Judicial Appointments… Finally!

(This article is an edited version of one originally published December 17, 2014 by Marion Lane on The Effervescent Bubble.)

On December 16, 2014, the federal Department of Justice announced twenty-one new appointments to the upper courts of Ontario including two to the Court of Appeal, fifteen to the Superior Court, two transfers from the Superior Court to the Family Court Branch, and two transfers within the Superior Court resulting from the change of the Regional Senior in the North East Region. Eureka! The new appointments will be happy. The courts they will join will be even happier.

What is shocking about the announcement is how long the vacancies have existed. Brampton is one of the busiest jurisdictions in the province, with a heavy caseload (among other things) of drug prosecutions coming out of Lester Pearson Airport. Brampton is the court for Peel Region which was called “the worst jurisdiction north of the Rio Grande” in 1990 when, in a case arising out of Brampton (R. v. Askov), the Supreme Court of Canada defined what is “a trial within a reasonable time” in Canada. Thereafter, thousands of charges were withdrawn from the system because trials were unduly delayed. One would have thought the federal government would have been most anxious to avoid another Askov in Brampton.

Apparently not. Madam Justice Fairburn was appointed yesterday to replace Madam Justice van Rensburg, who was appointed to the Court of Appeal on October 1, 2013. Her position has been vacant for over 14 months. Justice Ivan Bloom was appointed yesterday to replace Justice Seppi who went supernumerary (retired to part-time) January 8, 2004, just over three weeks short of a year ago. Justice William LeMay was appointed yesterday to replace Madam Justice Snowie who went supernumerary May 25, 2014, just short of seven months ago.

How can it be that in Brampton of all places, the government has chosen to leave these positions vacant for such long periods of time? When the federal government decided to elevate a Brampton Superior Court judge to the Court of Appeal in October 2013, was there no one available to replace her at the time? Both Madam Justice Fairburn and Justice Bloom have been crowns in the system for a long time, Justice Bloom apparently an employee of the federal government’s own Public Prosecutions Service. Were neither of them available to fill the post over a year ago? How many cases have been delayed in the interval because “no judge was available” to conduct a trial? How many defendants, victims and other witnesses have endured prolonged stress and anxiety because their matters could not be scheduled for trial in a timely fashion?

Canada’s federal government has the power to define the criminal law and is happy to pass laws which add to the Criminal Code, ad infinitum. The feds also have the exclusive power to appoint judges to the Superior Courts and the Courts of Appeal. Appointing judges does not seem a priority. The vacancies left unfilled for so long speak for themselves.

On the assumption that the government is not asleep at the wheel, the rest of the list of new judges shows how delaying appointments has become the pattern of this federal government. The two Court of Appeal vacancies arose January 31, 2014, and March 5, 2014, eleven and ten months ago respectively. This is the most important court in Ontario; the highest court which defines the law for all the lower courts, and which, at full complement, has only twenty-two full-time judges.

Of the other newly appointed Superior Court judges, one replaces a judge who became Senior Family Judge on December 31, 2013, a year ago. Another replaces one who semi-retired January 8, 2014, nearly a year ago. Three replace judges who semi-retired in April, eight months ago; one replaces another who went supernumerary in May, seven months ago; another replaces a judge who went supernumerary in June, six months ago; and two replace judges who semi-retired in July, five months ago. The two transfers into the Family Court branch and the appointments to replace them are relatively recent (October and November), and one appointment is prospective, to replace a judge going supernumerary on January 16, 2015.

Judges who go supernumerary typically give ample notice of their intentions. Once semi-retired, they are scheduled into the calendar on a part-time basis, if their circumstances permit. Their part-time availability only partially fills the gaps. What is clear, however, is that the federal government exploits this supernumerary crutch to avoid the cost of providing full-time judicial services. Why have a full-time judge if a part-timer would suffice? “Law and order” and “the rights of victims” obviously do not extend to timely justice.

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