There is a crisis in the criminal justice system in Ontario. There are too many cases being prosecuted, and not enough judges to hear them. The result is that cases are taking too long to get to trial, accused people are suffering prejudice from the delay, and charges are being dismissed as a result.
The judicial shortage in Ontario is not a new problem. For decades both federal and provincial
governments have repeatedly promised to fix it, yet judicial vacancies have remained. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees an accused the right to have their trial within a reasonable time. Since the enactment of the Charter in 1982, what constitutes a “reasonable time” has been the subject of much debate. Finally, in 2016, the Supreme Court of Canada settled that debate in R. v. Jordan by outlining “presumptive ceilings” for how long cases should take to get to trial: 18 months in the Ontario Court of Justice, and 30 months in the Superior Court of Justice. Anything longer that will result in the charges being stayed following an application by the accused pursuant to section 11(b) of the Charter unless the Crown can justify the delay by proving that it was caused by either exceptional circumstances or by the conduct of the defence.
Despite the Supreme Court’s pronouncement in Jordan, the pace of judicial appointments has remained slow. Significant vacancies remain, and little is being done to correct the problem. Shortly after the release of Jordan in 2016, funds were earmarked by the federal government for the hiring of judges, and provincial advisory committees were created to assist with the process. Yet in January of 2018, the Canadian Bar Association wrote to the Minister of Justice expressing concern that despite the ruling in Jordan, promises for change were not being kept.
The problem continues to get worse rather than better. Following the dismissal of a case involving serious fraud charges in July of 2018 as a result of delay, Norine Nathanson, senior counsel to the Chief Justice of the Ontario Superior Court of Justice, said that she expects the percentage of judicial vacancies to reach an all-time high by September of 2018.