Another Toronto sex assault case is tossed as spotlight turns on Trudeau government’s failure to solve vacancy crisis

For at least the seventh time in Toronto since December, the federal government’s chronic failure to appoint enough judges was once again — as the man’s lawyers argued — “the heart” of the issue.

For years, Ottawa has failed to appoint enough judges to cover vacancies at Toronto’s Superior Court. With no judge available, the man’s trial was delayed, which pushed his case past a strict time limit. This violated his constitutional right to a trial within a reasonable time. And so, he was free to go.

All for reasons, the man’s lawyers argued, “entirely within the state’s control.”

As the Star has reported, two cases of child sexual abuse, two cases of human trafficking involving the same accused man, charges of gun possession linked to a fatal shooting, and an assault and sexual assault case have also been tossed since just December.

The judge shortage in Ontario persists, and as more people accused of serious crimes are having their charges thrown out, more victims are being left without any sense of justice, civil matters are taking years to schedule, and dire warnings are piling up at the feet of Justice Minister Arif Virani and Prime Minister Justin Trudeau.

Meanwhile, observers in every corner of the legal system say they’re left baffled by a question that seems to have no good answer: What’s the holdup?

“We’re into year nine of this government, we’ve been through three justice ministers, and still we have delays,” said Penny Collenette, who served as director of appointments in Prime Minister Jean Chrétien’s office in the 1990s.

“That, to me, is extremely concerning, and incomprehensible.”

The question of priority

Just last year, the chief justice of Canada, Richard Wagner, warned Trudeau in a letter that the exact scenario playing out in Toronto would happen if the government didn’t move more quickly.

“These delays in appointments send a message that this is simply not a priority for the government,” Wagner wrote. 

The federal government is in charge of appointing judges to the provinces’ superior courts based on lists prepared by arm’s-length judicial advisory committees (JACs).

Justice Minister Arif Virani’s office has disputed the suggestion that they’re not moving fast enough. His spokesperson pointed out the government has also added more than 100 entirely new judicial positions across the country over the years. (Those positions were not all filled at the same time they were created, which further increased the number of vacancies.)

“We are appointing judges to fill those positions at a rate unprecedented in modern Canadian history — and only getting faster,” Chantalle Aubertin said.

There are currently at least 20 judicial vacancies in the Ontario Superior Court of Justice, about five of which are in Toronto. Despite new appointments, the provincial number has barely budged in the last year, as other judges retire or go part-time.

As for the question of why the government can’t move even faster, the confidential nature of the selection process means legal observers are left reading between the lines of opaque statements from successive justice ministers. Is the government unaware of the crisis? Is it overly cautious, worried about being called out for its choices? Is it too focused on looking for the perfect candidate?

Ottawa criminal defence lawyer Michael Spratt can’t help but wonder if a “risk-averse” federal government is too hesitant to make an appointment that could attract any kind of criticism.

“If the government is looking for a bilingual, equity candidate that has never said anything controversial, never made a political donation, never taken on a high-profile case, then that might constrain their ability to make appointments,” he said.

While judicial vacancies are not the only cause of delay in the court system, “it certainly is the easiest to fix,” Spratt said. “Because the fix is appointing judges.”

In February, Federal Court Justice Henry Brown concluded in a legal challenge that the government had ignored Wagner’s warning. Brown declared that the government had to fill the vacancies in a reasonable time to get the “untenable and appalling crisis” under control.

The government is appealing his ruling.

“I was quite peeved the government didn’t even bother filing any evidence in that case; that was really a great opportunity for the government to explain the reason (for the delay) — if there is a good reason why,” said Ottawa lawyer Erin Durant.

Appointing a judge involves a list of names passing through multiple departments before it shows up at a cabinet meeting for final approval.

Lawyers’ applications for the bench are screened by the JACs, made up of judges, lawyers, and laypersons who classify candidates as “highly recommend,” “recommend,” and “unable to recommend.” Ultimately, the minister can only select from the first two categories.

Lawyers argue there is no shortage of applicants for the bench, and data from the Office of the Commissioner for Federal Judicial Affairs suggests that the number of applications keeps rising. Between October 2022 and October 2023, 315 applications were assessed by the committees, which highly recommended 73 people and recommended 68. The government appointed 68 people to the bench during that period. They also elevated 19 sitting judges to other courts; for example, appointing a superior court judge to a court of appeal.

(The government has appointed about 120 judges in the last 12 months, Virani’s office said. A chunk of that number is part of the October 2022-October 2023 reporting period, while the rest will appear in the new batch of statistics released later this year.)

While the numbers alone suggest dozens of great candidates have been left to languish, the process doesn’t end with the committees’ lists. Justice staff also have to go over key questions with the courts:

Do you need a judge specialized in criminal law? Does the jurisdiction require a bilingual judge? Is the area remote, requiring someone willing to move a great distance?

Those considerations can further limit the choices from even a “highly recommended” list.

Staff will also consult with lawyers, judges and legal associations. After that, the minister makes his selection, which triggers “due diligence” work, including a security check — which can sometimes significantly contribute to delay — and verifying a candidate’s political donation history. (A National Post/Investigative Journalism Foundation investigation last year found that almost 82 per cent of the Liberals’ 1,300 judicial and tribunal appointments since 2016 had not donated to any party, while 14 per cent donated to the Liberals at least once in the 10 years before their appointment.)

The Prime Minister’s Office is also looped in on the candidates the minister is looking to put before cabinet, though what the PMO does with the names is less clear.

