The Decibel - What’s behind the delays in Canada’s courts?

Episode Date: September 25, 2023

Canada’s judicial system is a bit of a mess right now. Cases are piling up. Staff aren’t showing up to work. And there aren’t enough judges. Even the Supreme Court of Canada has an unfilled vacancy currently.Sean Fine is The Globe’s justice writer and he explains what factors are contributing to the various delays in courts and how if they aren’t dealt with soon, some people may never face justice.Questions? Comments? Ideas? Email us at [e-mail]

We're about to get into a new session of the Supreme Court, where important matters of law will be decided by nine justices. Oh, wait a minute. We actually only have eight judges right now. That's because one of them stepped down in June, and we're still waiting on Prime Minister Justin Trudeau to appoint his next pick. And this vacancy is not the only opening in Canada's courts. In fact, the whole system is struggling. And that is having a huge impact on how quickly

Canadians can have justice, or whether they face it at all. So today, we're talking to Sean Fine. He covers Canada's judiciary for the Globe, and he'll explain how things got so strained. I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. Sean, it's so great to have you back on the podcast. Thanks for being here. Thank you for having me, Mainika. It's great to be back. So we're going to talk to you about some of the deficiencies in the Canadian judiciary. But honestly, I think a lot of people won't ever interact with this system. So I think as our justice writer, Sean, maybe you can tell us why is it important to pay attention to this scaffolding of justice in Canada? It's one of the basics of our country.

I mean, you know, when you turn on the tap, you want water to come out. When you go to the hospital, you don't want to wait 13 hours in emergency. And when you go to court, you don't want to sit there and not have a judge at the dais. So let's start with the vacancy on the Supreme Court. So biggest court of the land, right? The prime minister appoints Supreme Court justices. What are some of the things that he considers when making that decision? Well, let's look at a couple of things that he has said.

He has said that he stresses diversity. So he wants a court that reflects the population that it serves. He also has said he himself is pro-charter, and he wants a judge who will embrace the Charter of Rights and Freedoms. Let's remember that his father, Pierre, was the father of the charter. So those two things are important to him. He has also imposed a requirement of bilingualism in French and English, so that when a judge is applying, they already have to be fluent in both

official languages. And the test for that, there's a federal test, and it's quite difficult, and you essentially have to be able to hear a case in both languages. Not easy. So that requirement has constrained the prime minister's choices in terms of trying to find those first two things I mentioned. And you said that was actually a requirement that he instituted, that Trudeau instituted, the spy journalism requirement? Right. When he became prime minister and had his first appointment in 2016, he put it on then. I mean, in the past, it was discussed, it was seen as relatively important, but you could learn it once you got on the court. And this is not Trudeau's first pick. What do his past choices actually tell us?

Well, they tell us that he loves to be first at something. There's an optics thing that goes on here. So his father, Pierre, was the first to appoint a Jewish member of the court. That was Borlaskin in 1970. He was the first to appoint a woman to of the court. That was Borlaskin in 1970. He was the first to appoint a woman to the court. That was Bertha Wilson in 1982. And Justin has followed in his footsteps. He appointed the first judge from Newfoundland and Labrador, Malcolm Rowe. He appointed the first racialized minority. That was Mahmoud Jamal.

And he appointed the first indigenous member, Michelle Obonsoin, last summer. Okay. Okay. So this is an interesting thing to notice. This is a prime minister that likes to kind of set a precedent with his choices here. The other thing that usually comes into play is political leanings. So how does that come into play with his past choices? There's a complicated thread here. So because of the bilingualism, he has really been constrained in finding exactly what he wants in terms of political leanings. I mean, there's a very broad center on the Canadian judiciary, but he would tend to want someone, one would think, on the more liberal side, pro-charter, etc. For his first appointment in

