When a Judge Finds His Dream Case: Hameed v. Canada (Prime Minister)

INTRODUCTION

Mr. Justice Henry S. Brown must have been on tenterhooks for a chance to condemn the Prime Minister (PM) and the Minister of Justice (“the Minister”) for their failure to fill what are far too many judicial vacancies. And then Yavar Hameed came along and gave him the opportunity. In Hameed v. Canada (Prime Minister) (“Hameed”), Brown J. issued declarations that he expected to address the problem.

Hameed, a human rights lawyer, had a case adjourned because, as the Ottawa Superior Court of Justice Trial Coordinator explained to him, “'[T]he court is experiencing a lack of judicial resources as of late.’” Hameed had already experienced many delays in his cases “on behalf of vulnerable clients”.(Hameed, para. 31; more detail at para. 177)

Hameed applied for a writ of mandamus to require the Prime Minister and Minister of Justice to appoint superior court judges across the country within certain time periods. In the alternative, he requested declarations: 1) that “[t]he Prime Minister and Minister of Justice are in violation of their duties to appoint judges to the vacancies in the superior courts” and “absent exceptional circumstances” 2) that the appointments be made within a specified time. (Hameed, paras. 24-26)

In the event, Brown J. refused to issue mandamus but did make four declarations (see below).

JUSTICE BROWN’S DECISION

There are two aspects to determining jurisdiction in this case. The first relates to the source of the Federal Court’s jurisdiction; the second concerns whether the Governor General, the Governor in Council, the Prime Minister or the Minister of Justice is a “federal board, commission or tribunal” pursuant to section 18 of the Federal Courts Act (“FCA”).

As Brown J. states, the three elements that must be satisfied for the Federal Court to have jurisdiction are the following: “1. There must be a statutory grant of jurisdiction by the federal Parliament; 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867” (citing ITO-Int’l Terminal Operators v. Miida Electronics, p. 766, at Hameed, para. 62).

Section 101 of the Constitution Act, 1867 states:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. (my emphasis)

The Federal Court does have plenary jurisdiction with respect to its statutory jurisdiction, but not inherent jurisdiction in the sense that the provincial superior courts have inherent jurisdiction. Thus if the Federal Court does have statutory jurisdiction, that jurisdiction includes powers that are not expressly identified as long as they are related to the express jurisdiction (Canada (Human Rights Commission) v. Canadian Liberty Net). That is to say, it has plenary jurisdiction arising from its statutory powers.

But, as Bastarache J. states for the majority of the Supreme Court in Canadian Liberty Net, “Many federal Acts do not provide for the exercise of administrative decision-making authority. Where that is the case, the reasoning adopted here with respect to the broad supervisory jurisdiction of the Federal Court is inapplicable.” (Canadian Liberty Net, para. 39)

Justice Bastarache explains the importance of the federal law requirement: “The requirement that there be valid federal law which nourishes the statutory grant of jurisdiction serves primarily to ensure that federal courts are kept within their constitutionally mandated sphere” and “[i]f the dispute is only tangentially related to any corpus of federal law, then there is a possibility that assuming jurisdiction would take the Federal Court out of its constitutionally mandated role.” (Canadian Liberty Net, para. 43)

The statutory jurisdiction of the Federal Court is found in part under section 18(1) of the FCA. It states, “Subject to section 28, the Federal Court has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal . . . .” (Section 28 lists the boards, commissions and tribunals in relation to which the Federal Court of Appeal deals with judicial review.)

Section 2(1) of the FCA defines “federal board, commission or other tribunal” as

any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ….

Justice Brown finds the first step of the test, that there is a statutory grant of jurisdiction by Parliament, satisfied (Hameed, para. 78).

However, this raises the question of whether any of the Governor General, the Governor in Council, the Prime Minister or the Minister of Justice constitutes a “federal board, commission or other tribunal”. He skirts the answer to this question other than with respect to the Governor in Council.

But he does rely on Strickland for the proposition that the “Governor in Council, when exercising “jurisdiction or powers conferred by or under an Act of Parliament” is a “federal board, commission or other tribunal” within the meaning of s. 2 the Act.” (Hameed, para. 80). However, this is not quite what Cromwell J. says in Strickland, although he does say he sees “no reason to doubt” that is the case (Strickland, para. 64).

