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Canada’s courts are strained, a problem that stretches back years. People accused of crimes often wait too long for their case to be heard. The pandemic exacerbated the problem but, as the country recovers, the wheels of justice still grind slowly.

This space last week detailed one major reason: bail. Canada’s crime rate has fallen by half over the past three decades, yet there are now more people in jail awaiting a hearing than who have actually been convicted of a crime. Cases like breach of release conditions or failure to appear eat up an inordinate amount of court time.

A lack of judges to hear cases is another longstanding factor. According to a recent analysis by The Globe and Mail, the issue is worsening. On federally appointed courts, where there are jobs for close to 1,000 judges, almost one of every 10 positions behind the bench sits vacant. These include key courts in the broader justice system: provincial appeal courts and the provinces’ top trial courts; the Federal Court; and the Tax Court of Canada.

There are 88 vacancies. In 2017, the number was 60. These holes make recovering from the pandemic slowdown more difficult. The squeeze led Chief Justice Richard Wagner of the Supreme Court of Canada to take a rare step in early May, when he sent a letter of warning to Prime Minister Justin Trudeau. “The current situation is untenable,” the chief justice wrote, according to a CBC report.

Ottawa’s answer was underwhelming: The work to appoint judges proceeds at a “steady pace.” This belies the reality of rising, not falling, vacancies. And it contradicts new information that six of 17 committees that screen potential new judges for Ottawa have stopped operating.

This rise in vacancies is happening at the same time as the impact of the 2016 Supreme Court Jordan decision, decided by a 5-4 vote, has played out. The Constitution protects the right of any person charged with an offence to be tried within a reasonable time. Before Jordan, the definition of reasonable wasn’t set in stone, as courts operated under the 1992 Morin decision. Judges considered whether delays were unreasonable on a case-by-case basis.

That changed in 2016. Now-retired justice Michael Moldaver had for years been a proponent of forcing the legal system to get its act together. Jordan, co-authored by Mr. Moldaver, defined unreasonable with exact deadlines: 18 months for provincial court and 30 months for superior court.

The slim majority called the Morin framework unpredictable, confusing and complex, and blamed it for “contributing to a culture of delay and complacency.” The dissent, including then chief justice Beverley McLachlin, argued that “the completely new direction” was unnecessary, and that unreasonable delays should not be “defined by numerical ceilings.”

The idea, to speed the wheels of justice, is sound. As a Supreme Court case in brief in 2020 noted, “long criminal trials cause suffering and frustration for everyone involved,” and that the accused “often sit in jail while waiting for their trial.” Both statements are true. But the impact of Jordan hasn’t exactly solved the problem – and it has created major new ones. Jordan’s deadlines as of late 2019 had scuttled roughly 800 cases, many of them serious, including rape and murder.

The deadlines allow for little leeway, a particular problem for complicated cases. In April, news emerged of a major case related to national security, in which delays cleared an Agriculture Canada researcher who had been charged with taking secret payments from a university in China. In the Saskatchewan judge’s decision, he pointed to Jordan’s “hard cap.” A stay was “the only available remedy.”

In 2017, this space argued the Supreme Court needed to reconsider Jordan. There should be a greater emphasis on the principle of judicial flexibility the top court has so valued in other instances. The Jordan dissent in 2016, with its proposed sharpening of the previous framework, is a ready guide. Reasonable access to justice is key, but to see hundreds of cases collapse because of an arbitrary deadline is not reasonable.

More immediately, Ottawa needs to fill the many empty judges’ chairs on federally appointed courts. Cases are in jeopardy. In Alberta, for example, about one in four cases of serious and violent offences at the Court of King’s Bench are already past the 30-month mark.

Courts need more resources and at least some flexibility on delays. The problems have worsened and must be addressed as soon as possible.

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