2016, he said, I am opening this up to the entire country. Now, in Canada, we have a tradition of regionalism. So on the court, there are nine judges, three by law have to be from Quebec. But the others, there's a tradition, three from Ontario, two from the West, one from Atlantic Canada. So for that first appointment, he had a retirement from Atlantic Canada. He said, no, I'm not going with this. I'm going to break the box. I'm going to appoint from anywhere in Canada. I want to add to the diversity of the court. Well, Parliament didn't like that. There was a 270 to nothing vote, just a purely symbolic vote to tell the prime minister, no, we want you to stick

with the regionalism. That is an important component of Canadian diversity. And the Prime Minister actually was one of the 270. So he totally threw up his hands and joined. He accepted. So then he appointed from Atlantic Canada. Now, as I said, he was looking for, let's say, a female judge or a racialized minority, something new. You know, most judges come from appeal courts. There had not been a tradition, let's say, of appointing racialized minorities to those courts in Atlantic Canada. Plus, there were not a lot of bilingual options. So then he looked to Newfoundland and Labrador. There was only one judge on the Court of Appeal who was bilingual at that time in that province, and that was Malcolm Rowe. Malcolm Rowe has proven to be the most skeptical of charter claims of anyone on that court. Now, the Globe did a statistical study,

our colleague, our excellent colleague, Mahima Singh, for a story that I was doing, studied all the current judges and discovered that Malcolm Rowe was by far the most conservative on charter cases. This is really fascinating here. So he's had all of these other kind of considerations in choosing the judge, and the person ends up being not aligned with his own political views, but this is the person that he chose. Exactly. So looking back, would he have chosen that same judge?

Well, perhaps, but it just shows the difficulty of making these choices in the constraints he has placed on himself. So, yeah, it sounds like there's lots of factors involved in this kind of decision, Sean. But one thing we actually haven't really talked about yet is experience, because this is a big job to be on the Supreme Court of Canada. So where does job experience come into this decision? Well, I mean, I think it's very important. And when you're on, let's say, a court of appeal, you have a demonstrated record of where you stand, how you express yourself, the kind of analysis you bring to things. And we have some judges

with a lot of different kinds of experience. So Justice Rowe, whom I mentioned, he was also the head of the civil service in that province, Newfoundland and Labrador. Justice Karakatsanis in Ontario was the head of that province's civil service and a former deputy attorney general. And when you have knowledge of the inner workings of government, it is invaluable on the Supreme Court, which, after all, is dealing with where the powers of the legislatures end and where the charter begins. So those are some kinds of experience. There's also on the trial courts, and there's a judge, Suzanne Coté from Quebec, who was never a judge before, but she was a very experienced, skilled lawyer. And we also have a

couple of judges on the top court who were law deans before becoming judges, Justice Martin in Alberta and Justice Kassirer in Quebec. So but prime ministers generally, in my experience, have wanted people who are very practical minded, who know the real world and apply law, not as some abstract exercise. OK. So all this being said, we still only have eight Supreme Court justices at the moment, and that's been the case for a few months now. So what is holding up the process this time? Well, I think, you know, one has to surmise that the prime minister is not all that pleased

with his choices. My understanding from talking to people throughout the West and elsewhere is that no one applied from any of the appeal courts, the four courts of appeal at West and the Federal Court of Appeal for the vacancy. And as I say, most appointments to the Supreme Court come from the courts of appeal. So, and that's partly because of the bilingualism, but partly to there is a vacancy as for Chief Justice of British Columbia. There may be some very good judges out there who are bilingual, who are after that job. They may not want to move to Ottawa from beautiful downtown Vancouver, etc.

So a bunch of things are at play there. So I think he's having difficulty making his choice. And the next session starts in October, October the 11th. So it's coming right up. And so what if there isn't a pick before October 11th, before the Supreme Court resumes hearing cases? Will just having eight judges affect the work they do? Oh, yeah, because they're already behind from last year. Justice Brown did not participate in any case after February 1st. And all the cases he was on before that, going back to last September, where there was not a ruling yet, they pulled him from any kind of consideration of those cases. We should probably just remind people who Justice Russell Brown is.

