Hameed v. Canada (Prime Minister)

Hameed v. Canada (Prime Minister)
Court (s) Database
Federal Court Decisions
Date
2024-02-13
Neutral citation
2024 FC 242
File numbers
T-1274-23
Decision Content
Date: 20240213
Docket: T-1274-23
Citation: 2024 FC 242
Ottawa, Ontario, February 13, 2024
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
YAVAR HAMEED
Applicant
and
PRIME MINISTER AND MINISTER OF JUSTICE
Respondents
JUDGMENT AND REASONS
Table of Contents
I. Letter from Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of Canada dated May 3, 2023 3
II. Summary and conclusions 6
III. The Application 11
IV. The Applicant 13
V. Applicant’s facts on federal judicial vacancies are accepted 14
VI. The Court accepts the facts and opinions of the Chief Justice of Canada and Canadian Judicial Council 19
VII. Demands made to the Respondents 27
VIII. Issues 28
IX. Relevant statutory provisions 29
X. Submissions and Analysis 33
A. Jurisdiction of the Federal Court 33
(1) The ITO test 33
(2) First prong of ITO 41
(3) Second and third prongs of ITO 42
B. What federal common law or constitutional conventions apply in this case 50
(1) Constitutional convention concerning judicial appointment advice-giving roles of the Prime Minister and Minister of Justice 52
(2) Constitutional convention to fill vacancies within a reasonable time 57
C. Admissibility of the Applicant’s affidavit evidence 60
(1) The Applicant’s tables are admissible 60
(2) Evidence drawn from the Budget Implementation Acts is accepted 62
(3) Speculation that provinces have not created relevant vacant judicial positions rejected 63
(4) Improper hearsay including letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister 64
(5) Opinion and argument submissions rejected 67
D. Mandamus not granted 68
(1) Legal Duty to Act lies with non-parties 69
E. Applicant has public interest standing 71
F. Declaratory Relief 73
(1) Declaratory relief granted 74
(2) Appointments shall be made within a reasonable time 75
XI. Conclusion 79
XII. Costs 79
I. Letter from Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of Canada dated May 3, 2023 [1] At its core, this matter concerns the following letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of Canada dated, May 3, 2023 (English translation of Exhibit KKK of the Applicant’s Record, Volume 1, as set out in Schedule A of this Judgment and Reasons):
The Right Honourable Justin Trudeau
Dear Prime Minister:
As Chief Justice of Canada and Chairperson for the Canadian Judicial Council, I must express my deep concern with regard to the significant number of vacancies within Federal Judicial Affairs and the government's inability to fill these positions in a timely manner.
The current situation is untenable, and I fear that this will result in a crisis for our justice system, which is already facing many challenges. Access to justice and the health of our democratic institutions are at risk.
As you undoubtedly know, there are currently 85 vacancies within Federal Judicial Affairs across the country. Some courts have had to deal with a 10 to 15% vacancy rate for years now. It is also not uncommon for positions to remain vacant for several months, if not years, in some cases. As a concrete example, over half of the positions at the Manitoba Court of Appeal are currently vacant. Key chief justice and associate chief justice positions are also being filled at a very slow pace. In fact, there have recently been considerable delays in appointments to chief justice positions in a number of provinces, including Alberta, Ontario and Prince Edward Island. The chief justice of Manitoba position has been vacant for six months now, and the associate chief justice positions in the Court of King's Bench for Saskatchewan and the Superior Court of Quebec have been vacant for over a year. No clear explanation justifies these delays.
It should be noted that the difficulties brought on by the judge shortage are exacerbating an already critical situation within several courts—namely a serious lack of resources due to chronic underfunding by the provinces and territories. However, while several factors explain the crisis currently facing our justice system, the appointment of judges in due course is a solution within reach that could help quickly and effectively improve the situation. Given this obvious fact and the critical situation we are faced with, the government's inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting. The slow pace of appointments is all the more difficult to understand since most judicial vacancies are predictable, especially those resulting from retirements for which judges usually provide several months' notice. In this context, these delays in appointments send a message that this is simply not a priority for the government.
