YAVAR HAMEED Applicant v. PRIME MINISTER AND MINISTER OF JUSTICE, 2024 FC 242

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 Court Retiree or Act creating vacant position Date position became vacant Days vacant as of July 11, 2023 Exhibit [ 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 Appointee Court Date position Vacant Date Appointed Days Vacant Exhibit [ 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 timelytrials (R. v. Askov, (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 “worryand frustration [they experience] until they have given their testimony” (Askov, at p. 1220).

Repeated delays interrupt theirpersonal, 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 ofjustice. As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but mayaffect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to allmembers of the community.

Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offendingthe community’s sense of justice (see Askov, at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trialsinevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for courtprocedures” (p. 1221). [26] Extended delays undermine public confidence in the system.

And public confidence is essential to the survival of thesystem 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 ChiefJustice of Canada and Canadian Judicial Council conclude and the Court accepts it is imperative for the Prime Minister and his office togive this issue the importance it deserves, and for appointments to be made in a timely manner.

They say it is essential that the vacantpositions within the federal judiciary be filled diligently to ensure the judicial branch functions properly. In the past, the CanadianJudicial Council has urged governments to make judicial appointments more quickly. This time, the Chief Justice of Canada andCanadian Judicial Council have serious concerns that without concrete efforts to remedy the situation, Canada’s federal judiciary willsoon reach a point of no return in several jurisdictions.

The consequences will make headlines and have serious repercussions on ourdemocracy and on all Canadians: Despite all these efforts, it is imperative for the Prime Minister's Office to give this issue the importance it deserves and forappointments to be made in a timely manner. It is essential that the vacant positions within the judiciary be filled diligentlyto ensure that judicial branch functions properly. In the past, the Canadian Judicial Council has urged governments to makejudicial appointments more quickly.

This time, we have serious concerns that without concrete efforts to remedy thesituation, we will soon reach a point of no return in several jurisdictions. The consequences will make headlines and haveserious 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 ourcourts and the health of our judges.

Canadian Judicial Council members recently took it upon themselves to provide a morecomprehensive overview of the difficulties faced by their respective courts. The findings are appalling. These ongoing vacancies also have a serious impact on judges themselves. Faced with a chronic work overload andincreased stress, judges are increasingly going on medical leave, which has a domino effect on their colleagues, who thenmust carry an additional workload. It is also becoming difficult for judges of certain courts to find the necessary time tocomplete training, including training that is considered mandatory.

This situation does not bode well for ensuring a healthyand thriving judiciary. If current issues persist, it could also become difficult to attract high-quality candidates for judgepositions.

This is already the case in British Columbia. [50] In terms of the ("“untenable”") consequences for access to justice and the health of democratic institutions, the Chief Justice orCanada and Canadian Judicial Council wrote and the Court accepts appointments need to be made in a timely manner because the currentsituation is untenable, and they both fear that this will result in a crisis for our justice system, which is already facing many challenges.The Court accepts their evidence that access to justice and the health of our democratic institutions are at risk, that the justice system isconsequently at risk of being perceived as useless for civil matters, and that the types of situations represent a failure of our justicesystem and are likely to fuel public cynicism and undermine trust in our democratic institutions.

They conclude and I accept that thecurrent situation is untenable: The current situation is untenable, and I fear that this will result in a crisis for our justice system, which is already facingmany challenges. Access to justice and the health of our democratic institutions are at risk. Furthermore, the necessary urgency in processing criminal cases means the courts' role in civil cases is being neglected. Thejustice system is consequently at risk of being perceived as useless for civil matters.

These types of situations represent afailure of our justice system and are likely to fuel public cynicism and undermine their trust in our democratic institutions. In this context, these delays in appointments send a message that this is simply not a priority for the government. [51] The Chief Justice of Canada and Canadian Judicial Council also found the vacancy crisis is having a "“serious”" impact on judgesthemselves, on their health in terms of medical leave, and on their training. The situation does not bode well for ensuring a healthy andthriving judiciary.

