Ottawa Making Progress On Judicial Appointments But Threats To Rule Of Law Remain, Says Chief Justice | CBC News

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Despite some recent progress on appointing more federal judges, Canada’s justice system is facing still challenges that threaten to undermine the rule of law, Chief Justice Richard Wagner warned Monday.

‘The court must have the resources to function effectively’ — Chief Justice Robert Wagner

Peter Zimonjic · CBC News

· Posted: Jun 03, 2024 4:39 PM EDT | Last Updated: 7 hours ago

Supreme Court of Canada Chief Justice Richard Wagner warned that underfunding the justice system and failing to appoint judges in a timely manner threatens the viability of Canada’s justice system and could ‘jeopardize our democracy and the rule of law.’ (The Canadian Press/Adrian Wyld)Despite some recent progress on appointing more federal judges, Canada’s justice system is facing still challenges that threaten to undermine the rule of law, Supreme Court Chief Justice Richard Wagner warned Monday.

Last May, Wagner wrote to Prime Minister Justin Trudeau warning that a chronic shortage of judges was putting “democratic institutions” at risk.

During his annual press conference in Ottawa on Monday, Wagner said the pace of judicial appointments “remains a key priority” but significant progress has been made.

“Since last year, I saw an improvement and I’m confident that the government will follow [up] to try to appoint judges in a timely fashion,” he said Monday.

There are 939 federally appointed judges in office, another 256 supernumeraries — retired justices who sit on the bench part time — and 57 vacancies, down from 90 last year.

Wagner said those remaining vacancies, coupled with underfunded provincial court systems and personal attacks on the integrity of judges, threaten both democracy and the rule of law.

“The justice system is not a service. It’s a need, it’s a human need,” he said. “People need justice, and when they recognize that they will not have access to justice, that will jeopardize our democracy and the rule of law and we should not underestimate this possibility.”

Wagner said that the federal government needs to ensure it appoints federal judges “within a reasonable delay” after a retirement. He would not say how long a reasonable delay should be.

WATCH: Judicial vacancies troubling but progress being made, chief justice says   

Judge vacancies concerning, but improvements being made, chief justice saysChief Justice of the Supreme Court Richard Wagner says he’s confident the issue of judicial vacancies can be ‘corrected’ — though he noted there were still 57 unfilled judge positions across the country, down from almost 90 a year earlier.

The federal government appoints judges to the superior courts and courts of appeal in each province, the Federal Court, the Tax Court and the Supreme Court.

Justice Minister Arif Virani sent a letter to Wagner last week saying that he has appointed 113 federal judges since his elevation to the portfolio last July.

‘One stay of proceedings is one too many’In July 2016, the Supreme Court of Canada set out rules to decide how long is too long for a criminal trial. That decision in R. v. Jordan established that criminal cases that go beyond those time limits — 18 months for provincial courts and 30 months for superior courts — can be stayed for unreasonable delays.

“One stay of proceedings is one too many, let’s be clear on that,” Wagner said Monday. “The problem is that in some provinces there is not enough funding, there are not enough judges so that an accused cannot have his or her trial within a reasonable delay.” 

Wagner said the Jordan ruling is a consequence of a lack of funding for the justice system and those deadlines should not be extended to prevent stays in criminal trials. Instead, he said, the justice system should be supported properly.

“Jordan is the law and we should obey the law,” he said. “I think it would be unreasonable to believe that, in a society like ours, that an accused should wait more than three years to have his trial.”

More provincial funding needed: WagnerWagner said that because the administration of justice is mostly a provincial responsibility, governments across the country should properly fund their own systems.

“The court must have the resources to function effectively, from staffing to infrastructure. Our courts need resources to ensure that justice continues to to be served,” he said. 

Wagner said that in British Columbia and Ontario — where the cost of living is higher — it has been difficult to attract candidates to become judges because salaries and working conditions make the job unattractive.

“The conditions for the judge working on the bench these days is very difficult. In most provinces they don’t have enough support in terms of assistants, in terms of technology,” he said.  

Wagner said it is widely known in some provinces that lawyers will refuse to apply to be a judge because of the lack of support. 

“Those responsibilities come to the provincial governments, to make sure that they provide enough support, enough funding, enough technology,” he said. 

WATCH: Faith in justice system at risk if too many cases are stayed, chief justice says 

Faith in justice system at risk if too many cases are stayed, chief justice saysToo many cases stayed due to delays could cause people to lose faith in the justice system — which could pose a major threat to democracy, says Supreme Court Chief Justice Richard Wagner.

Wagner said the public’s trust in the justice system is essential to a “healthy democracy” and Canada is “not immune to all changes.”

“Today we are witnessing attacks on our judges and our institutions, something that we used to only see abroad,” he said. 

Wagner said people in general are not reading judgments from the courts before criticizing them and judges themselves are often scrutinized more closely than their rulings.

“It is one thing to disagree with a decision, but it is another thing altogether to criticize it because of who the judge is, or how they were appointed,” he said. 

“Comments like this undermine public confidence in the justice system. We should be especially concerned when elected representatives say these things.”

ABOUT THE AUTHOR

Peter Zimonjic is a senior writer for CBC News. He has worked as a reporter and columnist in London, England, for the Daily Mail, Sunday Times and Daily Telegraph and in Canada for Sun Media and the Ottawa Citizen. He is the author of Into The Darkness: An Account of 7/7, published by Random House.