Canada’s highest courts – the Supreme Court, the Federal Court of Appeal, and all provincial appeal courts – have a full roster of judges. There is a smattering of vacancies on several provincial superior courts and the Federal Court. The Supreme Court of Canada, on the banks of the Ottawa River, June 3, 2024.Sean Kilpatrick/The Canadian Press
The federal Liberals have cut judicial vacancies on top courts across the country to their lowest level on record, new data show, after allowing the problem to get out of control for several years.
A flurry of 31 appointments in recent weeks leaves only 13 vacancies, as of mid-March, among the 1,000 full-time positions for judges on federally appointed benches, according to government data.
The previous low in vacancies was 14 in mid-2015, based on a review of data going back to 2003.
The latest appointments, made as a federal election is expected soon, further address unusually sharp and public criticism in recent years about unfilled positions on federally appointed benches. Those include the Supreme Court of Canada, provincial appeal and superior courts, and the Federal and Tax courts.
In early 2023, vacancies spiked to a record of 92. Supreme Court Chief Justice Richard Wagner, in a rare rebuke, wrote a letter to Prime Minister Justin Trudeau in mid-2023 warning that the situation was untenable.
The rash of vacancies contributed to widespread problems in the justice system, from delays in serious criminal trials that put them at risk of being stayed to a years-long grind for many cases in civil courts. Groups such as the Canadian Bar Association, which represents lawyers and other legal professionals, had for years urged the federal government to ensure vacancies were filled as fast as possible.
After Ottawa let vacancies spike higher in 2022, they made changes to speed appointments.
The hiring process starts with judicial advisory committees across the country, which assess applicants and recommend candidates to Ottawa.
Since mid-2023, when Arif Virani became justice minister, the federal government appointed 234 judges. The Liberals this month called it a “pace of appointments that has no precedent in Canadian history.” (Mr. Virani, who is not running for re-election, was not part of the new Liberal cabinet announced last Friday.)
The surge of appointments before a federal election is an echo of a decade ago. In 2015, the Conservatives under Stephen Harper allowed judicial vacancies to rise to a then-record of more than 50 early in the year. A rush of 43 appointments that June helped reduce vacancies to 14 as of Aug. 1, ahead of the subsequent election.
Lynne Vicars, president of the bar association, said the next government needs to make judicial appointments a “critical priority” throughout its years in office. She said a fully staffed judiciary is especially important as Canada’s sovereignty is being threatened by U.S. President Donald Trump.
“People aren’t waking up worried if there are enough judges,” said Ms. Vicars. “But it’s important to remind ourselves that sovereignty is not just about borders or resources. It also depends on a strong judicial system.”
Canada’s highest courts – the Supreme Court, the Federal Court of Appeal, and all provincial appeal courts – have a full roster of judges. There is a smattering of vacancies on several provincial superior courts and the Federal Court.
When Chief Justice Wagner warned of vacancies in 2023, he also called out provincial underfunding of the courts. Chief Justice Wagner delivers a short presentation at the Empress Hotel in Victoria, B.C., on Feb. 3.CHAD HIPOLITO/The Canadian Press
Chief Justice Wagner said fewer judicial vacancies is a “major improvement.”
“The situation was corrected, I must say,” he said last Monday at a news conference during a visit to Moncton, N.B., as part of the top court’s 150th anniversary tour of the country.
When Chief Justice Wagner warned of vacancies in 2023, he also called out provincial underfunding of the courts, a warning that garnered less attention.
The courts have been strained for years. The Supreme Court’s 2016 Jordan decision, which put strict time limits on criminal trials, was meant to push the system to work faster but derailed hundreds of cases because of delays. Inadequate funding is a major factor, from court staffers to lagging digitization.
Vanessa MacDonnell, a law professor at the University of Ottawa and co-director of the uOttawa Public Law Centre, said filling vacancies is important but it is only one part of the “wider range of ways our justice system is malfunctioning and underresourced.”
As Mr. Trudeau’s time as prime minister officially ended last Friday, he concludes almost a decade in office, roughly the same span of time Mr. Harper served as prime minister.
In Mr. Harper’s decade in power, he added 25 full-time judges to the federal benches. It was an increase of 3 per cent to 873 full-time judges at the start of 2016 from 848 at the start of 2006.
Mr. Trudeau added 114 full-time judges to federal benches, a 13-per-cent increase to 987 as of mid-March.
Prof. MacDonnell said Mr. Harper tended to appoint “clear conservatives” when he had the opportunity, whereas Mr. Trudeau focused on a diversity of judges, from women to Indigenous and racialized people, and a wider variety of legal backgrounds. Looking at the Supreme Court, Prof. MacDonnell said Mr. Trudeau’s six appointments didn’t include “liberal lions.”
“He didn’t choose obvious champions of progressive legal ideas,” said Prof. MacDonnell.
When Mr. Harper was prime minister, the federally appointed judiciary came to depend more on supernumerary judges, those who have retired from full-time positions and work part time.
The number of supernumeraries rose to 265 from 199 during Mr. Harper’s decade in office. The figure topped out at 306 in early 2020 and a wave of full retirements followed. The number of supernumerary federal judges is currently 237.