If current issues persist, it could also become difficult to attract high-quality candidates for judicial positions, all ofwhich conclusions this Court respectfully accepts: These ongoing vacancies also have a serious impact on judges themselves. Faced with a chronic work overload andincreased stress, judges are increasingly going on medical leave, which has a domino effect on their colleagues, who thenmust 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. [ 52 ] Neither Respondent gave any explanation or reason to justify this crisis situation, either to the Chief Justice of Canada or the Canadian Judicial Council, or to this Court.

The Chief Justice of Canada and Canadian Judicial Council wrote and I have to agree that " “[N]o clear explanation justifies these delays.” " [ 53 ] Notably also, the Respondents did not object to any of the assessments in the letter.

This Court has no hesitation in accepting the expert assessments by the Chief Justice of Canada and Canadian Judicial Council 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: 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. VII.

Demands made to the Respondents [ 54 ] In addition to the letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of May 3, 2023, which and with respect I consider a request for these purposes, on June 16, 2023, Applicant’s counsel sent a letter to Canada’s Minister of Justice, with the subject line " “vacant judicial appointments” " stating he echoes the request of the Chief Justice of Canada and respectfully requests to fill these vacancies in a timely manner. [ 55 ] On June 17, 2023, the Applicant’s lawyer sent the same letter, but addressed to the Prime Minister again echoing the request of the Chief Justice of Canada and the Canadian Judicial Council and respectfully requests the Prime Minister fill these vacancies in a timely manner. [ 56 ] The Applicant received no response to either letter.

And, in any event, as already seen, the number of vacancies has not gone down as requested by the Chief Justice of Canada and Canadian Judicial Council; in fact, according to the FCJA, the number superior count vacancies is 75 as of February 1, 2024, which is almost identical to the 79 vacancies when this application was commenced in June 2023. [ 57 ] In this connection and in the Court’s respectful view, reports on the public website of the FCJA may be accepted for the truth thereof, it being a highly professional and completely impartial and credible federal source of data in relation to federal judicial vacancies and appointments across Canada.

See: Barakat v Andraos , 2023 ONSC 582 where Justice Trimble at paragraph 24 reviews the jurisprudence on judicial notice and government websites (most of which is of this Court). This Court agrees with and adopts their conclusions and applies them to the FCJA: A court may take judicial notice of facts can come from government and NGO websites provided that the government or organization has a reputation for credibility (see: Araya v. Nevsun Resources Ltd , 2017 BCCA 401 at par 24 , Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503 at paras. 72–75 , Buri v.

Canada (Minister of Citizenship and Immigration), 2001 FCT 1358 , [2001] F.C.J. No. 1867 (Fed T.D.) at para. 22 and Kazi v. Canada (Minister of Citizenship and Immigration) , 2002 FCT 178 , [2002] F.C.J. No. 223 (Fed. T.D.) at paras. 28 , 30). VIII. Issues [ 58 ] The Applicant raises the following issues: 1 . Should the Court order mandamus ? 2 . Should the Court order a declaration? [ 59 ] The Respondents raise the following issues: 1 . As a preliminary matter, whether the Applicant’s affidavit evidence is admissible and relevant; 2 .

Whether the Federal Court has jurisdiction over the subject matter of the application; 3 . Whether the Applicant has private interest standing or should be granted public interest standing to adjudicate the issues raised in the application; 4 . Whether the requirements of mandamus have been met; and 5 . Whether the Court should grant the Applicant’s alternative request for declaratory relief. IX. Relevant statutory provisions [ 60 ] The following sections of the Constitution Act, 1867 are relevant:

Exclusive Powers of Provincial Legislatures Pouvoirs exclusifs des législatures provinciales Subjects of exclusive Provincial Legislation " " Sujets soumis au contrôle exclusif de la législation provinciale " " 92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, " " 92 Dans chaque province la législature pourra exclusivement faire des lois relatives aux matières tombant dans les catégories de sujets ci-dessous énumérés, savoir : " " " […] " " […] " 14.

