Andrew Raven
Northern News Services

Yellowknife (July 29/05) - A new policy that bars lawyers, victims and media from crowded Northwest Territories courtrooms was roundly criticized by the legal community this week, with some members calling it a miscarriage of justice.

"Courtrooms need to be open for everybody who wants to be there," said one lawyer Wednesday who requested anonymity.

"(They) are an important part of this country."

The controversy erupted Tuesday morning when court officials began enforcing limits established by the NWT Fire Marshall on the number of people allowed into hearing rooms in the Yellowknife Courthouse.

Tuesday is traditionally the busiest day court calendar with dozens of defendants making brief appearances.

Established earlier this month at the request of senior judges and enforced for the first time, the limits prevented public defenders, victims and media from witnessing the court hearings.

"It was extremely frustrating," said another lawyer, who also asked for anonymity. "I have never seen anything like that before."

$41-million courthouse

Two lawyers who spoke with Yellowknifer believe the new policy is the latest judicial manoeuvre in a public battle over a government plan to build a $41-million courthouse overlooking Frame Lake.

Judges, lawyers and the territorial Justice Department have long maintained the current courthouse - which occupies three floors of a downtown office building - is cramped, unsafe and too close to the other branches of government. A June 2005 architectural study suggested a new, stand-alone courthouse would solve those problems. Two current judges - Territorial Court Judge Brian Bruser and Supreme Court Justice Ted Richard - were advisors on the report.

The proposal drew fire from MLAs who called the project extravagant and questioned whether the government had figures to support claims the courthouse was overcrowded and unsafe.

The Justice department said it did not have statistics on the number of cases that flow through the courts. One person has been charged with mischief in connection with one of 19 "incidents" reported at the courthouse since 2003.

The two lawyers believe the decision to establish and enforce courtroom limits came directly from the territories' judges.

"That had to have come from the judges," said the second lawyer.

"The suspicious person in me says this was done to convince the public that a new courthouse is necessary."

The Sheriff's Office declined to say who ordered deputies to enforce the overcrowding order, though traditionally judges have final say over courtroom procedure.

Chief Judge Bruser declined comment through his secretary.

Tuesday morning the atmosphere in and around the courtroom at the centre of the controversy was circus-like.

The hearings were punctuated by a sheriff repeatedly telling the public that the territorial courtroom was at its capacity of 31 persons.

A line-up of lawyers, media, law students and victims waited outside the silver double doors.

When somebody left the room, the sheriff waved another person inside. Two people joked it was like waiting outside a nightclub.

People agitated

Several people left outside were clearly agitated. A lawyer who was asked to be quiet said: "I have a right to be in there."

Lawyers, including public defenders, who left the courtroom were not allowed to return until there was room - something one attorney said they have never seen before.

"I was troubled that the legal aid duty council was excluded from the courtroom. That is just wrong," said the lawyer. While the attorney said the situation had reached a "crisis point" they believed the judges were justified in their decision.

"Is it judicial activism? Yes. Is it proper? I would say yes as well."

The lawyer blamed the Justice department and said overcrowding was evidence of the need for a new courthouse.

That position was seconded by Kathryn Vennard, president of the Northwest Territories Bar Association.

Confirms necessity

"If a judge asks lawyers, members of the public or the press to wait in the lobby when matters are heard that do not involve them, it is not a disservice," she wrote in an e-mail.

"The need to make such a request confirms the necessity of a new courthouse."

Some people were directly affected by the decision to clamp down on the number of people in the courtroom Tuesday.

France Bernier and her family spent nearly three hours waiting for a hearing involving a man accused of stabbing her son. They were not allowed into the courtroom and missed the brief 9:30 a.m. proceeding, something they did not realize until after 12:00 p.m.

"This is unbelievable," said Bernier as she left the courtroom. "We all have jobs and instead of working we waste our time here."

While one lawyer did not believe any cases were compromised Tuesday, the overcrowding issue could cloud the judicial process. "For people who are interested in the outcome of cases it is going to be difficult," they said.

The lawyer agreed Yellowknife badly needs a new courthouse, but questioned whether denying public access to the courts was the best way to prove that point.

While nearly 60 people were waiting, a nearby courtroom with a capacity for 95 persons was the venue for a sparsely-attended civil trial.

The lawyers who spoke to Yellowknifer suggested the courtrooms could be switched for the busy Tuesday morning territorial court schedule.

Bruce McKay, director of court services, said the larger hearing room was traditionally only used for Supreme Court and mixing the two levels would be inappropriate.

Territorial court judges would be forced to pass through the offices of the higher court justices to gain access to the larger courtroom.

"It is really not appropriate for them to we walking through Supreme Court chambers. They are separate levels of court," McKay said.