A scathing Federal Court decision says Prime Minister Justin Trudeau and the federal justice minister have “failed” Canadians seeking timely justice by letting the number of judicial vacancies reach a state of crisis.
The case, brought forward by a human rights law firm, sends a clear message to the federal government about the urgent need to reduce the number of vacancies.
“With the greatest respect, the Court finds the Prime Minister and Minister of Justice are simply treading water,” Federal Court Justice Henry Brown wrote in his Tuesday decision.
“And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the Superior Courts and Federal Courts across Canada.”
Last spring, Chief Justice Richard Wagner sent Trudeau a letter warning of an “untenable” situation in Canadian courtrooms.
“The current situation is untenable and I am worried that it will create a crisis in our justice system, which is already facing multiple challenges. Access to justice and the health of our democratic institutions are at risk,” he wrote.
“It is imperative for the Prime Minister’s Office to give this issue the importance it deserves and for appointments to be made in a timely manner …The government’s inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting.”
But the Federal Court decision says that while some vacancies have been filled over the past eight months, new vacancies have opened up in the meantime.
“This significant and unacceptably large number of vacancies remains essentially unchanged,” said Brown.
The Office of the Commissioner for Federal Judicial Affairs Canada said there were 75 federal judicial vacancies as of Feb. 1.
Brown said the federal government has not offered any justification for the large number of judicial vacancies.
‘Courts are the protectors of the vulnerable’: lawyer
“In some cases it may be that all relevant vacancies must be filled, as where serious crimes are not prosecuted in a timely way such that victims, the public and accused are denied justice,” he said.
“That may not be possible in other cases.”
In his decision, Brown said the prime minister and justice minister are responsible for judicial appointments and he expects to see the vacancies “materially reduced in a reasonable time.” He wrote that in the spring of 2016 there were 46 vacancies, a number he said would be a reasonable target.
Nicholas Pope, who successfully argued the case on behalf of his law firm Hameed Law in Ottawa, said Canada’s justice system is at risk if the federal government doesn’t act.
“The courts are the protectors of the vulnerable. If we don’t have courts that work, then the rich and the powerful can run over the vulnerable, and without judges there is no justice,” he said.
“So in every aspect of our life, where there could be an injustice, we need a judge to fix it.”
Pope said in 2022 the firm represented a sexual assault victim who had her week-long hearing cancelled just days before it was about to start.
“She was prepared to testify about this and it gets cancelled explicitly because they did not have a judge available to hear the matter,” he said.
“That’s a very traumatic experience.”
Pope said if the government doesn’t change the situation, his firm is ready to go back to the Federal Court to seek explicit timelines.
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