Nunavut circuit courts could be cancelled without more judges

Nunavut's senior judge is warning some of the territory's circuit courts may be cancelled this year, if the federal government doesn't appoint more judges to Nunavut's bench.

Justice Robert Kilpatrick is urging the new Liberal government to act quickly to fill one vacancy on the territory's bench –  or to appoint more deputy judges to help with the workload.

"With the local resident judge's time being consumed by larger trials, particularly homicides, the court in 2016 will be forced to rely on its complement of deputy judges for assistance in meeting its core commitments to the communities," Kilpatrick said in December at the swearing-in ceremony of Nunavut's newest judge, Justice Paul Bychok.

"If no deputy judge can be found to take the place of a resident judge, circuits may have to be cancelled. This court is acutely aware of the terrible stress that delay has on families in crisis," added Kilpatrick.

Nunavut has six seats for resident judges. One is vacant following Justice Earl Johnson's recent retirement, and Kilpatrick himself is set to retire this year. 

With Iqaluit home to Nunavut's only courthouse, the justice department regularly packs up and travels to the territory's remote communities, holding court in school gyms and community halls. Each community is visited at least once and some several times during the year, depending on the case load. 

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James Morton has defended clients in Nunavut for nearly a decade.

He says cancelling circuit court is a rarity, and he's never seen one cancelled because of a lack of judges.

He already has one client in Cape Dorset who has been waiting a year to get his assault trial underway, and Morton acknowledges the stress delays can put on both defendants and their families.

"In family law cases, for example, they may be not seeing their children, they may not be getting support payments," Morton said.

"If you're talking about criminal clients, they may be in jail waiting to find out if they're convicted or not," he added.

Canada's Charter of Rights and Freedoms gives everyone the right to be tried within a reasonable time.

Federal government working to fill empty bench seats

Part of the problem lies with the federal government.

Judges are appointed to provincial and territorial superior courts by the federal justice minister. Potential candidates are recommended to the minister by a regional committee under the commissioner for Federal Judicial Affairs Canada. The committee is also responsible for vetting applicants.

The problem is that the eight-member committee for Nunavut hasn't met in four years, largely because it couldn't reach quorum until last August, despite the fact that there are still two vacancies on the committee. When Bychok was appointed, he had applied four years ago and even came out of retirement to serve on the bench.

"I can certainly appreciate Justice Kilpatrick's concerns," said Marc Giroux, the Deputy Commissioner for Federal Judicial Affairs Canada, adding Nunavut isn't alone in its plight of vacant bench seats. Ontario has 11 vacancies.

"We do the best we can in terms of administering the process and making sure committees meet as regularly as possible. While any vacancy on the Nunavut bench creates a particular strain because of the small complement of judges, there are vacancies that have been outstanding for a much longer period."

The appointment of judges ultimately rests with the federal justice minister.

Giroux says candidates' approval status are good for two years, and a candidate can re-apply to keep their application active until they're next assessed. Meaning any application approved by the committee, is still active until the committee meets next.

In Bychok's case, because the committee hadn't met for four years, his application was still valid. But it's unclear if there are other cases similar to his, where hypothetically Canada's new justice minister can go ahead and make an appointment immediately.

And while Kilpatrick thanked the former federal justice minister for Bychok's appointment last year, he made it clear it's not enough.

"This timely response brought some relief to a judiciary who continue to struggle with an unrelenting level of serious violent crime," Kilpatrick said in December. "There is no room for complacency, however."

In a statement, Canada's department of justice says its working to fill vacancies as quickly as possible, as well as looking to "modernize and improve the efficiency and effectiveness of the criminal justice system."