"Thank you counsellors for your able submissions. Judgment is reserved."

Those promising words can be the last words from a trial or hearing judge for weeks and weeks....

When a judge reserves his or her decision, that means that they can take it onto their sailboat, on their judicial Pro-D days and contemplate the facts and the law, justice and how to express it crystallize in their judicial minds.

Meanwhile, the litigants and their families or associates suffer and as time goes on, are prejudiced in spite of the Latin maxim actus curiæ neminem gravabit.

In a case before the court, the core decision is often evasive - e.g. who should have custody of a child? Which witness to believe?

Meanwhile, litigants float in legal doldrums, an untenable situation.

On becoming Lord Chancellor of England in March of 1617, Francis Bacon remarked that:"Fresh justice is the sweetest". It is.

Innovative ideas on accountability and reporting on gently nudging ongoing long delays often can't get off the ground. Judges resist this and step behind the shield of independence of the judiciary when the community asks for some kind of mechanism to deflect the very legitimate criticism of  the months and months that too often occurs between the end of the hearing and the release of the ultimate decision. Or, the criticism will be deflected by the unverifiable comment that it rarely happens". If it ain't broke, why fix it.

frozen justiceIt It does happen infrequently in the context of thousands of decisions rendered instantly but there still are those horror cases which every lawyer has experienced.

That is too many.

Ethics

Delay in issuing reasons for judgment has been recognized in the common law since time immemorial by the expression justice delayed is justice denied, most aptly put by Justice Willes of the English Court of King's Bench in the 1759 case Whitham v Hill:

"Delaying justice and denying justice are considered as the same thing in the Magna Carta."

Delay in issuing reasons for judgment is also a matter of judicial ethics. 

You can hardly find a judge's handbook that does not state the obvious:

"Judges should endeavour to perform all judicial duties, including the delivery of reserved judgments, with reasonable promptness."1

"A judge shall dispose of all judicial matters promptly...."2

Judging 101

When a judge takes a case under advisement, a controversial matter - a live dispute between real people - remains undecided and in a no-man's land.

Worse:

"Time is memory's thief. Details of the case will be forgotten."3

Expect Delays signIn the interim, there is no tool or process to prod the judge.4 In fact, any attempt to do so may well backfire and tip a procrastinating judge to the other side.

There are instances of judges taking 6 (six) years to render reasons. This is what happened in Re James Lenney, where the judge paid the ultimate but justifiable price of being removed from office.

But real, effective disciplinary action on a plodding judge is very, very, very rare.

In Re Greenfield, the records of Justice Edward Greenfield of the New York Supreme Court (Manhattan) showed outstanding delays of judgment of 4, 7 and even 9 (nine) years in different cases. And yet, the Court of Appeals of the State of New York decided not to discipline Greenfield proposing that this statement of law saved him, presumably with a straight judicial face:

"A Judge's failure to promptly dispose of pending matters generally does not warrant judicial discipline but rather administrative correction."

In Canada, the Canadian Judicial Council resolved that reserved judgments should be delivered within six months after hearings, except in special circumstances.5

Not one.

Or two.

Or even three.

The standard is set at six months.

And ... this is a suggestion only and even when taken seriously by the Council, results in a slap on the wrist. In one case of a complaint made to the Canadian Judicial Council, a Quebec judge had gone over the 6-month limit in five cases.6 The Council moved the complaint up the judge's chain of command and when the judge heard from his chief justice, out came the judgment!

The judge was then simply warned about the other cases. He responded by retiring.

# 1 Disease

Delay in rendering reasons for judgment is the #1 disease afflicting judges.

In his 1980 book, A Book For Judges, Justice John Owen Wilson noted:

"The complaints most frequently made in respect of the conduct of judges relate to delay in the delivery of judgments.

"The public has a right to expect of a judge decisiveness....

"Litigants expect, and rightfully expect, that the judge will soon relieve then from the agony of uncertainty that prevails until judgment is delivered.

"That is not to say that it is better to be quick than right.... The aim is to be both quick and right."

The problem of judicial delay in rendering judgment is also endemic to the USA where one author ominously wrote:plaintiff, defendant?

"[D]epriving quick and certain justice to the litigants ... reinforces the negative images of the judicial system....7"

When one judge suffers from judicial indecisiveness, the reputation of his or her court is tarnished, and that includes that of his or her diligent colleagues, however unfair that may be. And anything which for no good reason, brings the justice system into disrepute is a bad thing.

Attempts to set a strict deadline have been held unconstitutional in the United States as, apparently, according to other judges (go figure!), it interferes with the independence of the judicial branch.8

Back to the drawing board: in the United States Code, Title 28, §476(a)(3) is a novel process of making public the names of judges who have taken too long to render judgment.

However, it only applies to delays of three years or more!

This is not a typo: three (3) years!

One would think that at the three year mark, the person to call would be the coroner: to check in with the delinquent judge.

In the Canadian Province of Quebec, some common sense. The 2011 version of the Code of Civil Procedure requires this, at §485:

"A judgment on the merits must be rendered within six months after the case is taken under advisement...

"Where the judge seized of a case or matter fails to render a judgment within the time limit prescribed by the first paragraph, the chief justice or judge may, on his own initiative or on a motion by one of the parties, remove the case or matter from the judge and order that it be assigned to another judge."

 

But the reality is that this statutory rule upon Quebec judges is all there is in Canada in terms of any guideline with teeth upon our judges.

Rock and Hard Place

Between a rock and a hard place best describes the unfortunate situation of a litigant waiting, waiting, waiting ... for a judge's decision, as judicial councils fear treading on the independence of their members in refusing to accept responsibility for the conduct of their judges in this regard.

But we do lose the baby with the bath water when there is no accountability for the rare yet devastating effect of an incompetent judges who expresses her or his inabilities by inordinate delays in judgment.

Of course, this reality of judicial politics is of no solace whatsoever to the citizen-litigant caught in the molasses.

Next to all those other Latin maxims and paintings of deceased judges which adorn the hallways of courthouse everywhere, we would enshrine and enforce these plain and simple words of Mr. Justice John Owen Wilson (1898-1986) when he weighed in on the topic:

"[A] month's delay is normal. Two months delay is long. And three months is too long."

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