Judge shortage causing unnecessary legal trauma
The federal government has a fundamental responsibility to appoint a sufficient complement of judges such that our courts can function properly. Its failure in that regard creates a constitutional crisis that goes to the very rule of law that underpins our justice system.
A lack of judicial appointments in the context of increasing pressure to conduct timely trials equals a systemic miscarriage of justice. With caseloads where they are, the system is at its breaking point.
Add to this difficult dynamic the recent Supreme Court of Canada ruling in the R v Jordan decision, which mandates criminal trials must be heard within 18 months for the so-called lower courts, and 30 months for the Superior ones. Absent compelling circumstances, “delinquent” prosecution equals administrative dismissal.
Due to this artificial prescription dozens of cases have been tossed, including murder and sex assault cases. No trial. No verdict. Worse still, the victims and their families are left without recourse or remediation and no one is accountable. Not fully appreciated as yet, this jarring situation stands to worsen due to the arbitrary deadline, which provides no consideration for the seriousness of the offence.
Against this backdrop we note inertia from the federal government on the appointment of judges to hear these languishing cases. Canadians face an alarming scenario of serious violent charges being vacated due to the acute shortage of judges. “Justice delayed is justice denied” is a maxim never more appropriately invoked than now.
As minister of justice (2013-15) I oversaw the appointment of more than 230 judges; prior to that my government prioritized hundreds more. We appointed a judiciary that represented “the face of Canada,” a diverse bench predicated and built on inclusion of all races, creeds and genders in the legal community across Canada.
Vacancies on the federally appointed bench are at an all-time high. Sixty-two empty seats of the 840 federally appointed judges, against 14 (the lowest in decades) when my government left office. In June 2015, we appointed a record 22 women: over 60 per cent of the judges appointed on that occasion. We appointed more judges on one day (43) than the current government has in 16 months in office.
We also incorporated several justice-enhancing features in the long-standing Judicial Advisory Counsel (JAC) process, such as a police presence on the oversight selection committee, to augment law society, governmental and judicial oversight. The present government precipitously axed police participation, despite increasingly obvious security concerns. Seemingly as the government let lapse all the existing JAC’s and has only reconstituted seven of the 17 required to vet lawyers, it has also diminished wider participation.
The current resultant bottleneck in the process is predictable: relatively few judges appointed since this government took office. More than half the country is now without a system of nomination given the dearth of committees for judges. And the corollary: a moribund system, few cases tried on a timely basis, more cases dismissed, more “burnout” inside our justice system, including our judges, our police services, our prosecutors, defence counsel, court staff, victim services and child youth advocacy centres.
The most profoundly impacted are the victims. Investing time and trust in our justice system is hard enough for victims. To have the alleged perpetrator walk away scot-free makes it that much worse. Many victims come away feeling re-victimized by the system and form the conclusion that they would not report the crime again based on their negative experience.
Will such frustration and betrayal result in refusal or failure to report crime? Most assuredly. Many more victims will be re-victimized by an undernourished system unless and until the government acts decisively.
Speaking of those disenfranchised by this inertia, recall the Canadian Victims Bill of Rights, which became law in 2015. One can search high and low and will find nary a mention of this important legislation. The government has failed them further by ignoring and underfunding programs for victims, in rolling back mandatory minimum penalties for serious violent offenders and use of conditional sentences (house arrest), and in stripping away victim fine surcharge-funded support for the victims.
So . . . what justifies starving the bench of its human capital? A reluctance to replenish in the face of a growing number of terrible injustices? The present government owes us immediate action.
The impact of the Jordan decision undeniably exacerbates the current systemic crisis. Adherence to a political philosophy, Charter affinity, or party loyalty cannot be seen or heard to interfere with high-quality candidates filling widening vacancies.
Reprioritization of an efficient, functional, reliable judicial system can only occur with a full complement of competent judges. It’s fundamental to the rule of law. Justice must be seen to be done lest “justice be denied.”