Shortage of N.S. judges 'a big, big issue,' senior judge says

A senior provincial judge has lashed out at the failure to appoint new judges to replace those who have retired or moved to Supreme Court.

"It's a big, big issue," Judge Alan Tufts said earlier this month.

Tufts was at the courthouse in Pictou, N.S., where Judge Del Atwood used to preside. Atwood retired at the end of December.

Tufts, who retired from his position in the Annapolis Valley in May 2018, has been filling in at courts around the province.

In Pictou on Jan. 17, Tufts was having trouble scheduling time to hear a "lengthy and complicated" fisheries dispute involving Mi'kmaw fishermen.

"One of the problems is that the province, for some reason, has not appointed judges, and I think it's well known that Judge Atwood knew a long time ago that he was leaving and when he was leaving," Tufts said.

"And the province knew that he was leaving and they knew when he was leaving, and for some reason they haven't appointed another judge."

4 provincial court vacancies

Tufts said the problem isn't just in Pictou, but across the province.

There are currently four vacancies in provincial court, with another judge off on long-term leave. Two more judges have announced their intention to retire in the spring.

Atwood and another recent retiree, Judge Ann Marie MacInnes, will return to serve as per diem judges in the spring, filling the same sort of part-time role that Tufts now fills.

After checking with Chief Judge Pam Williams, Tufts told the lawyers in the fisheries case that it would not be appropriate for him to hear the matter and it should be left to whoever assumes the full-time role in Pictou.

"I know when I retired, I went out one day [and] a new judge was there the next day ... so, these things are capable of happening," Tufts told the lawyers, two days after their first appearance before him. 

"It's not happening this time. I just put that on the record because there'll be some necessary delay."

Tufts is not alone in his frustration.

Impact on cases

"I've had two trials that were adjourned immediately the week before they were scheduled for trial on the basis that there was no trial judge available the following week," defence lawyer Eugene Tan said Wednesday.

"It hadn't happened in that time for me, but it happened twice in the fall."

Tan said he's heard from other defence lawyers who have had similar experiences.

"I feel that judges will do their best to make the time available," Tan said. "But, again, it's a limited pool of judges and a limited pool of time that's available."

When the provincial court is at its full complement, it has 28 judges, including the chief judge.

Change in how judges are appointed

In a statement, Jennifer Stairs, the director of communications for the Nova Scotia judiciary, said that number "has not changed in many years, despite the increased resources afforded to the Nova Scotia Public Prosecution Service and Nova Scotia Legal Aid, and the increasing complexity of cases."

"Some judges who have retired choose to sit part-time and accept assignments, at their discretion," Stairs said. "But even with that support, it is difficult to meet the current demands of the Provincial Court."

In January of last year, the Houston government revamped the process for appointing new judges. The changes include giving the justice minister the power to request more information from the advisory committee about candidates who apply to be judges.

Those candidates who applied under the old system were told they would have to reapply.

The last new appointments were made in June 2022, when three judges were added. Before that, no judges had been added since December 2021.

Upcoming appointments

During that same period, in addition to judges Atwood and MacInnes, two more judges retired and two others were elevated to the provincial Supreme Court.

The director of communications for the provincial Justice Department said it's not yet ready to fill the vacancies.

"It is a priority that those vacancies are filled at the earliest opportunity," Peter McLaughlin said in a statement. "We are not yet in a position to indicate when the appointments will be made."