Federal Court Justice Henry Brown
In a groundbreaking move, the judge recognized and declared a “constitutional convention that judicial vacancies on the provincial superior courts and federal courts must be filled within a reasonable time.”
Nicholas Pope of Ottawa’s Hameed Law, counsel for Ottawa lawyer Yavar Hameed, the public interest litigant who sought mandamus and declaratory relief as against the prime minister and federal justice minister, called the judgment “excellent.”
Nicholas Pope, Hameed Law, Ottawa
Pope also highlighted the importance of Justice Brown’s analysis and conclusion that the Federal Court has jurisdiction over the dispute, which jurisdiction was vigorously challenged by Ottawa. “In terms of legal precedent, I happen to think [that is] the most interesting part of the decision,” he said. “This was perhaps the most highly contested part of the hearing, and we made supplementary submissions on it.”
Justice Brown held that while the legal jurisdiction and power to fill vacancies in the federally appointed judiciary lies with the governor general under s. 96 of the Constitution Act, 1867 and with the governor in council under s. 5.2 of the Federal Courts Act, constitutional conventions transfer those decisions, in practice, to federal Cabinet, the prime minister and the minister of justice.
Commenting on the result of his client’s application, Pope told Law360 Canada “we're very happy,” notwithstanding that Justice Brown declined to make a mandamus order compelling the prime minister and justice minister to fill vacancies within the specified timelines that Hameed had requested in order to help his clients harmed by judicial vacancies and the resulting court delays.
Justice Brown denied mandamus, given the applicant’s failure to name as parties either the Governor General or the Governor in Council, who by law hold the final authority to appoint.
Still, the judgment “sets the stage for some change that did not appear to be coming without this sort of intervention,” Pope remarked. “I'll be truly happy, though, when I see the positions being filled and see vulnerable litigants getting speedier justice.”
If the government appeals, “we will respond to it,” he said. “And the Federal Court of Appeal may use their discretion to impose more specific timelines if, at the time of the appeal six to 12 months from now, there is no improvement. Regardless of whether they appeal, we will be prepared to seek stricter enforcement in six to 12 months.”
He added “the government has a choice. They can spend time and money fighting to appeal this very well-reasoned decision, or they can use those resources on something more productive, like making judicial appointments. I hope they choose the latter.”
Reacting Feb. 13 to the judgment, Justice Minister Arif Virani did not comment on a possible government appeal, other than to say “we are carefully reviewing this morning's decision.”
Federal Justice Minister Arif Virani
“We are making judicial appointments at the fastest pace in history,” Virani said. “We made 100 judicial appointments last year, a number never attained by the Conservatives” under the previous Stephen Harper-led federal government. “In six months as minister, I have appointed 64 judges. That was Harper's average annual number — I’m working twice as fast ... there are still more judges sitting today than ever in our history.”
Detailed questions Law360 Canada posed to the federal Department of Justice were not answered, including whether Ottawa intends to appeal, and what the justice minister will do, if anything, to fulfil the federal government’s constitutional obligation, as recognized and delineated by the Federal Court, to make judicial appointments “within a reasonable time,” including to reduce the present level of judicial vacancies to the mid-40s.
Virani’s spokesperson, Chantalle Aubertin, said by email, “Our government has made more judicial appointments than any previous government. Encouraging a broader, more diverse, group of highly qualified lawyers to apply to the bench has expanded the pool of judicial applicants. ... Today, over 90 per cent of federal judicial appointments positions are filled and there are less than three positions vacant in seven of the 13 provinces and territories. Despite the significant number of appointments, the number of vacancies in certain regions does not appear to have reduced by the same rate. This is due to the high number of judges in certain regions retiring, being elevated to appellate courts or electing to becoming supernumerary.”
(A Law360 Canada review of all judicial appointments made by the Trudeau government from Jan. 1, 2019 to Aug. 1, 2023 found that the federal 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 — depriving the federal treasury of an estimated $168 million that would have been spent on hiring much-needed judges if the government filled most vacancies when they occurred instead of many months later, on average.)
At the Federal Court, the government chose not to justify the chronically elevated number of judicial vacancies, nor did it dispute the dire consequences of the persistent appointment delays, as detailed by Chief Justice of Canada Richard Wagner in a long letter the chair of the Canadian Judicial Council sent Prime Minister Justin Trudeau last May.
At that time, the top judge asked the prime minister to speedily fill the large number of vacancies, warning that “the current situation is untenable,” “requires your immediate attention,” and that “these delays in appointments send a message that this is simply not a priority for the government.”
“It is imperative for the Prime Minister’s Office to give this issue the importance it deserves and for appointments to be made in a timely manner,” Chief Justice Wagner wrote on behalf of the council of 44 chief and associate chief justices of the country’s superior trial and appellate courts. “It is essential that the vacant positions within the judiciary be filled diligently to ensure that the judicial branch functions properly,” the chief justice emphasized. “We have serious concerns that without concrete efforts to remedy the situation, we will soon reach a point of no return in several jurisdictions. The consequences will make headlines and have serious repercussions on our democracy and on all Canadians.”