On behalf of the Canadian Judicial Council, I can attest to the fact that chief justices and associate chief justices across the country are satisfied with the quality of recent appointments and are thrilled with the addition of new judge positions in recent budgets. We also recognize that your government has made efforts to establish a more independent, transparent and impartial appointment process for federally appointed judges. It would be unfortunate if the failure to improve the pace of federal judicial appointments across the country were to ultimately discredit this process.
I recently had the opportunity to meet with the Minister of Justice and discuss this matter with him. The Chief Justices also have very good relationships with the Minister and his office, and we are confident that he is willing to make every effort to remedy the problems I have outlined.
Despite all these efforts, 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. It is essential that the vacant positions within the judiciary be filled diligently to ensure that judicial branch functions properly. In the past, the Canadian Judicial Council has urged governments to make judicial appointments more quickly. This time, we have serious concerns that without concrete efforts to remedy the situation, we will soon reach a point of no return in several jurisdictions. The consequences will make headlines and have serious repercussions on our democracy and on all Canadians. This situation requires your immediate attention.
The positions that have been left vacant are having significant impacts on the administration of justice, the operations of our courts and the health of our judges. Canadian Judicial Council members recently took it upon themselves to provide a more comprehensive overview of the difficulties faced by their respective courts. The findings are appalling.
Despite all our judges’ professionalism and dedication, the staffing shortage inevitably results in additional delays in hearing cases and rendering judgments. Chief justices have indicated that, because judges are overburdened, delays in setting cases are unavoidable and hearings need to be postponed or adjourned. What's more, even when cases are heard, judgments are slow to be rendered because judges need to spend more time sitting, leaving them less time to deliberate. The analysis framework in R. V. Jordan, 2016 SCC 27, with respect to the accused’s right to be tried within a reasonable time pursuant to the Canadian Charter of Rights and Freedoms, also plays an important role in that regard. It provides that, before superior courts, criminal charges must be tried within 30 months, save in exceptional circumstances. If a trial has not ended within that timeframe, a stay of proceedings may be ordered. Many chief justices say that as part of their efforts to respect the timelines prescribed by Jordan, they are currently forced to choose the criminal matters that “deserve” to be heard most. Despite their best efforts, stays of proceedings are pronounced against individuals accused of serious crimes, such as sexual assault or murder, because of delays that are due, in part or in whole, to a shortage of judges. For example, the Court of King's Bench of Alberta has reported that over 22% of ongoing criminal cases are passing the 30-month deadline and that 91% of those cases involve serious and violent crimes. Furthermore, the necessary urgency in processing criminal cases means the courts' role in civil cases is being neglected. The justice system is consequently at risk of being perceived as useless for civil matters. These types of situations represent a failure of our justice system and are likely to fuel public cynicism and undermine their trust in our democratic institutions.
These ongoing vacancies also have a serious impact on judges themselves. Faced with a chronic work overload and increased stress, judges are increasingly going on medical leave, which has a domino effect on their colleagues, who then must carry an additional workload. It is also becoming difficult for judges of certain courts to find the necessary time to complete training, including training that is considered mandatory. This situation does not bode well for ensuring a healthy and thriving judiciary. If current issues persist, it could also become difficult to attract high-quality candidates for judge positions.
This is already the case in British Columbia.
Richard Wagner
II. Summary and conclusions [2] This is the Applicant’s request for judicial resolution of a dispute between himself and the Chief Justice of Canada and Canadian Judicial Council on the one hand, and the Prime Minister and Minister of Justice on the other.
[3] By the foregoing letter, the Chief Justice of Canada and Canadian Judicial Council requested the Prime Minister to fill a very large number of vacant Superior Court and Federal Courts judicial positions across Canada.
[4] The requested number of vacancies have not been filled. While appointments were made over the last 8 months, during the same period new vacancies have been created by resignation or otherwise. This significant and unacceptably large number of vacancies remains essentially unchanged. The facts are there were 79 vacancies when this application was filed in June 2023, and 75 vacancies as of February 1, 2024 according to the Federal Commissioner of Judicial Affair’s website [FCJA]: https://www.fja-cmf.gc.ca/appointments-nominations/judges-juges-eng.aspx.
