‘I am not happy’ — a veteran Judge reflects on the state of courtroom 308

(Winnipeg Law Courts/Winnipeg Sun File)

(Winnipeg Law Courts/Winnipeg Sun File)

Are lawyers disrespecting Manitoba’s provincial court?

It’s a question posed today by a frustrated veteran judge, Marvin Garfinkel (appointed in December 1979) as he juggled cases in Courtroom 308 at the law courts complex downtown.

Room 308 is designated as a sentencing or plea-entry court to deal with “summary conviction” criminal matters — matters which aren’t generally complex or overly serious.

It also handles items like motions and bail variations and people who are unrepresented and want to get their cases over with.

It sits each morning and afternoon of the working week except Fridays.

It’s a busy, but smaller room, one that’s hard for the public to find a seat in. It is generally standing-room-only for lawyers from both sides of the Crown-defence divide.

Matters are slotted onto a list and estimates for how long they may take to hear are provided. But, as is often said, the wheels of justice turn slowly — things often take longer to be heard then expected. Questions needing answers arise. Bringing in-custosy accused people into the room from lockup takes time.

In the glacial-paced world which is already Manitoba court system, 15 minutes turns into 30 real quick. And in my view, that’s probably for the best. Rushed, drive-through justice is probably not much better or helpful to society than no justice at all.

Lately, however, the dockets in 308 have been plagued by last-minute add ons and transfers from other courtrooms.

What was once meant as a courtroom to hear motions morphed into a well-intentioned experiment in “summary” dispositions to reduce court backlog — and the demand is now clearly outpacing resources.

Garfinkel today was clearly nonplussed at the state of today’s 308, and refused to hear a couple of cases because they were either not on the official list nor expected to appear that day.

Several times in the afternoon, he made comments about the length of time cases went over the estimated time of hearing as advanced by the lawyers involved.

And, probably rightly, he wondered if similar situations would unfold in the Court of Appeal or Court of Queen’s Bench, the higher levels of court in the province — but due the same respect any court of law requires.

The answer – I think he knew this — is, of course, it wouldn’t be allowed in QB and the appeals court.

This isn’t to say I believe the lawyers are intentionally being disrespectful, but there’s an amount of ‘wiggle room’ at the provincial court level which clearly is being exploited.

Here’s Garfinkel’s own words on the subject, for the record.

“I’m not dealing with this matter,” he told one younger defence lawyer.

“This matter is not on the list and I’m not going to deal with it. It’s not part of this court hearing this afternoon. And I’m glad you raised this now because it gives me the opportunity to vent.

The provincial court is the only court that does not control the length of its docket. I don’t know how this list [shakes it] got to be generated but certainly the judges and the staff of the court did not prepare that list.

If you go into the Court of Appeal on a sentence appeal, there are only four sentence appeals allowed in a half-day. The Court of Appeal staff controls its list and docket.

The provincial court is treated by counsel differently than it treats the Court of Appeal and the Court of Queen’s Bench. And counsel add matters that the court has no control over. We are not dealing with [accused] today – because he’s not on the list.

And I will also add that many of these items on the list have times shown — those times are estimates by counsel of how long the matter will take. As just shown from the first matter we dealt with [Set for 15 mins, but lasted 32] Counsel are frequently wrong in their time estimate.

This court came into being because the judges wanted to deal with motions by counsel. We as judges found that we weren’t getting motions from counsel. Counsel preferred to deal with motions in a different fashion.

So we said, ‘OK — we’ll take un-represented matters from 301 and 302,’ and we found that that didn’t work. And so we said, OK — counsel could put matters into the court. But we never put a cap on it, thinking that counsel would be intelligent enough to know how manny matters can be dealt with in a half day.

In the Court of Appeal, the example given is four matters in a half day, not taking into account transfers from 301 and 302.

I’m not dealing with this matter because it’s not on the list. I don’t know how it got added to the docket. You can put it to whatever courtroom that you like — but I’m not dealing with it today for the reasons stated.

We still have I don’t know how many matters to go — and I’ll venture to guess none of the time limits shown will be followed.”

FAST FORWARD TO A LITTLE LATER IN THE DAY:

(Garfinkel sounded like he was pre-explosion after the final matter came on the docket and his lawyer wasn’t in the room to handle it:)

“How do you have a lawyer put something on a list and then not show up? Would [the lawyer] do that in the Court of Appeal? Would he do that in the Court of Queen’s Bench? Then why do it in the provincial court? Are counsel treating the Court of Appeal differently than it treats provincial court of Manitoba and if so, why?

Just because we’re the lowest court on the hierarchy doesn’t mean we should be treated with disdain. I’m not being critical of you [he tells the Crown] but I appreciate you giving me the opportunity to vent. Why are we doing this?”

[Get a message to the other lawyer, he tells the Crown, and let him know his client is here.]

“I am not happy,” Garfinkel said.

The  duty Crown in attendance tried to explain how the estimations are arrived at, that often they add minutes to the estimates to try and account for extra time just in case it’s needed.

“You can convey the message to the lawyers in your department. That I am not happy with this whole system in 308. It’s not working the way the judges want it to work and we … as the judges are going to have to sit down and talk about it. And we will.

“And if you want to get in some points of view and opinions, you better tell your supervisor to get that information into the chief judge quickly.”

“Yes your honour,” the Crown replies.

A meeting of provincial court judges is coming up in May, Garfinkel says.

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