The Federal Court of Canada said Tuesday that the prime minister and justice minister had breached their duties to appoint judges to vacancies in superior courts. Federal Court Judge Henry Brown further wrote that by not filling judicial vacancies, Canadians are denying prompt access to justice, a constitutional right.
Complainant Yavar Hameed, a human rights lawyer in Ottawa, said he had experienced significant delays in legal proceedings in the superior courts on behalf of vulnerable clients. The Federal Court found that delays in filling judicial vacancies lead to delays in prosecution and resolution of cases. At the Court of King's Bench in Alberta, for example, over 22 percent of ongoing criminal cases exceed the 30-month time limit for hearing criminal cases. Of these delayed cases, 91 percent involve serious and violent crimes such as sexual assault or murder.
Prompt access to justice is particularly important in the criminal justice context. The Canadian Charter of Rights and Freedoms not only guarantees the defendant's right to a trial within a reasonable time, but the judiciary also recognizes the consequences of delay. Effects include prolonged pretrial detention, ongoing stress, anxiety and stigmatization that a defendant may suffer, as well as adverse difficulties in building his or her defense due to faded memories, unavailability of witnesses, or lost or deteriorated evidence.
The court also noted that the necessary urgency in dealing with criminal cases was largely due 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 system. The waiting time from filing a civil lawsuit to trial can range from 273 days in Alberta to 547 days in Ontario or 593 days in Quebec. The company further claimed that the delay only jeopardized access to justice and harmed the rule of law.
The court also accepted a May 2023 letter from Chief Justice of Canada Richard Wagner explaining the negative impact on Canada's judicial system of the government's inability to promptly fill judicial vacancies. Aside from the additional delays in hearing cases and delivering verdicts, judges also face chronic work overload and increased stress, which has resulted in more judges taking medical leave and leading to staffing shortages. Chief Justice Wagner also described judicial vacancies as “critical” and the impact of the continued failure to fill vacancies as “appalling” and “untenable.”
In addition, the court ruled that the Prime Minister and the Attorney General must recommend to the Cabinet to direct the Governor-General or the Governor-in-Council to appoint judges in a timely manner to discharge their respective statutory duties. The court ruled that the government could not justify its delay and continued failure to advise the Governor-General and the Governor-in-Council on filling judicial vacancies. The court also asked the government to take action and reduce vacancies to mid-40s.
In this regard, the current Minister of Justice Arif Virani, when appointed in July 2023, promised to solve the problem of vacancies in the judiciary. Nevertheless, the court found that there were 79 vacancies in June 2023 and the number of vacancies remained constant at 75 in February 2024.