Saving money by delaying judicial appointments is shortsighted
Ottawa may be saving millions of dollars by delaying judicial appointments but the price paid by those waiting for their case to be heard is immeasurably higher by every other measure.
According to an article in Law360 notes, the federal government took on average more than eight months, to appoint judges to fill 349 superior court vacancies from Jan. 1, 2019, to Aug. 1, 2023.
“As a result, we estimate the Canadian justice system was deprived of – and the federal treasury thereby ‘saved’ – approximately $168-million that would have been spent on hiring much-needed judges had the government filled most vacancies when they occurred instead of months later,” the article states.
It adds that 349 spots sat empty for a total of 2,904 months, “which translates to our ballpark estimate of $131-million that was not directed to the Canadian justice system over the more-than-four-and-a-half-year period we examined.
$168-million in ‘savings’ on judges
“The money retained by the federal treasury as a result of judicial appointment delays rose to approximately $168-million once we added to the $131-million not spent on judicial salaries and benefits for the vacancies the government filled from 2019-2023, the approximately $37-million the government did not spend on hiring judges during the 816 months that the present 86 unfilled vacancies, as of Aug. 1, 2023, have been sitting vacant,” the article adds.
It is an affront to all Canadians If Ottawa is delaying judicial appointments simply to save money. After all, the right to a timely trial is enshrined in s.11(b) of the Canadian Charter of Rights and Freedoms.
It notes that a timely trial protects “the right to security of the person; the right to liberty; and the right to a fair trial. The provision also serves secondary societal interests: (a) the interest in protecting the right of an accused person to humane and fair treatment and (b) the interest in having laws enforced, including through ensuring that those who break the law are tried in a timely fashion. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”
The public is losing confidence
Section 11(b) notes that “timely trials are also important to maintaining overall public confidence in the administration of justice.”
Victims of crime as well as the accused are entitled to a speedy trial. As s.11(b) notes, we must recognize “the stigmatization, loss of privacy, and stress and anxiety created by the cloud of suspicion that accompanies criminal proceedings.”
In addition, trials should happen “while evidence is available and fresh and delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence.”
Like every other criminal defence attorney in Canada, I have witnessed how a shortage of judges harms the judicial process. For example, I was involved in a case outside of Ottawa. In the past, there were three judges in that jurisdiction but now there were only two, resulting in cases being adjourned or dismissed due to a lack of resources.
Pandemic was the tipping point
I was told that pre-COVID, the jurisdiction was able to get by with just two judges. The pandemic was the tipping point, resulting in a large backlog of cases.
Then there is the Jordan decision, which dictates that criminal trials must be completed in a reasonable time. It set that limit at 18 months for provincial court cases and 30 months for superior court trials.
We cannot keep blaming COVID for delayed justice. Institutional issues, such as the shortage of judges, must be addressed. And I am pleased to see our nation’s highest judge agrees with me on that point.
According to a media report, Chief Justice Richard Wagner sent a “scathing letter” to Prime Minister Justin Trudeau in May, warning that a chronic shortage of judges in the federal court system is putting criminal trials at risk and could undermine public confidence in democratic institutions.
The article states that 85 bench positions out of approximately 1,200 across the country are empty and that several courts across the country routinely operate with 10 to 15 per cent of their judicial positions vacant.
‘Current situation is untenable’
“The current situation is untenable and I am worried that it will create a crisis in our justice system, which is already facing multiple challenges. Access to justice and the health of our democratic institutions are at risk," Wagner wrote. “The government's inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting."
The Chief Justice stated that judges are being forced to prioritize certain cases to the detriment of others that should still be heard.
"Despite their best efforts, stays of proceedings are pronounced against individuals accused of serious crimes, such as sexual assault or murder, because of delays that are due, in part or in whole, to a shortage of judges,” he wrote.
If left unaddressed, he added, the current situation could feed Canadians’ “cynicism” about the justice system.
Perhaps in response to the Chief Justice’s scolding, the government announced in May that the terms of newly appointed Judicial Advisory Committees would be extended to three years (they were once two-year appointments).
“Extending the terms of these committees to three years ensures that members could serve for longer, decreasing time spent selecting new committee members and allowing each committee to evaluate more candidate files, comparatively, over an extended period,” states the announcement. “To ensure that the same Judicial Advisory Committee does not assess judicial candidates twice, the validity of judicial candidate assessments will also be for three years.”
I will keep pushing for timely trials for my clients, but these requests always run up against other roadblocks, the manpower shortage across our judicial system being the prime one.
We need more sitting judges to make our judicial system work.
Contact me for assistance
If you are facing criminal charges, especially those of a sexual nature, you need an experienced lawyer to guide you through your legal journey. I appear regularly before the Ontario Court of Justice and the Superior Court of Justice in Ottawa, L’Orignal, Brockville, Perth, Cornwall and Pembroke. Contact me for a free consultation to discuss your case.