By Sean Fine for The Globe and Mail
Six of the 17 committees that screen candidates for federally appointed courts across Canada have stopped operating, even as the number of vacant jobs for judges contributes to severe delays in the justice system.
British Columbia is the largest province left without a functioning screening committee for judges, according to the website of the Office of the Commissioner for Federal Judicial Affairs, an agency that supports the appointment process. The Greater Toronto Area, such a large and busy jurisdiction that it has its own screening body, also has all seven of its positions vacant, the federal website says.
Courts across Canada have been struggling with delays and pandemic-related backlogs in criminal and civil cases, and the number of vacancies – 88, or roughly 9 per cent of the 995 full-time positions – is making delays worse, lawyers in several provinces say. In civil court, “to get a two-hour hearing in Toronto, the earliest dates that the court has are in October, 2024,” David Sterns, a former president of the Ontario Bar Association, said in an interview.
“You can’t operate a justice system when people have to wait a year just to get in front of a judge on a procedural matter.” This week, the Canadian Bar Association (CBA) sent a letter of complaint to Prime Minister Justin Trudeau – its fifth on judicial vacancies since he took office more than seven years ago. The letter expressed particular concern about the judicial advisory committees becoming, in its words, “expired” or “defunct.”
“There is no shortage of well-qualified candidates for judicial office. This deep pool of talent should allow the gap in judicial vacancies to be remedied in a timely fashion,” the letter said.In an interview, John Stefaniuk, vice-president of the CBA, called the problem with advisory committees a big concern. “That’s what feeds the pipeline. It creates a bottleneck in the whole process.”
The committees are non-partisan bodies that review applications for the top trial and appeal courts of provinces, the Federal Court and Tax Court. They are the first stage of a process that, in its subsequent stages, is political, and involves separate reviews by advisers to Justice Minister David Lametti and the Prime Minister. Cabinet approval is required. The website of the judicial-affairs agency describes the committees as “the heart” of the process.
The advisory committee for Yukon has not had any members for a little more than a year, according to the letter from the CBA, the country’s largest association of lawyers, with 37,000 members. Two judicial advisory committees, one for Nova Scotia appointments and one for Prince Edward Island, expired more than seven months ago, the CBA letter says.
Legal observers say they are baffled at what is happening, unless the government is letting membership on the committees lapse while it considers changes to the appointment process.
“I can’t even conceive of why they would do this,” said George Thomson, a former federal deputy attorney- general, and a former judge in Ontario, “unless it is a prelude to a change in the process or just regular turnover.”He added: “Seems unbelievable, as this is an area where they have been particularly active in achieving their diversity goals.” He wondered whether some candidates remain available in the areas without functioning advisory committees.
The Prime Minister’s Office did not respond to a request for comment. The judicial-affairs support agency referred questions to the Justice Minister.Diana Ebadi, spokeswoman for Mr. Lametti, said the government is “fortunate to have a good list of screened applications in most jurisdictions.” She said 200 supernumerary (semi-retired) judges are also part of the judicial complement across the country.“The judicial advisory committees whose terms have expired will be reconstituted in due course,” she said.
She did not answer a question about why six committees are no longer functioning. But she said the government is considering extending the terms of the judicial advisory committees to three years.
It is also considering extending the availability of assessed candidates to three years from two.“In the meantime, we are fortunate to have a good list of screened applications in most jurisdictions.” And Mr. Lametti “is doing everything he can to fill judicial vacancies expeditiously.” The committees for B.C. and the GTA – which have “two of Canada’s biggest, busiest and backlogged superior trial courts,” according to the CBA letter – have not been operating since the end of April.
Neither has the committee for the Tax Court of Canada.When the CBA sent its first letter of complaint to the Trudeau government, in 2016, the number of vacancies was just 43.
Kerry Simmons, executive director of the CBA’s B.C. branch, said the group is deeply concerned about the province’s judicial advisory committee not being in operation.“A large number of vacancies “means that cases will be bumped and people won’t be able to have their cases heard,” she said.
Greg DelBigio, a criminal-defence lawyer in Vancouver, said if the screening committees are truly the heart of the appointment process, “one is left wondering why they are inactive.”