A recent Globe and Mail story reported that the federal government has nearly filled every vacancy on federally appointed courts. This certainly deserves some praise, but only to a point. Appointing judges is one of the key responsibilities of the federal minister of justice. Despite this core function, chronic vacancies have been a fixture of the Trudeau era. Lauding the low vacancy rate now (down to 39 vacancies or 4 percent of all positions) is a bit like congratulating a student for submitting their assignment on time after receiving an extension. A subsequent editorial by the Globe has called on the government to commit to zero vacancies going forward.
In my view, two developments—one political and one legal—are stifling access to justice in Canada and inhibiting that goal of zero vacancies. The first is the Supreme Court’s 2016 Jordan decision, which considered a nearly 50-month delay in a trial for a man charged as a conspirator in a drug ring. The second is the federal government’s changes to the judicial appointment process for federally appointed courts. During that time, vacancies grew, and the advisory process to the justice minister has never quite been able to keep up. Both developments reinforce Canada’s “state capacity” problem, which The Hub has been documenting for years.
Trial delays and institutional capacity
Judicial power has strengths and limitations. Courts can—and often have been—defenders of individual rights against the excesses of state power in the Charter era. However, the Canadian judiciary has a less-than-stellar track record when it comes to creating public policy. The separation of powers means that courts do not implement their decisions; rather, they rely on the other branches of government to accept and act upon their judicial edicts. Despite this limitation, the courts in Canada, like those in other rule-of-law-abiding states, possess significant symbolic power. This power, highly regarded by the public, is used to impact public policy.
However, like the state more generally, the judiciary faces its own unique capacity issues. Political scientists refer to this as the “institutional capacity” of courts. In addition to not being able to implement their own decisions, courts also lack special expertise in comparing policy options, understanding social science evidence, and, particularly, interpreting quantitative data. These limitations have had unintended consequences for access to justice in Canada.
The Supreme Court’s efforts to alleviate trial delays are a case in point. Many are familiar with the effects of the Jordan decision, but there is an earlier case from 1990, R v. Askov, which is a prime example of the judiciary’s ability to understand and apply social science evidence to complex real-world issues. Askov was charged with extortion and conspiracy. Askov experienced a nearly two-year trial delay, which the Supreme Court ruled violated his Charter rights. In deciding the case, the Court went beyond the evidence presented by the parties and identified a delay of six to eight months as the upper limit when a delay would become unreasonable. This led to the termination of approximately 25,000 criminal cases in 1991, and the Court watered down its finding in a subsequent decision soon after to temper the backlash.
Flash forward to the 2016 Jordan decision. The Supreme Court unanimously found the delay in this case unreasonable and used the decision to address “the culture of complacency” within the justice system, creating the “Jordan Rule.” This sets presumptive ceilings of 18 months for cases in provincial courts and 30 months in superior courts. With few exceptions, if a criminal case exceeds this ceiling, the proceedings are stayed, and the accused can walk away from the charges.
Like Askov, the Court based these ceilings on an opaque and internally generated “qualitative review” of past right-to-trial-within-a-reasonable-time case law. The justices (and some of their scholarly allies) hoped that Jordan would serve as a jolt to a legal culture that had become too accommodating of a system plagued by delays. Instead, we have been confronted with increasingly disturbing media reports of charges being dropped against accused individuals—some charged with violent acts like sexual assault or homicide—due to inadequate court resources.
Most criminal cases in Ontario during fiscal year 2022-2023 ended with charges being withdrawn, stayed, or dismissed before trial. A Bloc Québécois MP has even introduced a private member’s bill invoking the notwithstanding clause to allow for exceptions to the Jordan Rule. However, not enough attention has been paid to how the Trudeau government’s cumbersome judicial appointment process has exacerbated the problem.
Appointing judges at a snail’s pace
The Justice Department’s slow pace in filling vacancies on courts is yet another example of state capacity issues that have plagued this federal government, which often seems more enamoured with provincial than federal jurisdiction. The Liberals have branded themselves as the “Charter Party,” and their 2015 platform stressed that, unlike the Harper government, their approach to judicial appointments would involve consultation with the legal community.
Trudeau’s cabinet was sworn in November 2015 but the new judicial appointment process was not unveiled until October 2016 (the Jordan decision was sandwiched between, in July 2016). The existing 17 “judicial appointment committees” were retained, with slight adjustments to their personnel that reversed changes made by Harper.
The main substantive change was the inclusion of diversity considerations throughout the entire process. The new process urges judicial appointment committee members to “create a pool of candidates that is gender-balanced,” while both the committee itself and the candidate pool are required to reflect “the diversity of each jurisdiction including Indigenous peoples, persons with disabilities, and members of linguistic, ethnic and other minority communities, including those whose members’ gender identity or sexual orientation differs from that of the majority.” Judicial appointment committee members must also take mandatory “unconscious bias” training. There is some evidence that the government has struggled to balance these diversity requirements with also favouring selecting bilingual candidates.
Before the new process was announced, then-chief justice Beverly McLachlin lamented the “perpetual crisis of judicial vacancies in Canada” as an “avoidable problem that needs to be tackled and solved.” The Trudeau government’s new appointment process has neither tackled nor solved the problem.
Early on, CBC reported that only one-third of the vacancies had been filled, describing it as a “national shortage” of judges. Since that time, story after story has shown how delayed processes the real-world consequences of judicial appointment delays for both criminal and civil proceedings. The recent Globe report detailed significant vacancies every year the Trudeau government has been in power, with a peak of 9 percent of all federally appointed courts unfilled in 2023. The judicial appointment committee for New Brunswick judges appears to be entirely vacant. Meanwhile, the National Post reported last week that the federal Courts Administration Service faces a $35 million budget shortfall, with the chief justice of the Federal Court declaring it a “crisis.”
A crisis of state capacity
The problem of criminal trial delay reflects a dual crisis of capacity. The Jordan decision shows how judges’ limited institutional capacity to assess social science evidence can exacerbate public policy problems. The Trudeau government’s failure (until recently) to appoint judges has displayed the government’s own limited capacity to perform its core functions. On the judicial side, we can hope for greater judicial humility. On the government side, judicial appointment reform is necessary to prevent future appointment backlogs. We have become too complacent, allowing justice delayed to become justice denied.
