Judge shortage forcing Ottawa courts to prioritize criminal trials over civil cases

Delays by the federal government in appointing judges are crippling the criminal justice system, Ottawa lawyers say, and causing a domino effect on civil cases across the country.

The most serious criminal and civil trials requiring a jury are tried before Ontario Superior Court judges who are appointed by the federal government.

However, there are currently 43 vacancies for federally appointed judges, with another 12 slated to retire in February.

Ottawa medical malpractice lawyer Andrea Girones was told just before Christmas that one trial which was set to start in February had been cancelled, even though it had been booked more than a year earlier.

"They set a trial date, and then it collapsed because there's no judge available," Girones told CBC News.

Girones is representing the parents of a severely disabled girl in a multi-million dollar lawsuit against a doctor and hospital in northern Ontario.

The five-year old girl suffered brain damage during birth after not getting enough oxygen.

They set a trial date, and then it collapsed because there's no judge available.- Ottawa medical malpractice lawyer Andrea Gironesi

Girones hasn't been told when the jury trial will be rescheduled, and said it was difficult telling her clients that their fight for compensation has been postponed indefinitely.

It took two years to get the case ready for trial, she said, and hundreds of hours of discovery and depositions.

"One of the parents has to stay at home and care for the child. They've lost that income. The child has mobility problems, so they need ramps, they need an accessible home and extra therapies that [Ontario health insurance] doesn't pay for," said Girones.

"There's all kinds of early treatment these people can't access because they are just struggling to survive."

Postponements until 2019

Cases like Girones's — a civil trial being delayed so that criminal trials can be dealt with first — could just be the tip of the iceberg, said Joseph Obagi, an Ottawa personal injury lawyer.

Earlier in 2016, in a case known as Regina v. Jordan, the Supreme Court of Canada ruled that criminal trials involving serious offences such as murder should be completed in 30 months, from the time the charge is laid until the trial's conclusion.

Provincial court trials should be completed within 18 months of charges being laid, the court ruled, but can be extended to 30 months if there is a preliminary inquiry.

"Right now, if a [civil] case is ready to go to trial, and requires more than two weeks and a jury, the next available date is February 2019," Obagi said.

Obagi was told about the delay last week when he arrived at the Elgin Street courthouse in Ottawa to set a trial date. One of his clients is suing an insurance company for damages after suffering "catastrophic injuries" in a motor vehicle accident. 

It's the longest delay, said Obagi, that he's seen in his 20-year career as a trial lawyer.  In eastern Ontario, there are currently four Superior Court Judge vacancies, he said.

Obagi is criticizing the federal government for being unprepared for those vacancies.

"I want to see the federal government appoint the judges that need to be appointed. We know when these vacancies are coming. We know when judges are going to retire," Obagi said.

"We know these dates in advance, yet it always seems the government is playing catch-up."

Supreme court decision causing delays

Anne Weinstein, the president of the Defense Counsel Association of Ottawa, said she also believes courts are under pressure to deal with the backlog in criminal cases first.

Weinstein said she came to that conclusion after an accused murderer walked out of court a free man on a technicality in November 2016.

A first-degree murder charge against 33-year-old Adam Picard was stayed after a judge found that his case took 44 months to wind its way through the legal system, violating his constitutional right to a timely trial.

That decision is now being appealed.

Because of the danger of charges being stayed, my feeling is that civil trials are being pushed back to a later date.Anne Weinstein, president of the Defense Counsel Association of Ottawa

"Because of danger of charges being stayed, my feeling is that civil trials are being pushed back to a later date and time and criminal trials ... are getting priority," Weinstein said.

Ontario's Ministry of the Attorney General has not yet provided CBC News with the number of civil trials being pushed back to make room for criminal cases. 

But in an email, a ministry spokesperson wrote that a comprehensive plan was in place to "improve the performance of Ontario's criminal justice system so it is faster and fairer." 

In December, Attorney General Yasir Naqvi announced that 13 more judges would be appointed to the Ontario Court of Justice, while 32 assistant Crown attorneys would also be hired.

The province has also planned to provide more funding to legal aid and hire more court support staff — however, ministry officials did not provide a timeline for when these new hirings would take place.