Nearly one year after the Liberals came to power, most federally appointed courts are languishing without a functioning system for naming judges, and the country has a larger number of vacancies – 61 – than at any time during Stephen Harper's 10 years in power.
The appointments system depends on 17 judicial advisory committees that screen applicants for federally appointed courts, such as the Federal Court of Canada, the Tax Court and provincial superior courts. Only seven of those committees have members, because people who left have not been replaced.
Federal Justice Minister Jody Wilson-Raybould told her provincial counterparts on Friday that she is reviewing the appointment process and intends to name judges soon.
But Chief Justice Neil Wittmann of the Alberta Court of Queen's Bench said he does not understand why the government has not been naming judges while it reviews the process. The Liberals have appointed just 15 judges, all of them in June, since cabinet was sworn in on Nov. 4.
"It's inexplicable to me," he told The Globe and Mail. "I do not understand that. If you were running any other kind of an industry or an enterprise, and you needed so many people to make it function properly, if people left, you'd hire into that position. And if that position was an important one, you'd do it quickly, especially if you had notice that vacancy was going to occur." Judges usually give three months' notice before retiring or leaving the bench, he said.
According to figures supplied to The Globe by the Office of the Commissioner for Federal Judicial Affairs, which provides administrative services to judges, the highest number of judicial vacancies during the Harper years was 55, in February, 2015. By Mr. Harper's final summer in office, vacancies were down to a little more than a dozen.
Mr. Harper's Conservative government revamped the committees in several ways – for instance, putting a police representative on each, and insisting the committees could only "recommend" (or not), rather than "recommend" or "highly recommend." The Conservatives gave the federal government's four representatives a voting majority by taking away the vote of the provincially appointed judge who sits on each of the eight-member committees. The Liberals have said they wish to make the process more open and transparent, and one that promotes greater diversity on the bench.
Alberta's judicial advisory committee, unlike most of the others (some provinces have more than one), continues to meet and recommend candidates for the bench, Chief Justice Wittmann said, adding that he wants the government to choose from that list until the new process is launched. "If you're going to revamp or reform a police service or a fire department or an emergency medical response team, you can't let it deplete so it becomes non-functional while you're deciding how to reform it," he said. "I fail to see why you can't do both at the same time."
While Prime Minister Justin Trudeau is considering his first appointment to the Supreme Court of Canada – a vacancy became available on Sept. 1 – the shortage of lower-court judges may make it difficult for some jurisdictions to meet constitutional guarantees of timely criminal trials.
In July, the Supreme Court of Canada set a deadline of 30 months in superior courts (such as the Court of Queen's Bench) from the time a charge is laid until the trial is completed. In Calgary, the wait is now just short of 15 months – 63 weeks – to schedule a trial of five days or more. (It can take months from the time a charge is laid until a trial is scheduled.) The situation is about the same in Nova Scotia, where the Supreme Court is now booking criminal trials of five days or more for next fall.
Civil trials, too, face long delays, which Chief Justice Wittmann said is especially hard on families seeking resolutions to legal problems. The lead time to schedule a civil or family trial of five days or more in the Court of Queen's Bench in Calgary is now 138 weeks – bookings are being accepted for April, 2019. The Court of Queen's Bench is Alberta's top trial court, and it has seven vacancies and 59 full-time judges in office, according to the Office of the Commissioner for Federal Judicial Affairs. The province's Court of Appeal has two vacancies and 12 full-time judges in office.
In Nova Scotia, the Supreme Court (the top trial court) has five vacancies and 31 full-time judges in office. The Court of Appeal has one vacancy and seven judges in office.
"On rare occasions in the past we've had to cancel matters. However, this is the first time we've had to send out multiple letters the month before suggesting that trial dates be rescheduled due to the shortage of judges," Jennifer Stairs, the communications director for the Nova Scotia judiciary, told The Globe in an e-mail.
"That's very difficult on the lawyers and on the litigants who are anxious to have their matters heard."
B.C. has eight vacancies and 82 judges in office on its Supreme Court, and three open spots and 12 judges in office on its appeal court. Five-day criminal trials are available in January, 2017, while five-day civil trials, other than motor-vehicle actions, can be booked from August, 2017, onward. Dates for five-day motor-vehicle action trials are fully booked for the next 18 months, according to Superior Courts communications officer Bruce Cohen.
The Canadian Bar Association, representing the country's legal profession, is also upset at the delays in appointing judges.
"We are very concerned. Ongoing judicial vacancies have created significant delays in the court system. These delays have a serious impact on separating families and their children, on criminal justice, on business in Canada," CBA president René Basque said in an e-mail.