This is where cold hard facts give way to the hottest of takes, mostly mine I suppose. I’m the editor, Marshall Jones.

Want to include yours? Listen, this isn’t the comment section, this isn’t social media. Discussion and debate requires context and a wee bit of bravery — we need your name and where you’re writing from. Include it in your account or email me anytime.

This week, I offered a few egregious examples of delays in our justice system, hoping to expose the pattern, or at least one of them. These examples are not particularly unusual.

I have covered many trials where it was clear the lawyers had no good faith defence for their clients. Either they knew the case was hopeless and they were trying to load up their Legal Aid bills with court time, which paid more, or they were stress testing the system, hoping if they made enough applications, enough charter challenges, something would topple in their client’s favour.

Both, most likely. There really is no harm in trying.

That’s my point.

The BC Supreme Court notes a “significant increase in the number of long or particularly complex criminal cases” in the last five years. The courts pretzel themselves trying to push matters through but count themselves powerless against defence strategy of delay, complicate, obfuscate, frustrate. They rarely even name it.

This has been going on a long time, and I’m afraid it’s metastasized, incentivized in part by bad policy (mandatory minimum sentences, legal aid funding, etc). The game is obvious to any serious court observer. The lawyers know it too, of course, they explained it to me.

Many of those lawyers are now judges, as naturally tends to happen. They haven’t forgotten the game, they just can’t do anything about it.

Here’s a rare example of an allegation. Justice Shelley Fitzpatrick knew exactly what two lawyers representing a man accused of being a serial rapist were doing. She and the Crown went to extraordinary efforts to bring the case to trial, but the two lawyers followed the same old plan. They delayed basic requests or instructions, they wouldn’t accept disclosure or, at times, return phone calls or emails. Then they basically didn’t show up for the first day of trial and didn’t bother telling the accused.

Lawyers are duty bound to “refrain from conduct that is intended to frustrate or interfere with the administration of justice”, she noted.

It’s a lofty notion, largely ignored. They’ll never say it out loud, but lawyers I have spoken to only know a duty to their client. Everything else is secondary.

Fitzpatrick found them not guilty, to the surprise of no one. Contempt is a high bar. Unless a clear breach of law, lawyers tend to get the benefit of doubt from other lawyers.

So perhaps then it’s on the Law Society of BC to bring some decorum. But that wouldn’t happen without a judge’s ruling, I’d suggest. If a lawyer has been cited or disciplined for intentional delay, I haven’t found it.

The Law Society of course fought hard recently to maintain its absolute independence in governing the profession, resisting NDP government efforts to stuff more lay people into the process. I’m not sure the law society has much credibility on my file. It lost for other reasons.

The Supreme Court has long decried delays in the system, calling it a “culture of complacency.” I don’t think that was ever fair.

More like a culture of willful blindness to the real problem.

(I’m not sure the highest court has assessed its own impact in delays and complications, but that’s for another day.)

Whew! Thanks for letting me get that off my chest. Got a comment? Email me at mjones@infonews.ca

Marshall Jones

Managing Editor

*I neglected to include a link to the case I wrote about Wednesday. Find it here.

I wrote on Monday about a judge entertaining meaningless arguments and delay from a vexatious litigant in what should have been a simple court matter.

I wasn’t trying to pick on that judge, this is a problem throughout the system. They’ve tried to solve it several times. Let me illustrate how they fail, or better yet, I’ll let a BC Supreme Court Justice do it.

In 2017, a man was shot and stabbed multiple times on a residential Surrey street, gangland slaying. Within a year, police got one of the killers, a conviction and turned him informant. On his evidence, they charged and tried to arrest Brandon Teixeira for first degree murder, but he fled and was arrested in California almost two years later.

His defence would clearly hinge on the informant (who, by the way, was paid $500,000). Instead, his four lawyers opted for the tried-and-true British Columbian legal strategy of any means possible. They used a shotgun strategy of putting enough pressure on the Crown, the judge, the prison system, the court system and anything else to find a crack to exploit.

