Fill the benches
The process for certain prime-ministerial appointments — of judges, say, or the heads of Crown corporations — has too often been opaque and unaccountable, seemingly favouring the loyal over the meritorious. Justin Trudeau’s campaign promise to find a better way was undoubtedly welcome. But as his government works toward that goal, the growing number of vacancies is threatening to bring important aspects of the business of governing to a halt.
This is nowhere truer or more dangerous than in the court system. As Trudeau has sought to improve Canada’s flawed judicial appointment process, the number of bench vacancies has piled up, contributing to a crisis of timely justice in Canadian courts.
There are now 61empty seats on federally appointed court benches across the country, more than at any time during the previous administration. The lack of judges has exacerbated access problems and court delays that were already posing a threat to fair process and public safety.
In 2013-2014, the median completion time of a case before superior courts was 514 days. It’s not unheard-of for cases to carry on for upwards of five years. Such delays jeopardize the constitutional rights of both victims and the accused to justice within a reasonable period of time. Many legal experts argue that filling the judicial vacancies is key to tackling the problem. Yet nearly a year into its mandate the government is still delaying appointments while it works on a more transparent process.
The urgency could hardly be greater. In July, the Supreme Court of Canada sought to address the “culture of delay and complacency” in the justice system by setting a deadline of 30 months for superior courts to decide a case from the time charges are laid. The minority in the decision called the move “unwise in practice,” predicting that it would cause thousands of criminal cases to be thrown out.
The government should take this warning seriously. This month, an Alberta court stayed a first-degree murder charge that had been on the docket for more than five years. In September, the Ontario Court of Appeal stayed a conviction for assault causing bodily harm on the grounds that the nearly six years it took to resolve the case violated the rights of the accused. If Trudeau does not move quickly to fill the vacancies, we are sure to see more cases like these.
The government’s phlegmatic approach to appointments extends beyond the courts. CBC News reports that, as Trudeau et al have worked to revise selection processes, they have accumulated a backlog of more than 300 appointments to be filled, including 105 Senate seats and key positions at Crown corporations and agencies.
The goal of more transparent, representative and merit-based prime-ministerial appointments is laudable. The process, for instance, that yielded the nomination of Malcolm Rowe to the Supreme Court on Monday is no doubt an improvement over the secretive, partisan ones that preceded it.
But many of the government positions still unfilled and the other 60 court vacancies, while less visible, are essential to the operation of government and the administration of justice. There is no reason intelligent appointments cannot be made in an open way while Ottawa works on a more formalized process. Good government, public safety and the rights of those caught up in the justice system depend on it.