Canada's legal community is growing increasingly anxious about the growing number of judicial vacancies across the country, and some say the federal justice minister shouldn't wait for the outcome of a review of judicial appointments before appointing new judges.
Alberta Court of Queen's Bench Chief Justice Neil Wittmann calls the situation at his court — with nine vacancies — desperate. He says institutional delays are causing criminal cases to get thrown out of court.
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"We had one in Red Deer about two weeks ago where a pretty serious fraud charge was stayed due to court delays and there are other motions pending," said Wittmann. "Sooner or later there's going to be a serious delay in a serious offence, by that I mean a violent crime."
Wittmann told CBC News a federal representative contacted him to say the government understands the crisis in his court and that it would try to make some urgent appointments — but that was six weeks ago.
46 vacant seats
Since being appointed justice minister and attorney general six months ago, Jody Wilson-Raybould has not appointed a single judge. There are at least 46 vacant seats on the bench of federally-appointed superior courts, with British Columbia and Alberta each short 10 judges.
In addition, every judicial advisory committee from Toronto to Newfoundland and Labrador was disbanded last fall when their terms expired. Judicial advisory committees assess the qualifications and merits of those who apply to be a judge and recommend applicants to the minister.
"It would be much better to continue those committees until they're replaced. That would be a fairly simple situation to an unacceptable hiatus," Wittmann told CBC News.
Appointments to JACs and the bench are made by the minister in close collaboration and consultation with his or her judicial affairs adviser — a crucial role that has also not yet been filled.
'It's not an emergency in the way a forest fire or a flood is, but it is building to that point that it's creating really negative consequences on the ground.' - Lorne Sossin, dean of Osgoode Hall law school
"The minister is working to staff this position as soon as possible," said Michael Davis, director of communications for Wilson-Raybould, in response to several inquiries by CBC News.
Lorne Sossin, dean of law at York University's Osgoode Hall, calls that surprising and concerning.
"It's not an emergency in the way a forest fire or a flood is, but it is building to that point that it's creating really negative consequences on the ground," said Sossin. "If you have those vacancies for so long a period of time, it's again putting extra stress and strain on those who are in the system. It creates backlogs and access-to-justice concerns."
Wilson-Raybould is, without a doubt, among the busiest cabinet ministers. Prime Minister Justin Trudeau gave her a lead role on several important and pressing files, such as legislation to permit physician-assisted dying, a federal inquiry into murdered and missing indigenous women and legalizing marijuana.
"So, there's lots of different priorities but I don't think those are any excuses to not have a timely set of benchmarks being met on something as critical as judicial appointments," said Sossin.
Judicial appointments process under review
According to the minister's office, the hold up is an overall review of the judicial appointments process.
"A review of the entire judicial appointments process is ongoing, based on principles of openness, transparency, merit, and diversity. The minister is committed to achieving a greater degree of diversity within the Canadian judiciary, so that it will come to truly reflect the face of Canada," her office said in a statement.
Judicial advisory committees are also subject to that review. CBC News asked her office whether Wilson-Raybould is interested in tinkering with the makeup of the councils, as the previous government changed the rules to require each committee to have a representative with a background in policing.
"(The minister is) aware of the need to get the Judicial Advisory Committees up and running in a timely manner. However, it is important to ensure that this is done in a considered way, given the important role these committees play," her office said.
'What should happen is some appointments ought to be made by the executive branch of government. That's their job.' -Alberta Court of Queen's Bench Chief Justice Neil Wittmann
"I regret there is nothing we can add as processes are under review at the moment," Davis added later, when asked for an update on the process so far, including the mandate, scope and timeline for completion.
But Chief Justice Wittmann isn't so sure.
"I'm not aware of a review actually occurring. I'm aware of the minister's position that she wants a review to occur," he said.
Other legal observers have also quietly questioned how much work has been done when the minister still hasn't hired a judicial affairs adviser. Despite assurances from her office that the minister "will work with interested stakeholders, including the judiciary, on the appointments," no one contacted by CBC had any insight into what is going on.
In the meantime, Quebec Superior Court Chief Justice Jacques Fournier said he hopes the minister will fill some of the most pressing vacancies with candidates who have already been vetted under the existing system.
"The selections are good for two years. ... So most certainly there are good candidates out there," he said.
Wittmann could not agree more.
"What should happen is some appointments ought to be made by the executive branch of government. That's their job," he said.