Canada’s Federal Court declared Tuesday that the Prime Minister and Minister of Justice violated their duties to appoint judges to vacancies in superior courts. Federal Court Justice Henry Brown further wrote that the failure to fill judicial vacancies denies Canadians access to justice without delay, a constitutionally enshrined right.
The applicant Yavar Hameed, as a human rights lawyer in Ottawa, stated that he experienced significant delays in litigation proceedings in the superior courts on behalf of vulnerable clients. The Federal Court found that delays in filling judicial vacancies cause delays in prosecuting and resolving cases. For instance, in the Court of King’s Bench of Alberta, over 22 percent of ongoing criminal cases are passing the 30-month deadline to try criminal cases. Among these delayed cases, 91 percent involve serious and violent crimes, such as sexual assault or murder.
Access to justice without delay is particularly important in the criminal context. Not only does the Canadian Charter of Rights and Freedoms guarantee the defendant’s right to a trial within a reasonable time, but the judiciary also recognizes the consequences of delays. The impact includes prolonged pre-trial custody, prolonged stress, anxiety and stigma that an accused may suffer, and the prejudicial difficulty in building their defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.
The court also observed that the necessary urgency to process criminal cases essentially translates to the neglect of civil cases. In this regard, the Advocates’ Society released another report in 2023, outlining backlogs and delays in Canada’s civil and family justice systems. The waiting time from lodging a civil case to trial could range from 273 days in Alberta to 547 days in Ontario and 593 days in Quebec respectively. The Society further claimed that the delay only compromises access to justice and damages the rule of law.
The court also accepted a letter written by the Chief Justice of Canada Richard Wagner in May 2023, explaining the negative impact the government’s inability to fill judicial vacancies promptly brought to the Canadian judicial system. Apart from the additional delays in hearing cases and rendering judgments, the judges are also facing chronic work overload and increased stress, which has resulted in an increase in judges going on medical leave and has caused staffing shortages. Chief Justice Wagner further described the judicial vacancies as “critical” and the impact of the ongoing failure to fill vacancies as “appalling” and “untenable.”
In addition, the court also held that the Prime Minister and the Minister of Justice must advise the Cabinet to instruct the Governor General or Governor in Council to appoint judges in a timely manner to fulfill their respective statutory duties. The court ruled that the government failed to justify its delay and persistent failure to advise the Governor General and the Governor in Council to fill the judicial vacancies. The court also required the government to take action and reduce the vacancies to the mid-40s.
Relatedly, the current justice minister Arif Virani promised to resolve the judicial vacancies issue when he was appointed in July 2023. Nonetheless, the court noted that there were 79 vacancies in June 2023 and the vacancies remain steady at 75 as of February 2024.