(Strickland dealt with whether regulations governing child support were authorized by the Divorce Act. The Federal Court declined to exercise its jurisdiction in the matter; this was upheld by the Federal Court of Appeal and the Supreme Court. Accordingly, it was not necessary to decide whether the Governor in Council [that is, the Cabinet passing the regulations] was a board or tribunal for the purpose of section 18 of the Federal Courts Act.)

As for the “existing body of federal law essential to the disposition of the case” and that it be “a law of Canada”, Brown J. accepts Hameed’s submissions that federal law includes “federal common law” and that the latter “includes law surrounding the modalities of federal judicial appointments, including judicial recognition of constitutional conventions that such appointments may only be made on the advice and consent of Cabinet, and the Prime Minister or Minister of Justice” (Hameed, para. 84)

The first convention that Brown J. applies here is that of the “transfer of powers” from the Governor General under section 96 of the Constitution Act, 1867 and from the Governor in Council under section 5.2 of the Federal Courts Act to the Governor in Council (the federal Cabinet) and Prime Minister and Minister of Justice (Hameed, para. 112). Put a slightly different way, there is an already recognized convention that the Governor General and the Governor in Council exercise their authority with respect to the appointment of judges only with the advice of the Prime Minister and the Minister.

However, only the Governor General and the Governor in Council have legal authority to appoint judges.

Justice Brown lays the blame for the delay in filling judicial vacancies at the door of the PM and the Minister. He finds “that the vacancy crisis is caused by delay – (unjustified ‘government inertia’ according to the letter) – by the Prime Minister and Minister of Justice in giving the required and necessary advice and consent to the Governor General and or Governor in Council to fill these critical vacancies.” (Hameed, para. 125)

Parliament has identified the number of judges required, the Chief’s letter has shown the deleterious consequences of not filling those vacancies and failing to fill them within a reasonable time “effectively permit[s] Canada’s executive government to ignore the express will of Parliament” (Hameed, para. 126).

Accordingly, and without exploring whether a practice has become a convention, Brown J. discovers second and third conventions in addition to that relating to that governing the exercise the appointment process itself:

the Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts. (Hameed, para. 131; my emphasis)

Justice Brown issues a declaration recognizing “the constitutional convention that judicial vacancies on the provincial Superior Courts and Federal Courts must be filled within a reasonable time” and states he expects “the crisis and critical situation to be resolved. (Hameed, para. 20)

Justice Brown granted Hameed public interest standing: there is a serious justiciable issue; Hameed has a stake in the issue; and this is a reasonable way to bring the matter before the courts. On the third element of the test, he wrote, one reason Hameed’s application is “a reasonable and effective manner” by which to bring the issue forward is because “it concerns an issue in respect of which the government should not be immunized from challenge [and] [t]he issue raised is obviously an important one for the Chief Justice of Canada and the Canadian Judicial Council.” (Hameed, para. 183)

The issue is one of “importance not just to the Applicants [sic] but to the federally appointed judiciary as a whole, and is of great importance to the Canadian public”. (Hameed, para. 184)

(For Justice Brown’s full discussion on Hameed’s standing, see Hameed, paras. 178-184.)

Who the other parties are is a little less clear.

Hameed did not name the Governor General or Governor in Council as parties (Hameed, paras. 27 and 172). This has ramifications for other aspects of Brown J.’s analysis and judgement.

The style of cause names Hameed as the Applicant and “Prime Minister and Minister of Justice” as Respondents, while the name of the case refers only to Hameed and to “Canada (Prime Minister)”.

Yet the the notion of insinuated parties is even more complicated. Justice Brown explains, “This is [Hameed’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.” (Hameed, para. 2) In other words, the implication is that the parties are Hameed, the Chief Justice of Canada and the CJC as “applicants” and the PM and the Minister as respondents. The implication, albeit an obviously incorrect one, is that the Chief Justice has brought the matter before the court.

