Advocates say a shortage of trial judges in Nova Scotia is leading to uncertainty and continued distress for the victim in a high-profile sexual assault case.
Brent Alexander Julien is accused of sexually assaulting Carrie Low nearly five years ago.
Low has alleged two men confined and sexually assaulted her on the outskirts of Halifax on May 18, 2018, as she drifted in and out of consciousness.
Low, who sought and received a court order permitting the use of her name, has also alleged that police mishandled key evidence in her case, and has pursued a lawsuit against police and a police complaints process.
Julien pleaded not guilty in July and his trial is set to begin on March 7. Yet with the trial less than six weeks away, Low says a judge has yet to be assigned.
In a statement, Low said this uncertainty has her “exhausted and frustrated.”
“I am heading into year five and am still being re-traumatized and harmed by the legal system that is supposed to protect victims and survivors like me,” she said.
Low said she was informed by the Crown that there is still no trial judge in place and a further status check is set for Feb. 13.
She said the judicial vacancies are not only affecting her case, but “so many others in Nova Scotia.”
“The provincial government’s inaction in appointing provincial court judges is putting my life and so many others in Nova Scotia on hold and keeping us in limbo,” she said.
“The Minister of Justice and the Lieutenant Governor need to act now.”
Four vacancies
According to Jennifer Stairs, the director of communications for the Nova Scotia judiciary, the provincial court currently has four vacancies and one judge on long-term leave.
The vacancies include the retirement of Judge Del Atwood and Judge Ann Marie MacInnes last month, though both are expected to resume sitting as part-time judges in March or April.
Stairs also said two other provincial court judges have announced their intention to retire this spring, which will bring the number of vacancies to six.
She said when the provincial court is at full complement, there are 28 full-time judges, including the chief judge.
“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,” Stairs said in a statement.
“Some judges who have retired choose to sit part-time and accept assignments, at their discretion. But even with that support, it is difficult to meet the current demands of the Provincial Court.”
Stairs said judges are typically assigned to courtrooms, rather than cases. Courtroom assignments for March will be confirmed in the coming weeks.
“However, due to judicial vacancies, in particular a vacancy in Dartmouth created by a retirement in August 2022, there may not be a judge available to sit on a multi-day trial in Courtroom 5,” she said.
Melissa Noonan, the spokesperson for Nova Scotia’s Public Prosecution Service, said in an email that a pre-trial hearing was held with Chief Judge Pamela Williams on Monday.
“She advised that, currently, there is no judge available to hear this trial. However, that may change, and another pre-trial hearing was scheduled for February 13, 2023,” she said.
“At that time, the Crown hopes to hear an update on the availability and assignment of a trial judge.”
‘Massive access to justice crisis’
Emma Halpern, the executive director of the Elizabeth Fry Society of Nova Scotia and the co-director of the non-profit law firm PATH Legal, said there are “myriad issues that are causing tremendous strain to Carrie,” on top of having to prepare to be a witness in the trial and the trauma of having to relive her assault.
“She is exhausted and the amount of work and the amount of challenges that she’s had to overcome to even be here today is somewhat unthinkable, and, quite frankly, unacceptable for someone who is just seeking justice after being victimized in an absolutely horrific way,” Halpern said.
Halpern also said Low is involved in a civil case and a review board hearing about the police’s handling and investigation of the assault, which can’t proceed until after the trial.
“Many aspects of her fight, her struggle, have been put on hold, awaiting this trial that she was expecting to go ahead in March of this year,” she said.
Halpern also worried that even if a judge is assigned, they might not have enough time to get themselves up to speed on Low’s case.
She said the judge shortage affects not just Low, but anyone who was counting on access to the justice system. She called the issue a “massive access to justice crisis.”
“I have deep concerns that Carrie, and others like her, will lose faith and hope in the ability of the justice system to provide them with a fair and equitable access when we see things like this happening,” she said.
Mukisa Kakembo, a staff lawyer with PATH Legal and Low’s civil lawyer, said in a statement that the judicial system is held to a high standard and it’s “crucial” that it maintains public faith in the administration of justice.
“When trial dates are scheduled, but no judges are available, it sends a message to the community and to complainants like Ms. Low, that justice is not a priority in certain cases,” Kakembo said.
She said the “significant delays” in Low’s case are adding to her distress.
“After waiting almost five years for her case to be heard, she is now facing an uncertainty that could continue for the foreseeable future,” Kakembo said.
“There needs to be a limit on the acceptable number and length of delays, and action must be taken to improve the efficiency of the court system.”
In an email, Department of Justice spokesperson Peter McLaughlin said sexual assault offences are extremely serious.
“The harm it causes is something that we all as Nova Scotians want addressed. We are committed to ensuring timely access to justice for victims and survivors,” he said.
McLaughlin said as the courts are independent and judges are assigned by the chief judge, “it would be inappropriate to comment on any case before the court.”
“It is a priority of government that those vacancies are filled at the earliest opportunity,” he added.
“The Advisory Committee on Provincial Judicial Appointments has been established and is actively assessing applications. Government will act on the committee’s recommendations as quickly as possible.”
Julien was the second man accused of sexually assaulting Low.
Alexander Joseph Frederick Thomas was charged with sexual assault and forcible confinement in 2020, but the charges were withdrawn in 2021 after he was found dead in what police say was a homicide.
— with files from Skye Bryden-Blom and The Canadian Press