Chief Justice of the Supreme Court of Canada, Richard Wagner, did not mince words during his annual press conference. “We can’t go on like this,” he said of the delays in appointing judges to superior courts, appeal courts and other federal courts. This is yet another example of the ineffectiveness of the Trudeau government.
We take up in chorus the tirade of Chief Justice Wagner, a man who does not have his tongue in his pocket. “It is done, appointments, in a reasonable time. It is possible to do it. What is the problem ? Indeed, what is the problem? The Trudeau government is unable to offer a valid answer to this very simple question.
The subject may seem futile and boring as Canada burns from the consequences of global warming, but the shortcomings in the staffing of judges will have consequences in the lives of citizens and on their safety. Mr. Wagner even mentions a risk for democracy. Since the Jordan decision, to which the government has not brought any legislative solution, the time limits for hearing a criminal case (from indictment to trial) have been set at 30 months in the Superior Court, and 18 months in the courts provincial.
The Jordan decision is the inevitable consequence of the incurable slowness of the legal system in processing cases. It was an electric shock necessary to discipline the judicial officers, but above all to preserve the right of an accused, who benefits from the presumption of innocence, to be tried within a reasonable time.
The “post-Jordan” system is not the brightest for the bond of public confidence in the administration of justice. Defendants have been able to obtain stays of proceedings for unreasonable delays for serious crimes, including murder.
This sword of Damocles weighs heavily on the system. According to data provided by Justice Wagner, 22% of active criminal cases in the Superior Court of Alberta have already passed the 30-month deadline. Of the lot, nine out of ten cases involve cases of violence. Mr. Wagner has no reason to believe that the situation is different in the other provinces. Imagine what will happen to Canadians’ sense of security and confidence in justice if suspected murderers, wife beaters and sex offenders walk away because the system is crippled.
Currently, there are nearly 80 judicial vacancies for Ottawa, while 1181 judges (regular and supernumerary) are in office. It may not seem like much, but the disruptions in service delivery are no less real. Delays in the appointment of judges mean that many courts operate with 10 or 15% vacancies for months, if not more than a year.
The workload of serving judges is affected, as is their mental balance. Richard Wagner affirms that the judges have come to make choices, “like in hospitals”. Welcome to the era of justice by triage, a world in which judges must choose, at the head of the accused and his dangerousness, which cases will end up at the top of the pile… While the cases at the bottom of the pile will end up in a fish tail, leaving in their wake dumbfounded victims, dumped, and alleged criminals laughing at the beard of the system.
Unusually, the Chief Justice of the Supreme Court expressed his grievances in writing to the Prime Minister. His words are harsh. “The government’s inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting,” he wrote in this letter obtained by Radio-Canada.
Justin Trudeau spoke with Chief Justice Wagner during a call. The Minister of Justice, David Lametti, indicated that he was making the necessary efforts to overcome the shortage of judges. Since 2015, his ministry has appointed some 600 judges. The independence, transparency and impartiality of the appointment process have been strengthened. Faced with the addition of potential pitfalls, greater speed is expected from the federal government.
Ottawa is not solely responsible for the precarious situation of the judicial system. The chronic underfunding of the courts by the provinces and territories is also to blame. In Quebec in particular, the system is near breaking point. The standoff between the Minister of Justice, Simon Jolin-Barrette, and the Chief Justice of the Court of Quebec, Lucie Rondeau, the shortage of support staff and the reorganization of work at the Court make us fear the worst.
It is no exaggeration to see in the overall picture a broader risk to public confidence in institutions. When justice collapses under the weight of its negligence, it is the very idea of the rule of law that will waver with it.