Supreme Court chief justice slams Liberal government over slow judicial appointments process
John Paul Tasker | CBC News | Posted: June 13, 2023 4:24 PM | Last Updated: July 13, 2023
Justice Richard Wagner said he's concerned about lack of transparency in Russell Brown misconduct case
The chief justice of the Supreme Court of Canada said Tuesday the federal Liberal government's sluggish judicial appointment process is allowing some alleged criminals to walk away because there aren't enough justices to hear cases in a timely manner.
Speaking to reporters at an end-of-session press conference, Chief Justice Richard Wagner said he wrote a letter to Prime Minister Justin Trudeau earlier this year to press him to speed up the appointment process.
Wagner said he wanted to "alert him to the serious consequences of this lack of appointments."
He said the prime minister phoned him back for a short conversation but, so far, he hasn't seen much progress.
Wagner also was asked about Russell Brown, the former Supreme Court justice who resigned Monday after the Canadian Judicial Council launched an investigation into a drunken brawl at an Arizona resort earlier this year.
WATCH: Chief justice discusses the effects of judicial vacancies across the country
Because Brown retired early, the CJC dropped its probe into the matter, which included allegations of unwanted touching and harassment.
Wagner — who chairs the CJC but is not responsible for adjudicating judicial misconduct cases — said he understands the frustration over the fact that the CJC's conclusions will never be released publicly.
"I share the concerns of the public for transparency," Wagner said, adding that he asked the CJC to review its "opaque" approach to judicial misconduct with an eye to allowing more openness.
Reporters asked about a lack of closure, since the public will never really know what transpired on that January night in Scottsdale.
"There is closure. He resigned," he said. "That is the end of the process."
WATCH: Chief justice says he takes 'pride' in judicial review process
On the judicial appointments issue, Wagner said he's hoping Trudeau and Justice Minister David Lametti, who appoints judges, will push through well-qualified appointments to bring an end to months-long vacancies.
He said there's an "alarming" shortage of federally appointed judges and current vacancy rates — 10 to 15 per cent in some jurisdictions — make for an untenable situation.
The federal government appoints judges to the federal courts, the superior courts of the provinces and territories and the Supreme Court of Canada.
Wagner said the Montreal district of the Superior Court of Quebec, one of the busiest in the country, has been without a chief justice for 16 months.
"There are candidates in every province. There's no reason why those cannot be filled," Wagner said. "This could be resolved easily. So now we wait and we'll see."
The shortage means judges have to make difficult decisions about which criminal matters to hear first — allowing some accused criminals to walk away because their cases have been awaiting trial for too long.
"In some provinces, judges are called to make decisions on which case will proceed. In criminal cases they say, 'This one should proceed before the other one,'" Wagner said.
"We should not ask judges to make those decisions. I think we have to correct the system."
The Supreme Court of Canada's 2016 R. v. Jordan decision dictated that trials should finish either 18 or 30 months after a person is charged, depending on the type of trial.
The court ruled that unreasonable delays must lead to proceedings being "stayed" — which effectively means a trial does not go forward.
That landmark decision has had a series of knock-on effects. Hundreds of criminal cases have been thrown out, leaving victims and their families without a sense of justice.
But Wagner, who was on the top court when the Jordan decision was handed down, said the court-imposed deadlines aren't to blame for ongoing frustration with trial timelines.
It's the lack of judges and the fact that provincial governments are giving their justice systems inadequate funding, he said.
The federal government appoints and pays the judges of superior courts, but provinces and territories actually administer them.
"A society like ours, governed by the rule of law with a strong democracy and Charter of Rights, should be able to make sure criminal trials come to trial with a reasonable delay," Wagner said, adding it's not appropriate for victims and witnesses to wait seven or eight years for a trial.
Asked by reporters when he'd start to fill some of the dozens of vacant positions, Lametti said, "We're working on that. We are working on that diligently and we'll continue to fill those."
When asked about cases being thrown out due to delays, Lametti said he's "always concerned" about that.
"We work diligently. I would point out that the vast, vast majority of criminal cases are actually done by provincial courts across Canada," he said.
Lametti said the process to pick Brown's replacement for the top court will be like those for the Liberal government's past appointments.
For Trudeau's last five Supreme Court picks, an independent advisory board was struck to identify suitable candidates and provide non-binding recommendations to the prime minister.
Trudeau's picks then filled out a questionnaire, which was released publicly, and MPs and senators were given a chance to question them before a parliamentary committee.
In keeping with convention, it's likely there will be another westerner appointed to fill the spot left by the B.C.-born Brown, who served on the Court of Appeal of Alberta before former prime minister Stephen Harper tapped him for Canada's final court of appeal.