Indeed, Brown J. invokes the role of the Chief Justice in the case even more explicitly: in discussing the Federal Court’s jurisdiction, he says,

This case relates to the federal power to make federal judicial appointments and an obvious disagreement between our most senior and most experienced judicial office holders including the Chief Justice of Canada and Canadian Judicial Council on the one hand, and the executive government including the Prime Minister and Minister of Justice on the other. (Hameed, para. 75)

He also treats a letter from the Chief Justice to the Prime Minister setting out the problems consequent on the failure to fill judicial vacancies as equivalent to “submissions” that “have been accepted by this Court” (Hameed, para. 184), as if the Chief Justice has proffered his letter to him, Brown J. (I refer to the letter below.)

Hameed named neither of the legal entities responsible for judicial appointments, the Governor General and the Governor in Council. Justice Brown therefore employed the mechanism of constitutional conventions to place them in the background and the PM and Minister as the responsible (or irresponsible?) actors.

Hameed filed as evidence (Exhibit KKK), a letter from Chief Justice Richard Wagner in his capacity as Chief Justice of Canada and Chairperson of the CJC to Prime Minister Justin Trudeau dated May 3, 2023. It expressed great concern about the number of judicial vacancies and their impact on the legal system, judges and users of the system. Hameed seized the moment, filing his application in June 2023.

The Chief Justice’s letter served as the bedrock of Brown J.’s deliberations and he quoted it in full in paragraph 1 of his decision.

The Chief Justice’s letter paints a dire picture of the courts’ capacity to address not only criminal cases, but civil cases, as well, along with the impact on the judges themselves and litigants. Although the Chief Justice sent his letter in May 2023, Brown J. states, “[the] significant and unacceptably large number of vacancies remains essentially unchanged” (Hameed, para. 4).

(Justice Brown also notes that Hameed and his lawyer each sent the same letter to the Minister of Justice and Prime Minister, respectively, requesting the appointment of judges in a timely manner; they received no response [paras. 54 and 55].)

Hameed did not call the Chief Justice as a witness to enter the letter. Given the experience and expertise of the Chief Justice and the CJC (of which Brown J. appears, perhaps not unreasonably, to have taken judicial notice) and “faced with these assessments by such credible entities, [Brown J.] accepts the views of the Chief Justice of Canada and the Canadian Judicial Council as set out in their letter to the Prime Minister” (Hameed, para. 14).

After reviewing the Chief Justice (and CJC)’s letter in detail, Brown J. concludes,

The Court accepts their evidence that access to justice and the health of our democratic institutions are at risk, that the justice system is consequently at risk of being perceived as useless for civil matters, and that the types of situations represent a failure of our justice system and are likely to fuel public cynicism and undermine trust in our democratic institutions. They conclude and I accept that the current situation is untenable. (Hameed, para. 50)

He rejects the respondents objection to the letter as being hearsay:

The letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister was widely publicized at the time, and extensively quoted by both English and French media. In my view the letter was not tendered for the truth of its contents, but as proof the Chief Justice of Canada and Canadian Judicial Council made a demand and request that the vacancies be filled and that the demand was worded as it was. (Hameed, para. 151)

In fact, Brown J. did treat the letter as “true” and heavily relied on it for his own findings and conclusions.

In addition to the Chief Justice’s letter, Hameed filed a number of detailed tables that he had developed to show the number of vacancies and the time to fill the vacancies (paras. 36-39). Justice Brown admitted them into evidence over the objection of the PM and the Minister. These tables have to stand on their own merit, because Brown J. makes no serious effort to explain them. He simply accepts them because their “accuracy is not seriously challenged” and they are based on publicly available facts (this does not mean, of course, that the facts have been interpreted correctly) and they reflect “the Chief Justice of Canada and Canadian Judicial Council’s letter” (Hameed, para. 40).

In light of the fact that there has been no improvement in filling judicial vacancies, Brown J. describes the PM and the Minister as “simply treading water”. Furthermore,

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. (Hameed, para. 6)

On the basis of the Chief Justice’s letter and Hameed’s tables, “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.” (Hameed, para. 15; my emphasis)

Justice Brown therefore “finds the Prime Minister and Minister of Justice have refused the request made by the Chief Justice of Canada and Canadian Judicial Council” and have provided no “justification” for doing so (Hameed, paras. 7 and 8). “Refused” is a strong word: certainly one might infer that the Prime Minister and Minister have not addressed the concerns the Chief has expressed, but there is no evidence that they pro-actively refused to do so.

