Human trafficking charges thrown out over judge shortage

One of several cases that have been tossed over delays in reaching trial

For the second time this year, a man has seen his human trafficking charges thrown out due to delays at Toronto Superior Court caused by the federal government’s chronic failure to quickly appoint enough judges.

Marlon Downey’s case is the latest in a string of serious criminal matters to crumble at the downtown courthouse over the issue of judicial vacancies, sparking delays that one judge has described as an “embarrassment to the administration of justice.”

As the Star has previously reported, the other cases include charges of child sexual abuse, gun possession linked to a fatal shooting, and assault and sexual assault. They also include another human trafficking case against Downey involving a different complainant, which was tossed in January.

The Supreme Court has said that cases in Superior Court must be heard within 30 months, otherwise, they must be tossed for violating an accused person’s constitutional right to a trial within a reasonable time. (Delays caused by the defence or exceptional circumstances are deducted from the calculation.)

In a decision released Monday, Superior Court Justice Jennifer Penman tossed the charges in Downey’s second case after finding that “the most significant contributing factor to the overall delay in this case was a systemic lack of judicial resources.”

Penman’s decision includes passages from her judicial colleagues in the other cases, highlighting the magnitude of the problem.

Downey’s original trial last June had to be adjourned due to the lack of a judge, with the second trial date set for later this month. After deducting delay caused by the defence and the impact of the COVID-19 pandemic on court operations, Penman found that 33 months will have passed between when Downey was charged in November 2020 and the anticipated conclusion of his trial.

“There was no moratorium on judicial vacancies being filled during the pandemic,” Penman wrote. “There is no reason why vacancies which have existed since before the pandemic could not have been filled at a faster pace than what we have seen.”

Defence lawyer Myles Anevich, who represented Downey along with Christian Angelini, declined to comment when reached by the Star.

A spokesperson for Justice Minister Arif Virani said it would not be appropriate to comment on the specifics of Downey’s case before Penman, but pointed out that due to the federal election in 2021, there were no cabinet meetings for several months, which prevented new judicial appointments from being approved.

Downey’s other human trafficking case was stayed in January after his trial judge was elevated to the Court of Appeal and there wasn’t another judge immediately available.

It ended up before Justice Todd Ducharme, who did not have several weeks in a row of free time to hear the case due to other matters, which dragged things out further.

In tossing that case, Ducharme wrote that the delay in criminal matters caused by a trial judge being elevated to a higher court “has been seriously exacerbated by the slow pace of judicial appointments by the federal government” to the Superior Court.

The Crown is appealing that ruling.

Virani’s spokesperson Chantalle Aubertin reiterated in a statement to the Star this week that it is “simply false” to suggest that the government has failed to increase the speed of appointments, pointing out 118 new judges have been appointed across Canada in just the last 12 months.

She said it’s “inaccurate” and “unhelpful” to blame delays on any one single factor.

“Court resources and scheduling processes need to be modernized, using technology and all available tools,” she said. “As prominent judges have observed, trials are taking longer than ever before, and lawyers need to do their part to streamline and prioritize how they use court time.”

The federal Liberals have been under fire for years over judicial vacancies, but criticism has reached an all-time high given the number of cases thrown out in Toronto in recent months.

‘‘ There is no reason why vacancies which have existed since before the pandemic could not have been filled at a faster pace than what we have seen.

JENNIFER PENMAN SUPERIOR COURT

JUSTICE