Law Times - Newsmakers

10 December 2016 top stories Federal government appoints judges, but doesn't fill entire vacancy void Judicial vacancies continue to exist, even as court delays become more severe BY ALEXIA KAPRALOS AS COURT DELAYS continued across the country this year, even in the wake of new caps put in place by R. v. Jordan, which put a limit on the amount of time a trial could be delayed — no more than 18 months for offences tried in provincial court and a maximum of 30 months for Superior Court trials — the country's struggle to fill judicial vacancies saw only slight improvement. On Oct. 20, the federal government announced it would be filling 24 of the vacancies, but with a remaining 40 vacancies left to fill, the problem still remains far from solved. As of October, the provinces that received the most appoint- ments in that wave were Ontario and Alberta — seven judges each. British Columbia, Manitoba and Nova Scotia had the second most appointments, with three judges each. In contrast, Quebec received the least, with only one judge appointed, Justice Patrick Healy, to serve on the province's Court of Appeal. Also in October, Prime Minister Justin Trudeau named Mal- colm Rowe as the first Newfoundland judge on the Supreme Court. "One of the things that is troublesome for us in Toronto is that we have these vacancies to begin with, but even if we fill the vacancies, it won't be enough because we've outgrown our judicial resources long ago, and we need to increase the complement," Ste- phen Mullings, president of the Toronto Lawyers Association and partner with Dutton Brock LLP, told Law Times. Filling the remaining vacancies will be delayed until next year, since the Liberal government said that it would be reforming parts of the judicial appointment process by disbanding the existing 17 Judicial Advisory Committees, which represent all the provinces and territories plus the Federal Court and tax courts, in order to revamp them."The immediate concern is to get those vacancies filled, and it sounds to me like we're going to be waiting until mid- 2017," said Mullings. Processing these reforms may slow down the appointment pro- cess, but doing so is part of a balancing act in meeting the demands of legal professionals in regards to changing the system. These reforms are in response to criticism that the judicial appointment process isn't transparent enough and that appointed judges aren't culturally diverse enough. "The purpose of the new judicial advisory committee is to open up the process to be more public and more transparent and to ensure that we are making a concerted effort to ensure that there is diversity on the bench so Canadians can see themselves in terms of the judges they see," said Justice Minister Jody Wilson-Raybould to MPs in question period in the House of Commons on Oct. 24. In order to combat the transparency issue, the government said that three representatives of the general public, lawyers or not, will sit on all JACs. The police presence will also be removed from the JACs — a controversial decision that will undo the former Con- servative government's decision to include them. On the diversity front, the government announced it would be emphasizing that JACs represent the country's diversity and, as a result, are planning to keep track of this by having the committees publish statistics on the judicial applicants and appointees. The Trudeau government made these recommendations for change more than a year after being in power. "Why would it have taken a year to come up with?" Lorne Sossin, dean of Osgoode Hall Law School in Toronto, asked Law Times. "The changes are welcomed but modest. Many expected some- thing a bit more bold, like a move closer to the Ontario Advisory Committee model, which itself conducts interviews, has a rigorous outreach campaign and creates a slate on the top three that then goes to the attorney general to select from." Apart from the JAC overhaul, other barriers in filling vacancies include deterrents from receiving applicants for judicial positions such as travel and workload. Federal Court of Canada judges are required to live in the National Capital Region in Ontario, even though vacancies exist all through the country. The amount of travel to various courts could possibly be off-putting for legal professionals. Jenny McMordie, vice president of the Alberta branch of the Canadian Bar Association, told Canadian Lawyer she thinks people might be deterred from applying for judicial positions based on the workload that judges must take on since there aren't enough to share the load. "We are in a deficit position. Our judges are working over- time," she said, as the number of trial-level judges hasn't caught up to Alberta's population growth. "I am sure some people will not apply." Craig Ferris, a partner with Lawson Lundell LLP in Vancouver and bencher of the Law Society of B.C., submitted a report to the federal government in July on how to improve the system with which judges are appointed to the Supreme Court of Canada. "The proof comes from how it is implemented. It is important to put in a process that is followed and about getting the best people to be judges, not just about how do I get through this process," Ferris said. — With files from Dale Smith, Alex Robinson and Shannon Kari

• Cover