The appointment of six new judges to Ontario’s Superior Court of Justice last week has lawyers — and the court itself — wondering why the federal justice minister didn’t fill all 20 judicial vacancies as the system struggles to meet stricter deadlines for hearing criminal cases.

There are now 17 vacancies, taking into account the new appointments, recent retirements and one Superior Court judge being elevated to the Court of Appeal. That number will climb again by the end of this month unless more appointments are made, with four more vacancies expected by Sept. 30 — all in the GTA.

“This means that despite receiving six excellent new judges in August, our court will be no further ahead by the end of September,” said Norine Nathanson, senior counsel in the office of the chief justice of the Superior Court.

The court, which currently has 235 full-time judges and 99 semi-retired judges, has been publicly and privately pleading with Justice Minister Jody Wilson-Raybould for over a year to quickly fill judicial vacancies. It did so again recently in a letter from Chief Justice Heather Smith, Nathanson said.

The shortage comes in the wake of the Supreme Court’s 2016 Jordan decision, which set strict timelines to bring a criminal case to trial: 18 months in provincial court and 30 months in Superior Court. If the timeline is breached, the case is tossed for violating an accused person’s right to be tried in a reasonable time, unless the Crown can prove there were exceptional circumstances for the delay.

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But while the court says it desperately needs more judges to handle an increasingly heavy and complex caseload, Wilson-Raybould’s office says there’s more to the problem than just staffing the bench.

“We know that judicial appointments alone will not solve the issue of court delays,” said David Taylor, a spokesperson for Wilson-Raybould. “The Supreme Court in its Jordan decision called for a culture change in our justice system, a change that requires all actors to heed the court’s call to work more efficiently.”

The decision not to fill all vacancies in one round of appointments has been described as perplexing by lawyers who regularly appear in Superior Court, and who worry that seeing cases thrown out over delays will erode public confidence in the justice system.

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“While we can appreciate that the minister and the advisory committees want to ensure that the best applicants are appointed, the lengthy delays in filling vacancies and failing to appoint more judges when appointments are made is inexplicable,” said Michael Lacy, president of the Criminal Lawyers’ Association.

Asked why the minister doesn’t fill all vacancies at the same time, Taylor said: “Appointing judges to the federal judiciary is an ongoing process. Vacancies generally do not arise at the same time; they are filled as judges elect (semi-retired) status or reach mandatory retirement.”

But Nathanson noted that judges must give the minister at least six months’ written notice before semi- or full retirement. With that amount of lead time, she said, “vacancies can and should be filled proactively.”

Instead, she said, three of the unfilled positions have been vacant since 2017.

When asked about the year-old vacancies, Taylor said the minister is “striving to fill all vacancies in a timely fashion. In doing so, she considers many factors including the needs of the court, gender balance, diversity, and language skills among others.”

He pointed out three of the judges appointed last week in Ontario are criminal law experts, while the other three are family law experts, “a demonstration of how the minister is addressing the needs of the court.”

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Taylor also said the number of vacancies includes six new positions that were added to Ontario’s complement of judges in June when the federal budget was passed. Four positions had also been added in the 2017 budget, which were filled by family court judges.

The judge shortage in Superior Court — which handles the most serious criminal cases and all civil cases — was again highlighted in July when charges against five men in a $13-million fraud case were thrown out because there was no judge available to hear their 12-week trial that was set for next January in Toronto.

“To meet the Jordan timeline, it is axiomatic that courts must be properly resourced with the appropriate complement of judges,” Justice Bonnie Croll wrote in her decision tossing the case.

There were at least 16 vacancies in Superior Court at the time of Croll’s judgment.

It’s unknown how many applications for Ontario positions are assessed and forwarded to Wilson-Raybould by the judicial advisory committees, the independent bodies that screen applications for the minister’s consideration.

The Office of the Commissioner for Federal Judicial Affairs only provides statistics on how many applications are received and assessed on a national level, without a breakdown for each committee.

“A provincial or regional breakdown could allow analysis of the data which may lead to identifying individual candidates,” said Philippe Lacasse, executive director and senior counsel in the commissioner’s office, which administers the federal judicial appointment process.

Between October 2016 and October 2017, 997 applications were received nationwide and 441 applications were assessed, according to the commissioner’s website. A total of 129 candidates were “highly recommended” by committees, 82 were “recommended” and 230 were deemed “unable to recommend.” The minister appointed 74 candidates in that period, while an additional 12 judges were elevated to other courts.

Data for most of 2017-18 will be published next month.

According to Lacasse, the minister receives a report on every candidate assessed by the advisory committee, but only appoints candidates from the “highly recommend” and “recommend” pools. However, the appointment of a judge can’t happen until there is a federal cabinet meeting, at which point it is approved and an order-in-council making it official is signed by the governor-general or her designate.

The advisory committees — of which Ontario has three — are made up of a judge and representatives from the law society, Canadian Bar Association and provincial and federal governments. It’s unclear how often they meet.

“Committees with a higher volume of applications, including in Ontario, will naturally meet more often than others, and some have even met once a month on average,” Lacasse said.

But as the Superior Court anxiously waits for more judges, it has cautioned that more criminal cases are at risk of being tossed due to delay.