Judicial vacancies hit 5%, threatening more trial delays and backlogs

Law360 Canada (November 10, 2025, 4:58 PM EST) -- Ottawa is lagging again in filling the country’s federal benches, hitting a five per cent vacancy rate on Nov. 1, 2025 — mostly in the critical trial courts of Ontario, B.C. and Quebec, which are constitutionally obliged to conduct trials within a reasonable time or face the prospect of staying criminal cases.

At the beginning of this month, the Office of the Commissioner for Federal Judicial Affairs reported there were 50 federal judicial vacancies across Canada. This was up sharply from the low teens that the predecessor Liberal government was able to achieve last spring, after the Prime Minister’s Office and the Department of Justice worked over a two-year period to speed up appointments.

The Trudeau government was spurred to whittle down approximately 90 vacancies, as of May 2023, when Chief Justice of Canada Richard Wagner wrote then-prime minister Justin Trudeau warning that his government’s chronic delays in appointing judges had created an “untenable” situation as “a growing number of criminal and civil cases are at risk of falling apart.”

“Access to justice and the health of our democratic institutions are at risk,” the chief justice wrote at that time.

Since Prime Minister Mark Carney succeeded Trudeau last March, judicial appointments have slowed down considerably. There was a national 4.3 per cent vacancy rate on the full-time federal benches as of Nov. 10, 2025 (i.e., 43 judicial vacancies, after six new appointments on Nov. 7 to the Ontario, Quebec and New Brunswick trial benches, as well as one appointment to the New Brunswick Court of Appeal).

Last June, the Federal Court of Appeal overturned a groundbreaking Federal Court declaration from February 2024 that recognized a “constitutional convention that judicial vacancies on the provincial superior courts and federal courts must be filled [by Ottawa] within a reasonable time”: Canada (Prime Minister) v. Hameed, 2025 FCA 118.

Federal Court Justice Henry Brown declined to order the Trudeau government to fill the then-high level of about 75 superior court vacancies within specified timeframes, but declared his “expectation” that Ottawa would begin to discharge its unfulfilled constitutional duty to fix the country’s “untenable and appalling crisis and critical judicial vacancy situation,” including by reducing the vacancies to the mid-40s “within a reasonable time”: Hameed v. Canada (Prime Minister), 2024 FC 242.

The Federal Court of Appeal agreed with the Attorney General of Canada that the lower court went beyond its statutory jurisdiction.

A 2023 investigation by Law360 Canada found that the Trudeau 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.

At press time, comments from federal Minister of Justice Sean Fraser were not immediately available.

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