Ottawa appeals declaration of constitutional requirement for timely federal judicial appointments

By Cristin Schmitz ·

Last Updated: Tuesday, March 19, 2024 @ 3:43 PM

Law360 Canada (March 19, 2024, 11:27 AM EDT) -- “Stay in your lane” — those words might encapsulate the thrust of the federal government’s message to the Federal Court in Ottawa's appeal of a recent groundbreaking judgment, which declared that the prime minister and federal justice minister are constitutionally obliged to fix the lengthy federal judicial appointment delays that have for years bedeviled litigants, lawyers and judges.

On March 14, the federal government filed a notice of appeal with the Federal Court of Appeal, arguing that the Federal Court erred, in fact and in law, in several ways last month, such as “by overstepping its constitutionally limited role, and acting without jurisdiction, including by ...  reading in a timeliness requirement [for making federal judicial appointments] pursuant to s. 96 of the Constitution Act, 1867 and s. 5.2 of the Federal Courts Act; substituting its own view on the timeliness of federal judicial appointments for that of the executive branch; and attempting to compel the executive branch to comply with a constitutional convention under the guise of declaratory relief.”

The federal government asks the Federal Court of Appeal to set aside Federal Court Justice Henry Brown’s Feb. 13 ruling, and to dismiss the underlying judicial review application or, alternatively, to order the case back to the Federal Court for a new determination, “with such directions as this court may deem appropriate.” The government also asks for its appeal costs.

Nicholas Pope of Ottawa’s Hameed Law told Law360 Canada that if the government’s appeal proceeds, it would probably be heard between September 2024 and January 2025.

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Nicholas Pope, Hameed Law

“My main thought is that it would be better for the government to spend its resources doing the real work of appointing judges, rather than fighting against a ruling saying they need to do something that everyone knows needs to be done,” remarked Pope.

He represents Yavar Hameed of Hameed Law, the Ottawa human rights lawyer who launched the novel case with the aim of ameliorating the chronic delays faced by his clients and other litigants who experience stress, increased costs and other negative fallout as a result of the chronically backlogged, understaffed and overburdened courts.  

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Yavar Hameed, Hameed Law

“I don't think anyone questions the fact that they need to fill the [judicial] vacancies,” Pope observed. “The government is merely quibbling over whether the obligation is legal, conventional, or simply one of morality and good governance. My main concern is that the problem gets fixed so that vulnerable Canadians can access justice. The technical legal questions are academically interesting, but they are relatively unimportant compared to the real-world impacts the vacancies are currently having.”

Justice Brown’s ruling marked the first time a court has issued a judgment expressly calling Ottawa to account for judicial appointment delays, and declaring that the constitution requires the federal government to make timely federal judicial appointments, rather than the many months Ottawa typically takes, on average.  The judge declared the existence of a “constitutional convention that judicial vacancies on the provincial superior courts and federal courts must be filled within a reasonable time.”

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Federal Court Justice Henry Brown

In so ruling, Justice Brown expressed his “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 [of Canada] and Canadian Judicial Council, will be resolved.”

The judge also underscored jurisprudence 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.”

(When Justice Brown issued his decision last month, there were 75 unfilled federal judicial vacancies, since reduced to 68 as of March 1 — amounting to a seven-per-cent vacancy rate for full-time federal judicial posts as well as a level substantially higher than the judge’s expressed “mid-40s” expectation. 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, thereby depriving the federal justice system of (and “saving” the federal treasury) an estimated $168 million that would have been spent on hiring the judges, had the government filled most vacancies when they occurred instead of many months later, on average.)

Justice Brown also expressed his view that the defendant prime minister and minister of justice “are simply treading water” with respect to making judicial appointments, and were failing to respond meaningfully to reduce the number of vacancies, as called for by Chief Justice of Canada Richard Wagner in a toughly worded letter to the prime minister last May on behalf of the Canadian Judicial Council.

The prime minister and justice minister “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 wrote.

He said 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 elaborated, “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.

However, Ottawa argues in its appeal notice filed with the Federal Court of Appeal that the Federal Court “erred in fact and law by recognizing a constitutional convention that does not exist, including by: (a) failing to apply the judicially recognized test for identifying a constitutional convention; and treating constitutional conventions as enforceable legal duties and tantamount to judge-made common law rules.”

The federal government also contends that the Federal Court erred in fact and in law by “overstepping its constitutionally limited role and acting without jurisdiction” by “misapplying the test for establishing its jurisdiction and disregarding binding Supreme Court of Canada precedent on the application of the test.”

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