Judge-ordered fees against lawyers seek to ‘break bad habits to improve efficiency’

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This article was published 12/02/2019 (2788 days ago), so information in it may no longer be current.

Judges have the power to fine lawyers as a way to combat court delays and a “culture of complacency” for court-ordered timelines, Manitoba’s highest court has ruled — but they must use that power “with restraint.”

The Manitoba Court of Appeal set out a “flexible procedure” by which judges can order lawyers to pay fees, starting in the range of $100 to $150, for failing to meet court timelines. The fees are separate from any misconduct complaints against lawyers and are meant to reduce delays.

Under the new process, lawyers have to be given proper notice of the costs and they’ll have the right to defend themselves.

“In my view, in situations where timelines have not been respected, without reasonable excuse, the award of costs offers an efficient way to address counsel’s lapse,” Manitoba Chief Justice Richard Chartier wrote in the recent Court of Appeal decision on a case that prompted the attorney general and the Criminal Defence Lawyers Association of Manitoba to get involved.

In October 2016, on the heels of the Supreme Court’s Jordan decision, cracking down on court delays across Canada, Manitoba became the first — and is still the only — province to implement criminal-court rules that allowed superior court judges to impose fees on lawyers who don’t follow timelines.

In 2017, the Supreme Court of Canada affirmed judges’ power to impose such fees. The Manitoba Court of Appeal’s recent decision details for the first time how judges should order them.

“The primary purpose of these costs-awarding rules relates to compliance and preserving public confidence in the criminal justice system. They aim to change that culture of complacency and break bad habits to improve efficiency. No one group is to blame for this culture of complacency. The entire criminal justice system is to blame, including us, the judiciary, who have come to tolerate delay and accept preventable adjournments,” Chartier wrote in the decision.

The ruling comes after a Winnipeg defence lawyer challenged $1,000 in court costs he was ordered to pay for missing a deadline to file a document related to his client’s defence.

Karl Gowenlock was representing a woman who was charged with possession for the purpose of trafficking marijuana. He intended to challenge the legality of the search warrant in her case, but missed the deadline to file a legal motion because he put the dates into his Google calendar instead of his Outlook calendar.

“It didn’t actually cause any delay,” Gowenlock said, adding the case proceeded on schedule despite the missed deadline. The woman was ultimately fined for possession of marijuana after going to trial. She was acquitted of the more serious trafficking charge.

On April 6, 2017, Court of Queen’s Bench Justice Doug Abra ordered Gowenlock to pay $1,000, saying the missed deadline amounted to “inadvertent negligence.” The appeal court ordered Gowenlock be reimbursed for the $1,000 he paid. Under the process the appeal court set out, personal fines against lawyers must start out lower, taking into consideration lower compensation paid to defence lawyers through Legal Aid Manitoba.

Gowenlock said he’s reassured by the “significant procedural safeguards” the appeal court set out to guide judges who want to impose those fees, but he said making lawyers pay out-of-pocket won’t address systemic delays in the court system. Lack of court resources, not defence lawyers, is to blame for the majority of court delays, he said.

“I think it is kind of an unnecessary step by the court to impose these kinds of fines. Ultimately, I think we’ll just see them be rarely applied,” Gowenlock said. “I don’t think lawyers missing timelines was even close to the primary cause of delay.”

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

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