We actually did an episode a few months ago with this, but he recused himself from cases. There were these, he was accused of some things in Arizona, right? So he actually had to step down there. So he was accused of harassing a couple of women in Arizona at a hotel in January. He denied it. Justice Wagner asked him to step aside temporarily. Well, the disciplinary process played out, it turned out that he resigned in June, creating the vacancy. Okay. And so, yeah, so even before he resigned, though, he was not actually hearing cases. So there were still only eight judges working for that period of time. That's right. So there's a ruling coming out in a case next Friday, and that case was heard 10 months ago.

So it just shows how far behind they've fallen. What kind of timeline would be usual? Six months is the average from the hearing date to the ruling. And what's the impact of that, of Supreme Court of Canada cases being so far behind? Well, like anything else, litigants want answers and the public wants answers. And it really doesn't look good because it is a court that has sent a very strong message on delay to the lower courts that they have to clean up their act, that they have to end this what they call the culture of complacency. And here we have the top court sending a signal that goes in the other direction that they've got all day. We'll be right back.

You mentioned the lower court. So let's actually broaden this conversation to turn to vacancies in other courts as well. So there are vacancies across the country. How many approximately here are we talking about, Sean? Well, in May, there were 88 vacancies across the country. How many approximately here are we talking about, Sean? Well, in May, there were 88 vacancies, and that is out of close to 1,000 full-time judicial jobs. So in other words, about 9%. That dropped to about 77 over the summer. So it's still a lot. We're talking about close to 8%. Okay.

And I take it that's not usual. No, that's very high. Those are record numbers. So we have federally appointed courts in this country. We have provincially appointed courts. The federal ones are the higher levels of court. And, you know, so we just don't have enough judges. And this is at a time when we're already seeing delays because of COVID. There's a backlog. So courts closed or juries couldn't hear cases. They fell behind. And now we have courts grappling with this problem of all the cases from the backlog.

And there are a lot of cases that are on the precipice that may be thrown out because of delay. These are major problems. Yeah, and we are going to talk about the time limits. I just want to back up for a second, though, because it seems strange that there's so many vacancies at this time. Do we do we know why? Why are there so many vacancies here? Appointments have to go through cabinet. The government had a lot on its plate last year. And I think judicial appointments fell down the list of priorities. Now, some of them were the purview of the prime minister himself, for instance, appointing chief justices of provinces.

And it took nine months to fill the vacancy in Manitoba, nine months. So for various reasons, they just have not been moving. OK, so we have a number of vacancies in the courts. That's obviously affecting how efficiently these courts are working. But, John, are there also other factors that are slowing down this system? You mentioned the after effects of COVID, but is there anything else? Well, we saw in Toronto a story just in the last week or so with a courthouse that is suffering a huge staff

shortage. So people just aren't showing up to work or they don't have enough workers. I think it's a bit of both. And in that case, the province actually spent $1 billion to build this beautiful court building downtown, and they closed all the other courts for the most part in Toronto. These are not people who are that highly paid. They are, for instance, I did some interviews this week and take court clerks. After seven years, I was told that they get to $32 an hour. So when everyone was told that you've got to now come downtown where it's expensive to park and it's a hassle and they have families and so on, they look for other jobs. So we've been talking about courts at all level, but I think the Supreme Court is definitely a big part of this conversation. That can feel a little removed, I think,

for a lot of people, Sean. I know it does have a real effect on people's lives. So what is the effect on all the people whose cases get caught up in these delays at the Supreme Court, but honestly, at any level? What is the effect on people? Well, you can imagine a victim of a crime who has to wait for years to testify and who comes back to court again and again for hearings. And, you know, and maybe the court, the case is thrown out for delay at the end. I mean, how devastating would that be if you were the victim of a crime? And on the accused, it's difficult, too. Witnesses may forget their stories.

