The Prime Minister, Justice Minister and cabinet cut vacancies from 79 at the time the case was filed two years ago, out of roughly 1,000 full-time positions, to 15 at the time of the appeal hearing in April.JASON FRANSON/The Canadian Press
No doubt Federal Court Justice Henry Brown went out on a long, creaking limb when he told prime minister Justin Trudeau that he had a constitutional duty to fix the appalling situation wherein roughly 8 per cent of full-time spots on the federal judiciary were vacant.
Unsurprisingly, that limb has now been chopped off. The Federal Court of Appeal has ruled unanimously that Justice Brown did not have the jurisdiction to tell the prime minister and cabinet what to do about judicial vacancies.
But so what? Spurred by Justice Brown’s ruling, the Liberal government showed it can be done. The Prime Minister, Justice Minister and cabinet actually managed to do the vital job they had for so many years seemed incapable of doing. They cut vacancies from 79 at the time the case was filed two years ago, out of roughly 1,000 full-time positions, to 15 at the time of the appeal hearing in April. Bravo.
The question now is whether the government will return to its indolent ways. The vacancies are headed in the wrong direction – back up to 22.
Federal Court of Appeal overturns decision requiring Ottawa to act on judicial vacancies
And so we repeat the radical idea we proposed last December: Why not commit to a vacancy rate of zero? Early signs from Prime Minister Mark Carney are that he dreams big. He wants Canada to build larger and faster than anyone can remember. Well, here’s another dream for him – zero vacancies on the federally appointed courts. (These include the top trial and appeal courts of the provinces, the Federal Court and the Tax Court of Canada.)
Judges are expected to give six months’ notice (true, sometimes they don’t), and there are hundreds of candidates pre-screened and recommended by non-partisan committees, waiting for a thumbs-up from cabinet. So why not?
Very little says “Canada is broken” more than showing up to court as a victim of, say, a sexual assault, only to find that the accused has been let go because the case took an unconstitutionally long time to come to court – often because of a lack of judges.
Or learning that your lawsuit, after making its tortuous way through the years-long civil process to the blessed day of trial, is being bumped because no judge is available. Bumped is the word B.C.’s courts use for the phenomenon of people showing up on a prescribed date for a trial and being told to go home. In 2023, 35 per cent of civil trials in Victoria were bumped. It seems the phenomenon is so common the judges sat around and discussed what word fit best. Bumped says it all.
Human-rights lawyer Yavar Hameed was so fed up with being bumped in Ontario he brought the judicial-appointments case before Justice Brown, asserting that he represents vulnerable clients, many of whom have experienced trauma, and who do not have the resources to hold out for years and years.
“Without judges, there is no justice. Without justice, those with power are free to trample those without,” he said.
Two truisms – and how strange that in Canada it should take a radical idea to address such basic truths.
Yet it seemed an impossible task even when Supreme Court Chief Justice Richard Wagner sent then-prime minister Trudeau a letter – a cry from the heart – in May, 2023, when there were an astounding 85 vacancies.
The chief justice made it clear that in his view, the problem rested with the prime minister. He said he had met with then justice minister David Lametti and was confident he was willing to make every effort to remedy the situation.
The Prime Minister’s Office, he said, must “give this issue the importance it deserves.” Some key positions during Mr. Trudeau’s tenure were left unfilled for more than a year. Sure, a whole lot of vetting goes on. The justice minister vets. The PMO vets. Finally, when the PMO decides the moment has arrived, cabinet makes the appointment.
Chief Justice Wagner painted a horrifying picture of what happens during all that vetting and waiting: civil courts “at risk of being perceived as useless,” sexual assault and murder charges thrown out because no judge was available to hear them. Even so, the vacancy numbers barely budged – until Justice Brown’s public ruling.
With that ruling reversed, getting to zero vacancies will now return to being a political choice, rather than a legal obligation. The Carney government should make the right choice and take decisive action to remove the roadblocks to justice.