Shortage of Judges May Prevent Highest Profile White Collar Trial in Canada

by Diane Francis

People enter the Law Courts in Winnipeg for the trial of Raymond Cormier, Tina Fontaine's alleged killer, Monday, February 5, 2018. A jury has finished hearing evidence in the trial for a man accused in the death of an Indigenous teen whose body was found wrapped in a duvet filled with rocks in Winnipeg's Red River. THE CANADIAN PRESS/John Woods ORG XMIT: CPT143

The Federal budget in 2018 earmarked tens of millions to crack down on tax evasion but too little to address the current, and dire, shortage of judges to hear criminal trials.

Shortages mean undue delays which has led to the scrapping of more than 200 criminal cases across the country since 2016 when the Supreme Court ruled that unreasonable delays abrogate the rights of the accused.

Ironically, the day after the federal budget, on March 1, one of the country’s highest profile white collar cases may be scrapped due to the severe shortage of judges.

The case involves six persons accused of bilking at least $14 million from 5,000 Canadians by selling them illegal tax shelters. One of the accused plead guilty and the trial has been postponed to next year, the second delay since charges were laid in 2014.

Last week, Superior Court Judge John McMahon spoke in open court to those of us in attendance about this unacceptable situation.

“There are 44 homicide trials scheduled this year in the Toronto Region,” said McMahon. “The delay is due to the unavailability of this court to provide a judge. I was hoping to get additional judges, and asked the federal government.”

The 2018 Federal budget proposes the appointment of many judges to deal with family court matters but sets aside a few million to hire only 28 Superior and Appellate Court judges across the country over the next five years.

This will be inadequate: Ontario has 284 Superior Court judges and already six unfilled vacancies.

The judge apologized to all parties involved and said he not only appealed to the federal government without success but also made phone calls to nearby regions to try and find a judge with a 12-week availability, also without success.

“I reached out to Central East and Central West Regions and another judge is not available for a trial. I have exhausted every remedy I have,” he said. “The frustration of this court is that it lacks sufficient resources to do its job despite everyone’s best efforts.”

The trial was postponed this week to January 11, 2019 – which may lead the accused to argue this is past the “unreasonable” timeline of roughly 30 months stipulated by the Supreme Court in 2016. Since then, 204 criminal court caseshave been dropped across the country, according to recent court records.

“There is nothing we can do to get this trial to go ahead,” said the judge. “I’m out of options, and January 2019, is the first available time in Toronto for a 12-week trial. Now we are facing an additional 11 months. There is jeopardy in this case because of that.”

The police and Crown prosecutors in attendance were visibly upset. The trial was to be the culmination of months of investigation and preparation. Most likely, as the judge hinted, the accused will ask for the charges to be tossed out due.

“This is tragic,” said Crown Prosecutor Michael Lockner. “This is so frustrating.”

Months of preparation have gone into preparing for the lengthy trial, on the part of Crowns and police alike.

Another participant, an RCMP officer, described the situation as “a travesty” and a “clear signal” to white collar criminals that Canada is a pushover.

Clearly, the federal government allocation in the 2018 budget is an attempt to catch up, but it’s too little, too late and, besides, its other new initiatives to pursue tax evaders will only make shortages worse.

The public interest is not being served and the system is forced to make unacceptable choices.

“This (case) is in the public interest and the only way this case goes ahead is if the Crown withdraws other cases,” suggest McMahon.


First published Financial Post Mar. 2, 2018