[5] Neither the Prime Minister and two successive Ministers of Justice have remedied this critical situation in the 9 months since the request by our Chief Justice of Canada and Canadian Judicial Council.
[6] With the greatest respect, the Court finds the Prime Minister and Minister of Justice are simply treading water. They have failed to take the actions requested by the Chief Justice of Canada and the Canadian Judicial Council. 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.
[7] As a consequence, a point not contested, the Court finds the Prime Minister and Minister of Justice have refused the request made by the Chief Justice of Canada and Canadian Judicial Council.
[8] The Respondents offered no justification for their decision to refuse the request to fill these judicial vacancies.
[9] As a matter of well-established convention, also not disputed, the Prime Minister and Minister of Justice have effective and exclusive control over, and in the Court’s view, they have the concomitant responsibility to appoint judges to the Superior Courts across Canada, and the Federal Courts. It is not doubted that no such appointments may be made without their advice and consent.
[10] Notably, the advice and consent of the Respondents must be directed to either the Governor General (by the Minister of Justice in the case of provincial Superior Court judges, or by the Prime Minister in the case of relevant Chief Justices), or to the Governor in Council (by the Minister of Justice in the case of judges of the Federal Courts or by the Prime Minister in the case of relevant Chief Justices): see Democracy Watch v Canada (Attorney General), 2023 FC 31 [Democracy Watch] [per Southcott J].
[11] The level of vacancies is now, as the letter describes and which is not contested, at both a crisis and critical level. Other words used by the Chief Justice of Canada and Canadian Judicial Council to describe the impact of the ongoing failure to fill vacancies include “appalling” and “untenable.”
[12] The Court is given no explanation or justification by the Respondents of this untenable situation. Notably, the Respondents filed no evidence to dispute what I accept as expert opinions of both the Chief Justice of Canada and the Canadian Judicial Council. Their unequalled individual and collective experience, knowledge and expertise in relation to the state of the federally appointed judicial vacancies across Canada was not questioned in any way.
[13] In these circumstances, the Court finds no reason to discount or disregard the evidence and submissions of the Chief Justice of Canada and Canadian Judicial Council to the Respondents. I find the responsibilities of the Prime Minister and Minister of Justice to meaningfully engage their powers with respect to filling the critical and untenable level of judicial vacancies across our federal judiciary may not be ignored.
[14] With the greatest respect, this Court faced with these assessments by such credible entities, accepts the views of the Chief Justice of Canada and the Canadian Judicial Council as set out in their letter to the Prime Minister.
[15] On this basis the Court has no hesitation in concluding the current level of vacancies is untenable, and at a minimum, requires the judicial response afforded in the following Judgment.
[16] The Court comes to this conclusion because the same constitutional convention giving the Respondents advice-giving responsibility respecting federal judicial appointments obviously entails their responsibility to fill judicial vacancies in a timely manner, that is, within a reasonable time. It would be absurd to suggest the “rule of law”, essential to the proper function of the nation and enshrined in the preamble to the Constitution Act, 1982, exists at the whim of the executive government. The rule of law may not be critically and negatively impacted simply by what the Court finds the Respondents’ unjustified and persistent failure to advise the Governor General and or Governor in Council to fill this critical and unacceptably high level of judicial vacancies.
[17] How long should it take to fill a sufficient number of vacancies? In the Court’s view the answer is plain and obvious: these vacancies must be materially reduced within a reasonable time to a reasonable level.
[18] What is a reasonable or sufficient level of vacancies? The Court was provided with no reason the number of vacancies may not be reduced to the mid-40s: there were only 46 vacancies in the Spring of 2016, for example.
[19] That said, the number of vacancies in an ideal world should be very low, and it seems to me this is a matter to be determined by Parliament. 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. That may not be possible in other cases, but as noted, no evidence was provided by the Respondents. This is a matter in respect of which the Respondents should obviously engage with the Chief Justice of Canada and relevant Chief Justices / Associate Chief Justices and in respect of which the Canadian Judicial Council, having come this far, should provide (as perhaps it has) specific guidance.
