Federal Court orders Trudeau and his justice minister to appoint more judges

A Federal Court judge has ordered Prime Minister Justin Trudeau and his cabinet to fill judicial vacancies “within a reasonable time,” after finding Ottawa has “failed” at providing timely justice.

The ruling, issued Tuesday by Justice Henry Brown, cites Supreme Court Chief Justice Richard Wagner’s rare letter last year to the prime minister warning that languishing vacancies on courts across Canada are exacerbating an already alarming situation.

“With the greatest respect, the Court finds the prime minister and minister of justice are simply treading water. They have failed to take the actions requested,” Brown wrote in his decision.

“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.”

Brown concluded that the Court expects “the untenable and appalling crisis, and critical judicial vacancy situation” to be resolved, but has not prescribed specific timelines for which vacancies should be filled.

“While appointments were made over the last eight months, during the same period new vacancies have been created by resignation or otherwise. This significant and unacceptably large number of vacancies remains essentially unchanged,” reads the ruling summary.

It goes on to note that there were 79 vacancies when this application was filed in June 2023, and 75 vacancies as of February 1, 2024, according to the Federal Commissioner of Judicial Affairs’ website. 

Ottawa human rights lawyer Yavar Hameed brought the legal challenge, against the prime minister and Justice Minister Arif Virani.

While judicial appointments are made by the Governor General, they come on the advice of cabinet, on the advice of the minister of justice or in the cases of chief justices, the prime minister.

According to the ruling, the respondents “offered no justification for their decision to refuse the request to fill these judicial vacancies.”

Asked to comment on Parliament Hill on Tuesday, Virani said he is reviewing the decision.

“I’ve been in this role for about six and a half months, I’ve appointed 64 judges so far, and there are more to come. In the average year under the Harper government, they appointed 65 per year, so on that metric alone I’m working twice as fast,” he said.

“Can more be done? Yes. More can be done, and I’m working on that. This is my top priority as minister of justice,” Virani said, while noting there are provincial factors at play when it comes to court delays.

He took issue with the decision not reflecting that more than 100 judicial positions have been added since the Liberals formed government.

Virani said the “meat and potatoes” part of his job as Canada’s justice minister is “appointing judges of the highest calibre, who also reflect the diversity of this country.” 

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