New Brunswick Crown prosecutors and family court Crown counsel have voted 99 per cent in favour of strike action.

They have been in contract talks with the provincial government for more than a year and warn the "crisis" facing the criminal justice system is growing, due to recruitment and retention problems.

Prosecutors are "crushed under heavy workloads," with many of them regularly working nights and weekends, and it's putting the justice system at risk, said Shara Munn, president of the New Brunswick Crown Prosecutors Association.

"What we've been told by the employer is that we need to prioritize indictable offences, serious violent offences. … But of course, that does come at the expense of other things," she said.

Prosecutors are sending cases to diversion, or making deals with defence lawyers that they'd rather not make.

"Prosecutors are united and saying with one voice: 'The status quo is not working. The government must act,'" said Munn, noting all members participated in the vote last week.

Conciliation meeting scheduled

Meanwhile the Department of Justice and Public Safety argues prosecutors are not yet at a point where a legal strike vote can be taken.

"The parties have not yet exhausted the collective bargaining process under the Public Service Labour Relations Act," spokesperson Alycia Bartlett said in an emailed statement. "Government remains in active bargaining."

A conciliation meeting is scheduled for June 14-15.

The association wanted to get a clear picture of where the membership stands heading into conciliation, but will do everything possible to avoid a strike, said Munn.

"That's the last thing we want."

'Good' chance of a strike, says law professor

Bruno Gélinas-Faucher, a law professor at the University of Moncton, thinks the chances of a strike are good.

"I'm not in at the negotiation table, but I would say the positions right now are very far apart," he said.

It's part of an unfortunate pattern he has seen unfold in other provinces in recent years due to underfunded justice systems and overwhelmed Crown prosecutors, he said, pointing to the 2022 strike in Alberta and 2019 strike in Nova Scotia as examples.

Bruno Gélinas-Faucher, a law professor at the University of Moncton, said New Brunswick came very close to a strike by prosecutors in 2016, but it was averted. He thinks the chances of a strike this time are good. (University of Moncton)

Working conditions and salaries in New Brunswick aren't as good as other jurisdictions, said Gélinas-Faucher. At least four of his graduating students are leaving the province for better offers as prosecutors in Nova Scotia and Quebec, he said.

"And these are New Brunswickers."

The impact of a strike would be "quite dramatic," said Gélinas-Faucher, citing the constitutional right for people to be tried without undue delay.

The Supreme Court of Canada, in the Jordan decision, imposed strict timelines of 18 or 30 months for a trial, depending on the the kind of trial.

Anyone who waits longer than that, "well, you have good chances of getting a stay of proceedings. And so that means that you're off the hook, so to speak," said Gélinas-Faucher.

30 new positions promised a year ago

Munn has previously warned about staffing shortages and charges being stayed because of the inability to adhere to the Supreme Court timelines.

In last year's budget, the government added 30 new prosecutor positions, raising the provincial total to about 90. Justice and Public Safety Minister Kris Austin told the legislature it was a "historic" 50 per cent increase.

But more than 20 positions remain vacant, according to Munn.

And while about 20 prosecutors have been hired, roughly the same number have left — most of them senior, said Munn. "So … we're having a lot of experience going out the door and we're just not able to fill that with the people coming in.

"So we're actually further behind."

Lowest paid in Canada, says president

Compensation is a "huge" issue, said Munn. She described New Brunswick prosecutors as the lowest paid in Canada.

A junior prosecutor earns about $57,000 annually, according to association vice-president Yves Duguay, whereas the average salary across Canada is closer to $95,000, he said.

Better pay would help recruit and retain, which would improve workload, which is the number one issue for members, said Munn.

She is calling on the government to back up its commitment to public safety with a willingness to negotiate fairly and present solutions to recruitment and retention.

"We're committed to making sure New Brunswickers have the justice system they deserve. But if the government doesn't work with us to fix this crisis, more experienced prosecutors will leave and the crisis will get even worse," she said.

"Community public safety could be put at risk."'

In October 2021, Crown prosecutors were among the groups that agreed to wage increases totalling 8.5 per cent over five years, Premier Blaine Higgs had said.

They ratified a tentative agreement, with a vote of 42 in favour and 21 opposed, their union, the Professional Institute of the Public Service of Canada, said at the time.

As of April, the wait for a criminal judge-alone trial requiring one to three days is up to a year in some jurisdictions, such as Saint John and Woodstock, according to figures published quarterly by the Court of King's Bench. For longer judge-alone trials, the wait jumps as high as 18 months in Edmundston.

For judge-and-jury criminal trials, some people in Fredericton are waiting as long as 22 months, the website shows.