[20] By way of remedy, the Court may, and in this case will recognize and declare the constitutional convention that judicial vacancies on the provincial Superior Courts and Federal Courts must be filled within a reasonable time. The Court will make this declaration in its expectation that the number of vacant positions will be materially reduced to the mid-40s being the number of federal vacancies in Spring of 2016. In this manner, the Court expects the crisis and critical situation to be resolved.
[21] Specifically, the Court’s declaration is:
1. All federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice. In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet.
2. Appointments to fill judicial vacancies under section 96 of the Constitution Act, 1867 and section 5.2 of the Federal Courts Act must be made within a reasonable time of the vacancy.
3. Appointments to fill current judicial vacancies are required for the reasons set out in the letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of Canada dated May 3, 2023 set out in paragraph 1 and Schedule A to these Reasons for Judgment.
4. The Court makes Declarations 2 and 3 above in its expectation that the number of said judicial vacancies will be materially reduced in a reasonable time such that the total number of judicial vacancies returns to the mid-40s, that is, to the number of federal judicial vacancies in the Spring of 2016; in this manner the Court expects the untenable and appalling crisis, and critical judicial vacancy situation found by this Court as identified by the Chief Justice and Canadian Judicial Council will be resolved.
[22] I encourage the parties, and or the Chief Justice of Canada and or the Canadian Judicial Council to seek further direction and relief from this Court in the event this Court’s Judgment is not satisfied or in issue.
[23] I now turn to a number of legal issues raised by the parties, at the conclusion of which the Court’s Judgment will issue.
III. The Application [24] The Applicant applies for a writ of mandamus pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] to compel the Prime Minister and the Minister of Justice [Respondents] to appoint judges to fill vacancies in the superior courts across Canada including the Federal Courts. By law, these appointments are to be filled either by the Governor General pursuant to section 96 of the Constitution Act, 1867, 30 & 31 Vict, c 3, reprinted in RSC 1985 [Constitution Act, 1867] in respect of Provincial Superior Court judges, or by the Governor in Council pursuant to section 5.2 of the Federal Courts Act in respect of judges of the Federal Court and Federal Court of Appeal [Federal Courts].
[25] The Applicant asks that such vacancies be filled i.e., that appointments be made within certain timelines, namely within the later of three months of the date of this Court’s Order, or within nine months of their having become aware the positions would be vacated, and does so by analogy to practices developed by this Court in immigration cases.
[26] In the alternative, the Applicant asks the Court to declare that:
a. The Prime Minister and Minister of Justice are in violation of their duties to appoint judges to the vacancies in the superior courts under section 96 of the Constitution Act, 1867, and section 5. 2 of the Federal Courts Act; and
b. A reasonable interpretation of the requirement to appoint judges in section 96 of the Constitution Act, 1867, and section 5.2 of the Federal Courts Act is that, absent exceptional circumstances, the appointments shall be made within nine months of the date of the applicable Minister becomes aware that a position will be vacated, or three months after a position is vacated, whichever is later.
[27] It is noteworthy that while the Prime Minister and Minister of Justice are named parties against whom relief is sought, the Applicant (who confirmed his position at the hearing) does not name either the Governor General or the Governor in Council as parties, notwithstanding it is they who by the Constitution Act, 1867 or Federal Courts Act respectively hold the legal power to make these appointments.
[28] While the Applicant filed evidence in support of his Application, including of course the letter from the Chief Justice of Canada and Canadian Judicial Council, the Respondents filed no evidence disputing the same. Indeed, the Respondents filed no evidence at all.
[29] Instead, the Respondents raise and wholly rely on a number of procedural and technical objections, none of which - and with the greatest respect - the Court accepts.
IV. The Applicant [30] The Applicant is a human rights lawyer in Ottawa. Called to the bar of Ontario 22 years ago, the Applicant regularly litigates in the Federal Court, the Ontario Superior Court of Justice, and Ontario’s Court of Appeal. None of this is in dispute.
