Job News: Globe editorial: Vacant courts are a verdict of failure for the federal government

Judicial vacancies on Canada’s top courts have plagued the justice system long before this week’s Federal Court ruling to reduce the number of unfilled jobs.

It was a recurring problem for Stephen Harper. In 2007, there were more than 40 jobs waiting to be filled. It sparked a flurry of critical commentary. This space was succinct: “A government that cannot manage to hire judges is not doing its job.”

It is as true today as it was then. The prime minister and federal cabinet are responsible for ensuring the most important courts across the country are fully staffed. Failure to do so has real consequences: An unacceptably high number of vacancies leads to delays and puts major cases, including sexual assault and murder, in peril.

For Mr. Harper, the judicial vacancies problem never really dissipated. In late 2014, there were 61 jobs waiting to be filled. At the time there were about 900 full-time positions, from provincial superior and appeals courts to the Federal Court and Supreme Court. Today, there are about 1,000 full-time jobs, with 75 judges’ chairs vacant.

The Federal Court ruling this week, calling out the Liberals’ high number of vacancies, is the latest in a long series of similar declarations. The chiding of Ottawa is the one reliable thread through the years. In 2016, when there were 44 vacancies, Beverley McLachlin, then chief justice of the Supreme Court, criticized both Conservatives and Liberals: “The perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved.”

A full bench of judges is always important but it became more pressing after a narrow 2016 Supreme Court ruling, called Jordan. That decision imposed strict deadlines on getting cases heard and led to hundreds of cases being thrown out over the next few years.

The Liberals in 2016 revamped the judicial hiring process. In 2017 they appointed or promoted 101 judges and in 2018 it was 107, the two highest years on record. In 2021, however, only 65 jobs were filled. Vacancies started to rise again, with the usual array of retirements, older judges going part-time and the search for specific skills in various regions. At the start of last year, there were 89 open jobs – the highest on record. Last May, Supreme Court Chief Justice Richard Wagner urged Mr. Trudeau to fill the jobs. The letter was reported by Radio-Canada and in this week’s Federal Court ruling published in full.

Chief Justice Wagner described the situation as untenable. The Chief Justice cited the challenges of the Jordan decision and highlighted another big problem: “chronic underfunding” of the courts by provincial governments. The Trudeau government’s response was underwhelming, saying it was appointing judges at a steady rate.

And now an unusual Federal Court ruling lands. It stretches back in history to reference the Magna Carta of 1215 and roots its thinking in constitutional conventions. The case was brought by a lawyer in Ottawa and the federal government argued the court didn’t have jurisdiction. Regardless of whether one Federal Court judge should be able to tell Ottawa what to do on such matters, the court’s conclusion is straightforward: roughly halve the number of vacancies in a reasonable amount of time.

The federal Liberals sound more motivated to take action than they did after Chief Justice Wagner’s letter. Justice Minister Arif Virani, noting there were 100 appointments or promotions in 2023, told reporters he’s working to reduce vacancies “as fast as possible.”

According to data from the Office of the Commissioner for Federal Judicial Affairs, Mr. Trudeau has appointed or promoted an annual average of 85 judges. Mr. Harper’s average was 66. But the average number of vacancies at the start of each year under Mr. Trudeau is 57; Mr. Harper’s was 31.

One factor is some new judicial jobs from the 2019, 2021 and 2022 federal budgets remain empty. The court ruling showed 31 of 79 vacancies as of last June were new positions.

There is one clear difference between Mr. Harper and Mr. Trudeau. Of Mr. Harper’s judges, two-thirds were men. Under Mr. Trudeau, 55 per cent are women. But the most important goal is a fully functioning judicial system, which neither Mr. Harper nor Mr. Trudeau were able to steadily maintain.

Mr. Harper’s falling short on appointing judges is no excuse for Mr. Trudeau falling short. Hiring judges is the government’s job. Figure it out.

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