Chief justice highlights importance of judicial independence, need for timely judicial appointments

Law360 Canada (February 10, 2023, 1:12 PM EST) -- Canada’s top judge is asking the federal Liberal government to move with due speed to fill the unusually high number of judicial vacancies across the country — which stand at about nine per cent of full-time federal judicial posts, with even higher vacancies in some major trial and appellate courts.

In his annual address to the Canadian Bar Association’s (CBA) annual meeting Feb. 9, Chief Justice of Canada Richard Wagner told the 36,000-member group that since 2017 the federal government has bolstered the capacity of Canada’s federally appointed benches by creating more than 100 new superior court judgeships.  

However, the chair of the Canadian Judicial Council (CJC) — comprising the 44 chief- and associate-chief justices of all trial and appellate superior courts across the country — also highlighted the persistent problem of judicial appointment delays, pointing to the CJC’s public statement last September that “despite the ongoing efforts and collaboration” of federal Justice Minister David Lametti, “the council expressed concern over the judicial appointment process and underscored the need for the government to appoint judges in a timely manner to allow the superior courts to administer justice as efficiently as possible for the benefit of all Canadians.”

“I know that the federal Minister of Justice is aware of these needs and I trust that [the government] will be able to deploy all the necessary efforts to remediate the situation [translation],” Chief Justice Wagner told more than 200 CBA members participating online in the association’s virtual-only annual conference.

Both the association and the CJC have publicly complained for decades about chronic undue federal judicial appointment delays by governments of both Liberal and Conservative stripes, with the CBA most recently underscoring in a Jan. 25 letter to Lametti that “maintaining full judicial complements is another critically important component of ensuring public access to, and confidence in, our justice system.”

“We are always concerned with judicial vacancies, because of its impact on access to justice for all,” CBA president Steeves Bujold explained in a statement to Law360 Canada that adds “we encourage the minister to make appointments ... as soon as possible” to the judicial advisory committees (JACs) which vet candidates’ qualifications. Some of the JACs also have multiple vacancies (Yukon’s JAC is defunct). “We regularly encourage members to apply for judicial appointments so that the bench is representative of the diversity of Canada," Bujold noted.

According to the office of the Commissioner for Federal Judicial Affairs, as of Feb. 1, there were 901 full-time federally appointed judges in office, plus 92 vacant positions — that is, nine per cent of full-time posts on the federal benches across Canada were vacant. (On Feb. 6, Lametti appointed in addition three new judges — one each to the Ontario and Quebec superior trial courts and one to the Federal Court.)

Notably, with 204 full-time judges in office as of Feb. 1, Ontario’s Superior Court of Justice had 20 full-time vacancies (a nine-per-cent vacancy rate). The B.C. Supreme Court, with 84 full-time judges in office, had 11 vacancies (a 12-per-cent vacancy rate) and Alberta’s Court of King’s Bench, with 69 full-time judges in office, had nine vacancies (a 12-per-cent vacancy rate). The Federal Court, with 35 full-time judges in office and six vacancies, had an even higher vacancy rate (15 per cent).

Some appellate courts also languish with vacancies. As of Feb. 1, there were just four full-time judges on the Manitoba Court of Appeal, which has four vacancies — a 50-per-cent vacancy rate. The Alberta Court of Appeal has three vacancies and 11 full-time judges in office (a 21-per-cent vacancy rate.)

For his part, Lametti told CBA members during a question-and-answer session Feb. 9 that he shares their concerns around judicial vacancies. “That's a critical question,” he acknowledged. “I am working hard to fill those vacancies."

“I have roughly 100 a year over the last four years. In the last four years that I’ve been minister, we’re approaching 600 now as a government, ... but those positions have to be filled,” said the justice minister who, with Chief Justice Wagner, co-chairs a national court operations committee whose federal mandate, including reducing court backlogs and delays, continues at least through this year.

