Chief justice warns Trudeau that judicial vacancies are putting criminal trials at risk

Chief Justice Richard Wagner is warning Prime Minister Justin Trudeau that a chronic shortage of judges in the federal court system is putting criminal trials at risk and could undermine public confidence in democratic institutions.

In a scathing letter dated May 3 and obtained by Radio-Canada, Wagner said he is "very concerned" by the high number of vacancies in the superior and appeal courts — 85 empty bench positions out of approximately 1,200.

Several courts across the country routinely operate with 10 to 15 per cent of their judicial positions vacant, Wagner said, and the process to fill these positions can take many months.

The chief justice said the situation threatens to undermine Canadians' confidence in the justice system and in all democratic institutions — because a growing number of criminal and civil cases are at risk of falling apart.

"The current situation is untenable and I am worried that it will create a crisis in our justice system, which is already facing multiple challenges. Access to justice and the health of our democratic institutions are at risk," Wagner wrote.

Chief Justice Wagner has spoken out in the past about the fragility of democratic institutions in a volatile international political climate. He wrote that federal Justice Minister David Lametti is already trying his best to address the shortage of judges.

"It is imperative for the Prime Minister's Office to give this issue the importance it deserves and for appointments to be made in a timely manner," Wagner wrote.

"The government's inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting."

Wagner also sent the letter to Lametti and Deputy Prime Minister Chrystia Freeland. He signed the letter as chief justice of Canada and president of the Canadian Judicial Council. He was appointed chief justice of the Supreme Court in 2017.

The cost of 'cynicism'

Since the 2016 Supreme Court ruling in R v. Jordan, courts have been required to deal with criminal cases within a period of 30 months, unless there are exceptional circumstances.

Chief Justice Wagner said judges across the country are being forced to prioritize certain cases to the detriment of others that should still be heard.

"Many chief justices say that as part of their efforts to respect the timelines prescribed by Jordan, they are actually forced to choose the criminal matters that 'deserve' to be heard," he wrote.

"Despite their best efforts, stays of proceedings are pronounced against individuals accused of serious crimes, such as sexual assault or murder, because of delays that are due, in part or in whole, to a shortage of judges."

In Alberta, for example, almost a quarter of criminal cases — most of them related to "serious and violent" crimes — exceed the 30-month timeline, Wagner wrote.

Left unaddressed, he said, the current situation could feed Canadians' "cynicism" about the justice system.

"We are seriously concerned that, without concrete efforts to remedy the situation, we will soon reach a point of no return in several jurisdictions. The consequences will generate headlines and will be serious for our democracy and all Canadians," he wrote.

Ottawa is responsible for appointing judges to the superior courts and courts of appeal in each province, the Federal Court, the Tax Court and the Supreme Court.

Citing examples from most provinces, Wagner said many chief justice positions on provincial courts and courts of appeal take an inordinate amount of time to fill.

The federal government is not the only player in Canada's justice system. Wagner also criticized the "chronic underfunding [of the courts] on the part of the provinces and territories."

But appointing more judges is one improvement to the system Ottawa could make right away, he wrote.

Wagner praised the Trudeau government for creating new judicial positions and for appointing high-quality candidates over the years, but insisted that appointments must be made more quickly.

"We also recognize that your government has made efforts to establish a more independent, transparent and impartial appointment process for federally appointed judges," he wrote. "It would be unfortunate if the failure to improve the pace of federal judicial appointments across the country were to ultimately discredit this process."

The Prime Minister's Office did not provide a response to the letter. Instead, a written statement was sent by Lametti's office, which took credit for appointing more than 600 judges since 2015 based on merit and an effort to better reflect Canada's diversity.

"We will continue to proceed with nominations at a steady pace and the number of vacancies will continue to fall", said press secretary Diane Ebadi.