The Main Courtroom at the Supreme Court in Ottawa, on Nov. 28, 2022.Sean Kilpatrick/The Canadian Press
The federal government has cut judicial vacancies on top courts across the country by more than half after intense pressure to fix an issue that has seen hundreds of criminal cases thrown out over delays and created a long backlog of civil cases.
As of Dec. 1, there were 39 judicial vacancies, or 4 per cent of all full-time positions, on federally appointed benches, according to government data. These include the Supreme Court of Canada, provincial appeal and superior courts, and the Federal and Tax courts.
Vacancies are down from 92 in early 2023, when nearly 10 per cent of judges’ chairs on federal benches sat empty – the highest on record back to 2006. It had prompted dire warnings from the bench. Supreme Court Chief Justice Richard Wagner last year told Prime Minister Justin Trudeau in a letter that the situation was untenable and put access to justice at risk.
The federal government appointed a record 124 judges – new hires and promotions – between Jan. 1 and Dec. 1, bringing the number of full-time judges to 958. Over the past two years, Ottawa made changes to speed up hiring, including improvements to the operations of the judicial advisory committees that assess applicants.
Justice Minister Arif Virani said he aims to fill the remaining vacancies. “I’m going to keep pushing to get all the way to a 100 per cent,” he said in an interview.
The judicial system has long operated under strain. Inadequate provincial funding is an issue. Strict time limits on when criminal trials must be completed, set by the Supreme Court in its 2016 Jordan ruling, were meant to get the justice system to work faster but derailed hundreds of criminal cases because of unreasonable delays. Antiquated court procedures and lagging digitization further slow the system. Civil courts are also in turmoil.
Judicial vacancies compounded all the problems and inadequate staffing put pressure on overworked judges.
The Federal Court of Appeal, and the top court in eight provinces, including Alberta and Ontario, now have a full roster of judges. British Columbia and Quebec have one vacancy each on their appeal courts. The Alberta Court of Appeal has a complete slate for the first time since 2009, excluding a brief period in 2016.
“We’re delighted to have a full complement,” Alberta Chief Justice Ritu Khullar said in an interview.
Hiring judges starts with judicial advisory committees. There are 17: one each for most provinces and territories; Ontario has three; Quebec has two; the Tax Court has one. Recommended candidates are then considered by the government, including the Justice Minister and the Prime Minister.
What went wrong in 2022 and 2023 has come into focus.
Mr. Virani said the 2021 election campaign “put a pause” on hiring. A Globe and Mail review of data from Federal Judicial Affairs shows applicants to become judges fell more than 40 per cent in 2021 and then recommended candidates fell more than 40 per cent in 2022, as vacancies climbed. The 2022 federal budget funded two dozen new positions for judges but they were not immediately filled, adding to vacancies.
And by 2023, six of the 17 advisory committees were inactive. Ottawa didn’t explain why. At the time, the Canadian Bar Association complained about judicial vacancies to Mr. Trudeau, the fifth such letter on the issue from the lawyers’ group since the Liberals won power in 2015.
Ottawa started to make changes in the fall of 2022. First, it streamlined the application. In the summer of 2023, it extended the time advisory committees serve to three years from two, and candidates’ assessments are now valid three years instead of two.
After Mr. Virani became Justice Minister in mid-2023, he added office staff to help with hiring judges, and security clearances are now done upfront rather than later. He also had judicial security checks prioritized over other such requests. Two of the six inactive advisory committees are working again. The other four are in the process of starting up.
The changes helped. The latest data show recommended candidates this year doubled to 201 people from two years ago.
This April, the Federation of Ontario Law Associations called vacancies an “ongoing failure.” With recent appointments, the Trudeau government should be “commended,” said Douglas Judson, past chair of the federation.
The challenge in the future will be to ensure this doesn’t all happen again.
Chief Justice Wagner in June told a news conference that hiring should be done “as soon as possible,” since retirements are often known well ahead of time. Hiring challenges include salaries in expensive cities such as Toronto and Vancouver, where life as a lawyer can be more profitable. The long hours some judges put in and a lack of staff support are also at the fore. “You will see some lawyers will refuse to apply, if only because of that,” said Chief Justice Wagner.
He said there are also issues of well-being, such as mental health and anxiety. “There’s no single remedy,” he said. “We have to create good conditions to attract the best candidates.”
The many judicial vacancies had forced courts to scramble to handle their caseloads. In Alberta, like elsewhere, the appeal court relied on supernumerary judges – those who had stepped down from full-time jobs but continued part-time – to get the work done. “They really stepped up,” said Chief Justice Khullar.
But as full-time judges have been hired, more older judges have retired. A heavy workload and the pandemic were “hard on a lot of people,” Chief Justice Khullar said. The number of supernumerary judges across Canada has fallen 23 per cent since the start of 2020.
In a statement, Conservative justice critic Larry Brock said the Liberals “allowed a massive shortage of judges to persist.” He said the Conservatives would “restore integrity” to the appointment process.
Judicial vacancies were a problem in 2007 and 2014, during the Conservatives’ decade in power under Stephen Harper. He added 25 full-time judges, according to Federal Judicial Affairs data. Mr. Trudeau has added 85. Under both parties, there has been a decline in full-time judges compared with the population.