The Jan. 27 editorial "Court system needs overhaul" suggested the root of the long delays in provincial court could be alleviated by administrative reforms rather than by providing additional resources.

The editorial pointed out that delays have become so acute that 35 criminal cases have been thrown out of court on Vancouver Island as a result of the excessive delays last year.

Since 1998, the provincial government has elected to save money by not appointing judges to replace those who have retired. The result has been a drop in the number of provincial court judges from 132 to 121.

The reality is that the unacceptably long delays in court exist despite significant reforms that have already been implemented over the past several years in an effort to cope with the lack of resources.

One of the significant reforms has been the use of electronic court appearances. Victoria has been a leader in the use of this approach, which is now being adopted in other surrounding jurisdictions. Lawyers can now deal with many routine court matters electronically without appearing in court at all. Trial dates can be fixed and confirmed without the need of anyone appearing at the courthouse. This saves time and money.

Where the electronic system is not used, justices of the peace now sit in order to hear routine matters in order to free up judges to hear trials.

A system for estimating trial time and confirming readiness for trial was also implemented several years ago.

Despite these and other efforts to find efficiencies, the reality is that there simply aren't sufficient resources for cases to be resolved in a timely fashion. In order to keep up the pretext that they are able to hear criminal cases within the eight-to 10-month guideline set out by the Supreme Court of Canada, criminal trials are now routinely quadruple-booked. This means that every day a judge has available, he will often have four days of trials scheduled.

In a hospital context, this would be like scheduling four days of surgeries for every day of operating room time in the hopes that some would be finished more quickly. This would keep the surgeons working continuously but only at the cost of terrible inconvenience for everyone else involved.

This is why there is so much "down time" with lawyers, witnesses, police and accused waiting to have their cases heard. It's also why the decision to save money by under-resourcing the court system is such a false economy. It only saves money if you're not concerned with the cost to all of the other participants in the system. The provincial government doesn't pay for the dozen police that are standing around the courthouse waiting to testify on any given day, so this does not factor into its cost analysis with respect to the court system.

When under-resourcing reaches the level that it has, the uncertainty it creates makes the problem worse. Fewer criminal cases are resolved by people pleading guilty. Instead, when it takes so long to get to trial and there is a significant chance that a case will be stayed as a result of excessive delay, it encourages more trials to be set and the delays become even longer.

While the absolute number of criminal charges has decreased slightly over the past few years, the federal government's decision to add mandatory minimum sentences to more criminal offences has, and will continue to make matters worse. When the result of a guilty plea or a possible conviction after a long delay and uncertain trial are the same, more accused people elect to plead not guilty and request a trial. To conduct these trials, more judges are required. This is another example of one level of government making decisions without regard for the cost implications it doesn't bear directly.

One reform that the provincial court may wish to undertake would be to start fixing only the number of trials that can be accommodated every day.

This would mean giving up on the illusion created by the excessive overbooking of courtrooms. It would avoid the unnecessary and expensive attendance at the courthouse by dozens of people every day. It would also lay bare the inadequacy of judicial resources.

Trial dates would be fixed two or more years away. This is what current resources actually permit. The public could then assess whether this was an acceptable state of affairs.

Michael T. Mulligan is a barrister and solicitor with Mulligan Tam Pearson in Victoria.