Keeping up appearances

Far from being mere bricks and mortar, courthouses are the physical embodiment of the justice system. Their design, appearance, and state of repair can affect the length of trials; help or hinder access to justice; protect — or expose — vulnerable parties; and inspire a sense of respect or disdain for the judicial process.
But lawyers across Canada admit many of these buildings, far from being a source of civic pride, hamper their efforts to represent clients in the most effective way.

Take the courthouse at Sherwood Park strip mall, near Edmonton, Alta., which opened as a makeshift facility 30 years ago. Last year, a burst pipe flooded the building with raw sewage. “It was literally flowing out the front doors,” says local lawyer Peter Court. The backup was particularly inconvenient as, while emergency plumbing work was carried out, only one washroom was in use. Owing to space shortages, the washroom is where Court had to interview many of his clients.

In the crowded lobby, victims are forced to stand “eyeball-to-eyeball” with accused perpetrators. Sexual assault victims are sometimes taken by police to a nearby McDonald’s as there is nowhere inside the building they can wait safely for trials to start, says Court.

His concerns are echoed by many lawyers around the country, who jealously eye the political attention given to hospital buildings and schools. Several provinces, including Manitoba, British Columbia, and Quebec, have not built a single new courthouse in the past decade. At the same time, investment in the upkeep of existing court facilities has been steadily falling in six jurisdictions, according to information obtained by Canadian Lawyer.

• In Ontario, spending on low-level courthouse maintenance and repairs has plummeted to $26.5 million in 2012-13 from $48 million in 2008-09. In each of the past five years, the government spent less than it had budgeted — by up to 18 per cent.

• British Columbia has seen a 22-per-cent drop in its spending on courthouse maintenance and repairs, down to $23 million last year.

• Alberta, Quebec, and Saskatchewan have also seen small decreases, while Manitoba’s budget has increased slightly.

• The much smaller budget for federal court maintenance has fallen to $174,700 nationwide in 2013-14 from $447,000 in 2008-09.

Meanwhile, courts are dealing with increasingly complex cases, a growth in demand on the civil side, and a greater number of unrepresented litigants who take up more of the judiciary’s time. In some areas, such as those near oilsands, courts are reportedly stretched to the breaking point.

Associate Chief Justice John Rooke of the Alberta Court of Queen’s Bench says the Edmonton Law Courts’ roof frequently leaks and is riddled with asbestos. In other towns, such as Fort McMurray, Hinton, and Red Deer, there are severe space shortages, he says, making it difficult to carry out jury trials.

Provincial governments argue the spending reductions have been necessitated by tightened finances. “We keep asking the ministers of justice and infrastructure to provide facilities and the answer we’re getting is that there aren’t the sufficient funds to do it at this specific time,” says Rooke.

An Alberta Infrastructure spokeswoman said in a statement that “demands on the justice system have grown since many of Alberta’s courthouses were built” and the government “is continuously doing work to balance this demand with available funding.” Some capacity issues are being addressed by “increasing the use of direct indictments” and by “assessing existing procedures in traffic and small claims courts,” she said.

An Ontario Ministry of the Attorney General spokesman said the annual spending figures reflect “the repairs and maintenance that could realistically be funded and carried out in each of those years. The amounts fluctuate up and down from year-to-year, based on need and competing spending priorities in each of those years.”

But per capita spending on criminal justice across Canada has not collapsed. To the contrary, it has actually jumped by 23 per cent since 2002, according to the Parliamentary Budget Office.

Should courthouses be given greater priority by ministries faced with tough spending decisions?

For many lawyers, the issue goes well beyond an aversion to ratty working environments. Court fears the environment at Sherwood Park discourages defendants, especially those appearing before the Youth Court, from taking the proceedings seriously. “What are you seeing when you have a facility like this?
That there’s no regard for the institution of the administration of justice,” he says, adding: “If the building has no gravitas or solemnity, how can anyone engender respect for the institution?”

It is far from being the only courthouse that appears to be letting down lawyers and their clients.

John-Paul Boyd practised family law in Vancouver for 13 years before becoming executive director of the Canadian Research Institute for Law and the Family, a non-profit organization affiliated with the University of Calgary, earlier this year. He says the reduced investment in court infrastructure has taken its toll on the “dilapidated” provincial courthouse in downtown Vancouver. The building looks “down at the heels,” but, importantly, also lacks a crucial “safe space” for parties in cases involving family violence, he says. In addition, case conferences often have to be carried out in rooms not set up for audio recordings. In January a bedbug infestation made the lawyers lounge into ghost town.

