Bar complains of long delays in naming federal judges; justice minister says record number appointed in 2017

  • January 17, 2018

This article was originally published in The Lawyer's Daily

The Trudeau government’s chronic failure to name judges on time has renewed complaints from the Canadian Bar Association (CBA), which is demanding a speedy fix for the persistent appointment delays, along with an explanation from Ottawa for why it takes so long to fill judicial vacancies that are forecast months ahead.

The number of judicial openings across Canada has shot up again, to 63 as of Jan. 1 (a six per cent average vacancy rate as compared to the norm of about four per cent.) The situation is even more serious in the busy trial courts of British Columbia, Alberta and Saskatchewan, where some vacancies have languished for more than a year.

“We have not had the appointments keep pace with the vacancies in the larger provinces,” CBA president Kerry Simmons told The Lawyer’s Daily, noting that the organization’s B.C. branch has written Justice Minister Jody Wilson-Raybould asking her to expedite appointments to the 10 vacancies on the B.C. Supreme Court.

“The question is why is it taking so long to appoint, and why can’t we get ahead of this?” she asked.

Simmons called on Ottawa to fix the endemic delays — echoing former chief justice of Canada Beverley McLachlin, who publicly admonished the federal government in 2016 that “the perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved.”

Simmons told The Lawyer’s Daily her 36,000-member association would like the Commissioner for Federal Judicial Affairs (who reports to Wilson-Raybould) to disclose why the problematic delays persist, so that a solution can be devised now, in consultation with the bar.

“Is it that our process takes 10 months to vet [an applicant]?” she queried. “Is it that we have a communication problem within judicial advisory committees? Is it that we don’t have applicants? Is it that we don’t have enough quality applicants?”

Simmons continued “is it that we don’t have good communication with somebody in the system? Is it that the cabinet meetings [which approve appointments] don’t happen in a timely way? I don’t know what it is. So we need information about why it takes as long as it does, and if the government thinks that that [length of time for making appointments] is okay, they should explain that to us,” she said.

“And if they agree that there are delays, let’s all work on a new system quickly to get that done!” Simmons stressed.

In an e-mailed statement to The Lawyer’s Daily, Wilson-Raybould defended the Liberals’ record on judicial appointments. Canada’s first Indigenous justice minister argued that her government’s reformed appointment system — which includes more extensive application forms and new judicial advisory committees — has enhanced transparency and public accountability, while producing very high-calibre and considerably more diverse appointments. (The government’s reforms were not unveiled until October 2016, a year after the Liberals came to power, which resulted in many vacancies remaining unfilled that year.) The government also committed in last year’s budget to fund 28 new federally appointed judicial positions — in response to requests from trial courts in Alberta, Quebec and elsewhere.

“I am proud to have made 100 appointments in 2017 — that is more than any other justice minister in a single calendar year in at least two decades,” Wilson-Raybould said. “Of these appointees [including elevations], exactly half are women, four are Indigenous, while 16 have self-identified as a visible minority, LGBTQ2, or persons with disabilities.”

The justice minister emphasized that “one goal of reforming the judicial appointment process was to build a judiciary that better reflected the country it serves. Our government is making progress, and will continue to do so with outstanding appointments in 2018.”

In advance of the 2018 federal budget, the CBA wrote Wilson-Raybould Jan. 11 asking her to heed the pleas of many chief justices across Canada to increase the number of superior court judge positions, including immediately expanding the Unified Family Court (UFC) in Ontario to eight new sites in that province.

The association also stressed that “maintaining full judicial complements is critically important to ensuring public access to, and confidence in, our justice system.”

The justice minister did not provide details of what her government intends to do with respect to Ontario’s UFC request. However, she told The Lawyer’s Daily “our government is committed to creating and expanding unified family courts across Canada. These specialized courts are designed to help families when they are most vulnerable, and to encourage early and constructive resolutions to family law problems. We are currently working with the provinces and territories to determine who would be interested in participating.”

The minister added, “I am pleased that there is widespread support for UFCs among the key stakeholders in Ontario’s family justice system. Ultimately, a funding formula would have to be agreed to [with the province], and amendments to the Judges Act would be required in order to authorize the appointment of new UFC judges.”

The CBA has written several times to Ottawa about the importance of timely judicial appointments since the Liberals assumed power in 2015. In addition to the 10 current vacancies on the B.C. Supreme Court — one-ninth of that court’s complement of full-time judges — Alberta’s Court of Queen’s Bench has 12 vacancies among 76 full-time spots (a 16 per cent vacancy rate, including new, but as-yet-unfilled, positions). Saskatchewan’s Court of Queen’s Bench is down five judges — 15 per cent of its full-time complement.