By Cristin Schmitz for Law360 Canada
As Canada’s top judges again raise their voices about Ottawa’s chronic and lengthy delays in appointing superior court judges — causing cancelled trials, judicial burnout and wasted time and expense for litigants — the Liberal government has allowed more than one-third of its judicial vetting committees to collapse.
As of May 1, 2023, the number of vacancies in the superior trial and appellate courts of the nation had climbed to nine per cent (88 of 995 full-time positions), according to the website of the Office of the Commissioner for Federal Judicial Affairs.
Some of those vacant judicial positions date back as much as 18 months, and most date back many months, according to information obtained by Law360 Canada from several major trial courts.
Meanwhile, a Law360 Canada review of the federal judicial affairs commissioner’s website indicates six of the 17 federal Judicial Advisory Committees (JACs) have collapsed because the federal government has not appointed new members to take over from the incumbents, whose terms lapsed — a repeat problem that the Trudeau government has failed to rectify since the Liberals first formed government in 2015.
According to information provided by the commissioner’s office to Law360 Canada, the JAC for Yukon expired more than a year ago (April 30, 2022), while the JACs for Nova Scotia and P.E.I expired more than seven months ago (Sept. 30, 2022).
Notably, on April 30, 2023 the JACs for Ontario’s Greater Toronto Area and for British Columbia — which screen applicants for two of Canada’s biggest, busiest and backlogged superior trial courts — became defunct — as did the specialized JAC for the Tax Court of Canada.
The inordinately high number of current judicial vacancies last month prompted the Canadian Judicial Council, comprising the 44 chief- and associate chief justices of the country’s superior trial and appellate courts, to publicly decry the crisis in the administration of justice — for the third time in seven months — via a public communique in which judicial leaders “reiterated their concerns about the need for more timely judicial appointments and the impact that vacancies have on court operations.”
In a blunt follow-up letter May 3 from the CJC’s chair to Prime Minister Justin Trudeau, Supreme Court of Canada Chief Justice Richard Wagner pointed out that some courts routinely operate with vacancy rates of 10 to 15 per cent, with appointments taking many months.
“The situation could undermine Canadians’ confidence in the justice system and in all democratic institutions, because a growing number of criminal and civil cases are at risk of falling apart,” the chief justice warned, as reported by the CBC May 9. “The current situation is untenable and I am worried that it will create a crisis in our justice system, which is already facing multiple challenges,” the chief justice wrote in the letter obtained by CBC. “Access to justice and the health of our democratic institutions are at risk.”
The chief justice said that federal Justice Minister David Lametti has been trying his best to address the shortage of judges.
“It is imperative for the Prime Minister’s Office to give this issue the importance it deserves and for appointments to be made in a timely manner,” the chief justice of Canada emphasized. “The government’s inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting.”
Chief Justice of British Columbia Robert Bauman told Law360 Canada in Ottawa after the CJC’s spring meeting in late April, that the federal judiciary’s “plea coincides with a particularly difficult time for a number of the courts across the country” with respect to judicial appointments.
The fallout from so many vacancies includes last-minute trial cancellations, consequent wasted time, energy and expense for litigants, long delays for court hearings and increased pressure on the short-staffed benches, Chief Justice Bauman explained. “The problem seems to be more acute today than it has been historically,” he remarked. “There's always going to be a certain number of vacancies in any court, retirements and resignations being what they are. But now we seem to be particularly vexed by more vacancies than we can easily manage, that has then attendant pressures on other judges and on court schedulers, etc.,” he said. “We know the stress of judicial proceedings is intense, and [a high judicial vacancy rate] exacerbates it, and we also know that that results in ... the [litigants’] costs of preparation that are thrown away, but have to be repeated. So it’s a serious problem.”
The problem is certainly serious in British Columbia’s Supreme Court which was contending with 12 vacancies on a court with 95 full-time posts — a 13-per-cent vacancy rate (as of May 1).
The two oldest vacancies (in Abbotsford, B.C.) date back to November 2021 and January 2022, according to B.C. Supreme Court information provided to Law360 Canada.
Eight more full-time B.C. Supreme Court vacancies (including three unfilled full-time positions that were added to the judicial complement) also arose last year, beginning in June 2022.
Half of the B.C. vacancies arose as a result of judges electing supernumerary (part-time) status, meaning the federal government knew well in advance that they would be leaving full-time work.
“All of the justices provided five to six months’ notice of the date on which they elected to become a supernumerary judge,” B.C. Superior Courts’ spokesperson Bruce Cohen told Law360 Canada.
Cohen said the delay from a vacancy to appointment “generally ranges from a low of three months to a high of nine months; however, there are currently significant outliers.”
He noted the three additions to the Supreme Court’s complement, which were added in order to address workload pressures, “have gone unfilled for well over a year.”
In Ontario’s Superior Court of Justice, judges provide, by convention, six months’ notice of their departure from full-time work.
Yet the delays in appointments to Canada’s largest superior trial court are also substantial. Two-thirds of its vacancies have languished in the range of, at a minimum more than four months, up to 18 months and counting, according to information provided by the court to Law360 Canada.
As of May 1, there was a nine -per-cent vacancy rate in the Ontario Superior Court of Justice — 21 of 224 full-time posts (not including family court) were vacant. The three earliest superior court vacancies date back to November and December 2021. Thirteen vacancies date back to 2022.
