Judge shortage causing unnecessary legal trauma: MacKay

While MacKay is right to criticize the government for its delay in appointing judges, his assertion that under the Conservative government ‘s, “We appointed a judiciary that represented “the face of Canada,” a diverse bench predicated and built on inclusion of all races, creeds, and genders in the legal community across Canada” is false as shown in my 2016 analysis: Diversity among federal and provincial judges – Policy Options).

In contrast, appointments to date of the current government show a marked increase: 57.4 percent women, 6.4 percent for each of visible minorities and Indigenous peoples.

The federal government has a fundamental responsibility to appoint a sufficient complement of judges such that our courts can function properly. Its failure in that regard creates a constitutional crisis that goes to the very rule of law that underpins our justice system.

A lack of judicial appointments in the context of increasing pressure to conduct timely trials equals a systemic miscarriage of justice. With caseloads where they are, the system is at its breaking point.

Add to this difficult dynamic the recent Supreme Court of Canada ruling in the R v Jordan decision, which mandates criminal trials must be heard within 18 months for the so-called lower courts, and 30 months for the Superior ones. Absent compelling circumstances, “delinquent” prosecution equals administrative dismissal.

Due to this artificial prescription dozens of cases have been tossed, including murder and sex assault cases. No trial. No verdict. Worse still, the victims and their families are left without recourse or remediation and no one is accountable. Not fully appreciated as yet, this jarring situation stands to worsen due to the arbitrary deadline, which provides no consideration for the seriousness of the offence.

Against this backdrop we note inertia from the federal government on the appointment of judges to hear these languishing cases. Canadians face an alarming scenario of serious violent charges being vacated due to the acute shortage of judges. “Justice delayed is justice denied” is a maxim never more appropriately invoked than now.

As minister of justice (2013-15) I oversaw the appointment of more than 230 judges; prior to that my government prioritized hundreds more. We appointed a judiciary that represented “the face of Canada,” a diverse bench predicated and built on inclusion of all races, creeds, and genders in the legal community across Canada.

Vacancies on the federally appointed bench is at an all-time high. Sixty-two empty seats of the 840 federally appointed judges, against 14 (the lowest in decades) when my government left office. In June 2015, we appointed a record 22 women: over 60 per cent of the judges appointed on that occasion. We appointed more judges on one day (43) than the current government has in 16 months in office.

Source: Judge shortage causing unnecessary legal trauma: MacKay | Toronto Star

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About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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