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National Post

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. Article content 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. Article content Article content Article content '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. Article content Article content '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. Article content 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.' Article content 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. Article content Article content 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. Article content Article content His ruling noted that nine months after the chief justice of Canada wrote the Liberal government denouncing the situation, nothing had changed. Article content '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. Article content '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.' Article content 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. Article content 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.'