Ottawa ‘saves’ millions by making tardy judicial appointments; average delay 11 months in 2023
Thursday, August 24, 2023 @ 5:34 PM | By Cristin Schmitz
Law360 Canada’s investigation for the first time reveals the average times the Liberal government took to fill judicial vacancies in each of the five years from 2019 to 2023 (a small number of appointments were excluded from our analysis, for example, prothonotary/associate judge posts and some transfers).
Law360 Canada also ascertained that the 86 judicial posts still vacant as of Aug. 1, 2023, (nearly nine per cent of 994 full-time superior court judgeships) were sitting empty for an average of 9.4 months and counting (three appointments have been made this month).
Overall, Law360 Canada’s probe 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.
As a result, we estimate the Canadian justice system was deprived of — and the federal treasury thereby “saved” — approximately $168 million that would have been spent on hiring much-needed judges had the government filled most vacancies when they occurred instead of months later.
Ottawa’s persistent delays in appointing superior court judges, as well as in appointing members of the 17 judicial advisory committees (JACs) which vet applicants (five were defunct as of Aug. 22) — and the resulting court delays over the nearly five-year period — not only impeded Canadians’ access to justice, they caused anguish, frustration and extra costs for an untold number of litigants and witnesses who were faced with cancelled civil trials or stayed or postponed criminal proceedings.
The chronic shortage of judges also meant that lots of extra work was downloaded on existing members of the bench, who tried to pick up the slack.
“We are all doing more work to make up for missing judges,” one trial judge emailed Law360 Canada. “I’ve never been so busy. Need a break!”
Law360 Canada has reported for years anecdotal complaints from the bench and bar about tardy judicial appointments, but when we were told earlier this year by the federal government that it does not track the average times it takes to appoint judges, we decided to try to aggregate some empirical data to shed some light.
We examined 349 federal judicial vacancies filled from Jan. 1, 2019, to Aug. 1, 2023, inclusive (all made by former justice minister David Lametti or Prime Minister Justin Trudeau) and found that the average lag times (rounded) before a vacancy was filled with a judge, were, by year:
- 2023 11 months (41 appointments as of Aug. 1, 2023)
- 2022 8 months (74 appointments)
- 2021 10 months (62 appointments)
- 2020 10 months (86 appointments)
- 2019 5 months (86 appointments, including jurists appointed to the expanded Unified Family Court).
(A judicial appointment time lag of more than one-half month was rounded up while a lag of less than half-a-month was rounded down. Data sources included federal Department of Justice press releases and information from courts and the Office of the Commissioner for Federal Judicial Affairs Canada.)
Chief Justice of British Columbia Robert Bauman
“I think you’ve performed a service by giving us some numbers, and we can now decide, what are the appropriate numbers, what should we be measuring, and then report it” to the public, he suggested. “I think the metric should be ‘how close to a judge’s departure is an appropriate time within which to appoint a new judge?’ ”
Chief Justice Bauman said that, in his view, those judicial vacancies for which the federal government typically has advance notice should be filled seamlessly, i.e. when the jobs open up (e.g. new vacancies created by federal legislation as well as the many vacancies which arise when full-time judges elect supernumerary (part-time) status.
“Measuring one’s performance against predetermined goals is something that every public and private institution should be doing,” said the chief justice. “We’ve learned that in our court. For example, if you take a look at our annual reports, we seek to publish a set of metrics that allow people to determine how we’re doing. And it seems to me that’s elementary in any public or private institution today, that we keep those numbers. You have to guard against the misinterpretation of those numbers. You have to decide what should be measured, and that can be very controversial. But it seems to me you have to measure. It’s an aspect of ... objective accountability.”
The data Law360 Canada compiled renews long-standing but yet-unanswered questions from the legal community — which we posed more than once to the federal government — about why Ottawa is often slow in making judicial appointments and why the federal government has chosen not to fix what senior judges and legal organizations say is a problem of undue delay that has pushed Canada’s justice system to the brink of crisis.
Richard Devlin, Dalhousie University
“If you don’t know why it’s ‘broke,’ how can you fix it?” he queried. “You can’t come up with a fix if you don’t provide an explanation of the problem. So if the public don’t have any understanding as to why all these delays are happening, and why this is contributing to the access to justice problem, then there’s an undermining of public confidence in the administration of justice.”
A legitimate judicial appointment process should reflect certain core principles, which include transparency, efficiency and accountability, said Devlin, author of a 2016 article “Dirty Laundry: Judicial Appointments in Canada.”
“It seems to me that what this process is demonstrating is that at least those three principles are being compromised by the current system,” Devlin remarked. “We need to have greater transparency as to how the process operates; why there are these delays; and where are the bottlenecks? And if we have some of the explanations as to what the nature of the problem is, then there’s no doubt that all sorts of people in Canadian society could come forward with some potential solutions.”
