So severe is the vacancy problem that Supreme Court Chief Justice Richard Wagner and his fellow chief justices across the country told Prime Minister Justin Trudeau in a letter in May of last year that Canada’s civil courts are 'at risk of being perceived as useless for civil matters.'Adrian Wyld/The Canadian Press
Canada’s legal system, both criminal and civil, faces calamitous wait times, yet the federal government is eternally behind in the appointment of judges. Unbelievably, some appointments take more than a year to fill, and that’s on top of the six months’ notice judges are encouraged to give before their retirements.
Imagine a school in which some classrooms full of children eager to learn have no teacher. It wouldn’t be tolerated. Yet this is the state of our legal system. People are going to court with their cases dutifully prepared – and finding no one to hear them. The intolerable is the status quo.
Here’s a radical idea: why not a commitment to a vacancy list of zero?
Court delays are so chronic that British Columbia’s civil courts have a word for people showing up for a trial and being told to go home: “bumped.” Last year, 35 per cent of civil trials in Victoria, 26 per cent in New Westminster and 17 per cent in Vancouver were bumped. Unfilled vacancies – 11 on an 82-member B.C. Supreme Court at the end of 2023 – were to blame, according to then-chief justice Christopher Hinkson.
So severe is the vacancy problem that Supreme Court Chief Justice Richard Wagner and his fellow chief justices across the country told Prime Minister Justin Trudeau in a letter in May of last year that Canada’s civil courts are “at risk of being perceived as useless for civil matters.”
In criminal matters, the problem is also acute. Time limits imposed on criminal proceedings by the Supreme Court of Canada mean that cases that last more than 30 months in superior court are at risk of being thrown out for delay. Chief Justice Wagner said in his letter that more than one in five cases in Alberta, roughly 350 cases, were beyond the 30-month mark, and nearly all of them involved serious and violent crimes.
And how did Mr. Trudeau respond to the Chief Justice’s plea? He ignored it – as revealed in an unusual court case this year in which human-rights lawyer Yavar Hameed told Federal Court Justice Henry Brown his vulnerable clients could not get access to justice because of a lack of judges.
Mr. Hameed asked Justice Brown to declare the government had a constitutional obligation to appoint more judges. Justice Brown took the unprecedented step of making just that declaration last February, after finding that Mr. Trudeau had in effect refused Chief Justice Wagner’s request: the vacancy list had dropped hardly at all, to 75 from 85 (out of roughly 1,000 full-time judges), in the nine months since Chief Justice Wagner sent his letter.
But is a vacancy list of zero realistic? It is. The qualified are already at hand.
Consider what happened after Justice Brown’s ruling in February, when he said if the Prime Minister didn’t reduce the number of vacancies to the mid-40s in a timely way, his government could be brought back before his court.
The government acted. There are now just 39 vacancies. The prospect of public embarrassment achieved what Chief Justice Wagner could not.
Justice Minister Arif Virani said this week that he intends to keep pushing until all vacancies are filled. Here’s how he can do that: Across Canada, 17 non-partisan committees screen applicants for the federal bench – the superior courts of provinces, Federal Court and the Tax Court of Canada. In 2023-24, the committees recommended 106 applicants, and highly recommended 95 others. The recommendations last three years, and new ones are made each year, creating a large and constantly replenished pool.
Multiple levels of review follow, including vetting of each qualified candidate, first by the justice minister’s judicial appointments adviser and then by an appointments person in the Prime Minister’s Office.
Judges are then appointed by the executive – that is, by the Prime Minister and cabinet, on the advice of the justice minister – and it is undeniable that this is where the logjam lies.
The government needs to remove that logjam by beginning the replacement process the minute a federally appointed judge gives their six-months’ notice of retirement. That provides more than enough time to choose from the existing list of qualified candidates, for the justice minister and the PMO to vet those options, and to have a person ready to sit on a bench when it becomes vacant.
Enough of an intolerable status quo. Government can and should commit to zero vacancies.