Trudeau appeals ruling ordering Liberals to fill judicial vacancies

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OTTAWA – The prime minister is appealing a judge’s order that the Liberals fill an “unacceptably high” number of judicial vacancies within a “reasonable time,” saying it vastly exceeds the court’s jurisdiction and created a new unwritten “judge-made” rule.

In the appeal filed Thursday, Prime Minister Justin Trudeau and Justice Minister Arif Virani also argue the Federal Court “erred in fact and law” when it considered a letter sent by the country’s top judge — Supreme Court of Canada Chief Justice Richard Wagner — to Trudeau in May outlining the current crisis in Canada’s court system as “expert evidence.”

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They say that the letter by Wagner is full of “hearsay facts and opinion” and should not be relied upon.

Wagner is also the head of the Canadian Judicial Council, which was created by Parliament in 1971 to “maintain and improve the quality of judicial services in Canada’s superior courts.”

Last month, Federal Court justice Henry S. Brown issued a ruling in which he lambasted the Liberals for “treading water” after being warned that judicial vacancies were exacerbating the resource crisis within the system.

He declined to issue an order compelling the government to fill the nearly 80 vacant spots in short order as requested by the plaintiff, human rights lawyer Yavar Hameed, but instead issued a declaration that Trudeau and Virani must fill current and future vacancies within a “reasonable time.”

Brown’s ruling quoted abundantly from the letter sent by Richard Wagner to Trudeau in May in which he denounced the government’s “inability” to fill vacant judge positions in a “timely manner” and noted the situation was “untenable” and bordering a crisis.

The letter cited various statistics to illustrate the problem, such as the fact that as of May 22 per cent of ongoing criminal cases at the Court of King’s Bench in Alberta were passing the 30-month deadline that made them vulnerable to being thrown out.

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In his ruling, Brown said that nearly one year after receiving Wagner’s letter, the government had done very little to fix the problem.

“Very unfortunately, the Court has no reason to expect the situation will change without judicial intervention. The (Prime Minister and Minister of Justice) filed no evidence to justify why the ‘appalling’, ‘untenable’ and ‘crisis’ situation created by the unacceptably high number of vacancies has not yet been remedied by the Prime Minister, and now by two successive Ministers of Justice,” he wrote.

There are currently 68 judicial vacancies of federally appointed judges, down from 75 in January.

In their appeal, Trudeau and Virani ask the Federal Court of Appeal to reject Brown’s ruling because he erred in multiple ways.

They argued that by saying that the government must fill judicial vacancies “as soon as possible,” Brown created a new constitutional convention (unwritten rules that are binding but not enforceable by the courts) that “does not exist” and then treats it as a “judge-made” common law rule.

They also claim that the court overstepped its role and jurisdiction, substituted “its own view on the timeliness of federal judicial appointments” for that of cabinet’s and tried to “compel” cabinet to comply with an unwritten rule.

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That’s on top of arguing that the Federal Court made a mistake when relying on Wagner’s letter because it construed the country’s top judge’s words as “expert evidence” when Trudeau and Virani say it’s “hearsay facts and opinion.”

In an interview, Hameed’s lawyer and colleague Nicholas Pope said he was not surprised that the government was appealing the decision.

“The declaration that the court gave was fairly common sense and I don’t think was very controversial,” Pope said of Brown’s ruling.

“It sounds like they (Trudeau and Virani) are quibbling over some fairly technical points of law. We’ll see what the Federal Court of Appeal thinks of that, but I think overall justice Brown’s decision was a solid decision.”

He declined to comment on Trudeau and Virani’s legal arguments before the appeal is heard.

Speaking to reporters about Brown’s ruling last month, Virani said filling judicial vacancies was a “top priority” for him and that he was doing it at “record pace.” He also said the Liberals had added 115 new judge jobs since coming to power in 2015.

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