When Law360 Canada asked the federal Department of Justice last May how long does it typically take the justice minister to fill superior court vacancies, and what was the approximate average time taken to fill a vacancy in 2022, Lametti’s director of communications, David Taylor, replied by email “I would suggest reaching out to [the] Commissioner for Federal Judicial Affairs Canada for that data.”
However, the Office of the Commissioner for Federal Judicial Affairs posts limited information on its website — just the total number of monthly judicial vacancies, by court, and not the ages or dates of each vacancy.
Philippe Lacasse, executive director judicial appointments and senior counsel with the Office of the Commissioner for Judicial Affairs Canada, told Law360 Canada the office does not track the average times the government takes to appoint judges, in part because the oldest vacancies are not necessarily filled first. He explained that, based on the needs of a national court, for example, the oldest vacancy might have arisen because a judge from the East elected supernumerary status, but it is deemed important to appoint a judge from the West to fill a newer vacancy in order to respect the national court’s regional balance.
“It would be inaccurate to provide an ‘average time’ it takes to fill a vacancy,” Lacasse said by email. “Something we don’t keep in any event, and something for which we would have to undertake a review of every appointment and every vacancy in all respective courts.”
Law360 Canada’s investigation of judicial appointment delays began by ascertaining the appointment lag times between when each federal judicial vacancy first opened up, and when it was filled by the federal government between Jan. 1, 2019, and Aug. 1, 2023. The vacancies we reviewed arose for various reasons, including judges opting for supernumerary status, the creation of new judicial positions by legislation, “elevations” (judicial promotions), resignations, retirements and transfers.
All in all, we looked at 435 judicial vacancies in trial and appellate courts that were filled — as well as those which remain unfilled — from 2019 until Aug. 1, 2023.
The length of judicial appointment lag times during those nearly-five years ranged widely, from a number of appointments that were made virtually as soon as certain judicial posts were created or opened up, to some positions that languished empty for years, e.g. one full-time post was not filled for 46 months after the incumbent judge elected to switch to part-time work.
Law360 Canada’s exclusive analysis also highlights and quantifies monetarily, for the first time, what Ottawa has not invested in the Canadian justice system by not appointing many judges in a timely way — an unremarked, but significant, cash “bonus” or “reward” of sorts for governmental delay.
We calculated that the foregone resources for Canada’s justice system amounted to tens of millions of dollars earmarked for judicial salaries and benefits. (Provinces presumably also “saved” some money by not funding the offices, judicial assistants, law clerks and other services that would have been needed if superior court judges had routinely been appointed quickly.)
Law360 Canada’s analysis discloses that the 349 spots to which the federal government appointed judges from Jan. 1, 2019, to Aug. 1, 2023, sat empty for a total of 2,904 months — which translates to our ballpark estimate of $131 million that was not directed to the Canadian justice system over the more-than-four-and-a-half-year period we examined (see our assumptions and calculations below* ).
The money retained by the federal treasury as a result of judicial appointment delays rose to approximately $168 million once we added to the $131 million not spent on judicial salaries and benefits for the vacancies the government filled from 2019-2023, the approximately $37 million the government did not spend on hiring judges during the 816 months that the present 86 unfilled vacancies, as of Aug. 1, 2023, have been sitting vacant.
Law360 Canada’s research also indicates that many vacancies were known to, or could have been anticipated by, the federal government months in advance of the posts opening up, again raising the question: why did it take Ottawa months to fill vacancies, when the government could see many or most of them coming?
Of 74 vacancies we examined that were filled in 2022:
- 39 (53% *rounded) of the posts came open when full-time judges opted for supernumerary status, for which the government frequently (but not always) receives six months’-notice;
- 13 of the vacancies (18%) arose when new judicial positions were created under various federal laws, for which Ottawa necessarily had advance notice (116 new posts have been funded since the 2017 federal budget, according to the government);
- 9 of the vacancies (12%) arose due to elevations to appellate courts; and
- 13 vacancies (18%) arose due to deaths, resignations, retirements and transfers, of which an unknown number arose unexpectedly or without significant notice.
- 32 (52 %* rounded) of the posts came open when full-time judges went supernumerary;
- 4 (7%) of the vacancies arose when new judicial positions were created under various federal laws;
- 16 (26%) of the vacancies arose due to elevations to appellate courts; and
- 10 (16 %) of the vacancies arose due to deaths, resignations, or retirements.
Law 360 Canada has no evidence that the federal government deliberately delays making s. 96 judicial appointments to the nation’s superior courts in order to save money.
But neither has Law360 Canada been informed — despite asking the federal government — what reasons it has for its persistent tardiness — a question that seems to confound others too.
“The government’s inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting,” Chief Justice of Canada Richard Wagner wrote Trudeau last May, stressing it is “imperative that appointments be made in a timely manner” and that “the current situation is untenable and I am worried that it will create a crisis in our justice system.” Both the Canadian Bar Association and the Canadian Judicial Council also weighed in this year, with CBA president Steeves Bujold writing to the federal justice minister this month to express the bar association’s “serious concerns” that the “shortage of judges seriously undermines public confidence in our justice system.”
