'We have no judge for you': Man's assault charges dropped weeks before trial due to lack of judges in Toronto

A man who was accused of sexually and physically assaulting a woman had his charges dropped in April, just weeks before he was set to stand trial in Toronto, due to a lack of judges in the region.

In an Ontario Superior Court hearing in April, Catherine Rhinelander stayed four counts of assault, two counts of sexual assault, and one count of uttering threats against Emron Constantine after finding his constitutional right to a timely trial had been breached.

According to Rhinelander’s decision, released last week, Constantine was alleged to have physically assaulted, raped, and made death threats against a woman over the course of several incidents.

Constantine, arrested and charged on Oct. 3, 2019, was set to stand trial in September 2023. When he arrived, however, there were no judges available to hear the case.

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“The parties reattended the following morning [...] and were told again, ‘We have no judge for you,’” Rhinelander wrote.

A new trial was scheduled for May, nearly three years after charges were first laid.

Under Canada's Criminal Code, anyone charged with an offence has the right to a trial within a reasonable time frame. Barring exceptional circumstances, that timeframe is 18 months (1.5 years) in Ontario’s courts.

In her decision, Rhinelander noted the pandemic and procedural issues contributed in part to the total delay but ultimately pointed to a lack of judges as the tipping point in the case.

“This matter would have been completed within the [...] timeline, had a judge been available,” Rhinelander wrote. “ It is this additional [..] delay caused directly by a lack of judicial resources that resulted in this matter exceeding [its limit].”

The Ontario Courthouse at 361 University Avenue in Toronto is photographed on Monday, May 2, 2022.The pandemic forced the court system to quickly adopt technology it had long resisted, such as facilitating remote hearings, and even now as society resumes "in person," two Ontario chief justices say virtual options will remain essential for access to justice.THE CANADIAN PRESS/Christopher Katsarov

In her analysis, the judge echoed the words of Justice Michael Code in a 2022 Superior Court ruling in which Code wrote that trial lists have long been “overbooked.”

“There are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably "collapse", either on the trial date, shortly before or shortly after [...]. As a result, trial scheduling involves some art and some science,” Code wrote.

“A properly functioning Court will have enough flexibility, in terms of available judges, so that a judge can be called upon to take up a case that has not collapsed and that has not been assigned. When the Court has no such flexibility, because of a shortage of judges, a case that is ready to proceed and that has not been assigned, will not be reached.”

“In other words,” the judge concluded, “the Court must have enough judges to try the cases that do not collapse.”

After a March press conference held at Queen’s Park by former complainants in other cases recently tossed over delays, New Democratic Party MPP and critic for the Attorney General, Kristyn Wong-Tam called the backlog “staggering.”

“Tough-on-crime rhetoric from the government means absolutely nothing if the courts are understaffed and cases are tossed out,” Wong-Tam said. “Right now in Ontario, courtrooms empty while lives hang in limbo, staff are overwhelmed and justice is again denied. The premier is profoundly harming our justice system.”

But with no new funding earmarked for the justice sector in the 2024 budget, the MPP said existing courtrooms will remain “dark,” and the cases meant to be heard within them will continue to face delays.

For example, at Toronto’s newest Ontario Court of Justice facility, multiple cases have been thrown out in recent months due to staffing issues. The facility took over proceedings from six others in Toronto, North York and Scarborough, a move the union representing public court employees warned against.

Following the press conference at Queen's Park, Attorney General Doug Downey said he doesn’t have "the luxury” of addressing individual cases, but insisted the government is doing “everything we can” to alleviate backlogs and avoid delays.

“We have hired over 340 individuals in the court system, crown prosecutors, victim witness assistants, court employees, court staff,” he said during a question period in March at Queen’s Park.

“It is incredible the amount of resources this government is putting into the system to deal with the lack of progress that happened under the liberals previous to us.”

Funding for the justice sector is set to decrease from $6.1 billion to 5.9 billion as per the 2024 Ontario budget.

With files from CTV News Toronto's Katherine DeClerq.