Globe editorial: It shouldn’t take a crisis to fix the bench strength of Canada’s courts

A year ago, Supreme Court Chief Justice Richard Wagner issued a dire warning to Prime Minister Justin Trudeau about the many unfilled judicial jobs across the country – an “untenable” situation that could “result in a crisis for our justice system.”

At the time, there were upward of 90 judicial vacancies out of 995 full-time jobs on federally appointed courts.

Today, the situation isn’t resolved, but it is improved. There are now 57 vacancies. Chief Justice Wagner, in his annual press conference on Monday, expressed confidence in his prepared remarks that the federal government would continue on that trajectory. He didn’t declare the crisis averted but in an answer to a question, he repeated: “I am confident now that the situation can be corrected.”

Canada’s courts, like many institutions in the country, have operated under considerable strain for years. Judicial vacancies are one of several factors that have exacerbated the problems of delivering timely justice. Other major issues – also addressed by Chief Justice Wagner on Monday – include inadequate funding from the provinces of their courts and the continuing struggle to ensure cases are heard within the strict deadlines set out by the Supreme Court’s 2016 Jordan decision.

The three challenges are entwined. Too few judges and too little funding make it more difficult to meet the Jordan deadlines of 18 months for trials in provincial court and 30 months in superior court.

This space argued in 2017 – amid a rash of serious cases being stayed because of delays – that Jordan should be reconsidered. Jordan was, then and now, unduly prescriptive in its remedy. It was a 5-4 decision, in which dissenters included then-chief justice Beverley McLachlin and Justice Wagner. But the fact is Jordan remains in place. As Chief Justice Wagner said on Monday: “Jordan is the law.” And he rightly underlined the reason why delays must be minimized: “It’s not fair for the accused, it’s not fair for the victims, it’s not fair for the witnesses, it’s not fair for society.”

No one disagrees with the Charter right for a trial within a reasonable time but with the problematic inflexibility of Jordan locked in place for the moment, the two obvious levers of change circle back to human resources and money. The legal system wasn’t ready for what Jordan unleased – hundreds of cases were tossed – and eight years later the struggles continue. Quebec courts, for one example, stayed or dropped more than 300 cases from early 2021 through late 2023 because of delays.

On judicial vacancies, Ottawa has to ensure the problem doesn’t get out of control again. The governments of both Stephen Harper and Mr. Trudeau allowed vacancies to spike higher after they had managed to reduce the number of unfilled jobs. This year, Justice Minister Arif Virani has appointed or elevated 59 judges, on pace for more than 100 judges in 2024. It’s a mark the Trudeau government hit in 2017, 2018 and 2023.

There are issues in recruitment – Chief Justice Wagner cited working conditions and pay – but keeping judicial benches as close to fully staffed as possible has to be a permanent priority rather than one motivated by recurring emergency scrambles.

Ottawa has taken most of the criticism for challenges in the courts but the provinces cannot escape blame. Chief Justice Wagner’s letter last year had frank words for provincial premiers, pointing at “chronic underfunding by the provinces and territories.”

He made the argument again on Monday, saying “in some provinces there’s not enough funding.”

More money is an easy answer. The difficult question is putting resources to good use. Chief Justice Wagner and Mr. Virani co-chair the Action Committee on Modernizing Court Operations. It was started in the earliest days of the pandemic, to deal with the crisis at hand, and last fall was given its current name. It could be an important venue to lead on improved processes across the country. Chief Justice Wagner cited Manitoba tackling delays in family courts and virtual bail hearings in British Columbia.

Last year’s warning of a potential crisis in the courts from the Chief Justice of the Supreme Court was jarring. That the worst outcome has been avoided is good news – but it is lasting improvements that will mark real success in the bolstered functioning of the judicial system for all Canadians.