Yavar Hameed, Hameed Law
“It would then require the government to fill these positions, which would make a huge difference for anyone that's using the court system, because ... it is sort of ridiculous right now, the delays, the overwork of judges — all these different issues that ... cascade out from the problem of lack of judicial appointments,” said Hameed’s counsel, Nicholas Pope of Hameed Law in Ottawa.
Pope said it’s often the most vulnerable clients who are most affected by the court delays contributed to by tardy federal judicial appointments “because they don't have the time and the money to just sit around and wait for justice. So that’s what we’re doing this for, to try to improve the justice system to some degree. That way we can actually help our clients who are in need.”
Pope recalled a victim of harassment whose hearing was cancelled last fall, on the Friday before the case was to proceed in court on the following Monday, due to the lack of judges.
Nicholas Pope, Hameed Law
Long lag times for superior court judicial appointments persist to this day, notwithstanding federal Justice Minister Arif Virani’s vow after he was sworn into cabinet last month to take a “fresh approach” as “we need to be doing things, not compromising on quality ... expeditiously.”
However, Ottawa has not solved the problem, notwithstanding the bench and bar repeatedly urging the government to remedy what then-Chief Justice of Canada Beverley McLachlin described in 2016 as the “perpetual crisis” in filling superior court vacancies (a problem faced by both Liberal and Conservative federal governments over the past two decades.) Chief Justice McLachlin bluntly told the Canadian Bar Association in 2016 “there is something deeply wrong with a hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise.”
Moreover, judicial appointment delays are “eminently fixable,” Chief Justice McLachlin told Law360 at the time, especially since judicial retirements are usually known, or anticipated, months in advance by the government. “If you were running a corporation you’d figure out who you need in place in advance, and that would be filled,” she advised. “Otherwise you would be suffering detrimental effects, and you’d be losing money. In this case we’re suffering detrimental effects, but the impact is on the people who are not getting their cases heard.”
Lawyers also point to the existence of appointment processes in some provinces, such as British Columbia, that they say appoint judges to the provincial courts more speedily and efficiently.
Factors that are known, suspected or speculated to contribute to the unusually high rate of vacancies in the superior courts (currently 8.7 per cent as of Aug. 1, more than double the four-per-cent vacancy rate seen as more usual in the past) include: frequent departures from the bench; a politicized process, such as a bottleneck said to be in the PMO, where vetting by political staff of order-in-council appointments slows down appointments, including to tribunals and courts; the collapse, every couple of years, of the government-appointed judicial advisory committees which assess superior court applicants across the country as “recommended” or not (the government says it is considering lengthening the terms of JAC members as well as the assessment period for applicants to three years from two); a shortage of applicants for vacancies in some jurisdictions, with some senior practitioners in major centres said to be unwilling to give up their lucrative practices for what is a demanding job that would pay less and could also require regular travel; the Liberal government’s commitment to appoint not only highly qualified jurists, but also find highly qualified jurists who represent the diversity of Canadians; and the need for Ottawa to co-ordinate the timing of appointments with the provinces who are constitutionally responsible for providing superior court judges with their offices and other support services.
Some might argue that the federal government cannot reasonably be expected to fill all, or even most, superior court vacancies immediately when they occur, and that the government must have a reasonable amount of time after a vacancy arises to fill it with a jurist with the right skillset for the particular job. Yet chief justices and members of the bar have complained since at least 2016 that judicial posts are too often left empty for unreasonably long periods. Such problems have for years plagued the federal judicial appointment system, which the Liberals revamped in 2016 with the aim of filling the federal benches with “exceptional jurists [who] represent the diversity that strengthens Canada.”
In 2009, the previous Conservative government under Prime Minister Stephen Harper also faced complaints from the bench and bar about judge shortages, appointment delays and cancelled trials.
*In an effort to ballpark estimate how much money Ottawa did not spend on judicial salaries and benefits by leaving judicial positions vacant during 2019 to 2023, Law360 Canada relied on Ottawa’s submission to a judicial pay commission that a sitting puisne judge’s tax-adjusted total annual compensation package was about $543,000 in 2021-2022, on average. A judge’s compensation package at the time included: a fixed salary of about $361,000 (the salary is now $383,700); the government’s portion of the judge’s Canada Pension Plan contributions; along with federal funding for the judge’s indexed two-thirds-salary defined benefit pension (the individual value of which varied based on when a judge was appointed). We divided $543,000 by 12 to arrive at monthly judicial compensation of $45,250. We then multiplied $45,250 by the total 2,904 months of vacancy in the 349 judicial posts filled by the government from 2019 through to Aug. 1, 2023. The resulting estimate is that consequently $131,406,000 could have been spent on judicial salary and benefits but was not from Jan. 1, 2019, to Aug. 1, 2023. The federal treasury’s overall “savings” then rose to a ballpark estimate of $168,330,000, with the addition of some $36,924,000 not spent on the 86 unfilled vacancies which existed for a total of 816 months as of Aug. 1, 2023.
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