Ongoing judicial vacancies slows court system, delays trials

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[Ontario courthouse in downtown Toronto/Showwei Chu]

There are more than three dozen vacancies for federally appointed judges across Canada, a shortage which legal experts say has significant impact on how the courts function.

Out of 1,134 spaces for federally appointed judges, there are currently 38 vacancies. That might not seem like a significant number, but Trevor Farrow, an associate dean at Osgoode Hall Law School in Toronto, says a big concern is that vacancies create backlogs on Canada’s legal needs.

“I think it’s a matter of national interest because of the role that judges play, not just in the resolution in individual cases,” Farrow tells Yahoo Canada News. “It’s often through their judgments they are setting important social policy regulating through common law a big swath of how society operates.”

Evidence of a larger problem, he says, is that judges, specifically chief justices, are speaking publicly about the issue.

Alberta Court of Queen’s Bench chief justice Neil Wittmann tells Yahoo Canada News that Alberta is in a “crisis situation,” but the circumstances vary by province.

The most judicial vacancies are in Alberta, according to data from the office of the commissioner for Federal Judicial Affairs Canada, where there are six vacancies in the Court of Queen’s Bench and four in the Court of Appeal. British Columbia and Ontario both have seven vacancies. In B.C. there are six on the Supreme Court and one in the Court of Appeal. In Ontario there are six vacancies in Superior Court and one in Family Court.

These are all positions that need to be filled by the federal government with the final decision coming from the justice department, Farrow explains.

The justice department says it’s aware of the vacancies, but is also looking into the overall appointment process.

“The government is considering the full scope of the appointments process, and any potential changes will be examined in light of the government’s objectives to achieve transparency, accountability and diversity in the appointments process,” spokesman Ian McLeod tells Yahoo Canada News in an email.

Farrow says there have been vacancies on the bench for some time, but isn’t surprised the Liberal government is taking its time before making new appointments. No judges have been appointed since the October federal election.

“It’s a new ministry, new minister and, as I understand it, a totally new perspective on the justice. I’m not surprised they’re taking time how best to retool the process so it is more responsive to some of the critiques,” he says.

Some appointments made by the former Conservative government were criticized because the process wasn’t transparent and the appointees weren’t necessarily representative, Farrow says.

“It’s an important aspect of their mandate and they do need to pay attention not only to the number of judges, but the calibre and the representative nature of the judges that they’re going to be appointing,” he says.

The Canadian Judicial Council says the vacancies affect efficient and effective access to justice.

“Any time there is less than full judicial complement it definitely has an impact on the functioning on the court,” Canadian Judicial Council spokeswoman Johanna Laporte says.

She says the courts are managing, but the longer the vacancies last the more of an impact they will have.

Wittmann says the shortage has extended the lead time for trials from three and a half months in 2012 to over a year now.

“They’re on the increase and will continue to increase if something isn’t done,” he says.

The backlog of appointments goes beyond last falls’ change of government, Wittmann says, because the last appointments were made in June 2015.

“The idea that someone is new so they can’t do something in my view starts to wear thin after a while,” he says. “I just don’t think that this activity that is making judicial appointments is very high on the priority list.”

The shortage of judges and case delays, does mean more cases aren’t tried because the trial didn’t take place in a reasonable amount of time. He said a criminal case in Red Deer, Alta., was stayed on Wednesday because of delays.

He’s seeing many applications for charges to be stayed, and the more delays there are the more likely some serious crimes will not see trial.

Farrow says, “A shortage of judges has a significant, immediate impact on the operation of justice. It delays trials, delays motions. It puts a strain on the system to keep justice moving For example, keeping people in custody for longer than they need to be, holding trials up around very sensitive issues with family law or employment law.”

Judges are feeling the strain, Wittmann says, with some sitting in court until 10 p.m. to hear cases.

“They want to be there for people that need their case heard, but you can only do so much with what you have,” he says, adding this extra time also impacts on judges’ duties outside the courtroom.

Despite the impact the vacancies are having, Farrow says there’s opportunity for the government to make positive changes to the appointment process.

“Everyone rightly hopes that the appointment process, while continuing to find good, meritorious candidates, can come up with a way of diversifying the judiciary in a way that does the best job possible of providing us with highly qualified judges that reflect the kind of diverse society that we promote in this country,” he says.

The Canadian Judicial Council is open to some changes to the appointment process, Laporte said, but the changes must respect judicial independence.

“We understand the government might be pursuing changes to the way that they make appointments. That’s fine and their right to do so, but council is always vigilant with ensuring that any process protects the independence of judges,” she says.

Farrow doesn’t want any long-term change to the appointment process to create further delays in Canada’s courts.

“People need their issues resolved now and you can’t lose sight of the short term when trying to revamp the appointment system,” he says.

Wittmann says he’s moved beyond frustration and into disappointment with the backlogs. Most people aren’t involved in the legal system, so likely don’t care, he says, but that shouldn’t be the case for the government.

“Their job is to care,” he says.

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