Judge overstepped power when ordering government to appoint judges faster, appeal court rules

CALGARY — The Federal Court overstepped its authority when it ordered the government to fill an “unacceptably high” number of judicial vacancies within a “reasonable time,” the Federal Court of Appeal ruled Wednesday. In a forceful rebuttal of the trial court ruling published Wednesday, the appeal court issued a sharp reminder to both judges and government: stay in your lane. “No one disputes the utmost importance of filling judicial vacancies to ensure a healthy judiciary, and relatedly, a healthy democracy,” wrote Justice Richard Boivin on behalf of the panel of three appeal judges. “But it remains that the judicial branch of government, like the other two branches of government — the executive and the legislative — fortify themselves by acting properly within their legitimate spheres of competence,” he continued. Boivin said the Federal Court “overstepped its jurisdictional bounds” when it ruled that the court could order the government to fill a high number of empty judge positions within a certain amount of time. In his 2024 ruling lambasting the Liberal government, Federal Court Justice Henry S. Brown issued an unprecedented declaration that the prime minister and minister of justice must fill current and future vacancies within a “reasonable time.” The lawsuit was filed by Ottawa-based human rights lawyers Yavar Hameed and Nicholas Pope who argued that the lingering judicial vacancies were impacting Canadians’ access to justice. At the time, there were 75 judge positions waiting to be filled, an unusually high number. Brown said that the long delay was “failing” Canadians. His ruling noted that nine months after the chief justice of Canada wrote the Liberal government denouncing the situation, nothing had changed. “The situation as outlined by the Chief Justice of Canada and Canadian Judicial Council is clearly critical and untenable and thus most serious, and therefore in the Court’s view may not simply be ignored,” the judge wrote. “Very unfortunately, the Court has no reason to expect the situation will change without judicial intervention,” he added, while declaring the government needed to reduce the vacancy rate to “mid-40s.” But the Federal Court of Appeal ruled that Brown made multiple serious or “concerning” mistakes in coming to its conclusion, including accepting to hear the case at all. Boivin also found that Brown misinterpreted many jurisprudential decisions in order to support his conclusion, going so far as saying cases the Federal Court relied upon were “inapplicable or uninstructive.” The FCA further ruled that Brown disregarded binding precedent from the Supreme Court of Canada on the limits of the Federal Court’s jurisdiction. Finally, the appeal court criticized Brown for determining that constitutional conventions (unwritten rules that are binding but not enforceable by the courts) were reviewable by the courts. In this case, the convention was that the governor general appoints judges on the recommendation of the prime minister and cabinet. “Although courts can recognize constitutional conventions, they cannot enforce them,” Boivin wrote. “In the present matter, the Federal Court nonetheless considered constitutional conventions in relation to judicial appointments as federal laws and further characterized them as ‘judge-made rules’,” he continued. “This is misconceived and contrary to the non-legal nature of constitutional conventions.” The appeal court also noted its concern that Brown had created a new constitutional convention compelling the government to henceforth fill judicial vacancies “within a reasonable time.” It concluded that Brown had bypassed test adopted by the Supreme Court in 1959 that set the conditions for establishing a new constitutional convention. “The Federal Court could not sidestep the normative requirements… in declaring a new constitutional convention that judicial vacancies must be filled within a reasonable time,” he wrote. Brown’s decision may have already had the desired effect despite being overturned Wednesday. After his decision, the Liberals under Justin Trudeau significantly boosted their pace of appointments, dropping vacancies from over 90 to 22 as of June 1. Former justice minister Arif Virani frequently argued that the high number of vacancies was partly because the Liberals had created over 100 new judicial positions across the country since 2015. “Appointing judges at an unprecedented rate is one of our accomplishments that I’m proudest of, & we will keep filling vacancies with high calibre, experienced jurists. Access to justice will always be a top priority,” Virani said on social media in February. National Post cnardi@postmedia.com

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