The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. " " 14. L’administration de la justice dans la province, y compris la création, le maintien et l’organisation de tribunaux de justice pour la province, ayant juridiction civile et criminelle, y compris la procédure en matières civiles dans ces tribunaux; " " " […] " " […] " VII. Judicature VII.

Judicature Appointment of Judges " " Nomination des juges " " 96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. " " 96 Le gouverneur-général nommera les juges des cours supérieures, de district et de comté dans chaque province, sauf ceux des cours de vérification dans la Nouvelle- Écosse et le Nouveau- Brunswick.

" " […] […] Salaries, etc., of Judges " " Salaires, etc. des juges " " 100 The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

" " 100 Les salaires, allocations et pensions des juges des cours supérieures, de district et de comté (sauf les cours de vérification dans la Nouvelle- Écosse et le Nouveau- Brunswick) et des cours de l’Amirauté, lorsque les juges de ces dernières sont alors salariés, seront fixés et payés par le parlement du Canada. " " General Court of Appeal, etc.

Cour générale d’appel, etc. 101 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 . 101 Le parlement du Canada pourra, nonobstant toute disposition contraire énoncée dans la présente loi, lorsque l’occasion le requerra, adopter des mesures à l’effet de créer, maintenir et organiser une cour générale d’appel pour le Canada, et établir des tribunaux additionnels pour la meilleure administration des lois du Canada . [Emphasis added] [Je souligne]

[ 61 ] The following sections of the Federal Courts Act and

Interpretation Act , RSC 1985, c I 21 are relevant: Federal Courts Act

Loi sur les Cours fédérales Appointment of judges " " Nomination des juges " " 5.2 The judges of the Federal Court of Appeal and the Federal Court are to be appointed by the Governor in Council by letters patent under the Great Seal. " " 5.2 La nomination des juges de la Cour d’appel fédérale et de la Cour fédérale se fait par lettres patentes du gouverneur en conseil revêtues du grand sceau. " " […] […] Extraordinary remedies, federal tribunals Recours extraordinaires : offices fédéraux 18

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction 18

(1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour : (

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; and

a) décerner une injonction, un bref de certiorari , de mandamus , de prohibition ou de quo warranto , ou pour rendre un jugement déclaratoire contre tout office fédéral; […] […] Application for judicial review Demande de contrôle judiciaire 18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. 18.1

(1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. Powers of Federal Court Pouvoirs de la Cour fédérale

(3) On an application for judicial review, the Federal Court may

(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut: (

a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; […] […] [Emphasis added] [Je souligne]

Interpretation Act " " Loi d’interprétation " "

Definitions Définitions General

definitions Définitions d’application générale 35

(1) In every enactment, 35

(1) Les définitions qui suivent s’appliquent à tous les textes. […] […]

Governor General in Council orGovernor in Council means theGovernor General of Canadaacting by and with the advice of,or by and with the advice andconsent of, or in conjunction withthe Queen’s Privy Council forCanada; (gouverneur en conseilou gouverneur général enconseil) gouverneur en conseil ougouverneur général en conseil Legouverneur général du Canadaagissant sur l’avis ou sur l’aviset avec le consentement duConseil privé de la Reine pour leCanada ou conjointement aveccelui-ci. (Governor General inCouncil or Governor in Council) X. Submissions and Analysis A. Jurisdiction of the Federal Court

(1) The ITO test [62] The starting point for this assessment is the Supreme Court of Canada’s decision in ITO- International Terminal Operations Ltd vMiida Electronics Inc, (SCC), [1986] 1 SCR 752 [ITO] at p.767. In ITO the Supreme Court sets a three-part test forconstruing the Federal Court’s jurisdiction. In this connection it is worth noting the predecessor of the Federal Courts was set up by thesame Act of Parliament that established the Supreme Court of Canada. Such statutes require

interpretation in the constitutional setting: 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 thestatutory grant of jurisdiction. 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. [63] The Applicant submits the Federal Court has jurisdiction to hear this application and grant the relief sought.