The respondent prime minister and justice minister limited their defence to unsuccessfully contesting the Federal Court’s jurisdiction, “filed no evidence at all,” and “wholly rely on a number of procedural and technical objections, none of which — and with the greatest respect — the court accepts,” Justice Brown wrote in his 86-page indexed judgment.
The judge went on to accept as expert evidence the uncontradicted content of the letter sent to the prime minister from the chief justice of Canada and the Canadian Judicial Council.
“By the foregoing letter, the chief justice of Canada and Canadian Judicial Council requested the prime minister to fill a very large number of vacant Superior Court and Federal Courts judicial positions across Canada,” Justice Brown wrote. “The requested number of vacancies have not been filled,” he said, finding that there were 79 vacancies when Hameed filed his application in June 2023, and 75 vacancies as of Feb. 1, 2024.
“While appointments were made over the last eight months, during the same period new vacancies have been created by resignation or otherwise,” the judge said. “This significant and unacceptably large number of vacancies remains essentially unchanged.”
He found that “neither the prime minister and two successive ministers of justice have remedied this critical situation in the nine months since the request by our chief justice of Canada and Canadian Judicial Council.”
The judge went on to find that the prime minister and minister of justice “are simply treading water.”
“They have failed to take the actions requested by the chief justice of Canada and the Canadian Judicial Council. And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the superior courts and federal courts across Canada.”
Justice Brown held that “the responsibilities of the prime minister and minister of justice to meaningfully engage their powers with respect to filling the critical and untenable level of judicial vacancies across our federal judiciary may not be ignored.”
He explained that “the court comes to this conclusion because the same constitutional convention giving the [prime minister and justice minister] advice-giving responsibility respecting federal judicial appointments obviously entails their responsibility to fill judicial vacancies in a timely manner, that is, within a reasonable time. It would be absurd to suggest the ‘rule of law,’ essential to the proper function of the nation and enshrined in the preamble to the Constitution Act, 1982, exists at the whim of the executive government.”
“The rule of law may not be critically and negatively impacted simply by what the court finds the respondents’ unjustified and persistent failure to advise the governor general and/or governor in council to fill this critical and unacceptably high level of judicial vacancies,” Justice Brown reasoned.
How long should it take to fill a sufficient number of vacancies? he queried. “In the court’s view the answer is plain and obvious. These vacancies must be materially reduced within a reasonable time to a reasonable level.”
What is a reasonable or sufficient level of vacancies? the judge asked. “The court was provided with no reason the number of vacancies may not be reduced to the mid-40s.”
“There were only 46 vacancies in the spring of 2016, for example,” he reasoned. “That said, the number of vacancies in an ideal world should be very low, and it seems to me this is a matter to be determined by Parliament. In some cases it may be that all relevant vacancies must be filled, as where serious crimes are not prosecuted in a timely way such that victims, the public and accused are denied justice. That may not be possible in other cases, but as noted, no evidence was provided by the respondents. This is a matter in respect of which the respondents should obviously engage with the chief justice of Canada and relevant chief justices /associate chief justices and in respect of which the Canadian Judicial Council, having come this far, should provide (as perhaps it has) specific guidance.”
Justice Brown declared, in part, that appointments to fill judicial vacancies under s. 96 of the Constitution Act, 1867 and s. 5.2 of the Federal Courts Act “must be made within a reasonable time of the vacancy.” As well, appointments to fill the current judicial vacancies “are required” for the reasons set out in Chief Justice’s Wagner’s May 3, 2023 letter to the prime minister.
Justice Brown said he made the declarations in “expectation that the number of said judicial vacancies will be materially reduced in a reasonable time such that the total number of judicial vacancies returns to the mid-40s, that is, to the number of federal judicial vacancies in the spring of 2016; in this manner the court expects the untenable and appalling crisis, and critical judicial vacancy situation found by this court as identified by the chief justice and Canadian Judicial Council will be resolved.”
Justice Brown noted, “The court has no reason to believe a declaration in this case will be ignored. Rather, the court has every expectation and entitlement to proceed on the opposite presumption.”
The judge also highlighted case law indicating that courts expect government/state actors to comply with the law as set out in declaratory remedies, failing which contempt proceedings may be available “in appropriate cases.”
“Given this, and with respect, the court has concluded no timelines should be ordered as proposed at least at this time,” Justice Brown wrote. “That may change, of course, if the underlying situation does not, in respect of which the court is not asked to speculate.”
He noted, “I encourage the parties, and/or the chief justice of Canada and/or the Canadian Judicial Council to seek further direction and relief from this court in the event this court’s judgment is not satisfied or [is] in issue.”
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