Federal Court rules Ottawa failed constitutional duty to fill judicial vacancies

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A judge has told Prime Minister Justin Trudeau and his cabinet that they have violated their constitutional duty to appoint judges, and need to fill the 75 vacancies in a timely fashion, in the first ruling to address a government’s obligations to appoint judges.

While not expressed as an order – the ruling sets no timelines – Federal Court Justice Henry Brown made it clear he expects Mr. Trudeau, Justice Minister Arif Virani and cabinet to respect his declaration and “obey the law.” If they do not, he said, the lawyer who brought an application for a court order compelling the government to appoint judges promptly, Yavar Hameed of Ottawa, and even Supreme Court Chief Justice Richard Wagner, are welcome to come before him to address the matter.

Justice Brown found vacancies are at a “crisis” level, and said the federal government did not contest that fact during the court’s hearing.

“It would be absurd to suggest the ‘rule of law,’ essential to the proper function of the nation and enshrined in the preamble to the Constitution Act, 1982, exists at the whim of the executive government,” Justice Brown wrote in a ruling Tuesday.

Mr. Virani said on social media the government is reviewing the decision and he defended its record, saying it had appointed 100 judges last year and was working faster than the previous Conservative government.

In legal terms, Justice Brown broke new ground by finding that the responsibility of a prime minister and cabinet to appoint judges is a constitutional convention, and that the convention imposes legal duties which “may not be ignored.” He said he expects the government to reduce the number of vacancies to the mid-40s, where they were in the spring of 2016, shortly after Mr. Trudeau came to power.

“In this manner, the court expects the crisis and critical situation to be resolved,” Justice Brown wrote.

In political terms, the ruling is a powerful criticism of the government’s failure to fill judicial vacancies, and the effects of that failure on the criminal and civil justice systems. Justice Brown reprints in full a 1,100-word letter on the subject, written last May by Chief Justice Wagner and the Canadian Judicial Council, a body of 44 chief and associate chief justices, to Mr. Trudeau and then-justice minister David Lametti.

“They have failed to take the actions requested by the Chief Justice of Canada and the Canadian Judicial Council,” Justice Brown writes. “And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the superior courts and federal courts across Canada.”

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In the nine months since Chief Justice Wagner’s letter, vacancies have dropped to 75 from 85, out of roughly 1,000 full-time spots. Justice Brown concluded the government is “simply treading water.” He added: “The court finds the Prime Minister and Minister of Justice have refused the request made by the Chief Justice of Canada and Canadian Judicial Council.”

The Chief Justice’s letter said that some positions have remained open for months or years. (Justice Brown cites data showing the average wait to fill a vacancy is 504 days, with a midpoint wait of 383 days.) The result, the letter said, is that serious criminal charges, including sexual assault and murder, have had to be thrown out because of unconstitutional delays. There has been a spillover effect on the civil-justice system, too.

“The justice system is consequently at risk of being perceived as useless for civil matters,” the letter said. “We will soon reach a point of no return in several jurisdictions. The consequences will make headlines and have serious repercussions on our democracy and on all Canadians.”

The letter, whose contents have been reported before, added: “No clear explanation justifies these delays.” Indeed, in the case before Justice Brown, the government offered no explanation or justification. Instead, it argued the case was outside the purview of the Federal Court.

Judges on the federally appointed courts, which include the superior courts of provinces, Federal Court and Tax Court of Canada, are appointed by cabinet on the advice of the justice minister. Chief and associate chief justices are appointed on the advice of the prime minister. (Candidates are screened initially by non-partisan committees, then by a judicial appointments adviser to the justice minister and then by the Prime Minister’s Office.)

Mr. Hameed said in an interview he brought the challenge because the lack of judges is a “palpable barrier” to people who are seeking access to the justice system. The human-rights lawyer said he had “no precedent to hang our hat on” when he went to court.

“Now, there is a judicial recognition that the problem is serious and that it needs to be resolved in a reasonable amount of time.”

Conservative justice critic Rob Moore said it is no surprise the Liberal government cannot deliver basic services.

“Widespread judicial vacancies are allowing repeat violent criminals to walk free because there are not enough judges to hear cases.” He accused the Liberals and New Democrats of blocking Conservative efforts in committee “to get to the bottom of the crisis.”

Mr. Virani responded to the court ruling in a thread on social-media platform X, formerly Twitter, that the government is carefully reviewing the decision.

“There are multiple factors that contribute to court delays and we call upon the provinces and territories to also do their part to help,” he said.

“We are making judicial appointments at the fastest pace in history. We made 100 judicial appointments last year, a number never attained by the Conservatives. In six months as minister, I have appointed 64 judges. That was [Conservative Prime Minister Stephen] Harper’s average annual number – I’m working twice as fast.”

Gerard Kennedy, a law professor at the University of Alberta, said the ruling is unusual in its declaration “concerning the government’s failure to fulfill a constitutional duty, which is based entirely in constitutional convention, rather than a particular provision of constitutional law.”

Lawyer Sujit Choudhry, a constitutional specialist, said it is “probably the first case we’ve ever seen where the courts have actually looked at judicial appointments, and the extent to which the appointing power is subject to judicial review.”