In this he relies onjurisprudence of this Court, jurisprudence of the Federal Court of Appeal and jurisprudence of the Supreme Court of Canada all of whichmandate a broad, fair and liberal approach to this Court’s jurisdiction. [64] The Respondents disagree. They argue the Federal Court lacks jurisdiction to hear and decide this application. [65] In this respect the Court determines that the leading jurisprudence is Canada (Human Rights Commission) v Canadian Liberty Net,(SCC), [1998] 1 SCR 626 [Liberty Net] per Bastarache J.

In Liberty Net, the Supreme Court endorsed a fair and liberalapproach to the Federal Court’s jurisdiction. Justice Bastarache for the majority at pp. 657 and 658 states: These are the historical and constitutional factors which led to the development of the notion of inherent jurisdiction inprovincial superior courts, which to a certain extent has been compared and contrasted to the more limited statutoryjurisdiction of the Federal Court of Canada.

But in my view, there is nothing in this articulation of the essentially remedialconcept of inherent jurisdiction which in any way can be used to justify a narrow, rather than a fair and liberal,

interpretationof federal statutes granting jurisdiction to the Federal Court. The legitimate proposition that the institutional andconstitutional position of provincial superior courts warrants the grant to them of a residual jurisdiction over all federalmatters where there is a “gap” in statutory grants of jurisdiction, is entirely different from the proposition that federalstatutes should be read to find “gaps” unless the words of the statute explicitly close them.

The doctrine of inherentjurisdiction raises no valid reasons, constitutional or otherwise, for jealously protecting the jurisdiction of provincial superiorcourts as against the Federal Court of Canada. [Emphasis added] [66] Notably and central to this Court’s conclusion in this regard, is the Supreme Court of Canada’s plain rejection of a narrowinterpretation of the Federal Court’s jurisdiction in favour of a fair and liberal

interpretation of statutes granting jurisdiction to theFederal Court set out in Liberty Net. [67] Of interest, the Supreme Court in Windsor (City) v Canadian Transit Co., 2016 SCC 54 [Windsor], pointed to by the Respondents,neither addresses nor considers the Supreme Court of Canada’s own previous decision in Liberty Net. [68] Upon reflection and due consideration, the Court will follow Liberty Net and persuasive post-Windsor jurisprudence and approachthe determination of Federal Court’s jurisdiction in fair and liberal manner, and not narrowly as the Respondents proposed. [69] To begin this, the Court adopts a fair and liberal approach because it agrees with Justice Mactavish (as she then was) in Deegan vCanada (Attorney General), 2019 FC 960 [Deegan]: [224] In contrast to the inherent jurisdiction enjoyed by provincial superior courts, the Supreme Court held in WindsorBridge that the Federal Courts have only the jurisdiction that has been conferred on them by statute, and that they arewithout inherent jurisdiction: at paragraph 33.

This of course begs the question: if the Federal Courts’ jurisdiction isconstrained by the fact that they are statutory courts created under

section 101 of the Constitution Act, 1867, how is it that

the jurisdiction of the Supreme Court of Canada—another statutory court created under

section 101 of the Constitution Act, 1867 —is not similarly constrained? [225] Indeed, as the Federal Court of Appeal observed in Lee , “the Supreme Court and the Federal Courts (through their predecessor, the Exchequer Court) are both statutory courts under

section 101 of the Constitution Act, 1867 , born at the same time from a single joint statute: Supreme and Exchequer Court Act , S.C. 1875, c. 11”: above, at paragraph 13. The Federal Court of Appeal went on to observe in Lee that “the Supreme Court and the Federal Courts must be seen as identical twins” in terms of their ability to manage their processes and proceedings, that is, their plenary powers: Lee , above, at paragraph 13. … [227] The fact is that the Federal Court is neither an inferior court nor an administrative tribunal: Lee , above, at paragraph 12; Bilodeau-Massé , above, at paragraph 72.