Broken or inadequate audio equipment that prevents parties from hearing what is going on in court is a widespread issue, according to Bentley Doyle, director of communications at the Trial Lawyers Association of British Columbia. “This is actually a very big problem in some courtrooms,” he says. “I’ve sat with many victims and their families, and many of them are left bewildered because they can’t hear what is said.”

A big frustration for Rooke is rooms set aside for judicial dispute resolution at the Edmonton Law Courts are not soundproof, which he says can be a hurdle during sensitive negotiations.

In Ontario, five new courthouses have been built in the past 10 years, and 11 courthouses have received $120 million of substantial renovations. However, there are still “many courthouses that don’t have the space or resources for the lawyers to properly function,” according to Criminal Lawyers Association president Norm Boxall.

Part of the pressure comes from the fact lawyers are competing for space with a growing number of agencies, including mental health workers, legal aid, and organizations such as the John Howard Society of Canada. Boxall does not “dispute the necessity” for external agencies to be based in the courthouses, but highlights that when many of these buildings were designed, in the 1970s and 1980s, “all of these services weren’t necessarily anticipated.” He adds: “The prior courthouse in Ottawa lasted the best part of 100 years before it got stretched. Our existing courthouse is close to being stretched and it’s only 25 years old.”

Toronto criminal defence lawyer Jonathan Bliss often struggles to find a suitable space to interview clients held in custody at the Old City Hall court. “There’s no privacy,” he says, explaining that his clients have to discuss “confidential and emotional” matters while sitting in close proximity to others in custody. He faces a worse dilemma when it comes to clients who are women, have protective custody status, or have mental health problems, all of whom are routinely placed in a separate cell area where space is at even more of a premium. “If one person’s being interviewed, everyone else has to wait,” says Bliss. “From an access to a client and communication [standpoint] it’s just severely lacking.”

The delays eat into the time available for trials and cause adjournments, forcing clients to stay in custody for longer than necessary.

Owen Sound, Ont., lawyer Elizabeth Barefoot experiences a related problem at the Walkerton Courthouse. “The so-called private room in one courtroom that is supposed to allow counsel to have a private call with their clients at the jail while they are in bail court isn’t private at all — everyone in the courtroom can hear what counsel are saying.” One room only fits up to five people behind the bar, including counsel, and is “more like a closet than a courtroom,” she says.

There have been notable efforts to address the problems in some cities and towns.

Belleville, Ont., gained a shiny new courthouse this summer. The $247-million Quinte Courthouse consolidates the superior and provincial courts, which had been operating from three separate locations. It was designed to take into account the types of concerns voiced by lawyers in this article. For example, family matters take place on a higher floor, to provide privacy, and vulnerable witnesses are given their own suites. Interview room acoustics were tested to ensure confidentiality would be preserved.

The architects, WZMH, wanted their design to help with “instilling a sense of dignity towards the [judicial] process,” says associate Jamie Lee. To ensure the building is future-proofed, courtroom layouts can be reconfigured to suit different types of cases.

The importance of a well-functioning, thoughtfully designed courthouse was explicitly recognized in the planning of Calgary Courts Centre, which opened in 2007. The Alberta government envisaged it as no less than “a dignified contemporary facility, accessible to all, that stands in the community as the embodiment of the judiciary as the adjudicator and protector of those freedoms.” The 24-storey, 1.1-million-square-foot building cost $300 million to build and provides 73 courtrooms, enough space for 360 external staff, large libraries and a tall glass atrium.

“There was a real aspiration to create a courthouse that wasn’t fortress-like in feeling or appearance, which historically would have been exactly what was required,” says Lois Wellwood, a principal at Kasian Architecture Interior Design and Planning Ltd., which led the Calgary project. “The intent was to create a very transparent, very welcoming, very modern facility that still represents all the principles of law and justice both in a very fresh new way, reflecting the energy and prosperity of the province.”

The starting point for the entire plan was the need to create separate spaces for the public, prisoners, and the judiciary to use until they met in the courtroom.

Local lawyers sing the courthouse’s praises. Rooke says lawyers and judges helped to work through detailed courtroom mock-ups, to ensure jury boxes and witness stands were in the right position, and that anyone could be seen and heard if needed. He says the courts centre is a vast improvement, but warns it already appears to be “up to capacity,” noting, “there are starting to be issues.”

