Nova Scotia Crowns hope that working with government will fix prosecutor shortage

By Terry Davidson

Law360 Canada (November 7, 2023, 8:59 AM EST) -- A group representing Crowns in Nova Scotia is hoping that working with the provincial government will address a staff shortage it says could lead to burned-out prosecutors making mistakes in criminal cases — and someone possibly being harmed or “losing their life” as a result.  

The Nova Scotia Crown Attorney’s Association (NSCAA) is once again ringing alarm bells about what it claims to be an “impossible” workload faced by the province’s prosecutors, leaving some of them with not enough time to handle an onslaught of complex criminal cases.

NSCAA president Brian Cox told Law360 Canada that there has been significant increases in violent offences in the province over the last decade, including homicides, sex assaults and “other” sexual offences.

“The rates of burnout in our service are unprecedented right now — the members are sharing that,” said Cox. “It’s front-line Crown attorneys here, with no control over their court schedule and file load, [who] are at a breaking point. They can’t continue to manage this unrelenting docket schedule and unprecedented volume of backlog cases.”

Cox confirmed a 30 per cent backlog increase in homicide cases and a 101 per cent increase in the backlog of sex assault cases. There has also been an increase in impaired driving cases, he said.

When asked for the source of those numbers, Cox said that they “are internal to the Nova Scotia government.”

“There’s nothing right now that has been released, and there’s nothing that I’m able to share, except to cite these numbers and to say that these numbers we believe are accurate, and they are internal to the recordkeeping of the provincial government, and, in some cases, the federal government.”

Cox said that Nova Scotia’s public prosecution service has lost 20 per cent of its workforce in the last calendar year, and that a number of those who left cited work stress and burnout. Some, he said, even went on to take lower paying legal sector jobs that “have a more sustainable balance” and are “less prone to … severe burnout.”

There are around 100 Crown prosecutors left in the province, Cox said.  

“All of those factors have combined to give a foundation for what we all feel … is an impossible workload burden that is preventing us from even approaching our baseline obligations with the [Nova Scotia Barristers’ Society]. … What I mean is, we expect to be able to read our files before we have to stand up and speak to them, and that cannot possibly happen in the paradigm we’re in right now; we just don’t have the manpower or the support staff to adequately deal with the sheer volume of files that we’re asked to deal with. And the consequence is that cases are being lost either due to delay or inadequate preparation on sentence or for trial.”

For some time now, Nova Scotia has had an issue with criminal cases being dismissed due to delay — with dismissals reportedly hitting a historic high in 2023. Some cases reportedly involved serious sex crimes. One reason for this was a shortage in judges on Nova Scotia’s provincial court. Another was shutdowns caused by the COVID-19 pandemic.

As far as the Crown shortage goes, Cox remains optimistic a solution can be found by working with Nova Scotia’s current Progressive Conservative government — the first PC government to lead the province since 2009.

“We recognize that the current government inherited this problem, which is years in the making,” he said.

“The problem is a lack of resources caused by decades of underinvestment in the prosecution service. There is a reason why we don’t have the numbers that we ought to have: previous governments haven’t prioritized the resources that we require now. … We are optimistic we can work with the current government now that we’ve identified this problem. We think we can find a solution that is immediate and that is sustainable, [but] it’s going to involve a massive infusion of resources — both Crown attorneys and staff.”

There is a lot at stake, in that if the shortage is not addressed, mistakes “will eventually manifest in a major case of public significance.”

The situation, he said, impacts prosecutors acting in bail hearings, trials and sentencings.

A bail hearing, he said, is a good example: If an overworked Crown lacks adequate time to review a bail package, certain information detailing an offender’s “risk profile” could get overlooked. That alleged offender could possibly be released and pose a risk to the victim in the case, or others in the community. The same thing can be said for trials and sentencing hearings.

“We fear that at a certain point, a mistake is going to be made that is going to result in someone getting hurt or someone losing their life, and that is not hyperbolic to say.”

Nova Scotia’s Department of Justice was asked if it has anything in the works to deal with the concerns cited by Cox and the NSCAA.

A spokesperson said in an email that those in the department “[understand] the concerns of the Crowns and have been in active discussions with the Public Prosecution Service (PPS) on this matter.” “

“There is a lot of good work happening to improve the entire justice system, including new digital solutions, a full complement of judges, and targeted resources for PPS including new intake teams and specialized prosecutors,” said communications director Andrew Preeper. “Over the last two years, 13 new positions have been approved for PPS, which includes nine new Crown attorney positions. [Justice] Minister [Brad] Johns and department officials have an upcoming meeting with the acting director of the Public Prosecution Service to discuss current staffing and workload, and improvements we can make.”

In terms of the numbers Cox provided around the increase of certain crimes in the province, Preeper said that this comes from “data that was shared by our department with the [PPS].”

But Preeper also took issue with the use of the word backlog, insisting it is “not an appropriate way to define those cases.”  

“Rather, the numbers refer to cases where the charge(s) was laid in a previous year (fiscal year) and have carried over into hearings the next year.”

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