Child sex assault cases fail over lack of judges
Ottawa blamed for ‘inexcusable’ delays in filling vacancies
The federal government’s chronic failure to quickly appoint judges has led to the collapse of two child sexual assault cases at Toronto Superior Court, with the judge in one case calling it an “embarrassment” and saying the Liberals have “knowingly allowed” the situation to get out of control.
Superior Court Justice Michael Code blasted the government in a decision, released last week, staying the charges against a man accused of sexually abusing his niece.
The man was alleged to have taken sexual photographs of her when she was six years old and then used them to extort sexual acts over a number of years.
His trial had to be postponed twice due to the lack of judges in Toronto, ultimately pushing the case over the strict deadline set by the Supreme Court for the hearing of criminal cases.
“The government had knowingly allowed the court to continue without its full judicial complement during an unprecedented crisis of rapid population growth, increasing numbers of certain serious crimes, and a pandemic backlog,” Code wrote.
“I cannot leave this application without saying, in conclusion, that it is an embarrassment to the administration of justice that this serious ‘priority’ case, involving alleged sexual abuse of a child, cannot be tried in accordance with the constitutional standard of trial ‘within a reasonable time.’ ”
It is at least the fifth criminal case — and second child sexual abuse matter — to be thrown out at Toronto Superior Court since December due to delays caused by the federal government’s failure to promptly fill empty spots on the bench.
The other cases include charges of sexual assault, human trafficking, and gun possession connected to a fatal shooting.
The Star has also learned that a second human trafficking case was stayed due to delay last week in Toronto. Judicial vacancies were the main issue argued in court; the judge’s written reasons are yet to be released.
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 and exceptional circumstances are subtracted from the calculation.
For the Toronto child sex assault case stayed last Friday, Code subtracted a number of months for defence delay, as well as for the impact of the COVID-19 pandemic on court operations when the case first entered the system. It would have still ended up over the 30-month deadline by its anticipated conclusion in June, the judge found.
“The intransigent ongoing failure to fill judicial vacancies in a timely way is inexplicable and inexcusable,” he wrote.
The other child sexual abuse matter was tossed in February but has not been previously reported. It involves historical charges against a man accused of abusing his uncle’s stepdaughter over a decade ago. His initial trial was postponed due to the lack of judges.
“I am entirely satisfied that the delay which was evident at the outset ... could and should have been mitigated,” wrote Justice Philip Campbell. “All that was required was the appointment of judges to fill vacancies that both the court and the government recognized needed filling.”
Campbell said he had no doubt that the man had a “strong desire” to get to trial and that there is likely “comparable disappointment and frustration on the part of the complainant and her family” over the delay.
“The inevitable but avoidable judicial stay of this prosecution resulted entirely from the ongoing and unacceptable lack of judicial resources, full stop,” said John Collins, the defence lawyer in the case before Campbell.
The Star is not naming the men in both cases as they are no longer facing charges and to avoid identifying the alleged victims.
Coincidentally, Campbell’s decision was released the same day in February as a ruling by the Federal Court declaring that the government must fill the staggering number of judicial vacancies across the country in a reasonable time, to get the “untenable and appalling crisis” under control. The government is appealing that decision.
There are at least 65 judicial vacancies across the country, 20 of which are in the Superior Court throughout Ontario. Federal Justice Minister Arif Virani has repeatedly said that his top priority is to expeditiously appoint judges “of the highest calibre who also reflect the diversity of this country.”
He appointed just seven judges last month across Canada, two of whom will preside in Ontario. Like his predecessors, Virani has provided little explanation for the delay in appointments, for which the government has been criticized for years.
Advocates mystified by the holdup have said there is no shortage of qualified lawyers who have applied for judicial positions.
A spokesperson for Virani said Tuesday it’s “inaccurate — and frankly unhelpful — to blame delays on any one single factor,” saying court resources and scheduling processes need to be modernized.
“Lawyers need to do their part to streamline and prioritize how they use court time,” said Chantalle Aubertin.
She said it’s “devastating” that the child sexual assault cases will not be tried on their merits, but said it’s “simply false” to suggest the government hasn’t sped up the appointment process. Aubertin said Virani has urged the members of the various committees that screen applications for judicial appointments to meet more frequently, while she said the government has appointed judges “at a rate unprecedented in modern Canadian history.”
The chief justice of Canada, Richard Wagner, warned Prime Minister Justin Trudeau in a letter last year that the exact scenario playing out in Toronto would happen if the government didn’t speed up the appointments process. Code wrote in his ruling that it was “unacceptable” for the government to ignore Wagner’s warning.
“This kind of stubborn institutional refusal to a crisis in the justice system is inexcusable,” he said.
There are at least 65 judicial vacancies across the country, 20 of which are in the Superior Court throughout Ontario