StarMetro Toronto - - TOP STORY - Jacques Gal­lant LE­GAL AF­FAIRS RE­PORTER

Toronto se­nior judge, lawyers frus­trated over Su­pe­rior Court va­can­cies some fear will see more charges tossed In an un­usual pub­lic re­buke, a se­nior Toronto judge last week vented his frus­tra­tion in court over the fed­eral govern­ment’s slow pace at fill­ing ju­di­cial va­can­cies.

There are cur­rently seven empty spots on the Su­pe­rior Court bench in this city, a num­ber that has crit­ics con­cerned more crim­i­nal cases may be tossed due to de­lay.

Last Mon­day, Jus­tice John Mcma­hon was hear­ing up­dates on a num­ber of crim­i­nal cases, in­clud­ing homi­cides, that are mov­ing through the sys­tem to­ward trial, when he or­dered that one of them be sent to an­other court­room.

“We’re go­ing to put the mat­ter over be­fore Jus­tice Mac­don­nell, once they can find a court­room for him which they’ll have no prob­lem do­ing be­cause we’re down six judges the fed­eral govern­ment hasn’t ap­pointed,” Mcma­hon said, ac­cord­ing to a court record­ing ob­tained by the Star.

His com­ment rep­re­sents the lat­est com­plaint from the ju­di­ciary over the long-stand­ing va­can­cies.

Al­though Mcma­hon pointed to six va­can­cies, the cur­rent num­ber is seven, ac­cord­ing to

the court. That tally takes into ac­count re­cent va­can­cies and an ap­point­ment to Toronto made Fri­day by fed­eral Jus­tice Min­is­ter Jody Wil­son-ray­bould.

That’s al­most half of the to­tal num­ber of va­can­cies — 16 — at the Su­pe­rior Court-level provincewide. The court has 236 full­time and 103 part-time judges and hears all civil cases and the most se­ri­ous crim­i­nal mat­ters in­clud­ing mur­der.

“Fill­ing ju­di­cial va­can­cies is an easy and im­me­di­ate so­lu­tion to the de­lay prob­lems plagu­ing the Toronto crim­i­nal courts,” said Daniel Brown, vice-pres­i­dent of the Crim­i­nal Lawyers’ As­so­ci­a­tion. “There is no short­age of suitable ju­di­cial ap­pli­cants. More must be done to ad­dress this long-stand­ing prob­lem be­fore the pub­lic com­pletely loses con­fi­dence in the jus­tice sys­tem.”

Mcma­hon has sounded the alarm be­fore on the judge short­age. Jus­tice Min­is­ter Jody Wil­son-ray­bould says judges are hired for merit and di­ver­sity.

In March, he com­plained that no judge was avail­able to hear a $13-mil­lion fraud case in­volv­ing five men un­til Jan­uary 2019, nearly five years after their ar­rest. “It is frus­trat­ing, but we can only deal with what we have,” he said.

The case was tossed just months later, when a dif­fer­ent judge, Bon­nie Croll, found the men’s con­sti­tu­tional right to a trial within a rea­son­able time had been vi­o­lated. Croll also lamented in her rul­ing the lack of judges, say­ing it is “ax­iomatic” that courts have the proper num­ber of ju­rists in or­der to en­sure timely tri­als.

The de­lays in fill­ing va­can­cies have caused ten­sion be­tween the court and the fed­eral govern­ment. The dis­pute hit a crescendo in Septem­ber when Su­pe­rior Court Chief Jus­tice Heather Smith called out the ris­ing num­ber

of va­can­cies in her speech at the open­ing of the courts cer­e­mony in Toronto, and just days later Wil­son-ray­bould de­fended her ap­proach to ap­point­ing judges in an op-ed to the Star.

“There is no ra­tio­nale for this de­lay in fill­ing va­can­cies, since a min­i­mum six-months’ no­tice is pro­vided to the min­is­ter of jus­tice of up­com­ing va­can­cies,” Smith said in her speech on Sept. 13, be­fore ad­dress­ing fed­eral lawyer Sean Gaudet, who was rep­re­sent­ing Wil­son-ray­bould at the cer­e­mony.

“Mr. Gaudet, I have writ­ten to the min­is­ter of jus­tice about this is­sue, urg­ing that a new sys­tem be es­tab­lished for fill­ing ju­di­cial va­can­cies im­me­di­ately and seam­lessly as they arise. I ask that you please, again, pass on this mes­sage. An im­proved process is nec­es­sary to keep our court’s com­ple­ment at full-strength so


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