Backlogs blamed for 400% increase in stayed criminal charges in N.B.

The number of criminal charges stayed in New Brunswick rose more than 400 per cent last year, and early reports suggest similar delays will show up in this year's tally because of shortages in the legal profession.

Shara Munn, president of the New Brunswick Crown Prosecutors Association, said shortages across the board, including for Crown prosecutors, have caused a backlog in the court system and pushed cases out beyond what's considered a reasonable time.

Trials must be heard within 18 months of charges being laid for provincial court, 30 months for higher courts, according to the 2016 Supreme Court of Canada's Jordan decision.

The ruling was intended to ensure people who are charged criminally are tried within a reasonable time, but Munn said it's also having the unintended consequence of increasing the number of charges being stayed, dismissed or withdrawn. 

Staying charges halts the prosecution, but the charges could be revisited within a year

The number of cases in New Brunswick that were stayed because of delays jumped from eight in 2022 to 26 in 2023, Munn said. As for individual charges within a case, the number stayed climbed to 80 from 14 last year.

Munn said the entire system has been stretched too thin. Serious, indictable offences are supposed to take priority, she said, but even those are now being stayed.

In December, two men in Moncton accused of trying to set up a network aimed at sexually extorting youth had almost all of their combined 21 charges stayed.

The charges against Jean-Michel Gouin and Ketiboua Kesse included extortion, fraud, money laundering and possession of property obtained by crime. Gouin faced 19 charges on his own, alleging he forced a dozen people to pay amounts that at times exceeded $5,000 in a series of incidents.

"Any crime where the victim is a child is going to be considered a serious crime," Munn said. "And that's certainly what extortion rings are targeting."

It's frustrating for all parties involved, Munn said, including the police who have put in the effort of investigating, and the prosecution's office "who would have spent hours and hours pouring over those files." 

"And so all of that now was just for nothing," she said. "There is a direct impact on public safety. There is a direct impact on the confidence of the public in the administration of justice."

No one from the Department of Justice was available for an interview, but a statement was provided on behalf of Justice Minister Robert McKee instead.

"We are committed to addressing trial delays and creating efficiencies throughout the court system in New Brunswick," he is quoted as saying.

There are 22 vacant positions among the 92 Crown prosecutor positions that exist in New Brunswick. McKee said a number of those "are expected to be filled in the next few weeks."

Marc Richard, executive director of the Law Society of New Brunswick, said it won't be easy for the Department of Justice to fill those Crown positions. It's been a challenge to retain and hire lawyers across the board, he said, and the society's website has "numerous positions that are available."

"We may admit 70 to 80 new lawyers per year into our ranks but we have a lot who are retiring or leaving the profession, so the net effect is we might get maybe 10 to 20 new lawyers, rather than 80."

Richard said recruiting a lawyer 10 years ago would have produced 15 to 20 excellent candidates to choose from. But these days, there are only a handful of applicants to interview.

Centralized bail hearings coming

McKee said other measures are coming that will help clear up the backlog of cases in the system.

The Justices of the Peace Act was introduced in May by the Higgs government to allow justices of the peace to conduct bail hearings in place of judges.

McKee said this "shows great potential for streamlining processes and improving efficiency."

"This would allow judges to focus on hearing Criminal Code offences sooner, which are increasingly lengthy and complex and account for a significant portion of their dockets," he said. 

The centralized bail hearings are expected to be in place in the first few months of 2025. 

In addition, new impaired driving penalties will take effect on Jan. 1, which McKee said should also free up court time to hear other matters.

Backlogs not just in criminal court

Richard said it's not just criminal cases that are affected by the shortage of staff in the legal system. Family law cases are also affected and this can have consequences for the children involved, he said.

If family cases are drawn out, "the whole family dynamic is in limbo for a number of years and by the time the case is heard, the scenarios that existed two years before might be totally different than what it would be two years later," he said. 

Richard said delays on the Court of King's Bench have "been associated with lack of the number of judges, delays and appointment of judges." He said when the federal government delays replacing a judge, it has a domino effect, which "slows down the process."

"Even if you fill the position a year later …  by the time you do the catching up, somebody else has retired. So again, you're always behind.

"At the end of day, we need more judges to be appointed in New Brunswick."

In May, the province introduced An Act Respecting Hearing Officers, which included consolidating the role of various court officials under the title of hearing officer and expanding their authority to conduct certain child, youth and adult protection matters.

Former justice minister Ted Flemming said at the time that those changes should reduce the number of child protection cases that have to go to court by 50 per cent.

"This system only started in early December," Richard said, so it's going to take a few years before we can catch up."