It is, rather, a superior court of record having civil and criminal jurisdiction: Federal Courts Act ,

section 4 . As a superior court, the Federal Court has plenary jurisdiction to determine any matter of law arising out of its original jurisdiction.

This includes constitutional jurisdiction in matters that are properly before the Court. [Emphasis added] [ 70 ] Justice Mactavish followed Bilodeau-Massé v Canada (Attorney General) , 2017 FC 604 [ Bilodeau-Massé ], where Justice Martineau concluded at paragraph 72 that " “the grant of jurisdiction under the Federal Courts Act should not be interpreted in a narrow fashion.” " In this respect Justice Martineau adopts the reasoning of the Supreme Court in Liberty Net as does this Court: [78] As a result, as the Supreme Court noted in Canadian Liberty Net , “[i]n a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court” (at paragraph 35).

Thus, because this involves the Federal Court’s general administrative jurisdiction over federal administrative tribunals, “[t]his means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, t he Federal Court can be considered to have a plenary jurisdiction” ( Canadian Liberty Net , at paragraph 36 ) (my emphasis). If

section 44 of the Federal Courts Act gives the Federal Court jurisdiction to grant an injunction in enforcing the Canadian Human Rights Act , R.S.C., 1985, c.

H-6 , this is all the more reason to argue that in the context of an action against the Crown or an application for judicial review, the inherent or residual jurisdiction of the provincial superior courts in matters involving the constitution or habeas corpus in no way affects the “plenary jurisdiction” exercised by the Federal Court under sections 17 and 18 of the Federal Courts Act . [Emphasis added] [ 71 ] To the same effect are the reasons of Justice Roussel (as she then was) in PH v Canada (Attorney General) , 2020 FC 393 [ PH ] at paragraphs 42 and 43 .

Justice Roussel declined to follow Windsor, holding: [42] With the greatest of respect to the Supreme Court of Canada, I do not consider myself bound by these obiter comments. The facts in this case differ from those in Windsor . That case dealt with the application of a municipal bylaw to a federal undertaking. The applicant was not seeking relief under

an Act of Parliament and under a federal right, but was seeking relief under the Constitution Act, 1867 . In this case, sections 18 and 18.1 of the Act grant this Court the jurisdiction to issue declaratory relief against the Parole Board of Canada. There is no need to interpret this Court’s jurisdiction restrictively because this Court is a statutory court rather than a court of inherent jurisdiction. Although it is not a “superior court” within the meaning of

section 96 of the Constitution Act, 1867 , this Court is nevertheless comparable to a superior court when it exercises its general supervisory jurisdiction over federal boards, such as the Parole Board of Canada. Sections 18 and 18.1 of the Act do not remove the jurisdiction of provincial superior courts to grant a constitutional declaration against a federal board. However, the Act does create concurrent jurisdiction in cases where the Federal Court has been granted jurisdiction by

an Act of Parliament (ss 18 and 18.1 of the Act ) and the ITO test is otherwise met, as is the case here. [43] I do not intend to comment any further on the majority’s obiter comments in Windsor. I accept and adopt as my own the reasoning of my colleagues who recently found that this Court does indeed have the jurisdiction to issue general declarations of invalidity for the purpose of

section 52 of the Constitution Act, 1982 ( Deegan v Canada (Attorney General) , 2019 FC 960 at paras 212-240 ; Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development) , 2018 FC 530 at paras 55-65 ; Bilodeau-Massé v Canada (Attorney General) , 2017 FC 604 at paras 38-88 ). I also rely on the statements made by the Federal Court of Appeal in Lee v Canada (Correctional Service) , 2017 FCA 228 regarding the plenary powers of the Federal Courts .

