Ottawa is failing to appoint judges to federal courts, creating severe delays in trial times and a corrosion of public trust in the justice system, legal experts say.
“There are candidates available in every province, so there’s no reason why those [vacancies] cannot be filled,” Richard Wagner, Chief Justice of the Supreme Court of Canada, told reporters in a press conference last month. Wagner told reporters he had written a letter to Prime Minister Justin Trudeau earlier this year urging him to appoint more judges, but he hasn’t seen any progress on the matter.
As of July 1st, there were 81 vacancies in Canada’s federal courts, according to the Office of the Commissioner for Federal Judicial Affairs Canada. For context, there are currently 914 judges sitting full-time in the federal courts.
Legal professionals across the country have long expressed alarm over a problem they call inexplicable.
Many judicial advisory committees are defunct
The problem starts with the Federal Judicial Advisory Committees (JAC) — bodies that exist in every province and territory and are responsible for screening applications from aspiring judges. The committees are composed of seven individuals nominated by members of the legal community and appointed by the federal government.
In a letter to Trudeau on May 24, the Canadian Bar Association wrote that many of the committees are defunct because the justice department hasn’t confirmed the committee nominees.
For example, all seven seats of British Columbia’s JAC are empty. The Canadian Bar Association nominated three candidates to the justice department in March but has not heard about their status, said Kerry Simmons, the bar association’s executive director.
“We are feeding the pipeline for the JACs, but Minister Lametti hasn’t shared with us why there’s a delay in appointing the JACs, or why there’s a delay in appointing to our courts in B.C.,” Simmons told Canadian Affairs.
“I don’t know what the problem is. I would like to because then maybe I can offer solutions,” Simmons said.
Judicial Advisory Committees for the Greater Toronto Area, the eastern region of Quebec, Prince Edward Island and the Yukon also have no members, according to the Office of the Commissioner for Federal Judicial Affairs Canada.
Judicial vacancies undermine goal of timely trials
Judicial vacancies exacerbate the challenge of offering timely criminal trials — which has become particularly important in the wake of the Supreme Court’s 2016 Jordan decision.
Under the Canadian Charter of Rights and Freedoms, an accused person has the right to be tried in a reasonable length of time. The Jordan decision defined a reasonable length of time for provincial court cases as 18 months and for superior court cases as 30 months. If a trial has not been held within those time frames, the proceedings will be stayed in most cases — meaning a person’s guilt or innocence will not be determined.
Loui Dallas, a Toronto-based criminal defence lawyer, said his colleagues have successfully argued their clients’ trials weren’t heard in a reasonable length of time and the judge stayed the proceedings. He believes these delays have more to do with chaos caused by COVID than a shortage of judges. During the pandemic, cases were often adjourned, creating a backlog. But, he said, judicial vacancies do not help to clear the backlog.
“It goes without saying, if you have more judges to hear more cases, they’ll go quicker,” Dallas said.
In Alberta, where there are currently nine federal judicial vacancies, 423 Jordan applications to have charges stayed have been brought between October 2016 and March 2023. Of those, 40 were granted and “74 were proactively stayed by the Crown on the basis they would not survive the Jordan application,” according to the Government of Alberta’s website.
Judicial vacancies felt all through the system
When courts are operating without a full slate of judges, criminal cases are the priority, Simmons told Canadian Affairs. Family disputes are next to be adjudicated, then at the bottom of the list are all other civil disputes, she said.
According to Nathaniel Read-Ellis, a civil litigator in Toronto, three to five years is now a realistic timeframe for taking a lawsuit from beginning to end. Even scheduling motions over preliminary matters can take a year, causing clients to reevaluate their litigation strategy.
“It’s not so much that people are deciding not to bring a case at the outset,” Read-Ellis said. “But it does impact the decisions that are made throughout the case.”
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