Judicial vacancies jam Ontario courts: lawyers

Nine judicial vacancies are slowing down Ontario’s courts, leading to long waiting times, lawyers say.

More than six months into its mandate, the federal government has yet to fill vacancies on the provincial courts’ bench — seven in the Superior Court, one in the Court of Appeal, and one in Family Court.

Criminal lawyers and civil litigators say this is contributing to a significant backlog of cases in the Superior Court, causing delays that often last months and sometimes years.

“It impacts on the whole system,” says Ed Upenieks, president of the Ontario Bar Association.

“When you have delays, justice delayed is justice denied.”

Michael Lacy, a partner with Brauti Thorning Zibarras LLP and a vice president of the Criminal Lawyers Association, says it is not uncommon for there to be an eight- to 12-month delay for a trial to begin at the Superior Court in Toronto, which can be gruelling for those in custody who are waiting to stand trial.

Lacy says one of the biggest complaints he hears from clients is how long it will take to get a trial for a Superior Court matter.

“The reality is we can’t have trials the day after you get charged or the week after you get charged, or even a month later. That’s just not a practical reality,” Lacy says.

“But when the delay is caused by absence of judicial resources or institutional resources, that’s particularly problematic.”

The delays can also have a financial impact on criminal lawyers who work with a lot of legal aid funded clients, says Keli Mersereau, a criminal lawyer in St. Thomas, Ont.

Mersereau, who says 50 to 60 per cent of her cases are funded through legal aid, says backlogs have been so bad in the Superior Court in London, Ont. that she has had to work for unpaid hours in some legal aid cases because they have been so drawn out.

“If your client is a legal aid funded client, you don’t make more money the longer it takes to get to trial,” she says.

Mersereau says the backlog in the Superior Court in London, Ont. is so bad that it can take up to two years just to get a case to trial.

The delays have meant some clients have had to stay in custody longer before they see their day in court, says Mersereau.

“You would have innocent people, who haven’t made bail — because, of course, everyone is innocent until proven guilty — sitting in custody a lot longer,” she says.

“And in the event that persons are found not guilty, there are a number of people who will have spent a considerable amount of time in custody for something they were not convicted of. So that’s obviously problematic.”

Mersereau says the backlogs also take a financial toll on some of her clients. She sometimes has to charge clients for days spent waiting for trial as she never knows if a case is actually going to make it before a judge and is unable to backfill it with other work.

“I might be able to get you on the first trial list available, but if there are five trials ahead of me, we’re sitting,” she says. “We’re waiting and that’s a very difficult thing to explain to people.”

Cheryl Siran, a civil litigator and family lawyer with Hook Seller & Lundin LLP in Kenora, Ont., says the delays can have a particularly significant impact on children whose parents are in custody battles in family court.

Siran says a mobility case she had, which involved a request to remove a child from across the province, took a year and a half to make its way through court.

 “The impact of that on a person’s life — a child — I don’t think there is any greater impact,” she says.

The delays have the potential to get particularly worse in Toronto, where the Superior Court has two of the vacancies.

If the Department of Justice does not act to fill the vacancies by the fall, Toronto’s Superior Court could see as many as six vacancies, compounding the situation further, says Adam Wagman, the incoming president of the Ontario Trial Lawyers Association.

“If those things don’t happen very quickly, we’re going to see a huge problem in the fall,” Wagman says.

“It’s a disaster waiting to happen.”

Vacancies on the Court of Appeal could reach as high as three if action is not taken, says Wagman.

“We’re bursting at the seams as it is,” Wagman says.

Ontario is not the only province with significant vacancies as there 45 vacancies nation-wide. Alberta has 10 vacancies on its courts and British Columbia has nine.

While Wagman says he has sympathy for the new Justice Minister, Jody Wilson-Raybould, as she has been busy with a number of pressing big files — such as physician-assisted death and legalizing marijuana — he still thinks judicial appointments should be a priority for her ministry.

“These are big issues, but the administration of justice ought to be top of mind for everyone at the federal level.”

Wilson-Raybould had said the government planned to review the judicial appointment process to make it more transparent and to promote diversity, but recently she said she will be using the old guidelines to fill the current vacancies.

“The judicial appointment process is simply too important to wait until those new guidelines are fully developed and agreed upon,” Wagman says.

Under the old guidelines, a Federal Judicial Advisory Committee for Ontario would vet candidates. The committee is completely vacant at the moment, but the committee had shortlisted applicants under the precious governments. Wagman and other lawyers say they would like to see that list used to make appointments.

The Department of Justice did not respond to multiple requests for comment.