The issue of unfilled judicial vacancies has come more to the fore in recent years, and especially in the last few months. Top judges have lambasted the federal government for not doing more to fill them, and words like "perpetual crisis", "untenable" and (of course) "unprecedented" have been thrown around, as important cases on serious crimes have been summarily thrown out after waiting for years for a judge to hear them.
As of last May, there were 85 empty bench positions in the Superior and Appeal courts, out of a total of about 1,200. Some courts across the country are operating with 10-15% of their judicial positions vacant. People with personal injury or medical malpractice claims in particular may be waiting two years or more for their trials, and an increasing number are failing to get there in time.
Just this week, a Federal Court ruling has ordered the government to appoint judges within a "reasonable time", and, if nothing is done to rectify the situation, it reserves the right to make even more specific deadlines. This comes nine months after the Chief Justice of the Supreme Court of Canada denounced the critical lack of judges in a scathing letter to the government. But the issue goes back much longer than that; this is not a new problem.
The result is that hardened criminals are walking free for lack of sufficient appointed judges to hear trials. Other accused individuals may never get the chance to officially clear their names in court. And victims of crimes may spend years waiting for justice only to be told that, sorry, the case has not been heard in a timely enough manner (there are different time rules for different courts - thirty months in Superior Court, for example) and must be completely thrown out.
So, why are we in this situation and how did we get here? The process for appointing judges is not a very transparent one, but essentially it is the job of the federal Justice Minister (currently Arif Virani) to choose from a list of applicants presented to him or her by a panel of advisors. The process can take many months at the best of times, and these are clearly not the best of times.
One big thing for the government at the moment is to increase the diversity of the upper courts (people of colour, LGBTQ individuals, Indigenous people, women, etc), so it is possible that this is part of the reason for the backlog, although it's hard to really know.
The government maintains that it has actually been appointing judges at record rates. Part of the problem may also be that the current government has created a whole bunch of new positions, which has only made the issue of filling them more acute. There appear to be many good qualified judges out there who could take up these vacant positions, and the bottleneck seems to be mainly at the ministerial level. Either the current system needs to be applied more diligently, or it need to be changed completely. Does the Justice Minister need to approve each and every one of them? Should judges even be appointed (which necessarily lays the process open to political impropriety), or should they be voted in by their peers?
It should be said also that a lack of judges is not the only issue leading to the current crisis situation. Criminal lawyers argue that there are just too many cases being brought before the courts, including many cases that are just too weak to stand a real chance of conviction. Crown attorneys, for their part, argue that they need more Crown attorneys and support staff to do the work of weeding these cases out.
The bottom line, though, is that, if the government maintains its current rate of judicial appointments, then the problem is just going to gradually get worse. As more judges retire or go part-time, the backlog of cases will inexorably rise. More and more criminal cases will end up being thrown out for no good reason. Public confidence in our judicial system, and in our democratic institutions in general, is at risk.
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