On Feb. 1, 2025, there were just 30 full-time judicial vacancies on the country’s trial and appellate courts, according to the website of the Commissioner for Federal Judicial Affairs.
That compares to 75 federal judicial vacancies on Feb. 1, 2024, and 92 vacant positions on Feb. 1, 2023 (nine per cent of full time federal judicial posts at the time).
Asked by a reporter whether 30 is a “comfortable number” of judicial vacancies or whether there should be fewer vacancies, Chief Justice of Canada Richard Wagner replied “I think we’re on the right path” during a Feb. 3 media availability in Victoria, where he and Supreme Court Justices Andromache Karakatsanis and Nicholas Kasirer traveled yesterday for two days of events to mark the top court’s 150th anniversary.
Chief Justice Wagner said the “serious problem” of judicial vacancies has improved since he wrote Prime Minister Justin Trudeau, on behalf of the Canadian Judicial Council (CJC) which he chairs, stating that it is “imperative” for judicial appointments “to be made in a timely manner.”
“We will soon reach a point of no return in several jurisdictions,” the chief justice warned the prime minister in May 2023. “The consequences will make headlines.”
Since then, “I think we’re on the right way, . . . but you never take anything for granted,” the chief justice told reporters.
This month’s national three-per-cent vacancy rate on the full-time federal trial and appellate benches (969 full-time federal judges are currently in office) is lower than what used to be the more usual vacancy rate of four to five per cent. By comparison, the vacancy rate stood close to 10 per cent on Feb. 1, 2023.
Thirty vacancies are also a big improvement from Sept. 1, 2022 when there were 91 vacancies (a-more-than-10-per-cent vacancy rate), prompting the country’s 44 chief- and associate-chief justices to speak out at the time to deplore the large number of unfilled judicial posts and court delays, that were creating turmoil and extra expenses for litigants while boosting judges' workload.
As of Feb. 1, 2025, seven provinces and territories had no vacant posts at all on their federal trial or appellate benches.
This contrasts with the situation a year ago when, in a decision on a lawsuit, Federal Court judge Henry Brown recognized a constitutional convention that judicial vacancies on the federal courts must be filled within a reasonable time. He declared his “expectation” that the Trudeau government would immediately begin to discharge its then-unfulfilled constitutional duty to fix the country’s “untenable and appalling crisis and critical judicial vacancy situation,” including by reducing the vacancies to the mid-40s “within a reasonable time.”
A Law 360 Canada review of all judicial appointments made by the Trudeau government from Jan. 1, 2019 to Aug. 1, 2023 found that the federal government took more than eight months, on average, to appoint judges to fill 349 superior court vacancies from Jan. 1, 2019, to Aug. 1, 2023 — depriving the federal treasury of an estimated $168 million that would have been spent on hiring much-needed judges if the government filled most vacancies when they occurred instead of many months later, on average.
Ontario’s Superior Court of Justice currently has the highest number of federal judicial vacancies—six of 225 full-time positions—followed by the B.C. Supreme Court with four vacancies in 95 full-time positions.
Three of 15 posts on the B.C. Court of Appeal are vacant (20 per cent)—the highest vacancy rate among the country’s federally appointed courts.
Justice Minister Arif Virani’s press secretary, Chantalle Aubertin, said by email that Virani “made swift appointments of qualified judges a top priority” since July 26, 2023 when the Toronto lawyer succeeded David Lametti as justice minister — “a pace of appointments that has no precedent in Canadian history,” according to the federal Department of Justice.
“Vacancies have steadily fallen across the country over the past 18 months,” Aubertin said.
In his first year as minister, Virani appointed 137 judges,“surpassing the previous record of 107 judges appointed in one year and over doubling the average number of judges appointed each year by the Harper government,” Aubertin said. “Right now, more than 96 per cent of judicial positions are filled, with additional support from over 250 supernumerary judges who sit part-time and hear cases at 50 per cent of the normal caseload. Many of the remaining vacancies stem from our government’s push to expand court capacity, creating 116 new judicial positions since 2017 to increase access to justice.”
The government says it has appointed more than 825 judges since assuming office in November 2015.
Aubertin said Virani has “made the appointment process more efficient,” including by “speeding up security checks for candidates,” extending the period of validity for candidates' assessments by the judicial advisory committees which vet candidates, and extending the terms of the judicial advisory committee members. “Moreover, at the minister’s request, the judicial advisory committees have been meeting more often and, as a result, the minister has benefited from a deeper pool of candidates from which to appoint.”
Aubertin added the federal justice minister “is confident that, if other orders of government do their part, the justice system will continue to provide timely access to justice for everyone in Canada. The progress is clear, and he’s committed to keeping it that way.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.