With funding for these big projects apparently in short supply, it is crucial the money is used wisely. What do those charged with planning the courthouses of the future need to bear in mind?

As was the case in Calgary, consulting with lawyers and judges before construction starts seems to yield positive results. Adaptability also seems to be important, to ensure facilities keep pace with the volume of work and changes in the way litigation is carried out.

Ontario and Alberta have established a set of design standards for courthouses, which, given the need for flexibility, may have to be regularly checked and updated.

One aspect of the standards that probably needs to be adjusted, says Lee, is the requirement to have wired-in audiovisual and electronic equipment. Achieving this can involve raising floors, which can be impossible in older buildings. “The government still has interest in retaining the heritage value, but to achieve the functionality that’s required it’s a challenge,” says Lee.

British Columbia, understood to be in the process of writing its own set of standards, may wish to take account of this. Perhaps as a society we also need to be less nostalgic about our grand, but in some cases dysfunctional, older courthouses.

In September, the roof caved in at the 100-year-old courthouse in Moose Jaw, Sask. Human tragedy was avoided as the court was not in use at the time, but the incident led to services being suspended and a $1-million repair bill. It is precisely the type of scenario feared by those who argue for greater short- and medium-term investment in building maintenance.

Wellwood says when the Calgary Courts Centre was being built, it was widely acknowledged there would probably be no opportunity for substantial renovations for another 25 years. This meant a lot of the decisions were driven by a need for “durability.” Identifying high-traffic areas, and advocating “a very rigorous approach to cleaning and maintenance,” is key when it comes to the longevity of a courthouse, she says.

Security is increasingly a concern in courthouses; in February an Alberta sheriff was shot in the hand during a drug trial in Whitecourt. Bulletproof glass and metal detectors are, accordingly, becoming de rigeur for new courthouses — but not all lawyers are happy about it. Criminal defence lawyer Brennan Smart practises in Kitchener, Ont., where a courthouse opened in March complete with metal detector screening. “To jury members, it gives the impression that society is very dangerous,” he says. “They’re convinced it’s a jungle out there. It taints the jury before they’ve even started their job.”

Some would argue the pros of a heavy security presence outweigh the cons, but it appears to be a live debate that warrants a location-by-location decision rather than a blanket approach.

Other lessons from recent builds would seem more obvious. Despite the fact the Owen Sound, Ont., courthouse was built in the 2000s and contains a family court, there is no area for children, no café or even a single vending machine, and — until a special request was made — no baby changing facilities, Barefoot notes. “One would think these would be standard,” she states.

It is worth highlighting the province with the highest number of new builds, Ontario, has financed them through private-public partnerships via Infrastructure Ontario’s Alternative Financing and Procurement model. The private sector pays for the upfront costs of projects and, in some cases, is responsible for maintaining the building for around 30 years. The province repays the private sector in monthly instalments, as long as service standards are hit. This would appear to provide some level of safeguard against brand new buildings being left to rot, although the details of the contracts are confidential.

Similar schemes around the world, such as the Private Finance Initiative used in Australia, the United Kingdom, and Spain, have led to complaints about shoddy workmanship and spiraling costs, after payments have been renegotiated by the private sector.

The value-for-money report for Ontario’s Durham Region’s AFP courthouse says payments may only be adjusted in “very specific circumstances.” An Infrastructure Ontario spokeswoman said she could not elaborate on the financing of the deals as this could affect the province’s future negotiating position.

Ontario’s new courthouses have been dotted around the less urban areas of the province, to the exasperation of some Toronto-based lawyers. Criminal defence lawyer Sam Goldstein argues that as Ontario’s biggest city, it is odd Toronto lacks a consolidated building, containing the Provincial Court and the Superior Court in one space, like the Quinte Courthouse. “There would be a lot of efficiency,” he says. “We would be saving money. We wouldn’t need the same number of judges or Crowns, or child co-ordinators.” He claims files are lost “all the time” as they are transferred between the different city courts.

But persuading those in power of the long-term gains to be had from these types of projects can be a hard sell. As Court says, a new courthouse is “not a sexy thing” and “doesn’t get people elected [like] sports facilities, schools, and hospitals.”

However, Rooke believes there is a strong case for change: “These are capital projects, and we need a capital budget that recognizes that growth in population requires a growth in community services,” he says. “Just as we have to build roads, we have to build courthouses. We can’t be running them out of a shopping mall.”

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