As of August 1, 2014, there were 1,140 federally appointed judgeships and 49 vacancies in those positions. That doesn’t sound like a lot of empty seats, but the reality is that filling those spots, and even expanding our courts by creating more judgeships, would do a great service both to the economic well being and the constitutional growth of our country.
Today, we are graduating more law students than ever before. There are hundreds, if not thousands, of young professionals seeking positions. Similarly, established lawyers are growing larger and larger practices for themselves, and may be failing to draw new lawyers in. These senior practitioners could continue on, or could move on to become judges – full or part time. The void left by one senior lawyer becoming a judge would create several opportunities for junior lawyers. To wit, this essay’s first thesis is that appointing more judges would create many new positions for lawyers who would replace them in the profession, as well as argue before them.
The secondary thesis is that having more judges would improve access to justice for everyone, but particularly Canada’s most indigent citizens, who now face huge challenges in both cost and timeliness in accessing justice effectively.
The third and final thesis is that in providing these citizens with greater access to justice, the law itself would be the beneficiary. As more cases move forward, the pruning shears of the common law would allow for the living tree of the constitution to grow in many different directions. That isn’t to say that it isn’t growing now, but there are many other places it can improve. This is, as noted by many political commentaries in every common law jurisdiction in the world, an essential check on the power of the legislature. In Canada, that serves as a defacto check on the power of the prime minister, who only serves in that role provided the government maintains the confidence of the legislature.
There is no doubt that the appointment of judges has been controversial in the past, and has even become top-of-fold news in recent months with the appointment, and rejection, of Federal Court Judge Nadon to the Supreme Court of Canada. The role of a judge is complicated and multifaceted depending on what the facts of a case are but, make no mistake, a judge who is asked to make a finding of fact as it relates to a pivotal matter of law, evidence or procedure has the power to radically change the fortunes of those who stand before them. In fact, the lower the level the judge, the more direct the impact s/he could have on petitioners.
There are many assumptions at the outset that we have to contextualize. The first assumption is that access to justice needs to be improved. It may be a truism to suggest that this is something that can always be improved. I have not argued in court for almost a decade, but when I was a full time civil litigator, it was rare when an action was initiated and heard within two years. For me, that seems like an unreasonable delay. Of course, that can vary widely depending on location, the actions of the litigants themselves, and the complexity of an action. Without putting too fine a point on it these delays are caused not because of litigants themselves, but because of the lack of a venue to hear the matters expeditiously. And if the delays are caused by the litigants themselves, the various rules of civil procedure offer a cost remedy.
The second assumption is that legal services are expensive to indigent litigants. Notwithstanding generous legal aid programs, there is little doubt that the average cost of a trial, no matter how expeditious, is beyond the means of most middle class Canadians. Even draconian cost provisions are of little use to a petitioner who cannot afford to pursue the matter to the verdict of a judge. Contingency arrangements are a viable tool to ensure that litigants can pursue matters of importance despite impecuniousness, but then they become partners with their lawyers whose interest in success, and potential settlements, will affect outcomes. All of this is to say that many imperfect remedies to an expensive and clogged court system have masked the real problem – there are too many petitioners for not enough courts.
Somewhat parenthetically, our constitution guarantees that individuals whose conduct has given rise to the ire of the state must be assured a speedy trial. Cases where section 11(b) of the Charter of Rights and Freedoms has been tested outline the obligations that the provinces have to those who are tried. While there may be a case for ensuring a timely remedy of a civil dispute, the reality is that none exists.
The effect of these delays are a larger number of settlements, which some would applaud as alternatives to trials. Assuming the settlements (as substitutions for trials) attain their goal, and the petitioners are made whole (or close to it), there is another loser that results: the law itself. If, as designed, the settlement tools prevent actions from moving forward, the very important role of judges as the interpreter of Parliament’s vision is stifled. The simple reality is that more judges would ensure that more laws were put before judges for interpretation or, at the very least, would remove one of the main hurdles that prevents litigants from advancing their claims. The functional reality is that the parties who have the resources to advance actions to the very end are not typically indigent.
In order to address the issues identified here, the system needs more than additional judges. There will be a concordant need for additional administrators, expanded working hours for courts to facilitate additional access, and, in some cases, additional bricks and mortar to house the expanded court circuit. By comparison to other government programs, the return on investment will be significant, and most importantly, compliment/fulfill a defined role of government. Notwithstanding the fact that Canada’s system of justice is reputed as one of the greatest in the world, access can always be improved – and adding to the roster of existing judges will ensure a broader array of petitioners can be heard.
There are additional ancillary benefits that are worth noting. First and foremost, a larger roster of judges at first instance provides a greater roster for the Prime Minister to choose from when filling appellate roles. The simple truth is that with more written decisions, there are more experiences to draw from, and presumably a deeper pool of would be applicants. Having a greater pool of judgments also creates a larger pool from which appellant litigation can be selected for consideration, and so on.
Then, we have the profession itself. While I will admit that few are ready to shed a tear for the legal profession, simply put, there are too many lawyers. Not too many in that there are not enough people who have a need for representation, but too many to easily find a court to argue before. There are also insufficient petitioners who would choose these lawyers at nascent stages of their careers.
I would posit that in the event that a 50 year old practitioner was plucked from private practice for a 15 year stint on the bench, his/her practice could not be assigned to one sole successor. If a lawyer who has been a member of the bar for 20 years is charging $500 per hour, it is not improbable to see a junior lawyer charge a quarter of that sum. Likely, the practice of a senior practitioner would be divided between two to four young lawyers who combined form the base needed to ‘replace’ that barrister/solicitor in the profession. Appointing more senior lawyers to the bench will create more opportunities for juniors, which would in turn create more opportunities for new calls, and the demand for the lawyers our professional schools are churning out.
Of course, having fewer and fewer cases going to the end with a broader and broader class of potential litigation, we are seeing case law develop in shoots. Take the example of privacy law: two decades ago, this was an area of law that was almost undeveloped. Today, there are federal and provincial laws that define the obligations of information holders and remedies that can be sought by those who have their privacy rights violated. We have a privacy commissioner federally, and similar offices in ten provinces, whose offices can issue decisions that affect litigants. Those decisions are subject to judicial review. The volume of information they generate is astounding. Is it likely that the federal and provincial governments accounted for this when making estimates about how many judges to put on the bench?
There will always be one incredibly important argument against everything suggested above: cash. We can’t afford to expand the current judiciary, and adding judges is only the first part of what would have to be expanded. Short of bricks and mortar, there are several ancillary costs that would accompany creating new judges. While this may seem like facile analysis, the costs of the administration of justice are significant. But the question remains: are we effectively administering justice? I stand by the supposition that any system that allows litigation to languish for years before being heard can – at the very least – be improved with additional resources. Can we afford not to?
W. Scott Thurlow was called to the bar of Ontario in 2003. He has represented litigants at several levels, and currently focuses on environmental issues.