Lingering vacancies at Sask. Court of King's Bench contributing to delays, potential case dismissals
'I am concerned about the workload demands': Chief Justice Martel Popescul
The father of Saskatoon murder victim Megan Gallagher knows all about justice delayed.
Brian Gallagher's concern now is the possibility of justice denied.
Megan Gallagher was last seen leaving a friend's house in on Sept. 19, 2020. Her remains were discovered two years later in the South Saskatchewan River near St. Louis, about 100 kilometres northeast of Saskatoon.
Three of the four people accused of murdering the 30-year-old are scheduled to stand trial in 2025 — more than two years after they were charged. The fourth man, Robert Thomas, pleaded guilty in October to second-degree murder.
The passage of time brings the Gallaghers a fresh set of concerns. A 2016 Supreme Court ruling, known as the Jordan decision, set a cap of 30 months for King's Bench cases to be resolved or face possible dismissal.
"Just trying to process it emotionally, it's really challenging," Brian said in an interview.
"This whole process has been very long, over two years. It's put our lives on hold."
A chronic shortage of judges at Court of King's Bench is not the only reason the process is moving slowly, but everyone from Chief Justice Martel Popescul down to the lawyers waiting to argue cases agree that it's an element, and it could have real consequences.
"I think we're going to see some cases dismissed, some serious, serious cases dismissed," said Brian Pfefferle, president of the Saskatoon Criminal Defence Lawyers Association.
"We will see cases dismissed on delay that no one wants to see dismissed."
Shifting landscape
Martel Popescul became the top judge at King's Bench in 2011. By federal law, the court is supposed to have 38 full-time judges, but it has been shy of that number since 2015. The current total is 34.
"The impact is that we have less wiggle room," Popescul said in an interview.
"It becomes more of a challenge if a judge gets sick or cases that are scheduled for one week go into two weeks."
The pace of new cases hasn't slowed.
"We don't control the workload. As the workload comes in, we are not in a position to say 'OK, we've had enough murders here in Saskatchewan, we don't have time to deal with the rest of them,'" he said.
"We have to deal with whatever comes in … it's my task as the chief justice of the court to take the resources that I have and assign the judges to do what they need to do."
Appointing judges is the responsibility of the federal minister of justice. Popescul is diplomatic when answering whether the current government is dragging its feet.
"[The minister] has indicated that one of his priorities is to try to fill the vacancies as quick as he possibly can. So I can tell you there does seem to be an increased attention to the need," he said.
In the interim, Popescul said, "I am concerned about the workload demands."
Pfefferle offers a more blunt assessment.
"This is just like saying, 'the emergency room is fine, no one died in the hallway yet,'" he said.
"Well, why should we wait till someone dies in the hallway here? Why should we wait till someone who's innocent doesn't get exonerated? Why should we wait till someone who is guilty doesn't get convicted and the family get to see a closure for that aspect of it. We shouldn't wait this long, and it will be an embarrassment to our system every time this happens."
A spokesperson for Justice Minister Arif Virani wrote in a statement that the government is working to fill the four vacancies.
Virani reached out to the provincial law society, the bar association and the trial lawyers association in March, "to encourage members of your respective associations to consider applying to become a judge," wrote Anna Lisa Lowenstein.
Multiple pressure points
Dismissals because of delay are still outliers, but they do happen.
In April 2023, a former federal researcher accused of fraud and breach of trust had his charges dismissed at Court of King's Bench in Swift Current.
Yantai Gan was a research scientist at Agriculture and Agri-Food Canada's Swift Current Research and Development Centre when he was arrested and released in November 2019.
He was charged with breach of trust by a public officer, fraud over $5,000 and possession of the proceeds of crime over $5,000, after a 21-month investigation by the RCMP's national security enforcement team.
In total, 42 months and eight days passed between the charges being laid and the date for Gan's trial being set.
In the judge's calculation, five and half months were subtracted from the total as a result of a delay to the preliminary hearing, while six months were subtracted as a result of effects of COVID-19 on the justice system. That left 30 and a half months, which exceeded the limit set by the Jordan decision.
Popescul said various factors contribute to delays.
In 2018, Bill C-51 changed how sexual assault cases are handled, specifically around assessing admissibility of evidence.
"Now the process is far more complex and there's many more interim steps that need to be done," he said.
"It adds a whole level of scheduling difficulty and complexity."
In 2019, Bill C-75 limited the use of preliminary hearings. These hearing are used to test evidence to assess whether a case ought to go to trial.
"Those kind of frank discussions and objective reviews by the experienced pre-trial judge often led to discussions that ended up in resolution," Popescul said.
"When the judge does not have the preliminary inquiry, then they are less able to drill down on the evidence and offer their unbiased, expert and off-the-record views as to how the case could be resolved."
Popescul said judges are acutely aware of the potential consequences of delays past 30 months and, to that end, created "a province-wide triaging system, where we have criminal pre-trial judges that pre-trial every single case that comes to our court."
"And so if a case comes in, they are pre-trying that case right away and trying to ensure that things are done in a timely fashion," he said. "We then find ways to make sure that the case is done within that period of time."
The ripple effect
None of this is happening in a vacuum.
Prioritizing criminal cases where the Jordan clock is ticking means other cases being set aside. Decisions on non-criminal matters can wait months, sometimes years.
The Canadian Judicial Council has a guideline of six months for reserve decisions, Popescul said. The vast majority are dealt with in that time, but not all.
"I think currently we are experiencing some degree of backlog and the decisions are not being rendered in some cases as quickly as we would like to have them rendered," he said.
He would not specify a number.
One case he referenced involved a disputed election at the RM of Candle Lake. The parties waited almost two years, until October 2024, for a decision.
"The judge on that case had an extraordinarily difficult workload and the case was complex," Popescul said.
Abuse by offenders?
Brian and Deb Gallagher estimate they've been to court close to 300 times for the various appearances of the nine men and women charged in relation to Megan's death.
Brian questions whether some offenders are abusing the system, either to bank credit for time served waiting for trial or to ultimately make a case for dismissal.
"If someone was not guilty, they would want this to go as fast as they could," he said.
"Why do you want to drag this on?"
Brian Pfefferle wonders how long judges can handle the pressure and the pace, and what happens should they start burning out.
"At some point it becomes a situation where we know that the system is breaking at the seams," he said.
"There's only so much it can take. And when the dyke breaks, the water is just going to pour."
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