They filed nearly 100 formal applications requiring rulings from the court. Twenty three more came from the bench during trial. Two of his lawyers quit in the middle of the process. One of his lawyers contemplated a possible conflict of interest for which he demanded representation from one lawyer and one lawyer only — who happened to be ill.

They demanded and were disclosed 250,000 pages of documentary evidence, 3,000 photos and another 4,600 or so audio and video files. They were denied numerous other applications for more. That’s why it took six years since his arrest for this one man to be tried and sentenced to life imprisonment for a murder witnessed and attested to by a man who did it with him.

That’s atrocious.

We know all of this, of course, because defence counsel have a final shot at a reward for their efforts — one last application to test delays in the court system. In a 2017 case called Jordan, the Supreme Court of Canada had enough with delays in the court system and demanded that trials be held within set time limits or charges must be dropped. Rapists and murderers get to run free if they don’t get their paperwork done.

Teixeira’s lawyers lost that application, too. There is, literally, no harm in trying.

But none of this is my point. Everyone knows there are delays, what they don’t know is why. And I think justice Jennifer Duncan just accidentally articulated it in this decision. Because that Jordan case was sort of supposed to allow judges to dismiss many of these frivolous applications that are grinding the institution to dust.

“The criminal law has evolved significantly in the 10 years that have passed since Jordan was decided,” she wrote. Then she laid out four more cases from the Supreme Court since then that basically removes her ability to dismiss many of these applications — and opens the door to more charter challenges.

The Supreme Court of Canada adds ridiculous levels of complexity to the most basic of criminal trials with little contemplation or forethought of downstream impacts. Then the learned judges expect everyone to comply with the artificial timelines they set long before these rulings.

Dust, people.

Sorry for the length. On Friday, I’ve got one more piece to add to this 1,000-piece puzzle of court delays — the culture that got us here. Got a thought? Email me at mjones@infonews.ca.

Marshall Jones

Managing Editor

This isn’t about the pandemic, free speech or gathering

Some folks started gathering regularly in a downtown Kelowna park shortly after the COVID-19 pandemic. Microphones, speakers, tents blocking public spaces.

The City of Kelowna fined the organizers but they didn’t stop. In 2023 the City went to court to get an injunction.

After three years of legal proceedings, the case still isn’t done.

A couple more years, a few more fat stacks of taxpayer money on the fire, and we should get this wrapped up. Pardon my sarcasm.

This editorial isn’t about a pandemic. This isn’t about free speech or gathering.

This is about the coughing, sputtering system of justice in this province, this country, that can’t seem to see the forest for the trees.

Justice Brianna Hardwick allowed the defendants in this case to take her down a dead end application that cost, by my rough math, nearly two years of wasted time in court and in the park and hundreds of thousands of dollars in court costs.

All for a matter that is largely moot.

Hardwick complained in her decision that the defendants submitted 1,800 pages for her to read. She allowed one of the defendants, David Lindsay, to file a 28-page response, which later ballooned to 82 pages. She let him spend nine days of court time spread over an entire year to make a case that was clearly doomed to fail.

This credit, this courtesy, this leeway was given to a man declared a vexatious litigant in 2006, a man who gleefully runs up court bills he knows he can never pay.

This despite a Supreme Court of Canada ruling that implored judges to save the institution by “dismiss(ing) such applications and requests the moment it becomes apparent they are frivolous.”

Folks, I’m not a judge, I’m not a lawyer. I never went to law school. I’m not even very smart.

But this is one of those cases that fits the bill. I have a lot more to say on that in a future editorial, but for now, I’d just be satisfied if judges stopped entertaining every single application that arrives on their desk.

I’d love to know your thoughts. Email me at mjones@infonews.ca.

Marshall Jones

Managing Editor

iN RESPONSE

What taxpayers get for $6.2M spent by Kelowna Tourism

It’s really disappointing to read as the last line of the article “Tourism Kelowna did not respond to an interview request.” I see this often with other government entities as well as police forces. A press interview request is an OPPORTUNITY to expand your public profile and provide your messaging. A request for an interview should be regarded as really good news. Even when they are asking about something that may be uncomfortable or not the proudest of moments it is still a chance to put your spin on the situation.