On the basis of the letter and the Prime Minister and Minister of Justice’s failure to explain themselves, Brown J. minces no words in castigating the two:

The Court comes to this conclusion because the same constitutional convention giving the [Prime Minister and Minister of Justice] 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 [Prime Minister and Minister of Justice’s] 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. (Hameed, para. 16)

Justice Brown muses that the appropriate level of vacancies (if there are to be any, except for the shortest periods) would be about 40, since there were 46 vacancies in 2016. He invites Parliament to decide the appropriate number of permissible vacancies, depending on the circumstances (for example, when crimes “are not prosecuted in a timely way” perhaps no vacancies are permitted). (Of course, judges do not prosecute crimes, but I suppose we know what he means.)

He also asserts, the PM and the Minister 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.” (Hameed, para. 19)

The constitutional convention means that the PM and the Minister “have the sole authority to advise and give consent as to who and when the Governor General and or Governor in Council makes appointments to fill federal judicial vacancies”. But because it is a convention, there is not “an enforceable legal duty on” the PM and the Minister (Hameed, paras. 167 and 168).

Although it is the Governor General and the Governor in Council who have the legal duty to make appointments under section 96 of the Constitution Act, 1867 and section 5.2 of the Federal Courts Act, respectively, “the jurisprudence is universal that courts may not compel the Governor General or Governor in Council to follow a constitutional convention.”

Somewhat reluctantly, it seems, Brown J. recognizes “there is nothing this Court can do to enforce the constitutional convention even if the Governor General were to unconstitutionally reject the advice of Cabinet.” (Hameed, paras. 167-168) And while he might have liked to, he also acknowledges that despite the effective transfer of powers from the legal actors to the PM and the Minister, “[t]he Court has no power to amend the language of either section 96 or section 5.2 to remove the references to the Governor General and or the Governor in Council” (Hameed, para. 171).

He therefore issues four declarations:

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.

4. The Court makes Declarations 2 and 3 above in its expectation that the number of said judicial vacancies will be materially reduced within a reasonable time such that the total number of judicial vacancies returns to themid-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. (Hameed, para. 200) (Hameed, para. 133)

Although one may infer who is to undertake the actions anticipated in Declaration 4, Brown J. uses the passive voice. There is, therefore, no agent or indeed, specific actions that the Declaration encompasses; rather, it is what Brown J. expects to see. And he also expects the PM and the Minister, “particularly the Respondent Minister of Justice who in his capacity as Attorney General of Canada is the chief law officer of the Crown” to obey the law. (Hameed, para. 197)

He does not issue any timelines, although he is prepared to do so if things don’t change (Hameed, para. 199).

CONCLUSION

There is no doubt that the large number of judicial vacancies poses a considerable risk to the legal system and its reputation. It severely impairs access to justice — or at least to the legal system — in both the criminal and civil regimes. Although the evidentiary status Brown J. accorded the Chief Justice’s letter of May 3, 2023 in the Hameed case is questionable, it does suggest the Chief Justice’s sense of desperation.

One assumes that under normal circumstances conversations between the Chief Justice of Canada or of any provincial superior court with the prime minister or premiers are relatively low-key and confidential. Chief justices also have the opportunity to announce the state of their courts during their speeches at the beginning of the courts’ terms. Still, while the Chief Justice of Canada may not have intended his letter to become public, he surely knew that there was a good chance it would.

And so Brown J.’s decision reflects in rather less politic language and tone the message the Chief Justice — and, of course, others — wanted to deliver. There are, it seems to me, problems with Brown J.’s decision as far as he treats evidence, naming of the parties and generally what he hoped to accomplish in practice, except perhaps to embarrass the Prime Minister and the Minister of Justice. Yet I would have thought the Chief Justice’s letter actually does a better job of that. But if the message is meant to be: we’ve reached the end of our rope, perhaps it succeeds.