[31] In his affidavit, the Applicant states (and it is not disputed) that over the past several years he has experienced significant delays in litigation proceedings in the Superior Courts on behalf of vulnerable clients. In addition to this general information, which I accept, the Applicant provides concrete evidence of delay in the form of uncontested correspondence to him from the Ottawa Superior Court of Justice Trial Coordinator concerning a case of his that was adjourned in which the Trial Coordinator attributed the delay to the fact “[T]he court is experiencing a lack of judicial resources as of late.” I accept this because the note to that effect is exhibited and is undisputed.
V. Applicant’s facts on federal judicial vacancies are accepted [32] The Applicant also set out the following material facts which the Court accepts.
[33] As of the filing of this Application in June 2023, there were 79 superior court vacancies (including those in the Federal Courts) across Canada. This represents almost 7 percent of the total federally appointed judiciary.
[34] 79 vacancies represents a very significant increase from the Spring of 2016 at which time there were only 46 vacancies.
[35] It is also the case that many vacancies are of very great duration.
[36] These facts are also illustrated in the following tables produced and deposed to by the Applicant, the accuracy of which was not seriously disputed. The Court accepts this table into evidence:
Table 1: Vacancies
Court
Retiree or Act creating vacant position
Date position became vacant
Days vacant as of July 11, 2023
Exhibit
FC
BIA, 2018
21-Jun-18
1846
FC
BIA, 2019
21-Jun-19
1481
FC
BIA, 2019
21-Jun-19
1481
FC
BIA, 2019
21-Jun-19
1481
ONSC
BIA, 2021
29-Jun-21
742
ONSC
BIA, 2021
29-Jun-21
742
ONSC
BIA, 2021
29-Jun-21
742
ONSC
BIA, 2021
29-Jun-21
742
ONSC
BIA, 2021
29-Jun-21
742
FCA
BIA, 2021
29-Jun-21
742
TCC
BIA, 2021
29-Jun-21
742
BCCA
David Franklin Tysoe
01-Jan-22
556
F
ABKB
Donna L. Shelley
02-Jan-22
555
G
ABKB
Alan D. Macleod
13-Jan-22
544
H
ABKB
Kristine Eidsvik
07-Feb-22
519
I
BCSC
Robert Jenkins
15-Jun-22
391
J
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
ONSC
BIA, 2022
23-Jun-22
383
BCSC
BIA, 2022
23-Jun-22
383
BCSC
BIA, 2022
23-Jun-22
383
BCSC
BIA, 2022
23-Jun-22
383
SKKB
BIA, 2022
23-Jun-22
383
SKKB
BIA, 2022
23-Jun-22
383
SKKB
BIA, 2022
23-Jun-22
383
ABKB
BIA, 2022
23-Jun-22
383
ABKB
BIA, 2022
23-Jun-22
383
NUCJ
BIA, 2022
23-Jun-22
383
FCA
BIA, 2022
23-Jun-22
383
TCC
BIA, 2022
23-Jun-22
383
BCSC
Grace Choi
14-Jul-22
362
K
ABCA
Catherine Anne Fraser
30-Jul-22
346
L
BCCA
Richard B. T. Goepel
24-Aug-22
321
M
BCSC
Barry Davies
04-Sept-22
310
K
BCSC
William Grist
06-Sept-22
308
K
BCSC
Elaine Adair
31-Dec-22
192
N
BCSC
Arne Silverman
31-Dec-22
192
N
BCSC
James Williams
18-Jan-23
174
N
QCCA
France Thibault
26-Apr-23
76
O
ABCA
Marina Paperny
29-Apr-23
73
P
BCSC
George Macintosh
30-Apr-23
72
Q
ABCA
Barbara Veldhuis
01-May-23
71
P
[37] The Applicant also deposed to a table illustrating how quickly vacancies have been filled in the recent past. Again, the accuracy of this table was not seriously challenged. The Court accepts this table:
Table 2: Vacancies filled in less than 90 days
Appointee
Court
Date position Vacant
Date Appointed
Days Vacant
Exhibit
Philip W. Osborne
NLSC