You're caught up in a system. You're presumed innocent until proven guilty. The whole principle of having timely justice in the Charter of Rights is the right of the accused to a timely trial. All right. So, Sean, you've mentioned that cases can be tossed out because of delays here. Has that always been the case or when did that start? Well, that started with a very big case in the year 2016. The case was called Jordan, and it involved a man who sold drugs over the phone. You could order drugs and they would be sold like pizza

and a delivery person would show up at your house with these drugs, hard drugs. And so of course, the RCMP phoned the number. And so that did not go all that well for him. But it took four years to have the proceedings come to an end. And that was seen as too long by the Supreme Court of Canada. The problem has persisted for decades. In fact, there was a Supreme Court ruling in 1990 that set down guidelines, and 50,000 charges were thrown out in the months after that. The court then sort of backed up and they softened their ruling. And what happened as a result was that those guidelines kind of turned very mushy. And so we got that problem of delay becoming very entrenched to the point that a judge in Ontario named Moldaver, Michael Moldaver, gave a couple of speeches in which he said that he was

mad as hell about this problem. He was on the Court of Appeal at that time. And those speeches really brought him to the attention of the prime minister of the day, Stephen Harper, and helped explain why he was appointed to the Supreme Court. Here comes this case of Jordan, which was not a complex case, took four years. So Justice Moldaver joined with a couple of other judges, including Justice Russell Brown, who we mentioned, to write a ruling that set down time limits for cases. So a case in the superior court, which is a higher level of court, could take 30 months from the time a charge was laid to completion. A case in lower court, provincial court could take 18 months.

If it went past that, it could be thrown out no matter how serious it was. It could and would be thrown out. And so after that decision happened, that wasn't the only case I'm sure in the system. What happened to all the cases that had been waiting so long at the time when this ruling happened? Well, there were a lot of defense lawyers who brought applications under this particular section of the charter to have their cases thrown out for delay. And there were more than a thousand of those applications and a certain number were thrown out. Even Crown lawyers were throwing out cases that they saw as being too long and unlikely to get through the process. Can you give me an example of one of these cases that got tossed because of the Jordan rules? If you don't mind, I'll tell this story a little bit of length because I wrote about it really is quite heart-wrenching. A young man, 12 years old,

was in trouble with the law, went to court. The court required him to see a mentor from this teacher's college. Well, that mentor raped him many times. This came out at trial, and the man, Williamson, was convicted and sentenced to four years in jail. It went up to the Supreme Court. The court was not happy with the delay. From the time of the charge, it was about 35 months till the time of trial and sentencing. And the court, by a six to three margin, said that's too long. They threw out this conviction and the man walked free. He never served more than a day or two in jail. Wow. So even such a horrible crime like that, because it was over that time limit, it gets thrown out.

That's right. So that's why this is really important to be able to go through these cases in a timely manner, because otherwise stuff like that ends up happening. That's right. So the effect on the victim was absolutely devastating. And I'm just curious about these time limits, Sean. Like, why is 30 months the magic number, two and a half years? Why is that the chosen number? They tried to come up with a balance, something that was doable. So there is defense delay that is subtracted from the total. So a case may take 45 months. But if they look at it and say, well, 15 months of that delay was defense delay, then we're not going to throw it out. There's also something called exceptional circumstances, which the court, the Supreme Court, put in place.

So they look at, well, COVID might add a few months. For instance, these problems with staff shortages, those are not being seen as exceptional circumstances. And so there were a couple of cases thrown out in the last little bit over that. Okay. Just to end here, Sean, so we've got the Jordan decision here and all these current delays that we've talked about. I wonder, courts must be looking at this situation and realizing they need to do something here. So what are courts doing in response to try to get through these cases? Well, there are all kinds of committees after Jordan where all the players in the system, judges, crown attorneys, defense lawyers, staff, provinces, sat down together to try to figure out how to make this work. Provinces, some of them, Ontario, Quebec, Alberta, spent more money to hire more crowns, more judges on provincial courts and so on. Now, there's also a prioritizing. A lot of cases were thrown out.

In some places, they decided to let some of the minor crimes go with a plea deal or just let them go. So that there would be space to do the more serious crimes then, is that why? That's right. Once know, once you come face to face with the backlog, you're in this digging out process and it's really not easy to get out of. Yeah. It's a bit bleak, but it sounds like this is the reality of the situation. It is. Sean, thank you so much for being here today. Well, thanks. It's been great fun. That's it for today. I'm Mainika Raman-Wells.

Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrian Chung is our senior producer. And Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.