A document seeking information on software and professional services suggests an overburdened and bogged-down Supreme Court has left a gaping hole in the public’s access to justice.
“Because legal costs are increasing and cases are taking longer to reach resolution many will not have representation. Even those in the middle class do not have sufficient financial resources to afford the services of a lawyer for the duration of their case. This has given rise to the number of self-represented litigants,” said a request for information from the provincial Office of the Chief Information Officer (OCIO) on behalf of the court.
Last year, the Supreme Court of Newfoundland and Labrador approved a five-year information technology strategy, acknowledging the current system “can no longer support the needs of court users, judges and staff as it does not enable the court to provide timely access to justice.”
The OCIO request seeks information about who can offer a new case-management system to modernize it and make it more efficient “while providing timely and affordable access to justice.”
The trouble is patently obvious to prominent St. John’s lawyer Bob Simmonds.
“If I got charged with something, I would have to sell my house,” he said.
Simmonds’ standard rate is $405 an hour and he noted a younger lawyer’s rate at the firm is $265 an hour.
“Even a shoplifting charge can run you $3,000 or $4,000. … It’s a huge problem. People can’t afford it,” he said.
“With criminal matters now, you’ve got to have pretrial conferences. You’ve got to submit a list of issues and witnesses.
“And we have to charge for that, every time they put another layer like that on. That’s why going to Supreme Court is very rare. Most cases now, by far, the majority go to provincial court because the Supreme Court is just too expensive.”
He and lawyer Erin Breen recently represented Colin James Matchim, formerly convicted of causing his infant daughter's brain injury by shaking her.
With Simmonds and Breen on Matchim’s case, a Supreme Court hearing saw experts from around the world offer their opinions on shaken baby syndrome and a mistrial was declared last year. At the time they were working under Legal Aid certification (which generally has a top rate of $60 an hour.)
“That was the most complex piece of litigation I have ever seen and I am 34 years at this,” Simmonds said. “I lost money. We never broke even. I can’t even pay the overhead with that.”
Matchim was acquitted of aggravated assault last month when the Crown told the court it would not proceed with any further evidence.
Simmonds warned the concept of clients representing themselves is fraught with peril.
“The problem is the judge starts to act as council. That always ends up in a lovely mess. … When you have self-represented accused, you have more of a chance of having the wrong conclusion,” Simmonds said.
The bogging down of Supreme Court is a complicated matter, he acknowledged.
“I welcome they are recognizing it as a problem. They are trying to clear it up. I don’t have an easy solution. I think there are systemic problems that if you really want to cure them takes a lot of time and a lot of money.”
For starters, he said St. John’s needs a new court complex, one with room for all the justice services — provincial, Supreme and Court of Appeal with parking and security, lacking now at Supreme Court, and replacing the cramped antiquated quarters on Duckworth Street where lawyers often can’t get a meeting room to see clients and witnesses. Provincial court operates from leased space in Atlantic Place.
“Try to convince government to do that. The trade off is roads, sewers, hospitals,” Simmonds said.
“I’m not that stunned that I don’t appreciate the politics of that.”
The goal of a new Supreme Court case management system includes moving away from outmoded technology and a cumbersome paper-based environment.
For instance, the request for information states that court scheduling currently consists of a “huge manual process” to co-ordinate 35 judges, 27 courtrooms, all the parties to the hearings, court officers, interpreters, videoconferencing equipment and everything else related.
“Inefficient case scheduling results in under-utilization of judicial resources, empty courtrooms, longer case processing times and most significantly, delays in access to justice,” said the document.
The aim is to move from the current method that employs a mix of manual ledgers, MS Word and MS Outlook to an electronic calendering system.
As for the management of court documents, a 2008 study revealed that Supreme Court was at that time maintaining a staggering inventory of 4.8 million pages of records and that mountain of paper, along with the cost of maintaining it, has continued to pile up.
“Paper records also result in inefficient case processing as judges and staff cannot access trial documents and other case media electronically,” said the request for information.
“Audio recordings, minutes and transcripts are stored independently in separate systems. Considerable manual effort is required to manage these other media, including responding to requests for copies, locating disparate pieces of information and creating CDs to send around the province in boxes (often multiple boxes). Risk of loss or exposure exists with the storage, access and distribution of these media.”
Statistics reporting is also limited.
If Supreme Court had an e-filing system, secure online access would give those who want to represent themselves, lawyers and the Crown access to case information 24/7 from any location, resulting in timelier case processing.
The court began using a custom-built case management system from 1999 that is reaching the end of its practical life cycle.
Facts about Supreme Court of Newfoundland and Labrador, the highest court the province dealing with appeals, civil (90 per cent) and criminal (10 per cent) matters.
Court staff: 100
Self-represented litigants: 50
Court of Appeal
Trial Division (General)
Trial Division (Family)
Corner Brook Happy Valley-Goose Bay
Source: Office of the Chief Informational Officer