Aug 4, 2021
Aug 6, 2021
2
R
Monica Biringer
TCC
Aug 4, 2021
Aug 6, 2021
2
S
Lisa Silver
ABKB
April 21, 2023
April 24, 2023
3
T
Allison Kuntz
ABKB
April 21, 2023
April 24, 2023
3
T
Kent J. Teskey
ABKB
April 21, 2023
April 24, 2023
3
T
Suzanne Stevenson
ONSC
Jan 30, 2020
Feb 3, 2020
4
U
Colin D. Clackson
SKKB
Dec 1, 2020
Dec 11, 2020
10
V
Robert W. Armstrong
ABKB
Jan 12, 2021
Feb 8, 2021
27
W
Lauren Blake
BCSC
Mar 31, 2021
Apr 27, 2021
27
X
Mark L. Edwards
ONSC
Jan 1, 2021
Feb 8, 2021
38
Y
Sherry L. Kachur
ABKB
Apr 26, 2020
June 3, 2020
38
Z
Marylène Pilote
NBKB
Dec 31, 2020
Feb 8, 2021
39
AA
Michael A. Marion
ABKB
Mar 4, 2022
Apr 20, 2022
47
BB
Jonathan M. Coady
PESC
May 3, 2022
June 21, 2022
49
CC
Karen Wenckebach
YKSC
Sept 30, 2020
Nov 19, 2020
50
DD
Leonard Marchand
BCCA
Feb 1, 2021
Mar 24, 2021
51
EE
Peter Kalichman
QCCA
Mar 1, 2021
Apr 27, 2021
57
FF
Meghan McCreary
SKCA
Apr 2, 2022
June 6, 2022
65
GG
Leonard Ricchetti
ONSC
Jan 31, 2020
Apr 6, 2020
66
HH
J. Ross Macfarlane
ONSC
Dec 15, 2022
Feb 20, 2023
67
II
Denise LeBlanc
NBKB
Mar 31, 2022
June 6, 2022
67
JJ
Lobat Sadrehashemi
FC
Jan 29, 2021
Apr 6, 2021
67
KK
Sophie Lavallée
QCCA
July 25, 2020
Oct 1, 2020
68
LL
Julie Bergeron
ONSC
Mar 28, 2022
June 6, 2022
70
MM
Nancy M. Carruthers
ABKB
Feb 7, 2022
Apr 20, 2022
72
BB
Diane Rowe
NSSC
Mar 1, 2020
May 14, 2020
74
NN
Eleanor J. Funk
ABKB
May 23, 2021
Aug 6, 2021
75
OO
Calum U.C. MacLeod
ONSC
Dec 30, 2019
Mar 16, 2020
77
PP
Charles C Chang
ONSC
Apr 4, 2022
June 27, 2022
84
QQ
Lorne Sossin
ONCA
Sept 2, 2020
Nov 26, 2020
85
RR
Spencer Nicholson
ONSC
June 15, 2020
Sept 8, 2020
85
SS
Jana Steele
ONSC
Feb 25, 2020
May 22, 2020
87
TT
[38] The Applicant also produced and deposed to a table illustrating how quickly various Chief Justice and Associate Chief Justice vacancies have been filled recently. This table is also accepted:
Table 3: Chief Justice and Associate Chief Justice Appointments
Appointee
Position
Vacant Date
Appointed Date
Days Vacant
Exhibit
Marc Richard
CJ NB
Apr 27, 2018
May 4, 2018
7
UU
Faye E. McWatt
ACJ ONSC
Nov 10, 2020
Dec 21, 2020
41
VV
Deborah K. Smith
ACJ NSSC
Apr 30, 2019
June 24, 2019
55
WW
Malcolm Rowe
SCC
Sept 1, 2016
Oct 28, 2016
57
XX
Manon Savard
CJ QC
Apr 8, 2020
June 11, 2020
64
YY
Suzanne Duncan
CJ YK
July 25, 2020
Oct 1, 2020
68
ZZ
Shannon Smallwood
CJ NT
July 11, 2022
Sept 22, 2022
73
AAA
Michael J. Wood
CJ NS
Feb 1, 2019
Apr 17, 2019
75
BBB
Tracey K. DeWare
CJ NBKB
Mar 20, 2019
June 4, 2019
76
CCC
[39] Finally, the Applicant attests to three instances of public judicial retirement notice announcements, which this table is also accepted:
Table 4: Public Retirement Notices
Retiree
Court
Notice Date
Vacant Date
Days Notice to Public
Exhibit
Robert J. Bauman
BCCA
Jan 10, 2023
Oct 1, 2023
264
DDD
Robert G. Richards
SKCA
Mar 17, 2023
Aug 31, 2023
167
EEE
Marc Noël
FCA
Mar 29, 2023
Aug 1, 2023
125
FFF
[40] The Respondents also objected to this evidence. However, I accept it for the reasons outlined below, including the fact these tables are based on publicly available information which information itself was not objected to by the Respondents. I also accept this evidence because it is confirmed in some material respects by the Chief Justice of Canada and Canadian Judicial Council’s letter dated May 3, 2023.
