For the second time this year, a man has seen his human trafficking charges thrown out due to delays at Toronto Superior Court caused by the federal government’s chronic failure to quickly appoint enough judges.
Marlon Downey’s case is the latest in a string of serious criminal matters to crumble at the downtown courthouse over the issue of judicial vacancies, sparking delays that one judge has described as an “embarrassment to the administration of justice.”
As the Star has previously reported, the other cases include charges of child sexual abuse, gun possession linked to a fatal shooting, and assault and sexual assault. They also include another human trafficking case against Downey involving a different complainant, which was tossed in January.
The Supreme Court has said that cases in Superior Court must be heard within 30 months, otherwise, they must be tossed for violating an accused person’s constitutional right to a trial within a reasonable time. (Delays caused by the defence or exceptional circumstances are deducted from the calculation.)
In a decision released Monday, Superior Court Justice Jennifer Penman tossed the charges in Downey’s second case after finding that “the most significant contributing factor to the overall delay in this case was a systemic lack of judicial resources.”
Penman’s decision includes passages from her judicial colleagues in the other cases, highlighting the magnitude of the problem.
Downey’s original trial last June had to be adjourned due to the lack of a judge, with the second trial date set for later this month. After deducting delay caused by the defence and the impact of the COVID-19 pandemic on court operations, Penman found that 33 months will have passed between when Downey was charged in November 2020 and the anticipated conclusion of his trial.
“There was no moratorium on judicial vacancies being filled during the pandemic,” Penman wrote. “There is no reason why vacancies which have existed since before the pandemic could not have been filled at a faster pace than what we have seen.”
Defence lawyer Myles Anevich, who represented Downey along with Christian Angelini, declined to comment when reached by the Star.
A spokesperson for Justice Minister Arif Virani said it would not be appropriate to comment on the specifics of Downey’s case before Penman, but pointed out that due to the federal election in 2021, there were no cabinet meetings for several months, which prevented new judicial appointments from being approved.
Downey’s other human trafficking case was stayed in January after his trial judge was elevated to the Court of Appeal and there wasn’t another judge immediately available. It ended up before Justice Todd Ducharme, who did not have several weeks in a row of free time to hear the case due to other matters, which dragged things out further.
In tossing that case, Ducharme wrote that the delay in criminal matters caused by a trial judge being elevated to a higher court “has been seriously exacerbated by the slow pace of judicial appointments by the federal government” to the Superior Court. The Crown is appealing that ruling.
Virani’s spokesperson Chantalle Aubertin reiterated in a statement to the Star this week that it is “simply false” to suggest that the government has failed to increase the speed of appointments, pointing out 118 new judges have been appointed across Canada in just the last 12 months. She said it’s “inaccurate” and “unhelpful” to blame delays on any one single factor.
“Court resources and scheduling processes need to be modernized, using technology and all available tools,” she said. “As prominent judges have observed, trials are taking longer than ever before, and lawyers need to do their part to streamline and prioritize how they use court time.”
The federal Liberals have been under fire for years over judicial vacancies, but criticism has reached an all-time high given the number of cases thrown out in Toronto in recent months.
The government has made some strides to speed up the process, though it will still take a while to see results. They’ve extended the membership terms of the various committees that screen judicial applications from two to three years, and asked them to meet more frequently.
Lawyers applying for the bench are now also asked to fill out the paperwork for a security check at the same time as they fill out the application form, to get the security check process started immediately should the Minister decide to put their name forward to cabinet for appointment. (Those checks are done by various government entities outside the justice department.)
And in the federal budget tabled Tuesday, the government announced it would redistribute 17 judicial positions that had been set aside for unified family courts in Alberta, but which have gone unused.
The Alberta government decided in 2020 to suspend the launch of the unified courts indefinitely; while the budget says the 17 judicial positions will go to courts “currently experiencing capacity issues,” the government hasn’t yet determined which ones.
Penman’s decision on Monday came just over a week after fellow judge Michael Code tossed sexual assault charges against a man who was accused of taking sexual photographs of his niece when she was six years old and using them to extort sexual acts for years. The man’s trial was adjourned twice due to the lack of a judge.
“The government had knowingly allowed the court to continue without its full judicial complement during an unprecedented crisis of rapid population growth, increasing numbers of certain serious crimes, and a pandemic backlog,” Code wrote.
“I cannot leave this application without saying, in conclusion, that it is an embarrassment to the administration of justice that this serious ‘priority’ case, involving alleged sexual abuse of a child, cannot be tried in accordance with the constitutional standard of trial ‘within a reasonable time.’”
