‘Going to need appointments’: Manitoba Court of Appeal judges’ bench at half-strength
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Justice is supposed to be blind, but the province’s highest court is finding out what it is like when there are fewer eyes.
The Manitoba Court of Appeal normally has eight full-time judges. However, its bench strength has dropped to four.
There have been two retirements — Chief Justice Richard Chartier on Oct. 30, followed the next day by Justice William Burnett — and Justice Lori Spivak and Justice Karen Simonsen decided to become supernumerary (basically part-time) on Sept. 1 and Oct. 8, respectively.
“That was four full-time judges in the course of two months,” Justice Diana Cameron said during an interview Tuesday.
“So, basically, our full-time judges were cut in half… We are obviously going to need appointments. But we are taking measures to provide justice for Manitobans in an appropriate fashion.
“We’re hopeful there is something soon.”
The choosing of judges for both the general and the appeal court levels used to be solely a political matter — determined solely by the prime minister and federal caucus.
However, in 2017, the Trudeau government created a new judicial advisory committee process to assess applicants for such federal positions. Each committee, created for each province and territory, is made up of a strong majority of women, Indigenous people and minority groups.
The committees, after assessing applicants, forward lists of both recommended and highly recommended candidates to be considered by the justice minister.
“So, basically, our full-time judges were cut in half… We are obviously going to need appointments. But we are taking measures to provide justice for Manitobans in an appropriate fashion.”–Justice Diana Cameron
Paul Thomas, professor emeritus of political studies at the University of Manitoba, said Ottawa needs to put a priority on filling judicial vacancies.
“They used to be very informal — ‘Tell me a lawyer on our side’ — but I don’t think that happens now,” Thomas said.
“The committee is tasked with making recommendations to the minister of justice who then recommends to the prime minister. The current prime minister… has been slow to appoint, not just in the courts, but also commissions and boards… At some point, someone has to sit him down and tell him: you have to do this.”
Brandon Trask, an assistant professor of law at the U of M and a former Crown attorney in Newfoundland and Labrador, said vacant judicial positions makes it tougher for people to get justice.
“The Court of Appeal is the highest court in Manitoba and it has important work to do,” Trask said. “It is impossible for us to know where the hold up is, but on the whole, that process needs to move forward.”
Trask said the appeal court deals with many cases involving both criminal and civil matters.
“In many cases, the Court of Appeal’s decision is the end of the road, but not in all cases,” he said. “It could go back to King’s Bench for another trial or on to the Supreme Court.
“There’s a common saying that justice delayed is justice denied… filling judicial vacancies should be a priority for the federal government.”
“There’s a common saying that justice delayed is justice denied… filling judicial vacancies should be a priority for the federal government.”–Brandon Trask
Cameron said, in the interim, the high court has taken several measures to deal with the vacancies, including cutting one day of court time per week (sitting four days) and borrowing judges from the Court of King’s Bench to fill-in during six sessions between Dec. 9 and March 8.
As well, Cameron, who has taken on the administrative duties normally carried out by the chief justice, is continuing to sit full-time in court.
“Obviously, those are not permanent measures — and they can’t be permanent measures,” she said.
The court has five supernumerary judges (Spivak, Simonsen, Justices Freda Steel, Holly Beard and Marc Monnin), but they can only do so much, Cameron said.
While full-time judges take on average for 33 to 34 panel sittings a year, and an average of 25 chambers sittings a year, supernumerary judges average 18 panel sittings a year and about the same number of days in chambers.
Cameron said the court is keeping up on cases for the time being, but that will be tougher the longer the vacancies go unfilled.
“I will say that, as of now, if your appeal is perfected and you are ready to set a date, you can get a date still in March, April and May,” she said. “However, as we decrease the number of sittings that we have per month, that is going to be pushed back.
“We need to have eight full-time judges in the Court of Appeal to be able to function properly on a long-term basis.”
Kevin Rollason is one of the more versatile reporters at the Winnipeg Free Press. Whether it is covering city hall, the law courts, or general reporting, Rollason can be counted on to not only answer the 5 Ws — Who, What, When, Where and Why — but to do it in an interesting and accessible way for readers.
Updated on Wednesday, January 25, 2023 9:30 AM CST: Corrects that the average is 18 panel sittings a year
Updated on Wednesday, January 25, 2023 1:59 PM CST: Brandon Trask's role at U of M