Close to 9 per cent of full-time judge positions on federally appointed courts across the country are vacant, leading to delayed prosecutions and an increased risk of violating time limits on criminal proceedings at a time when courts are struggling to dig out of pandemic backlogs.
There are 88 vacancies out of 995 full-time spots for judges on federally appointed courts, which include the top trial courts of provinces that handle the most serious criminal and civil cases.
Manitoba has been left without a chief justice of its top court, the Court of Appeal, since last October, when the previous chief justice, Richard Chartier, retired. And only half of that court’s eight full-time positions are filled, according to the Office of the Commissioner for Federal Judicial Affairs.
The lack of judges is not the only factor weighing down the courts, but it is an extra burden at a time when courts are dealing with a large backlog from the pandemic, a shortage of prosecutors and an increase in serious complex files, according to Rick Woodburn, president of the Canadian Association of Crown Counsel.
“The courts at every level are being stretched to the point of breaking,” said Mr. Woodburn, who is a prosecutor in Halifax.
In Ontario, he said, some courts are sitting until 10 p.m. because the system is so pressed. Civil matters are being pushed aside to make room for criminal cases. Serious criminal matters such as homicides are being set into the fall of 2024 in most jurisdictions.
The right to be tried within a reasonable time is protected by the Charter of Rights and Freedoms. In a 2016 case called Jordan, the Supreme Court of Canada set a time limit of 30 months for criminal proceedings, from charge to completion, in superior court, which is a federally appointed court.
No matter how serious a charge is, it must be dropped if the delay exceeds the time limit, after subtracting for delays caused by the defence, and considering any exceptional circumstances at play.
In Alberta, many criminal cases are on the precipice: 23 per cent of the serious and violent offences being tried in the Court of King’s Bench, or 386 in total, are over the 30-month time limit, Dallas Sopko, president of the Alberta Crown Counsel Association, said in an interview.
That number is nearly double what it was just before the pandemic – 210 serious and violent cases over 30 months at the end of 2019, Mr. Sopko said.
Another 373 cases are currently in the 24- to 30-month “red zone,” he said, adding they include major sexual assaults, kidnappings, armed robberies and murders.
“We’ve had to move heaven and Earth to ensure that the most serious cases are heard,” he said.
Chief Justice Richard Wagner of the Supreme Court of Canada took the extraordinary step of expressing his concern in a letter this month to Prime Minister Justin Trudeau.
Diana Ebadi, a spokeswoman for Justice Minister David Lametti, who also received a copy of the letter, responded on behalf of the government. “We continue to make appointments at a steady rate and the number of vacancies will continue to decline,” she said.
The Liberal government has appointed 600 judges since 2016 and Mr. Lametti has met with the legal community to encourage more people to apply for the bench, she said.
Under the federal appointments process, the first stage is an application to one of 17 non-partisan judicial advisory committees across Canada. These committees decide whether the applicant is qualified, highly qualified or not qualified.
The process then moves to the political stage, in which the qualified and highly qualified candidates are vetted by an appointment adviser to Mr. Lametti, and then by the Prime Minister’s Office.
Federally appointed courts include appeal courts of the provinces, the Federal Court and the Tax Court, as well as the top trial courts in the provinces.
Shawn King, vice-president of the Alberta Criminal Trial Lawyers’ Association, said pressures on the system are enormous.
“We’re doing back to back to back to back trials,” he said. “We’re rearranging matters on priority of what’s about to time out, and shoving other matters right up against their Jordan deadlines – so we’re in this constant struggle.”
Daniel Brown, president of the Criminal Lawyers’ Association, said judges are working overtime to compensate for the shortages on the bench, “yet serious cases continue to fall through the cracks and are being tossed for unreasonable delay.”
Alberta has nine vacancies on its top trial court, the Court of King’s Bench, and 70 judges currently sitting full time. Ontario has 21 vacancies and 203 judges sitting full-time on its top trial court. New Brunswick has three openings and 10 judges sitting full time on its senior trial court. British Columbia has 12 openings and 83 judges sitting full time on its Supreme Court.
Four provinces have openings for associate chief justices on their superior courts, as does the Tax Court. Quebec has had one such vacancy for 14 months.
Sean Fine