As I do not find it useful to repeat their analysis in these reasons, I refer the parties and the reader to the cited portions of those decisions. [Emphasis added] [ 72 ] As did Justice Roussel (as she then was), I also rely on the determinations of the Federal Court of Appeal in Lee v Canada (Correctional Service) , 2017 FCA 228 regarding the plenary powers of the Federal Courts emanating from their constitutional status as courts, as set out at paragraphs 8-12: [8] The idea is that the Federal Courts ’ plenary powers emanate from their constitutional status as courts , not from any particular legislative provision in the Federal Courts Act , R.S.C. 1985, c.

F-7 or the Federal Courts Rules . The Federal Courts are not just ordinary agencies of government but rather part of the judicial branch within the constitutional separation of powers . If courts are to be courts and to fulfil their function as part of the judicial branch, they must have certain plenary powers to manage their processes and proceedings. [9] Cases decided by the Supreme Court after Liberty Net have alluded to these powers—in one case at the level of obiter in a single paragraph, and in another case buried as an afterthought in a endnote: see, respectively R. v. Cunningham , 2010 SCC

10 , [2010] 1 S.C.R. 331, at para. 19 and Windsor (City) v. Canadian Transit Co. , 2016 SCC 54 , [2016] 2 S.C.R. 617. Perhaps because the treatment of the powers is brief, both cases fail to cite Liberty Net .

But both loosely suggest that the Federal Courts ’ plenary powers are “necessarily incidental” to statutory powers already granted, rather than powers stemming from the Federal Court’s status as courts within the judicial branch. [10] In fact, in terms of the powers the Federal Courts have, Cunningham seems to place the Federal Courts on the same footing as administrative tribunals and other administrative functionaries throughout the government. But Cunningham is not the only word on this point. [11] Again, there is Liberty Net.

And in a brief comment in another case, the Supreme Court seems to have recognized the Federal Courts as superior courts established under the federal power in the Constitution Act , 1867 to create federal courts, not just as mere administrative functionaries: Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 at para. 136 (not cited in Cunningham and Windsor ); see also the clear text of

section 4 of the Federal Courts Act . [12] In my view, the Supreme Court’s holdings in Charkaoui and Liberty Net are unassailable. The Federal Courts cannot be equated to administrative tribunals.

As is suggested in Liberty Net , the Federal Courts—like the Supreme Court, the provincial courts (both superior and otherwise), the Tax Court and military courts—are fully fledged courts within the judicial branch and, by virtue of this, have all the plenary powers of courts to manage their processes and proceedings. [Emphasis added] [ 73 ] This Court also agrees with Justice Martineau in Bilodeau-Massé that access to justice concerns, the unique fact that the Federal Court is fully bilingual and bijural forum, and that the Federal Court is nationally accessible, strongly militate in favour a fair and liberal approach to the Federal Court’s jurisdiction. [ 74 ] Moreover, the case at hand calls for the resolution of a quintessentially federal issue involving purely federal powers, in preference to a multiplicity of parallel proceedings in many different provincial court systems with attendant delays, possible inconsistent decisions, needless duplication overlap, expense and waste of judicial resources.

Justice Martineau in Bilodeau-Massé states: [69] In short, justice is not in competition with itself: access to justice must prevail in every case, which favours a broad construction of the jurisdiction conferred on this Court by the Federal Courts Act . In this sense, the Federal Court is part of the solution, and it would be wrong to want to associate it with the problem of the increasing number of jurisdictions. When it created a national court of first instance, Parliament could very well have left it to the courts mentioned in

section 129 of the Constitution Act, 1867 , and to the other provincial courts created under subsection 92(14) of the Constitution Act, 1867 , to exercise their traditional jurisdiction in civil and criminal matters, while making adjustments over time, if necessary, for the purposes of the “laws of Canada”. But what characterizes the Federal Court is not only its nature as a national court (trial and appeal). Its composition also ensures national continuity (

