Court closure challenge under Charter of Rights and Freedoms dismissed

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Saint John – A challenge under the Charter of Rights and Freedoms on the closure of the courts in St. Stephen and Grand Manan, has been dismissed by Judge Anne Dugas-Horsman.

The Moncton judge heard the arguments in Provincial Court in Saint John Oct. 20 last year, and handed down her ruling Tuesday. The courts were closed Nov. 1 2015.

Lawyer Joel Hansen challenged the closures on behalf of applicants – Scott Brown, Matthew Clemons and Shane Chute of Campobello, who are jointly charged with a Department of Fisheries and Ocean offence in October 2014, Gordon Harris of Grand Manan, who is charged with a Motor Vehicle Act offence in June 2015, and Carter Thompson of Grand Manan, who is charged with offences under the Criminal Code, as well as the Motor Vehicle Act in 2015.

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The challenge was based on the grounds that, under the charter, all people should have equal access to justice, and these island residents have to travel long distances to get to court in Saint John, which is discrimination under the charter.

The judge provided lengthy written judgements in all three cases, but concluded that travelling to Saint John for their trials would not deprive any of the men of their rights enshrined in the Charter.

Dugas-Horsman said the initial appearances for the defendants from Grand Manan were in the circuit court, which was held once a month on the island, but the proceedings were moved to Saint John following its closure.

In the case of the Campobello residents, they made several appearances in Provincial Court in St. Stephen, then the matter was set over for trial and, in the interim, the court was closed.

The applicants allege that, as a result of the court closures, they are suffering fundamental discrimination in comparison to other citizens of New Brunswick, so as to offend the principles of fundamental justice as guaranteed by Section 7 of the charter.

For Campobello residents there is a 70 to 80 minute trip to St. Stephen, where they have to clear Customs and Immigration, before heading to Saint John, which is an additional 90 minute journey.

For Grand Manan residents, there is a 90 minute ferry ride, plus waiting at least 45 minutes in the parking area prior to departure. It then takes approximately 15 minutes to unload the vehicles, before an approximately one hour’s drive to Saint John.

In order to attend court in Saint John, depending on weather conditions, and ferry scheduling, it becomes necessary to travel to the city the day before requiring a night’s lodging.

The judge said access to the courts is one of the foundational pillars protecting the rights and freedoms of citizens, and she was not unsympathetic to the situation these defendants have been placed in.

However, she said Section 7 of the charter was not for adjudication on policy matters and added, “There is, in my view, a further obstacle to the defendants’ claim and that is the fact that economic rights, perse, have never been recognized by the courts as a right requiring the protection of Section 7 or falling under the purview of Section 7.”

Based on the record in front of her, and the case law as she understands it, Dugas-Horsman said for the purpose of the charter motion she had to come to the conclusion that the applicants failed to discharge the burden that was theirs to do, so she dismissed all the defendants’ motions.

The cases have now been adjourned. Brown, Clemons and Chute have been adjourned to June 15 at 10 a.m., Harris to June 29 at 10 a.m., and Thompson to Aug. 24 and 25, at 10:30 a.m.

The bottom line, Hansen later said, was the judge found economic impact is not a guaranteed right under the charter. He said they are now into the issue of delay, because this has been going on for two years.

He said recent Supreme Court of Canada decisions have emphasized the importance of delay and added, “The rule is 12 to 18 months, and we’re now well over that. We’re into the 24 month so, on the face of it, there is that issue.

“But there is an analysis under the case law as to who’s responsible for the delay so that would be the argument but we’re still taking the position that the closure of the court caused this delay. If they get by that, then we go to trial and that’s just normal at that point.

“I would say this, and just sort of briefly, the essence of Judge Dugas-Horsman’s decision is that her court is not a broad enough jurisdiction.
“It’s what they call a statutory court. It can only consider the Criminal Code and the Charter of Rights. It cannot consider fundamental justice in the sense of the common law right that precedes everything.

“Only a superior court can do that and that would be the Court of Queen’s Bench so if these defendants had lots of money, which they don’t, one would probably ideally be proceeding into the Court of Queen’s Bench.”

He noted that when this fight to keep the courts in Charlotte County open first started, it went to the Court of Queen’s Bench but it was thrown out by the Court of Appeal and a lot of money was spent on that.

“So we thought we were in the Queen’s Bench and, in the middle of this, we got tossed out so I proceeded on but that’s where we have to be to get this properly handled.”