Judicial Vacancies Result in Denial of Justice

When the Supreme Court of Canada describes in R v. Jordan our justice system as “a culture of delay and complacency,” you know you have a problem.

Institutional delays in our courts have been a top priority now for some time, and are intricately connected to our constitutional rights.

The Senate Committee on Legal and Constitutional Affairs began a study into the issue in February 2016. This weekend they announced their interim report at the CBA legal conference in Ottawa.

The report notes that the effect of these serious delays have resulted in the stay of serious criminal charges and overturning of convictions. The end result is that the public may risk losing confidence in the justice system as a whole. And the Court in Williamson illustrated, the prejudice experienced by the accused has been described in some cases as “exquisite agony,” even though the reversed the Court of Appeal’s decision that the delay was unreasonable.

The interim Senate report makes several suggestions to expedite and divert cases from the criminal justice system, including case management to reduce appearances; implement restorative justice programs, shadow courts, and alternative courts; and, invest in technology to modernize our courts and justice system.

One recommendation made by the interim report stands out above the rest,

The Committee is also aware of the pressures imposed on judges to manage the volume of cases before them, the high number of recognized judicial vacancies for provincial superior courts across the country and the clear demands from provinces that more judges are required in order to meet their needs. This situation requires urgent attention from the Government of Canada.

The Committee recommends that the Government of Canada take immediate steps to ensure that an efficient and expeditious system is in place for making the necessary judicial appointments to provincial superior courts.

[emphasis in the original]

Whereas the other recommendations require cooperation between the various institutions involved in criminal prosecution, judicial appointments is a political issue that the public can exert pressure on the government to achieve.

In highlighting the need for immediate appointments, the Senate points to A Proposal for an Increase to the Judicial Complement of the Court of Queen’s Bench of Alberta, comments by Chief Justice Richard Scott to the media, and a recent report by the chief judge of the Superior Court of Quebec.

The current 44 vacancies in federally-appointed positions will likely be filled soon, with special consideration for diversity on the bench, but the broader call in the interim Senate report is the process used to fill future vacancies.

What has become apparent is that the delay in appointing judges invariably results in delays in the justice system as a whole. And that will require a complete overhaul of the appointment process.

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