Matt Gurney: What happens when Trudeau can't blame the premiers, NIMBYs or disinfo?

Women and even children look to the courts after alleged rapes. But there aren't enough judges. The accused go free.

Shutterstock image.

By: Matt Gurney

An evolving line of defence we see from the federal Liberals is that they're actually doing a great job. It's those darned provincial premiers that are screwing things up.

We touched on this in our last dispatch. And you know what? There's some truth to it. Some, I stress. A lot of issues that are much vexing Canadians today aren't fully or even primarily in federal jurisdiction. Health care and housing are two obvious examples. Canada is a complicated place, and the Liberals no doubt prefer to not talk about things that they've done that have exacerbated challenges faced by other orders of government. But the basic point is fair: Justin Trudeau ain't to blame for all that ails you. Or at least, the blame ought to be spread around some.

This national disgrace, though, lands squarely on him.

You might have read about the shortage of judges across the country. It's a pretty niche issue, so you might have missed it. Even if you've heard about it, you may not have paid much attention to it. Most Canadians won't have much contact with the criminal justice system over their lives, let alone make their careers in it. But the crux of the issue is this: appointing judges to provincial superior courts, where many of the most serious matters are heard, is in the federal jurisdiction. Solely. Ditto appointments to the courts of appeal: totally in the federal jurisdiction. And the feds have fallen way behind on filling vacancies and aren't appointing judges fast enough to erase the backlog. Despite a spate of recent appointments, there are dozens of vacancies across the country. These are funded positions that ought to be filled and overseeing cases. But they aren't, entirely because the feds haven't made the necessary appointments. That’s the issue.

A lack of judges is creating bottlenecks in the justice system. Arrests are being made and charges are being laid and cases are being prepared and then ... nothing happens. Because you can't hold a trial if there isn't a judge available to oversee it. 

The Toronto Star's Jacques Gallant has established something of a bleak speciality in his recent reporting. He's written a series of articles in recent months documenting serious criminal cases that are being thrown out of court, with the accused set free, because their trial has been delayed so much that it cannot be completed before the Supreme Court-ordered limit for a "reasonable" wait for a trial runs out. That's 18 months for more minor issues, and 30 months for serious ones. 

To be clear: the decision to throw out the cases is, in a legal sense, correct. Indeed, it's mandatory. The Supreme Court determined what a hard limit should be, and a case that exceeds that is dead. Full stop. That's the law of the land. The judges forced to preside over these dismissals are not to blame, and are increasingly venting their frustration in their rulings. They're mortified, and they're criticizing the government in unusually blunt terms, to put it mildly. You don't often read court rulings that come off more like op-eds, but we live in weird times.

But it's a good thing that they're saying something. Because these vacancies are having appalling real-world consequences. Gallant wrote recently about a case that I felt would mark the low point in the entire embarrassment. A woman had accused a man of raping her. She did a brave thing and reported it. The police believed her and made an arrest. The Crown reviewed the evidence and believed her, and proceeded with a trial. A jury believed her, and after considering the evidence against the accused and hearing his defence, convicted him of the crime. 

And then the judge tossed the case, setting aside the verdict and letting the accused go free, innocent in the eyes of the law. Because the clock had run out.

I've been in this industry long enough to be fairly jaded (as regular readers have probably noticed!). I have a generally low view of Canadian state capacity, across the board, which means that when reviewing individual situations, I'm easily impressed by even baseline competency — a modest idea effectively executed, wow! — and also hard to disgust by failure. But this case disgusted me, in a quite literal sense. My stomach flipped over when I read about it in the Star. I couldn't help but imagine what it must feel like to be that woman. Or any woman who may find herself in a similar circumstance.

You're attacked, you've violated. You show the incredible bravery and strength of character required to pursue the matter via the justice system. You are heard. You are believed. You are taken seriously. The person you’ve accused is convicted. You're vindicated! And then, oops, it turns out we have an incompetent federal government, so the man the jury agreed raped you can go free. Our bad! But keep an eye out for that carbon tax rebate (if you live in a province under the federal backstop, that is).

(Astute readers may notice how carefully I've had to describe the accused. Since the verdict was tossed, he isn't technically guilty, and I can't refer to him as if he was.) 

