Judicial shortage is putting justice at risk

In August, 2016, then But not just any crisis. No, said the chief justice, the failure to appoint judges in a timely manner is a “perpetual crisis” as in an everlasting or eternal one. That might have sounded like so much hyperbole at the time, but more than seven years later the crisis persists: At the beginning of this year, That’s nearly eight per cent of judges across the country missing in action, while in Ontario, closer to 10 per cent of positions are vacant.

The impact of the empty benches became crystal clear in Toronto in December: In her decision, Forestell noted that the trial wouldn't have been delayed “had the judicial positions in Toronto been filled.” She also cited comments from McLachlan's successor, current Supreme Court Chief Justice Richard Wagner, who last May In the letter, which was obtained by Radio Canada, Wagner implored Ottawa to speed up judicial appointments, and he lamented “the absence of satisfactory explanations for these delays.” Indeed, the reason for the delays has never been clear.

And if you can’t even articulate the causes of a problem, it’s awfully difficult to formulate solutions. On first impression, it doesn’t seem like solving the problem would be all that difficult: You’d expect the government to apply succession planning strategies and appoint new judges as older ones retire.

But, Forestell wrote in her ruling, “these expectations have not been met.” First impressions can be deceiving, of course. Filling judicial vacancies presents challenges not shared by other institutions, since judges are frequently required to determine the Constitutionality of the government’s own actions.

To ensure that merit, rather than politics, holds sway, candidates’ qualifications are assessed by (JACs.) Seventeen JACs operate across the country, including three in Ontario, but they’ve frequently had to suspend operations because, wouldn’t you know it, . As with judges it’s not clear why Ottawa has failed to appoint JAC members, though in September, current These changes should help to ensure that committees are mothballed less frequently, though they will still face regular disruptions and judicial vacancies will remain unfilled as long as Ottawa remains remiss in appointing members in a timely fashion.

It’s imperative, then, that the feds keep the committees fully staffed. But even if they do, Virani and others have pointed to another problem: The difficulty in recruiting diverse candidates for the federal bench. Upon his appointment as justice minister, , and he stressed the need to “make sure people see themselves possibly as a judge.” That, however, is a two way street.

Certainly, diverse candidates must be able to envision themselves as judges, but equally, the government must broaden its vision of what a judge looks and sounds like, and must be prepared to consider candidates who don’t fit an antiquated, preordained image. Doing so could well fill some empty spaces, though it won’t fill all of them.

In addition to improving diversity and the judicial appointments committees, then, Ottawa needs to make a concerted effort to identify and address all factors that sustain the “perpetual” crisis, lest we wait an eternity before it’s solved..