VANCOUVER - Late 19th century British statesman and prime minister William E. Gladstone once observed that "justice delayed is justice denied," and many Canadian judges say that statement is creeping dangerously close to reality as criminal and civil trials get longer and longer.
When testimony in the trial against alleged serial killer Robert Pickton begins Monday, Pickton will have been in custody for almost five years.
The case is expected to last at least another year more and hear complicated testimony from dozens of expert witnesses.
"I think the Pickton case is an example of one of the changes that has taken place in criminal law," said Justice Paul Williamson of the B.C. Supreme Court, a judge who was once a reporter with the Victoria Times Colonist.
"And that is that criminal cases are getting more scientific now than they were 30 years ago. All of that means a much different kind of analysis of the evidence, a requirement for experts."
Williamson was one of several judges from across the country trying to explain the reasons for longer civil and criminal trials.
Some of them even offered advice to Justice James Williams, who is presiding over the Pickton case.
Pickton, 57, was arrested in February 2002 and has been in custody ever since. His preliminary hearing began in 2003 and lasted about six months.
The judge in the Pickton case has been hearing pre-trial arguments from the Crown and defence since mid-2005.
The Pickton case - and the 18-month-long Air India proceedings - are certainly at one extreme.
But while the vast majority of court cases are resolved more quickly, most lawyers and judges agree that civil and criminal matters are now taking longer in the courts before resolution.
And many judges are surprisingly outspoken in their concern for a system in need of repair.
Justice Michael Moldaver of the Court of Appeal for Ontario delivered a biting speech in November that was not received well by defence counsel. In it, he said many trial judges complain the criminal law has taken on "complexities and subtleties the likes of which are truly mind-numbing."
"Few (judges) feel confident in their ability to complete a criminal trial from start to finish without committing reversible error."
Moldaver said one of his colleagues, Justice David Watt, once compiled a checklist of items a trial judge should be familiar with before starting a trial.
The checklist contained 115 items, said Moldaver.
"I cannot help but wonder whether in our zeal to create a perfect justice system, we haven't instead ended up with one that is one the brink of collapse," said Moldaver.
Jeff Oliphant, associate chief justice of the Court of Queen's Bench for Manitoba, said concern about increasingly long trials prompted Ontario authorities to form a judicial committee and make recommendations.
They were recently included in the province's criminal trial rules and require, among other things, that counsel and the judge work together to ensure that "baseless" pre-trial motions are not heard.
The Pickton judge has been hearing and ruling on dozens of pre-trial motions since January 2006.
"It'll be interesting to watch as this (Pickton) trial proceeds whether the approach taken this far by the trial judge stays the way it has been or whether he gets tougher with them," said Oliphant.
Currently on leave from the bench to teach at the University of Victoria, Oliphant said some defence lawyers "love to motion you to death and sometimes the objective is to hope the judge will make an error that will give you an opening to the Court of Appeal."
The Pickton trial judge, said Oliphant, "despite his best efforts, will be faced during the trial with many motions where he will be called upon to make decisions."
But Justice Donald Brenner, chief justice of the B.C. Supreme Court, cautioned against assuming that all lawyers are making frivolous applications.
"We as judges realize there is a lot we don't know about the case. The lawyers have an obligation to advance the interests of their clients to the fullest extent they can."
Charter of Rights arguments and increasingly complex technology are among the reasons some court cases are taking longer to resolve.
Justice Rene Hurtubise of the Quebec Superior Court might qualify as Canada's leading expert on handling long trials.
He conducted a civil trial in the 1970s over an action involving urea formaldehyde foam insulation. The trial lasted 8� years.
Hurtubise said he heard experts from dozens of fields during the insulation case.
"It took me a lot of time to analyze the testimony of these many experts and I had 21 lawyers before me on a daily basis."
He took two years to write his 1,100-page decision.
"My life was insured for millions because they were aware that if I got sick or died it would be very costly for them to start over again."
A reluctance among lawyers to co-operate with one another also means things drag on.
Justice Robert Pigeon, associate chief justice of the Quebec Superior Court, said when he practised law many years ago, the Crown and defence used shorten trials by agreeing to "admissions."
"But now everyone is fighting," contesting more issues.
Many judges now take courses offered by the Canadian Judicial Council and the National Judicial Institute, including one on how to manage a long trial.
Chief Judge Hugh Stansfield of the B.C. provincial court said longer and longer trials have the potential of "disenfranchising the average member of the public."
His court is making an effort to speed up the civil process, he said.
"Where we do a really poor job is in processes, in moving cases from beginning to end," Stansfield said. "There's just way too much bureaucratic stuff, way too many appearances at court."
Judges have to ensure they control the courtroom, not the lawyers before them, he said.
Judges "acquiesce" too easily to arguments that are not "immediately and abundantly relevant," he said.
"We're not being as tough as we should."
The provincial court is examining ways to remove bail hearings from the courtroom and process them in a centralized system.
Stansfield said judges' time is too valuable for them to be sitting in courtrooms listening to lawyers' adjournment applications.
That should be handled by justices of the peace, he said.
With the lengthy Pickton trial set to begin, Oliphant has some practical advice for the judge, and others who encounter long trials.
"When you are the judge presiding over something like the Pickton case you want to ensure that you are pacing yourself and that you are getting lots of sleep," he said.
Being involved in a (long) trial 24 hours a day "will drive you into the ground."