The Crown is appealing the stay of the guilty verdict. I have no prediction about how that will go. Even if the appeal succeeds and the conviction is restored, nothing will undo the further emotional harm done to the accuser.  

I trust the reader will agree with me that this is a horrific story. You can understand why I dared dream it would mark the low point in this whole affair. 

I was wrong.

Gallant's latest in the Star is a gut punch to read. There's no other way to put it. A man was accused of taking sexual photos of his six-year-old niece. He later allegedly used those photos as blackmail material to extort sex from the child. Arrested and charged, the man twice had his trial delayed due to a lack of judges being available to oversee the proceedings. The delays caused the clock to run out, and the man was set free.

I'm honestly at a loss to say more. What can I add? This is one of those situations where I think the facts of the matter are more damning than any turn of phrase I could whip up to try and convey how bad this is. Everything I said above about the other case applies, but it's amped up by the alleged victim being a child and the accused being a family member. That is a nightmare scenario, and it is also apparently something that it is now beyond the ability of this G7 nation to handle because, well, the federal government isn’t that good at federal government stuff.

This isn't a new problem. It’s been written about for years. It didn't sneak up on us. The government has had plenty of time to react to this. Indeed, it was ordered to in February, when a Federal Court judge took direct aim at the problem: the prime minister and the justice minister. “With the greatest respect, the court finds the Prime Minister and Minister of Justice are simply treading water,” Justice Henry Brown wrote in a blistering ruling on the matter of judicial vacancies. “And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the Superior Courts and Federal Courts across Canada.”

Justice Brown added: "The Respondents [the PM and justice minister] offered no justification for their decision to refuse the request to fill these judicial vacancies. As a matter of well-established convention, also not disputed, the Prime Minister and Minister of Justice have effective and exclusive control over, and in the Court’s view, they have the concomitant responsibility to appoint judges to the Superior Courts across Canada, and the Federal Courts. It is not doubted that no such appointments may be made without their advice and consent."

I'm not a lawyer or a judge. I know my limits on this stuff. And that's why lawyers and other legal experts will read over this before I publish it. I want to get the details right. My beloved readers won't see a version of this that doesn't pass their muster. 

But still. Even I, a mere humble scribbler of phrases and hurler of comments, knew to sit up and read Justice Brown's ruling again after it came out in February. This part in particular jumped out at me, both then and on re-reading: "[T]he Prime Minister and Minister of Justice have effective and exclusive control over, and in the Court’s view, they have the concomitant responsibility to appoint judges to the Superior Courts across Canada, and the Federal Courts."

"Exclusive control." No meddling or obstructionist premiers. No NIMBY local councillors. No pesky or even hostile foreign governments. Not even a trusted ally putting limits on what we can do with intelligence they share with us. Appointing judges to the superior courts is something that only Trudeau and his justice minister can do, and indeed, something that no one can stop them from doing. They haven't done it well enough, and though they are making appointments, there are still dozens of vacancies. 

Each one of those vacancies is a denial of justice to Canadians. Every last one of them. There are Canadians who have been wronged, in brutal, dehumanizing and even fatal ways, who will never know justice because this government just epically screwed up a kind of important thing that only it can do.

Even a fully staffed court will never function perfectly; charges will sometimes be stayed against the guilty because of errors and truly unavoidable delays. I get that. Perfection isn’t required. Just a baseline level of adequate competency. That seems beyond the feds’ grasp here, alas.

The PM and his ministers and staffers don't get to blame some other actor for this. This isn't misinfo or disinfo. This is a woman and now a kid, and other people in cases Gallant has written about and probably others we haven’t yet heard about, needing to be told that the person that hurt them gets to go free because Trudeau and a succession of justice ministers ... 

... well, I dunno. I don't know how to finish that sentence. They've never really offered an explanation or excuse for why they dropped this ball, as Justice Brown noted in one of the quotes above. 

Maybe that's because when there's no one else to blame, they don't even know what to say. 

Oh, and by the way. That Federal Court ruling from February? The one telling the feds to get moving on filling the vacancies that have left a woman and child unprotected by the law? The government is appealing. I suspect they’ll find a judge to hear that one.

Correction: The photo at the top of the article has been replaced to accurately display the correct court facility.

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