularly in Halifax and Dartmouth for people to have a legal aid lawyer show up on their behalf.

But Williams said there is at least one positive thing to come out of the pandemic: the technology demands needed to reopen during the public health crisis meant that the legal system was forced to start modernizing.

"We've got an analog system in a digitized world — and that's how the courts have been functioning," she said.

"We need to invest in IT solutions which will help create efficiencies and move things along more smoothly. We're not there yet."

She said those adaptations, such as e-filing court documents, make her believe the system could better handle a potential second wave.

Continued delays

Williams said one of the reasons it's so important to find solutions to the backlog issue is the time-delays have "human-centred implications."

"You've got victims and accused persons, and family members, and community members who want the matter to be brought to a conclusion, one way or the other. And sometimes matters remain outstanding for months and months and months."

But Longley said one thing on everyone's minds is what implications the Supreme Court of Canada's 2016 Jordan decision will have in terms of the delays caused by the pandemic.

That decision now requires that people to be tried within a reasonable time frame. Before the pandemic hit, hundreds of cases across the country were being thrown out if they breached the Jordan deadlines.

But there is a reference in the Jordan decision about how violating the deadlines could be justified under "exceptional circumstances" outside of the Crown's control. Longley said the pandemic may fit this criteria, but at this point, it has not been clearly litigated.

"At what point does the clock start running as per usual, or as per pre-pandemic usual again?" Longley said.

"Everybody, I can say for certain, is aware and keeping an eye on deadlines."