VI. The Court accepts the facts and opinions of the Chief Justice of Canada and Canadian Judicial Council [41] With great respect, and for the reasons set out, I accept the facts and opinions expressed by the Chief Justice of Canada and the Canadian Judicial Council in terms of the facts and consequences of delays in appointing judicial vacancies.
[42] The Court does so because, to begin with, the Canadian Judicial Council is composed of 44 members and includes all federally appointed Chief Justices and Associate Chief Justices of all provincial Superior Courts and the Federal Courts across Canada. The Chief Justice of Canada is the Chair of the Canadian Judicial Council on whose behalf the Chief Justice also wrote. These Chief Justices and Associate Chief Justices are responsible for managing the proper flow of criminal and civil cases within their respective courts.
[43] Notably, the Respondents raise no doubts concerning and do not dispute that these Chief Justices and Associate Chief Justices have unequalled knowledge of the critical situation and crisis in respect of which they wrote.
[44] Therefore, as the Chief Justice of Canada and Canadian Judicial Council wrote, I accept that some courts have had to deal with a 10 to 15% vacancy rate for years. I also accept it is not uncommon for positions to remain vacant for several months, if not years, in some cases:
As you undoubtedly know, there are currently 85 vacancies within Federal Judicial Affairs across the country. Some courts have had to deal with a 10 to 15% vacancy rate for years now. It is also not uncommon for positions to remain vacant for several months, if not years, in some cases. As a concrete example, over half of the positions at the Manitoba Court of Appeal are currently vacant. Key chief justice and associate chief justice positions are also being filled at a very slow pace. In fact, there have recently been considerable delays in appointments to chief justice positions in a number of provinces, including Alberta, Ontario and Prince Edward Island. The chief justice of Manitoba position has been vacant for six months now, and the associate chief justice positions in the Court of King's Bench for Saskatchewan and the Superior Court of Quebec have been vacant for over a year. No clear explanation justifies these delays.
[45] The Chief Justice and Canadian Judicial Council wrote, it is not contradicted and I again accept, that delays in filling vacancies inevitably causes delays in prosecuting and determining serious violent crimes, such as sexual assault and murder, and other criminal and civil cases. In this connection, as an example, the Court of King's Bench of Alberta has reported that over 22% of ongoing criminal cases are passing the 30-month deadline and that 91% of those cases involve serious and violent crimes. Furthermore, the necessary urgency in processing criminal cases means the courts’ role in civil cases is being neglected:
Despite all our judges' professionalism and dedication, the staffing shortage inevitably results in additional delays in hearing cases and rendering judgments. Chief justices have indicated that, because judges are overburdened, delays in setting cases are unavoidable and hearings need to be postponed or adjourned. What's more, even when cases are heard, judgments are slow to be rendered because judges need to spend more time sitting, leaving them less time to deliberate. The analysis framework in R. v. Jordan, 2016 SCC 27, with respect to the accused's right to be tried within a reasonable time pursuant to the Canadian Charter of Rights and Freedoms, also plays an important role in that regard. It provides that, before superior courts, criminal charges must be tried within 30 months, save in exceptional circumstances. If a trial has not ended within that timeframe, a stay of proceedings may be ordered. Many chief justices say that as part of their efforts to respect the timelines prescribed by Jordan, they are currently forced to choose the criminal matters that “deserve” to be heard most. Despite their best efforts, stays of proceedings are pronounced against individuals accused of serious crimes, such as sexual assault or murder, because of delays that are due, in part or in whole, to a shortage of judges. For example, the Court of King’s Bench of Alberta has reported that over 22% of ongoing criminal cases are passing the 30-month deadline and that 91% of those cases involve serious and violent crimes. Furthermore, the necessary urgency in processing criminal cases means the courts' role in civil cases is being neglected. The justice system is consequently at risk of being perceived as useless for civil matters. These types of situations represent a failure of our justice system and are likely to fuel public cynicism and undermine their trust in our democratic institutions.
