OTTAWA—Canada’s top judge says the Liberal government could look to the shortlists of judges vetted under the former Conservative government to address a long-standing problem with judicial vacancies.

In an exclusive interview with the Star, Supreme Court of Canada Chief Justice Beverley McLachlin linked the number of empty seats on federally appointed court benches across the country — 44 at the moment — to unacceptable trial delays, especially in the criminal courts.

McLachlin said she has no argument with the Liberal government’s effort to overhaul judicial appointment processes across the country, but said “I hope we can find a way to bridge the gap while we’re perfecting the processes — but that’s in the government’s hands, properly, under our Constitution.”

Asked what options might bridge that gap, McLachlin emphasized “it’s not for me to tell the government how to appoint judges. That’s not my business. But there are names, I understand, that are in the system from the previous (judicial advisory) committees.”

She said it is the current government’s “prerogative to appoint in accordance with their processes” but added there is a pressing need for vacancies “be filled in a prompt manner.”

McLachlin made clear there is a lot at stake for the justice system, saying the vacancies are “a huge difficulty. It’s more than a challenge. It makes it very, very difficult to comply with the constitutional requirement that people be tried within a reasonable time,” she said in an interview at her office west of Parliament Hill.

McLachlin pointed to the Supreme Court’s July ruling in a case called R. vs. Jordan, a split 5-4 decision in which she dissented.

In the interview, she said the court addressed the “lamentable delays” in criminal trials. She said the decision was clear that “we have to have strict compliance with the constitutional right of people to be tried within a reasonable time,” adding that “this is going to be a challenge for the justice system in the years to come.”

The majority ruling warned past approaches to how the courts considered delays — based in part on the high court’s own rulings on issues of procedural fairness — have created a “culture of delay and complacency.”

It set out a new framework that set limits on how long the justice system should reasonably take from the laying of a criminal charge to the actual or anticipated end of a trial. Otherwise criminal charges may be stayed under an accused person’s charter guarantee of a trial within a reasonable time. Only under “exceptional circumstances” should trials be prolonged, it ruled. At most, the Supreme Court said provincial court cases should take 18 months, and for cases in superior trial courts (including those heard in provincial court after a preliminary inquiry) the outside limit is 30 months. Delay caused by or waived by the defence doesn’t count. But the Supreme Court says trial delays beyond these times will be presumed to be unreasonable unless there are “exceptional” reasons that were unforeseen and couldn’t be prevented or remedied by Crown action.

“I can tell you because I talk to the chief justices who are trying to get the cases tried within reasonable time that they need more judges,” said McLachlin, who chairs the Canadian Judicial Council of chief trial and appellate judges.

McLachlin said she first started expressing concern about empty seats on Canada’s courts in 2006 when “I think there were 35 vacancies and I said that was unacceptable at the time, and today there are — how many? — 41?”

In fact, the Office of the Commissioner for Federal Judicial Affairs said as of Aug. 1 there are 44 vacancies on the federally appointed benches across Canada. The Conservative government was often accused of dragging its feet to replace judges. But since its election last October, the federal Liberal government has moved very slowly to fill gaps.

Joanne Ghiz, spokesperson for Justice Minister Jody Wilson-Raybould, said the minster was unavailable for an interview but in an email she pointed to 15 judicial appointments made in June.

Only eight of those appointments were new judges; seven of them were sitting judges who shifted from one bench to another.

Ghiz said the government moved to fill “urgent judicial vacancies by drawing on existing lists of recommended candidates” but is still “considering ways” to significantly reform the judicial appointments process.

She offered no indication of when the vacancies would be filled. Ghiz said significant reforms will “take time, and require appropriate consultations, including with the judiciary, the legal community and the general public.”

Loading... Loading... Loading... Loading... Loading... Loading...

McLachlin said while she respects the desire of the new government to revise appointment procedures, “We have Canadians who have a constitutional right to a trial within a reasonable time and we don’t have enough judges in place in some parts of the country to deliver that. So my hope is that we can have both things, that it’s not either a new, revised or better process or denying Canadians their constitutional rights.”

The Liberal government’s overhaul of all federal order-in-council appointments includes judicial appointments not only at the trial and appellate level in provincial courts, but at the very top.

It unveiled a new process to pick a new judge for the Supreme Court of Canada week to fill a vacancy it has known about since March. That’s when Justice Thomas Cromwell, of Nova Scotia, announced he would retire at the end of August. A new advisory board charged with coming up with a shortlist has until Sept. 24 to deliver candidate names to Prime Minister Justin Trudeau. The high court’s fall session starts in October.

“Ideally, the (Supreme) court should have all nine people and the court functions best when it has nine people,” McLachlin said, adding it has operated at less than the full nine-member bench before.

But in those cases, appeals involving legal issues of national interest and scope are heard with seven instead of nine judges. “Some judges may not be able to participate in all the cases they’d like to,” she said. “I have a rule that if you really want to sit on it you can, but if we sit eight and we divide evenly, then there are other problems.”

A “couple of times” the court has ordered a rehearing of an appeal or when a new judge is appointed he or she participates “after the fact via video” with the consent of the parties.

“There are ways of working around it. The bottom line is that it’s very important to have nine judges in place. I’m sure the government appreciates this and that they are committed to making an appointment at the very earliest possible time.”

Trudeau’s government has tossed aside a convention that would see Cromwell’s replacement chosen from Atlantic Canada, and invited applicants from across the country, while introducing a requirement that top court applicants be “functionally bilingual.” That requirement has irked judges and the legal community in Newfoundland and Labrador, which had been expecting the province’s turn had come for a Supreme Court appointment. At least seven senior judges in that province have French-language training with varying degrees of proficiency, contrary to reports that none speak French.

On Wednesday, the Canadian Bar Association, which represents 36,000 lawyers, judges, law teachers and students, released a letter it wrote to Trudeau calling on the government to change its mind.

It said the Atlantic Canada vacancy on the high court should be “filled by a meritorious candidate from that region” and future vacancies should respect the custom of allotting seats on the high court on a regional basis.

By law, three of the Supreme Court’s nine seats are reserved for Quebec, and by tradition, the federal government appoints three judges from Ontario, two from the West, and one from Atlantic Canada.

Read more about: