EDITORIAL: Empty benches shortchange Canada's justice system

Published on August 16, 2016

It’s not as big a problem in the Atlantic region as it is in other places, but that’s no reason to ignore the issue.

Last week, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, pointed out that the Trudeau government has to get its act together when it comes to appointing judges. Speaking to the Canadian Bar Association’s annual legal conference, she pointed out that there are currently 44 vacant federally appointed judgeships in the country, not including a vacancy that’s about to occur in her own court.

Of those 44, listed in full by the federal Office of the Commissioner for Federal Judicial Affairs Canada, there are no vacancies in Prince Edward Island or Newfoundland and Labrador, but there is a vacant Queen’s Bench Family Court position in New Brunswick and four vacancies in Nova Scotia — three on the province’s Supreme Court and one on the Family Court.

“There is something deeply wrong with a hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise,” McLachlin said. “The perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved. Without a full complement of judges, and an efficient system for anticipating and filling vacancies, delay will continue to be a feature of our justice system.”

Delay is a true problem in our judicial system: multiple appearances, procedural delays and more and more detailed collections of evidence and test materials — even in cases as apparently straightforward as drinking and driving cases with breathalyzer evidence — means that there’s no sprint to justice, even in the best of times.

Often, it’s a marathon — and sometimes, it’s closer to a death march.

The fact is that one of the founding principles of our justice system is that the accused is afforded a prompt trial. Trials should occur when the evidence is fresh in everyone’s minds — the accused can make a full defence, witnesses don’t have to struggle with what they remember, and police officers don’t have to delve backwards into their investigative files to explain how they assembled the basic facts.

Every year, scores of accused Canadians actually have their cases stayed because it has taken too long for people to have their day in court, and they suffer significant penalties even without having a conviction registered. They get to spend a year or even two as “the accused,” regardless of their guilt or innocence.

McLachlin also took the time to point out that she is uncomfortable with the amount of time it is taking to get a replacement for Justice Thomas Cromwell, who is set to leave the country’s top court next month.

The thing is, for most judicial vacancies, a retirement date is known long in advance. The process of filling the vacancies should be well underway.