Imagine being a young girl, sexually abused by her father for years, who finally has the courage to come forward, tell someone what has happened and have police lay charges. Yet, instead of seeing your father processed through the justice system, he walks not because a judge or jury of his peers acquits him but because the government hasn’t appointed enough judges.
That’s the story of a Toronto girl right now as she stares down a deadline for her father walking free due to a lack of judges to hear the case.
In January 2021, then-12-year-old Alexandra (all names have been changed) told a therapist about abuse at the hands of her father. The therapy session had been arranged because of Alexandra’s behaviour, she was showing signs of depression, was throwing up her food and had spasms, according to her mother.
As Alexandra spoke to the therapist, she went into detail about the mental and sexual abuse she had suffered for years. The revelations shocked the therapist at first, then her mother, as some details were shared.
It also resulted in the therapist reporting the abuse to authorities, as is required by law.
In part, Alexandra detailed how her father deprived her of food and sleep and was verbally abusive. Worse was the sexual abuse with her father forcing her to sleep naked with him, limited her use of the toilet, had her perform strip teases for him and forced her to touch him sexually.
The abuse started shortly after her parents split and carried on until she had the strength to report it.
Speaking to her mother, Lisa, over the phone, the emotion, the anger, the frustration and anguish with the system is palpable. Going through the process of meeting police, speaking with detectives and prosecutors has been agonizing for the family, but could now all be for nothing if the case is thrown out due to the lack of a judge.
The Charter of Rights and Freedoms upholds the ancient right that we all have the right “to be tried within a reasonable time.” That wasn’t happening in Canada’s court system and so in a 2016 case known as the Jordan decision, the court set rules including that a trial must happen within 18 months for lesser cases, and within 30 months for more serious cases.
That 30-month window is what Lisa and Alexandra are staring down now as they await word of a trial.
A trial had been scheduled for early May, but when no judge was available that morning, they were told to come back after lunch to see if one could be secured. This bizarre process continued for three days until they were told that they would have to wait for another trial date to be available.
Right now, they are looking at the possibility that they won’t get a trial date until 2024 and even at that, a judge may not be available. The real worry is that if a trial doesn’t start by late August, the case will be thrown out for having hit the 30-month mark since charges were filed.
Lisa feels like the justice system, which she so firmly believed in, has failed her family.
Canada’s judicial crisis
Canada has long had problems getting cases heard within an appropriate time in court; it’s what led to the Jordan decision.
Peter MacKay was minister of justice from 2013 through 2015 in the Harper Conservative government. He admits that filling judicial vacancies can be difficult for the government of the day but said the Supreme Court’s decision in 2016 should have been a wake-up call.
“It was a clear signal from the supreme courts to all governments that they needed to fix the capacity and hire more judges, but it hasn’t happened,” MacKay said.
He said the Jordan decision was a symptom of a system in trouble but added that things have gotten worse — not better — since the decision was handed down. MacKay doesn’t fault the court for coming up with guidelines to ensure the rights to a trial within a reasonable time are safeguarded; he blames the government for not doing enough to meet the requirements the court laid out almost seven years ago.
Toronto defence lawyer Ari Goldkind sees the problems in the court system on a daily basis. He agrees judicial appointments need to be filled, but that’s not the only issue.
“There are dozens of good candidates waiting to be called and dozens who won’t apply because it is very political,” Goldkind said of the onerous application process to become a judge.
Still, he said that even all judicial appointments were filled tomorrow, there would still be problems.
“It’s not judges, judges, judges, it’s court staff, it’s the move back to bricks and mortar which clerks and others don’t like and it’s the lack of a defence bar,” Goldkind said.
Too many defence lawyers are leaving the practice to make more money as crown attorneys and not enough is invested in a proper legal-aid system, which bogs down the court.
And in the end, the innocent are hurt.