section 5.3 of the Federal Courts Act ) and the maintenance of Canadian bijuralism (common law and civil law). However, like

section 6 of the Supreme Court Act ,

section 5.4 of the Federal Courts Act provides for effective representation of Quebec , with a minimum and large number of judges (at least five judges of the Federal Court of Appeal and at least 10 judges of the Federal Court) who must have been judges of the Court of Appeal or of the Superior Court of Quebec or members of the Bar of Quebec. It is an eloquent legislative demonstration of Parliament’s wish to create a pan-Canadian court that is particularly well adapted to Canada’s reality and bijuralism. [Emphasis added] [ 75 ] Further, there is no body of provincial law in dispute.

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. [ 76 ] There is no issue of competing jurisdiction. There is no " “pretence” " of provincial law in this case that exclusively involves the application of federal law in an area of undisputed federal jurisdiction.

See Girouard v Canada (Attorney General) , 2020 FCA 129 , at paragraph 108 : [108] In stipulating that the Governor General appoints judges of the superior courts and has the authority to remove them (on address of the Senate and House of Commons) and that Parliament fixes and provides their salaries, the C.A., 1867 clearly ousts provincial jurisdiction on any matters relating to these issues. [ 77 ] And see Deegan per Mactavish J.: [232] There is, moreover, an existing body of federal law that is essential to the disposition of the case that nourishes the statutory grant of jurisdiction.

The Impugned Provisions form part of the federal Income Tax Act and the Implementation Act , federal legislation implementing an agreement with a foreign state governing the sharing of information under a bilateral tax treaty. It also bears noting that no body of provincial law is implicated in this proceeding, and that the case does not involve competing spheres of jurisdiction. The case thus involves the application of federal law in an area of federal jurisdiction. [Emphasis added]

(2) First prong of ITO [ 78 ] With this guidance, and to recall, prong one of ITO requires that " “[T]here must be a statutory grant of jurisdiction by the federal

Parliament.”" In my view, sections 18 and 18.1 of the Federal Courts Act constitute a statutory grant of jurisdiction by the federalParliament to this Court to grant declaratory relief against any federal board: this point was expressly decided by the Court in PH atparagraphs 38 and 42. I therefore conclude the first prong of ITO is met. [79] In this connection, and while the Respondents accept

section 18.1 of the Federal Courts Act confers jurisdiction to the Federal Courtto grant declaratory relief against any "“federal board, commission or other tribunal”" they argue it does not apply to the Prime Ministeror Minister of Justice. [80] With respect, I disagree. First of all, this submission does not apply in relation to appointments under

section 5.2 of the FederalCourts Act given the Supreme Court of Canada’s opposite conclusion in Strickland v Canada (Attorney General), 2015 SCC 37: [64] At this point, it seems to me that the language of the Act conferring “exclusive original jurisdiction” can be taken as aclear and explicit expression of parliamentary intent. Similarly, as presently advised I see no reason to doubt that theGovernor in Council, when exercising “jurisdiction or powers conferred by or under

an Act of Parliament” is a “federalboard, commission or other tribunal” within the meaning of s. 2 the Act. [81] And I see no reason to accept the Respondents’ narrow construction in terms of granting declaratory relief in relation toappointments under

section 96 of the Constitution Act, 1867. In this connection, I take the same view of the authority conferred on thisCourt by paragraphs 18(1)(

a) and 18.1(3)(

a) of the Federal Courts Act as that taken to

section 44 of the Federal Courts Act by theSupreme Court of Canada in Liberty Net and by this Court in Bilodeau-Massé, namely that "“the Federal Court can be considered to havea plenary jurisdiction”". This is further confirmed in Deegan and PH. I am not persuaded to depart from concurrent findings of mycolleagues, nor to disagree with the Supreme Court of Canada’s determination in Liberty Net.

