1.
Justice Warren E. Burger ... ours is a sick profession
marked by incompetence, lack of training, misconduct and bad manners.
Ineptness, bungling, malpractice, and bad ethics can be observed in court
houses all over this country every day ... these incompetents have a seeming
unawareness of the fundamental ethics of the profession. ... the harsh truth is
that ... we may well be on our way to a society, overrun by hordes of lawyers,
hungry as locusts, and brigades of judges in numbers never before contemplated.
Ontario Superior Court warns federal government it
‘desperately’ needs more judges
As one lawyer puts it: “Toronto
courts have been plagued with too many cases and not enough judges.”
By Jacques GallantLegal
The Superior Court of Justice is warning that it “desperately” needs more
judges to keep up with an increasingly heavy and complex caseload.The court, which handles all civil and some family matters, as well as the most serious criminal cases such as murder, has requested that federal Justice Minister Jody Wilson-Raybould immediately add an extra 12 judges to Ontario’s judicial complement.
Whether that will actually happen anytime soon remains to be seen, although it doesn’t appear that Ontario will get all 12 judges in one round. Wilson-Raybould’s office said she is considering the request, as other provinces also put forward business cases for increases in their number of judges.
Courts across the country have been grappling since last year with the effect of a landmark Supreme Court of Canada case known as R v. Jordan, which set strict timelines to bring criminal cases to trial.
The Jordan ruling has left understaffed courthouses, including in Ontario, scrambling to redeploy judges to criminal matters at risk of being tossed due to delay, to the detriment of non-urgent civil and family matters.
“In addition to the court’s criminal workload, an immediate addition to Ontario’s Superior Court judicial complement is desperately needed to deal with families in crisis and urgent child protection cases,” Mohan Sharma, counsel in the office of Ontario Superior Court Chief Justice Heather Smith, told the Star in an emailed statement.
Ontario’s population has increased by 3.4 million since 2000, Sharma said, “but over the last 17 years, the Superior Court of Justice has not received a proportionate increase to its judicial complement.”
The last time an increase was made to the complement was in 2008, when the court received eight additional judges, Sharma said. There are currently about 330 Superior Court judges allotted to Ontario.
The court’s request is supported by leaders from the associations that represent criminal, civil and family lawyers, who point out the addition of judges is just one way to speed up the justice system post-Jordan.
“There’s no question that the Toronto courts have been plagued with too many cases and not enough judges for them to be heard,” said Michael Lacy, a vice-president of the Criminal Lawyers’ Association.
“If there’s going to be a meaningful response to Jordan and a meaningful approach to ensuring that people get a trial in a reasonable time, the obvious thing to do is add more judges.”
While praising the Superior Court’s request, the chair of the Family Lawyers Association pointed out that the bulk of family matters are heard at the lower level in the Ontario Court of Justice, which also requires more resources.
“I just don’t want the Ontario Court of Justice to be forgotten, that we need to be aware that that court requires resources,” said Katharina Janczaruk.
“I think we need to be particularly concerned because of the population that utilizes the Ontario Court of Justice are, by and large, low-income individuals. They're entitled to have their matters heard on a timely basis.”
Sharma, at Superior Court, said the court was “unable” to provide a copy of the business case sent to Wilson-Raybould because communications between the chief justice and minister are treated as confidential.
But Sharma said the business case identified the Toronto, Central West and Central East regions, which cover the GTA, as well as the East region, which includes Ottawa and Kingston, “as being in the greatest demand for additional judicial resources.”
The court is looking to get its hands on some of the new judicial positions created in this year’s federal budget, which proposed spending $55 million over five years, and $15.6 million per year thereafter, to cover the costs for 28 new judges.
The government has already said that 12 would be allotted to Alberta, and one to Yukon, while the remaining 15 would be assigned across the country depending on need. Two have since been allotted to Quebec, which leaves 13 positions in the pool, of which Ontario wants 12.
“The appointment of 12 of the 28 new judge positions to Ontario should be viewed nationally as a fair apportionment,” Sharma said.
Ontario initially requested six positions last October, but revised that request to 12 following the budget announcement in March.
A statement from Wilson-Raybould’s office sent to the Star said Ontario’s “subsequent request for additional judges will be evaluated in a separate round, funding for which may be sought in Budget 2018.
“The minister of justice has not yet made appointments in Ontario using the pool positions. We anticipate that such appointments will be made in the coming months, although we cannot confirm in advance exactly how many pool positions will be allotted to Ontario.
The judge shortage also highlights the fact that while criminal matters carry a constitutional right to a trial in a reasonable time, no such right exists in civil and family matters.
Civil lawyers, for example, have complained of their cases being pushed even further down the road because the judge hearing the matter has had to be redeployed to a criminal case.
“As somebody who represents very seriously injured people, you sort of wonder why a woman whose back is broken by the negligent act of someone else is treated differently than an alleged criminal who needs to have their case tried, even for just a minor criminal offence,” said Ron Bohm, president-elect of the Ontario Trial Lawyers Association, which represents lawyers acting for plaintiffs.
In Ontario, all criminal cases begin at the lower level of the court system, in the Ontario Court of Justice. In some cases, criminal matters that then head to Superior Court first go through a preliminary hearing in the Ontario Court of Justice to determine if there’s enough evidence to proceed to trial.
Heather Smith, chief justice of the Superior Court, has said that the addition of 13 judges to the Ontario Court of Justice by the provincial government to respond to Jordan has meant that cases are now making their way to her court even faster. But there are simply not enough Superior Court judges to deal with the influx.
“The great efforts of our dedicated judges have held the line in criminal cases until now,” Smith said in remarks at the opening of the courts ceremony in Toronto earlier this month. “But, nothing short of a very immediate increase to the judicial complement of the Superior Court will allow this court to maintain control of its very heavy and highly complex criminal caseload.”
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