Federal judge says Ottawa must fix ‘critical’ issue of judicial vacancies

OTTAWA — A Federal Court judge says Ottawa must act swiftly to reduce a “critical” level of judicial vacancies as soon as possible.

Justice Henry Brown issued a decision in a case brought by an Ottawa human-rights lawyer who asked the court to order the prime minister and justice minister to appoint more judges.

The case was filed last June, a month after Supreme Court Chief Justice Richard Wagner wrote to Trudeau expressing deep concern about the number of vacancies and asking for the problem to be fixed.

In a scathing decision, Brown says Prime Minister Justin Trudeau and Justice Minister Arif Virani failed to do what Wagner asked and are failing Canadians who rely on the justice system.

There were 85 vacancies when Wagner wrote his letter in May, 79 when the case was filed in June and 75 on Feb. 1.

Brown calls the situation “untenable” and “appalling” and says the government must move to cut the number of vacancies by almost half.

“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,” Brown wrote.

“With the greatest respect, the court finds the prime minister and minister of justice are simply treading water.”

Virani said Tuesday he is reviewing the decision, but he has made it his personal mission as justice minister to address the issue.

Virani was appointed to cabinet last July, taking over from David Lametti, who held the role for more than four years.

“What I would just say to Canadians is that under my watch, personally, I’ve been in this role for six-and-a-half months. I’ve appointed 64 judges so far,” he said.

“There are more to come.” 

Virani said that is a “record pace” of appointments, claiming the average number of appointments during the previous Conservative government was 65 per year.

He said the Liberals have also increased the number of judicial positions by more than 100 in response to requests to do so. 

And he said slow court proceedings are not only due to a lack of judges, but also provincial underfunding for court staff and operating costs.

Wagner’s letter did acknowledge that issue, though he also said that the judicial vacancies problem should be easier to solve.

Virani said between him and Lametti, the Liberals have appointed 100 judges in total over the last year.

Both he and Brown acknowledge that more vacancies have opened as those were filled.

Virani would not say if he thinks the government can meet Brown’s call to reduce the number of vacancies to about 40.

This report by The Canadian Press was first published Feb. 13, 2024.

Mia Rabson, The Canadian Press