Charges have been thrown out against five men in a $13-million fraud case because there was no judge available until January to preside over their 12-week trial in Toronto.

In a decision staying the charges last week, Superior Court Justice Bonnie Croll said there simply aren’t enough judges in a court with a “heavy and challenging caseload” to hear every case in a timely manner.

The ruling comes as the Superior Court of Justice — which handles all civil cases and the most serious criminal cases such as murder — continues to warn that other criminal cases may be dismissed unless the federal justice minister appoints more judges soon.

“Unless all vacancies are filled quickly, we have significant concerns about our court’s ability to keep up,” Norine Nathanson, senior counsel in the office of the chief justice of the Superior Court, told the Star in a statement this week.

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Nathanson pointed to the Supreme Court of Canada’s landmark 2016 decision, R v. Jordan, which set strict timelines to complete criminal matters: 18 months in provincial court and 30 months in Superior Court.

“For criminal matters, there is concern about applications to stay serious criminal charges under Jordan. There have been some successful applications and we are concerned about more,” she said.

“The challenge of judicial vacancies in a court the size of Ontario’s Superior Court of Justice is ever present. It requires consistent and vigilant efforts by the Minister of Justice and the judicial advisory committees so that judicial appointments are made proactively, or at minimum, very shortly after a judicial vacancy arises.”

If the timelines in the Jordan decision are breached, the accused person’s constitutional right to be tried within a reasonable time is considered to have been violated, unless the Crown can prove there were exceptional circumstances for the delay.

“To meet the Jordan timeline, it is axiomatic that courts must be properly resourced with the appropriate complement of judges,” Croll wrote in her ruling last week. “In this case, despite serious and creative efforts made to find a solution, resource issues prevented the court from being able to meet its Jordan obligation. The delay was simply too long to be considered reasonable.”

Justice Minister Jody Wilson-Raybould has so far made only five judicial appointments in Ontario this year, the most recent round being nearly two months ago.

There are currently 16 judicial vacancies in the Superior Court, according to the office of the commissioner for federal judicial affairs. They include six new positions that were allocated to Ontario’s complement of judges by the federal government in June after the 2018 budget was passed, but which have not yet been filled. (Four new positions had previously been added from the 2017 budget and filled by family court judges.)

Nathanson said unless appointments are made soon, there could be as many as 28 judicial vacancies in Ontario by Sept. 30, or nearly one-tenth of the court’s entire complement of judges.

The federal process for appointing judges has been repeatedly criticized for being too slow, particularly in the post-Jordan era, as courts have had to redeploy judges to hear criminal cases to the detriment of civil and family matters.

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The appointment process begins with judicial advisory committees in each province (Ontario has three), made up of a judge and representatives from the law society, Canadian Bar Association and provincial and federal governments, which screen applicants for the justice minister’s consideration.

But the appointment of a judge can’t happen until a federal cabinet meeting, and the next one isn’t expected until mid-August. Once approved, an order-in-council making the appointment official is signed by the governor-general or her designate.

Wilson-Raybould’s office told the Star in a statement that the minister appointed 100 judges across the country in 2017, “the most by any minister in a calendar year in more than two decades.”

“She is on pace to meet or exceed that number in 2018 and will be making further appointments in due course,” said spokesman David Taylor.

The five accused men in the fraud case that was tossed last week — Vincent Villanti, Ravendra Chaudhary, Shane Smith, David Prentice and Andrew Lloyd — were arrested on March 26, 2014, and charged with offences including fraud over $5,000.

They were alleged to have developed an investment program that raised more than $13 million from investors “on the promise that their investment would be used to provide small businesses with start-up capital. The investors were told they would be able to claim any business losses against their personal income taxes,” according to a previous ruling in the long-running case.

It was alleged the money was instead used to pay commissions, salaries and expenses of the accused men and their companies.

“Investors were informed of inflated losses which, when claimed by them on their personal taxes, were subsequently disallowed by the Canada Revenue Agency, which in turn subjected the investors to ongoing assessments,” according to the previous ruling.

The case was finally set to go to trial in September 2017, after Justice Alfred O’Marra dismissed an application for a stay of charges due to delay. Among other reasons, O’Marra found the case was of sufficient complexity to justify going beyond the timelines.

But the September trial never happened. Three of the accused were granted an adjournment to retain lawyers, and a new trial date was set for Feb. 26, 2018.

On that day, the head of the criminal long trial team at the Superior Court in Toronto told the parties there was no longer a judge available to hear the 12-week trial. Two judges had been lost from the criminal team for medical reasons, Justice John McMahon said, so he had to pull the judge off the fraud trial to hear the case of a person in custody who was set for a six-week trial.

In her decision last week, Croll said the men would have waited years to have their matter heard by the anticipated end of the trial in April 2019, and the delay could no longer be justified.