Ottawa appeals ruling ordering it to hire more judges amid ‘appalling’ vacancy crisis

The lack of judges in provincial superior courts has led to delays, including the collapse of several serious criminal cases in Toronto. Brown declared the government had to appoint more judges in a reasonable time, noting that “very unfortunately, the court has no reason to expect the situation will change without judicial intervention.”

In a notice filed with the Federal Court of Appeal on Thursday, the government argues that the lower court erred by “overstepping its constitutionally-limited role and acting without jurisdiction” by essentially adding a timeliness requirement to the section on judicial appointments in the constitution. 

Brown was also wrong, the government argues, to accept as expert evidence a letter sent to Trudeau last year by the Chief Justice of Canada, who said some courts have had to deal with a 10 to 15 per cent vacancy rate for years and it was impacting the timely hearing of cases.

He erred by “interpreting the Prime Minister’s and Minister of Justice’s nonresponse to the letter as a reviewable decision that would warrant relief from the court,” the government says, asking for the case to be dismissed or sent back to the Federal Court for a new hearing.

Federal Justice Minister Arif Virani has previously stated that his top priority is to expeditiously appoint judges “of the highest calibre who also reflect the diversity of this country.” Government lawyers offered no explanation to Brown for the slow pace, for which the Liberals have been criticized for years. 

The case against the government was brought by Ottawa-based human rights lawyer Yavar Hameed, who argued that the very high number of vacancies was preventing his vulnerable clients from accessing the courts in a reasonable time. 

“Instead of fighting against a common sense ruling from the Federal Court, the government should focus on solving the real problem,” Hameed’s lawyer, Nicholas Pope, told the Star on Thursday.

“Vulnerable Canadians need a functioning judicial system to protect them from injustices. Every dollar spent litigating this appeal could be better spent on appointing judges and fixing this crisis.”