[46] In terms of the exacerbating consequences of delays (“government’s inertia”) in filling judicial vacancies on the critical situation of Canada’s Superior Court and Federal Courts systems, the Chief Justice of Canada and Canadian Judicial Council wrote, and I accept that the slow pace of appointments is all the more difficult to understand since most judicial vacancies are predictable, especially those resulting from retirements for which judges usually provide several months’ notice. In this context, these delays in appointments send a message that this is simply not a priority for the government:
It should be noted that the difficulties brought on by the judge shortage are exacerbating an already critical situation within several courts—namely a serious lack of resources due to chronic underfunding by the provinces and territories. However, while several factors explain the crisis currently facing our justice system, the appointment of judges in due course is a solution within reach that could help quickly and effectively improve the situation. Given this obvious fact and the critical situation we are faced with, the government's inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting. The slow pace of appointments is all the more difficult to understand since most judicial vacancies are predictable, especially those resulting from retirements for which judges usually provide several months' notice. In this context, these delays in appointments send a message that this is simply not a priority for the government.
[47] The Court is compelled to note Canadians access to justice without delay is and has been enshrined in various constitutional and quasi-constitutional documents since the Magna Carta (Great Charter of Liberties) of 1215 which promised: “To no one will we sell, to no one will we refuse or delay, right or justice.” See Magna Carta, article 40, Select Documents of English Constitutional History, London: MacMillan & Co., London 1918. With respect, I conclude the inevitable and untenable delayed justice caused by the executive government of Canada goes to the very heart of this 800-year-old promise and unacceptably denies access to justice without delay.
[48] In this connection I add that in the Canadian criminal context, section 11(b) of the Canadian Charter of Rights and Freedoms [Charter] guarantees “any person charged with an offence has the right to be tried within a reasonable time.” This was commented upon in detail in R v Jordan, 2016 SCC 27 where the Supreme Court of Canada applied section 11(b) of the Charter to set presumptive time limits for trials. The consequences of delay and not being tried within a reasonable time are discussed by Moldaver, Karakatsanis and Brown JJ for the majority at paragraphs 19-26:
[19] As we have said, the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. It finds expression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
[20] Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.
[21] At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).
[22] Of course, the interests protected by s. 11(b) extend beyond those of accused persons. Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice.
[23] Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1220-21). Delay aggravates victims’ suffering, preventing them from moving on with their lives.
[24] Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the “worry and frustration [they experience] until they have given their testimony” (Askov, at p. 1220). Repeated delays interrupt their personal, employment or business activities, creating inconvenience that may present a disincentive to their participation.
[25] Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov, at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221).
[26] Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” (Askov, at p. 1221).
[49] In terms of the significant (“appalling”) negative impacts delayed vacancies create for the federally appointed judiciary, the Chief Justice of Canada and Canadian Judicial Council conclude and the Court accepts it is imperative for the Prime Minister and his office to give this issue the importance it deserves, and for appointments to be made in a timely manner. They say it is essential that the vacant positions within the federal judiciary be filled diligently to ensure the judicial branch functions properly. In the past, the Canadian Judicial Council has urged governments to make judicial appointments more quickly. This time, the Chief Justice of Canada and Canadian