The vacancy problems are likely to worsen since, as of May 1, the judicial advisory committees for the Greater Toronto Area and for British Columbia also became moribund, leaving the superior trial courts which rely on them to vet and create a sufficient pool of candidates for the bench desperately awaiting appointments.
“I don’t know why it takes so long in some cases to appoint [JACs] after terms expire,” Chief Justice Bauman told Law360 Canada. “But the lack of a timely-appointed JAC obviously delays the appointment process because eligible candidates for appointment must first get through the responsible JAC and only such eligible candidates make up the pool of candidates available for appointment.”
The executive director of the British Columbia branch of the Canadian Bar Association, Kerry Simmons, told Law360 Canada that the CBA-B.C supplied its nominee for the now-defunct B.C. JAC to the federal government last March.
“We need to have the JACs working,” Simmons stressed. “Any delay in appointing them means that no review of applications can happen, so it will then further delay [judicial] appointments if the JACs are not operational.”
Simmons noted it is possible to design a more timely and efficient judicial appointment process, pointing to the example of the appointment system for British Columbia’s Provincial Court. “Our province has a timely process right now,” she remarked.
The hiatus in the operations of many non-partisan JACs as they await the justice minister’s appointment of new members — a recurrent phenomenon — is only one possible contributor to the decades-old problem of untimely federal judicial appointments.
However, the federal government declines to explain just what causes its persistent delays in appointing judges. Politics and consultation are said to play a role as cabinet members, MPs and others weigh in on candidates for the various vacancies. There may also be a bottleneck within the Prime Minister’s Office, where a handful of officials vet federal appointments.
Asked why the persistent federal delays in appointing judges, Lametti told a scrum on Parliament Hill May 9 “we try to appoint judges at the necessary speed.”
Lametti noted the Liberal government has created more than 100 new judicial positions, while he has appointed almost 400 since his appointment as minister of justice in 2019. “Our government has appointed more than 600,” he said, since the Liberals took office in 2015. “So we’re working hard. We had two [federal] elections in between.”
Lametti acknowledged the serious consequences that lengthy vacancies can have on court operations, and for the fair trial Charter rights of accused, who the Supreme Court of Canada has said must generally be tried within 30 months in superior court.
“It’s a serious problem, and we’re attacking the problem,” Lametti said, without providing any details on how he is doing so. “I understand the problem. I’m working very hard with people across the country to make this system work.”
The justice minister noted that “there are different blockages from time to time at different points in the system.”
In some regions, for example, there may be too few applicants in the approved pool of judicial candidates to fit the requirements for the vacant posts, notwithstanding that Lametti and the judiciary of a number of courts have been reaching out to encourage applications from qualified lawyers.
“We are pushing to get people to apply in certain parts of the country more than others,” Lametti said.
His director of communications, David Taylor, told Law360 Canada the defunct JACs “will be reconstituted in due course. Going forward, we are considering extending the [two-year] terms of the JAC, as well as the assessment period of applications from two to three years. In the meantime, we are fortunate to have a good list of screened applications in most jurisdictions.”
With respect to the vacancies in both Ontario and British Columbia, Taylor said the federal justice minister “has spoken with members of the judiciary as well as the bar to encourage more people to apply for the bench.”
“Our government continues to make appointments at a steady rate, and we expect the number of vacancies will continue to decline,” Taylor said by email. “We will ensure our appointment process remains open, transparent and merit based.”
Both the bench and bar have long decried what then-Supreme Court of Canada Chief Justice Beverley McLachlin publicly denounced in 2016 as the “perpetual crisis” in filling superior court vacancies typical of federal governments of both political stripes. She told the Canadian Bar Association “there is something deeply wrong with a hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise.”
Judicial appointment delays are “eminently fixable,” she told Law360 Canada at the time, particularly as 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 said. “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.”
Chief Justice Wagner highlighted the problem again last February in a speech to the Canadian Bar Association where he urged the federal government to move on filling the unusually high number of judicial vacancies across the country (echoing a CJC plea in September 2022). The Canadian Bar Association also wrote federal Lametti last January, underscoring the need for timely appoints to the federal benches and the JACs.
Chief Justice Bauman said there are presently relatively “fewer willing applicants” for the B.C. Supreme Court’s vacancies.
“We’re not sure why that’s so, but it is so,” the chief justice of British Columbia said, noting that Lametti, B.C. Supreme Court Chief Justice Christopher Hinkson and the B.C. bar association and law society are “all concerned, and are all reaching out to bring home that fact to the bar in British Columbia to encourage qualified applicants.”
Ottawa’s chronic delays in appointing federal judges has had dire consequences on the ground, as detailed by the B.C. Supreme Court in its annual report for the 2022 calendar year.
“The court continues to have to bump a large number of long chambers applications and trials compared to historical averages, which has been a trend since 2019,” the superior trial court reported this year. “The main cause of bumping continues to be the shortage of judges available to hear matters, as the court does not have enough judges to meet the demand for hearings and trials. ... In 2022, 10.9 per cent of all long chambers applications in British Columbia were bumped, which was slightly lower than the bumping rates in 2019 through 2021, but well above the average in the years preceding that,” the court said. “In Vancouver specifically, the bumping rate for long chambers applications in 2022 was slightly lower than in 2021, but higher than in 2020 and the years leading up to 2019. More trials were bumped in 2022 than in 2021 in British Columbia, with 16.3 per cent bumped in 2022 compared to 13.5 per cent the year before.”