According to emails obtained by The Globe and Mail in 2020, the office verifies that MPs have been consulted about appointments in their ridings. The Globe also reported the PMO used to vet candidates through a database that shows if people had been members of the Liberal Party, with the office saying at the time it was necessary in order to answer questions about nominees’ political affiliations. (The government said in 2021 that it had stopped using the database to vet judges.)

Former Justice Minister David Lametti, who was dropped from cabinet last year and has since left politics, told La Presse in January that the holdup was not caused by his office, and that he “couldn’t control what was happening in the Prime Minister’s Office.” (Lametti declined the Star’s request for an interview.)

Recently, the government has made some tweaks to help move the process along. The changes include asking the JACs to meet more often, increasing the length of time people sit on the committees to three years, and requiring judicial applicants to fill out the security check form at the same time as they apply.

Ultimately, the reasons why one potential judge is selected and another is not are never disclosed publicly.

Collenette said judicial appointments can be “tricky,” given the importance of the role and the fact that a person can hold that office until the age of 75. When she was working in the Chrétien PMO, she had “enormous faith” in the ministers and their staff to do the proper consultations. Part of those talks was to make sure there were no surprises at cabinet when a name came up. 

“It’s only a problem if the Prime Minister has a problem; other than that, you get them on the cabinet list and get going.” 

She questions if judicial appointments are a high enough priority on the agenda at cabinet meetings. Are ministers objecting? Is the Prime Minister objecting?

“I just can’t really imagine what the blockage is unless the appointment of judges is not being given a high priority, and that to me would be astounding,” she said.

When lawyer Josh Valler was assisting former Justice Minister Peter MacKay with judicial appointments during the previous Conservative government, he said it would not have been appropriate for the minister’s office to get “heavily involved” or create bottlenecks.

“I don’t want to say political objectives are involved, but it might not be a top priority for cabinet to focus on actually approving candidates to become judges,” he said.

Asked about Ottawa’s priorities, Virani’s spokesperson Aubertin said, “timely appointments are a top priority for our government.”

When contacted with questions, the Prime Minister’s Office referred the Star to Virani’s office. 

Without explanation, speculation

Like his predecessors, Virani has repeatedly defended the process by saying he is appointing judges “of the highest calibre who also reflect the diversity of this country.”

With little other public explanation, attempts to parse Virani’s words have led to speculation amongst members of the bar that perhaps not enough diverse candidates are applying.

“I fear that they’ve put the cart before the horse in terms of wishing to have more diverse people, but not doing anything to encourage more diverse candidates until more recently,” Durant said.

The fact is that the senior members of the bar in Ontario and elsewhere are predominantly white men. In the face of this, equity, diversity, and inclusion are laudable goals, Durant said — “but if it’s a question of appointing nobody or appointing somebody who doesn’t fit their target demographic, I think they just need to make the appointments.”

Diversity is important, stressed the chair of the Federation of Ontario Law Associations, Douglas Judson, “but if that’s becoming an overriding consideration that is stalling the selection process, I think that is not acceptable.”

Whatever the reason for the delay in appointments, the government seems “very concerned about the optics,” he said. “I think there’s a political filter being applied here that is holding up decisions.”

For its part, the minister’s office said there is “no merit” to the suggestion that the push for diversity is slowing things down. “The facts demonstrate the exact opposite,” Aubertin said. “Minister Virani has been able to make diverse appointments while appointing judges at a rate never seen in modern Canadian history.”

Diversity as a cause for the holdup is “not borne out by the data,” said Hillson Tse, president of the Ontario chapter of the Federation of Asian Canadian Lawyers.

For example, he pointed to the most recent numbers showing 18 racialized lawyers were either highly recommended or recommended, and nine were appointed to the bench — the same roughly 50/50 rate as non-racialized candidates, suggesting no bias in favour of non-white candidates.

“In essence, there is little to no difference between the recommendation or appointment rates between racialized and non-racialized candidates,” Tse said.

The president of the Canadian Association of Black Lawyers said the situation warrants more transparency. Kyle Elliott said he knows “fantastic Black lawyers who more than meet the expectations and qualifications to be a judge,” who have applied and have yet to hear back, in some cases waiting years.

“Everyone has an interest in having a functioning court system,” he said. “And I think for folks who are from underrepresented communities, having more information, transparency, and accountability would be really helpful for us too.”

Yet another collapse

In the latest case thrown out in Toronto on a Tuesday earlier this month, the defence emphasized that delay “only became an issue” once the lack of a judge forced the trial to be rescheduled from last September to May.

Had the trial proceeded, the case would have concluded under the strict time limit for criminal trials, defence lawyer Myles Anevich argued.

“This case went off the metaphorical rails once the trial was not reached,” he said.

The Supreme Court has said that cases in Superior Court must be heard within 30 months, otherwise, they must be tossed for violating an accused person’s right to a trial within a reasonable time. Delays caused by the defence or exceptional circumstances are deducted in the calculation.

“The failure to adequately resource the Superior Court of Justice is neither exceptional nor unavoidable,” Anevich, who acted on the case with lawyer Katie Scott, argued in legal submissions.

Justice Catherine Rhinelander granted the application, with her full written decision to be released later.

“There will be an order … staying the charges against you,” Rhinelander said to the man, whom the Star is not identifying because he is no longer facing criminal charges.

And then it was over. He walked out of the courtroom that afternoon with his charges — assault, sexual assault, and uttering threats — wiped out, amid the ruins of yet another collapsed criminal case.