Ottawa extends tenure, assessments of judicial advisory committees to three years from two

By Cristin Schmitz

Law360 Canada (September 5, 2023, 4:45 PM EDT) -- Faced with loud complaints that Ottawa chronically takes too long to fill vacancies on the superior courts, the Liberal government has announced that new members of its 17 judicial advisory committees (JACs) which vet applications for the bench across Canada will serve for three years, rather than two, while the JACs’ evaluations of individual applicants as “highly recommended,” “recommended” and “unable to recommend” for the federal benches are similarly extended to three years from two, as of Aug. 1.

The Sept. 5 announcement from the federal Department of Justice (DOJ) follows letters to the Trudeau government this year from both the Chief Justice of Canada, Richard Wagner, and the president of the Canadian Bar Association, which again pressed the government for timely judicial appointments. The government is also being sued by an Ottawa human rights lawyer who is seeking to compel Ottawa to speed up appointments. 

The move, which has been in the works for some time, also follows a first-of-its-kind investigation of judicial vacancies and appointments by Law360 Canada which revealed last month that the Liberal government took more than eight months, on average, to appoint judges to fill 349 superior court vacancies from Jan. 1, 2019, to Aug. 1, 2023.

The 86 unfilled vacancies that existed on the federal benches as of Aug. 1 have since dropped to 77 (following  a flurry of appointments last month) — which still represents a high vacancy rate of eight per cent.

Justice Minister Arif Virani

Justice Minister Arif Virani

The justice department said extending the terms of the members of the JACs — which committees often remain defunct for weeks and months after they collapse — “ensures that members can serve for longer, which will decrease time spent selecting new committee members and allow each committee to evaluate more candidate files, comparatively, over an extended period. In order to ensure that the same Judicial Advisory Committee does not assess judicial candidates twice, the validity of judicial candidate assessments will now be for three years as well.”

The department said “streamlining the approach to judicial appointments, while maintaining a robust and thorough evaluation of candidates, will enhance the ability to make timely appointments with the aim of reducing judicial vacancies arising from elevations, retirements, resignations and members of the bench electing supernumerary status.”

Justice Minister and Attorney General Arif Virani, who replaced David Lametti in a cabinet shuffle last July, said in a statement “Canada has one of the most robustly independent and highly regarded judiciaries in the world. ... Making judicial advisory committees more efficient will help fill judicial vacancies and strengthen public confidence in the justice system.”

The Liberal government said it has appointed more than 645 judges since November 2015, of which “more than half are women, and appointments reflect an increased representation of racialized persons, Indigenous, 2SLGBTQI+ and those who self-identify as having a disability.”

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