In an unusual public rebuke, a senior Toronto judge last week vented his frustration in court over the federal government’s slow pace at filling judicial vacancies.

There are currently seven empty spots on the Superior Court bench in this city, a number that has critics concerned more criminal cases may be tossed due to delay.

Last Monday, Justice John McMahon was hearing updates on a number of criminal cases, including homicides, that are moving through the system toward trial, when he ordered that one of them be sent to another courtroom.

“We’re going to put the matter over before Justice MacDonnell, once they can find a courtroom for him which they’ll have no problem doing because we’re down six judges the federal government hasn’t appointed,” McMahon said, according to a court recording obtained by the Star.

His comment represents the latest complaint from the judiciary over the long-standing vacancies.

Although McMahon pointed to six vacancies, the up-to-date number is seven, according to the court. That tally takes into account recent vacancies and an appointment to Toronto made Friday by federal Justice Minister Jody Wilson-Raybould.

That’s almost half of the total number of vacancies — 16 — at the Superior Court-level provincewide. The court has 236 full-time and 103 part-time judges and hears all civil cases and the most serious criminal matters including murder.

“Filling judicial vacancies is an easy and immediate solution to the delay problems plaguing the Toronto criminal courts,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association. “There is no shortage of suitable judicial applicants. More must be done to address this long-standing problem before the public completely loses confidence in the justice system.”

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McMahon has sounded the alarm before on the judge shortage. In March, he complained that no judge was available to hear a $13-million fraud case involving five men until January 2019, nearly five years after their arrest. “It is frustrating, but we can only deal with what we have,” he said.

The case was tossed just months later, when a different judge, Bonnie Croll, found the men’s constitutional right to a trial within a reasonable time had been violated. Croll also lamented in her ruling the lack of judges, saying it is “axiomatic” that courts have the proper number of jurists in order to ensure timely trials.

The delays in filling vacancies have caused tension between the court and the federal government. The dispute hit a crescendo in September when Superior Court Chief Justice Heather Smith called out the rising number of vacancies in her speech at the opening of the courts ceremony in Toronto, and just days later Wilson-Raybould defended her approach to appointing judges in an op-ed to the Star.

“There is no rationale for this delay in filling vacancies, since a minimum six-months’ notice is provided to the minister of justice of upcoming vacancies,” Smith said in her speech on Sept. 13, before addressing federal lawyer Sean Gaudet, who was representing Wilson-Raybould at the ceremony.

“Mr. Gaudet, I have written to the minister of justice about this issue, urging that a new system be established for filling judicial vacancies immediately and seamlessly as they arise. I ask that you please, again, pass on this message. An improved process is necessary to keep our court’s complement at full-strength so that it can continue with the important business of delivering timely access to justice.”

In her op-ed, published Sept. 17, Wilson-Raybould said she must conduct “due diligence to ensure I name only the most meritorious candidates to the bench” and also ensure that the bench reflects the diversity of the country.

“Some, including senior members of the judiciary, have argued that the long-standing problem of court delays would be solved if I filled all vacancies at the same time. They say too much due diligence is getting in the way of faster appointments. That assertion demands a response,” Wilson-Raybould wrote.

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The minister spoke about the topic of diversity in the courts at an event for members of the legal community at the University of Toronto law school almost two weeks ago. The event was closed to the media and the Star was told the minister was not available for an interview.

Her spokesman David Taylor told the Star Monday that Wilson-Raybould has appointed 58 judges to Ontario since becoming minister in 2015 and 14 since August. “Her most recent appointments include six criminal law experts sought by the chief justice,” he said.

Chief Justice Smith’s office said that since she made her remarks in September, Smith has had several discussions with the federal judicial affairs adviser in Wilson-Raybould’s office and has been given assurances that the minister is making efforts to fill all the vacancies as quickly as possible.

All of this comes as the Advocates’ Society, a Toronto-based legal organization, is embarking on a project to obtain and receive data from all provinces and territories, such as relating to judges’ working hours and caseloads, to come up with an “evidence-based approach” to determine which areas need more, or less, judicial resources.

“I’m suggesting that anecdotal evidence indicates that more judges are required, but I think we need to have a deeper analysis of the data in order to determine where those additional judicial positions should be allocated,” said society president Brian Gover, who said his organization was encouraged to proceed by Wilson-Raybould’s office.

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