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opinion

David Butt is a Toronto-based criminal lawyer.

The Chief Justice of the Supreme Court of Canada, Richard Wagner, has written a stark missive criticizing the government for unwarranted delay in filling judicial vacancies. In a letter obtained by Radio-Canada, he said he worries the government’s tardiness will “create a crisis in our justice system” and puts “access to justice and the health of our democratic institutions” at risk.

This is a big deal. And also a flashpoint that momentarily illuminates a deep and abiding disconnect between politics on the one hand, and the administration of justice on the other.

Judges routinely wag their fingers in court, both in their written rulings, chastising litigants whom they have ruled against for their unacceptable behaviour, and orally in open court, chastising showboating lawyers.

But it is exceedingly rare for judges to wag their finger publicly outside of court. Judges must be, first and foremost, impartial. So by wagging their finger at anything outside the courtroom in the messy arenas of social and political practice or discourse, judges seriously risk undermining their perceived neutrality, their independence, and ultimately the quality of justice they dispense. Donning the straitjacket of public silence outside court is the price of a ticket to sit on the judicial bench.

That is why Chief Justice Wagner’s now very public letter is such a big deal. Judicial appointments are the responsibility of the executive branch of government, not the judicial branch. The Chief Justice knows that the clear separation of powers among the judicial, executive, and legislative branches of government is essential to any viable constitutional democracy. And he surely knows that as head of the judicial branch, his criticism of the executive branch risks undermining that crucial separation of powers. So it speaks to the enormity of the problem that he would so assertively climb so far out on someone else’s limb.

The Chief Justice is not wrong. A shortage of judges is one of many causes of delays in the courts. And exasperating delays are the justice system’s most prominent feature. The endless tension endured while cases drag on year after dreary year grinds down even the most resilient litigants, just as the constant drip of water bores through solid rock. There is far too much truth in the old joke: to say justice moves at a glacial pace is to insult glaciers.

So, will the Chief Justice’s heated and risky missive make a difference? Don’t hold your breath.

Executive-branch actors are politicians: they must prioritize what gets them re-elected. And the blunt reality is there are precious few votes in prioritizing the administration of justice. Any Jane Doe who was sexually assaulted, or John Doe who is accused of a crime, may well care deeply about a fair and prompt justice system to meet their needs. But all the Jane Does and John Does in courts across the country are neither numerous compared to the population at large, nor politically organized, nor top of mind for the voting public in ways that things like inflation, education, and health care inevitably are. And while the Jane Does who have suffered sexual violence attract more sympathy these days, most voters don’t care to prioritize John Doe’s right to a fair and speedy trial, especially if it means less money for health care or education. So the blindfolded lady of justice lacks political clout. Which means she is barely welcome at the government expenditure buffet. She gets just enough scraps to keep her quiet and is otherwise ignored.

The result is that governments of all stripes fund justice systems begrudgingly, and only to the level necessary to avoid ugly (read: vote-losing) crises. Which forces all justice system worker bees to cope endlessly with chronic underfunding. Forget best-practice service delivery – catastrophe avoidance is as good as it gets.

Our judges’ impartiality and independence is a world-class asset, which could help solve the chronic inattention paid to judicial appointments by the executive branch. We could amend the Constitution to oblige governments to fund enough judges to serve the population, but give the independent judiciary the power to manage recruitment. Delegating recruitment to those who know the job best is hardly radical. Canadian judges as a whole care deeply about the quality of their work and the imperatives of serving a diverse community. They would not want their collective reputation sullied by mediocrity or lack of diversity, and would therefore manage recruitment admirably.

But a constitutional amendment? In Canada? Which takes away politicians’ power to intermingle merit appointments with sinecures to political hacks? Sorry, I must have been dreaming.

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