“What I would ask all of you to do is to help by encouraging good people to apply to the bench across Canada,” Lametti said. “This is a time when we need to replenish the pools of applicants who have applied, so that they can be evaluated by the judicial appointment committees ... across Canada. That would help immensely, but in the meantime I will continue to work diligently.”

Lametti added there are more appointments “in the offing, hopefully. I’m cautiously optimistic in the not-too-distant future that there will be more announcements — there were a few last week — and I will continue to push, and my office will continue to push, to make sure that we get through those appointment processes. I share your concerns.”

(Asked by Law360 Canada what is causing the delays and when might the vacancies be filled, Lametti’s press secretary responded by email that the government made 88 judicial appointments in 2022, and created 37 new positions in the two past federal budgets to support the needs of various courts. “Minister Lametti will continue appointing highly qualified jurists to the court and working diligently to fill vacancies in due course,” Diana Ebadi said, adding “we are proud of a judicial process that incorporates values and elements that the public can trust; a process that is free of partisanship, relying instead on rigorous assessment by an independent board [JAC].”)

In updating the CBA on recent developments at the institutions he leads, Chief Justice Wagner highlighted the Jan. 30 opening of the Supreme Court of Canada’s new online portal for filing court documents, which is now the primary method for filing the electronic version of documents with the court.

“The purpose was to facilitate access to justice, not only for lawyers, but also for staff and self-reps so that they could file documents in a secure way and much easier,” explained the chief justice, noting that 20 to 30 per cent of the court’s leave to appeal applications are filed by litigants who are self-represented.

The chief justice noted that the National Judicial Institute (NJI), which trains federally appointed judges, hosted a major conference last year in Ottawa attended by judges from around the world, including the chief justice of Ukraine. 

The NJI, as a “world leader in the design and delivery of judicial education,” also rolled out new courses and resources in 2022, including those on anti-Black racism and sentencing, access to justice for children and an online criminal law fundamentals course for newly appointed judges.

Chief Justice Wagner said the CJC is again expanding its outreach and public education activities this year, including a conference in Ottawa next April that will bring together judges and court communications employees from across Canada to share best practices and exchange ideas on how to make the courts more accessible to journalists and members of the public. “In this age of mis- and disinformation, it is in all of our interests to support those who provide the public with fact-based news and analysis about the justice system,” the chief justice said.

Asked why he thinks the number of leave applications to the Supreme Court has declined over the past several years, the chief justice said he believes the COVID-19 crisis is part of the answer. He said fewer leave applications “will probably continue for the next year” given fewer judgments emanating from trial and appellate courts, as well as the pandemic’s impact on self-represented litigants.

Chief Justice Wagner lauded the CBA and its members for their exceptional pro bono work, including on behalf of Afghan refugee claimants, and Ukrainians fleeing the ongoing Russian invasion of their country. “The excellence of your volunteer service has, without a doubt, contributed to Canada welcoming more than 150,00 Ukrainians so far,” he said.

He also thanked CBA members for standing with judges in defending, at every opportunity, judicial independence — which he emphasized exists to serve the public rather than the judiciary.

Chief Justice Wagner said Canadian lawyers can help make Canada and the world “better for everyone.”

“Even here in Canada, we must never take our strong and stable democracy for granted, especially now,” he stressed. “Around the world tyranny is on the rise. It is chipping away at democratic principles, such as the rule of law, judicial independence and freedom of the press.”

Referencing last month’s World Report from Human Rights Watch, which found that the world is becoming more authoritarian, Chief Justice Wagner quoted “‘the endless quest for power and control infects and erodes every pillar needed for a functional society based on the rule of law. The result is frequently massive corruption, a broken economy and a hopelessly partisan judiciary.’”

“Only when the judiciary is fully independent can we uphold the rule of law, strengthen democracy and ensure that vulnerable people are treated with fairness and dignity,” the chief justice concluded. “That is the promise of our Constitution — and a promise that every one of us must defend.”

Photo of Chief Justice Richard Wagner by Roy Grogan

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