(3) Second and third prongs of ITO [82] The second step in ITO is that "“[t]here must be an existing body of federal law which is essential to the disposition of the case andwhich nourishes the statutory grant of jurisdiction.”" [83] The third step in ITO is that the law on which the case is based must be "“a law of Canada”" as the phrase is used in

section 101 ofthe Constitution Act, 1867. [84] The Applicant submits that federal law includes federal common law. As outlined below, I agree. In particular, the Applicant arguesfederal common law includes law surrounding the modalities of federal judicial appointments, including judicial recognition ofconstitutional conventions that such appointments may only be made on the advice and consent of Cabinet, and the Prime Minister orMinister of Justice. Again I agree. [85] The Applicant submits that constitutional conventions may be recognized by courts as laws.

But it is also well established thatconstitutional conventions may not be enforced by the courts. [86] The Respondents argue that constitutional conventions, while being rules regulating conduct as between constitutional actors (aconclusion the Court accepts), are not laws for the purposes of the second prong of ITO.

As I understand their argument, it is based onthe rule that constitutional conventions may not be enforced by the Courts, from which they conclude constitutional conventions may notsupport step two of ITO. [87] Through post-hearing submissions, the Court entertained additional arguments on this and related points as to whether federalcommon law and constitutional conventions may establish this Court’s jurisdiction per ITO on the issue of filling vacancies on theprovincial Superior Courts and Federal Courts. [88] The Respondents argue the common law cited by the Applicant relates to the

interpretation of legal principles governingreviewability of conventional actors and constitutional conventions, falling under the law of justiciability.

The Respondents submit andrely on Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 SCR 49,where Chief Justice Dickson at pp.90-91 said that the law of justiciability involves "“a normative inquiry into the appropriateness as amatter of constitutional judicial policy of the courts deciding a given issue…”" [89] The Applicant, in reply on this point, submits he is not relying on the common law of justiciability, but rather the common lawregarding the transfer of power and duties from the Governor General to the Prime Minister and the Minister of Justice as a result ofconstitutional conventions.

The Applicant submits this body of common law was created in the context of merits determinations aboutsubstantive legal rights, duties, and powers, citing the decisions to be discussed later namely Acadian Society of New Brunswick v RightHonourable Prime Minister of Canada, 2022 NBQB 85 [Acadian Society], Conacher v Canada (Prime Minister), 2010 FCA 131[Conacher], and Democracy Watch [per Southcott J]. [90] In post-hearing submissions, the Respondents submit justiciability is common law, but does not have a federal character.

TheRespondents argue the concept of justiciability flows from the constitutional separation of power, and is inherently neither federal norprovincial.

I disagree. [91] The Applicant submits this is false, relying on Quebec North Shore Paper v CP Ltd, (SCC), [1977] 2 SCR 1054[Quebec North Shore Paper] for the proposition that when common law relates to both a provincial and federal issue, at p.1063, "“it isfederal law in relation to the Crown in right of Canada, just as it is provincial law in relation to the Crown in right of a Province.”" TheApplicant advances the argument here that when the common law about the transference of powers and duties by constitutionalconvention relates to provincial actors, it is provincial common law.

When it relates to federal actors, he submits it is federal commonlaw. [92] I agree with the Applicant in this respect.

[93] Lastly, the Respondents submit that if the Court finds that constitutional conventions are federal common law, they do not constitutean existing body of federal law essential to the disposition of this application, per the second prong of ITO.

The Respondents submitjusticiability is no more essential to the disposition of this application than it is to any other application, and is insufficient to satisfy thesecond prong of ITO given the high threshold on the party asserting the Court’s jurisdiction. [94] The Applicant, again in reply, submits this is incorrect and the Respondents mischaracterize the nature of the common law beingrelied upon in this case.

Further, the Applicant asserts the Respondents argument comparing the federal common law to otherapplications to determine whether it is more essential to the disposition of this case is not found in the jurisprudence on the application ofthe ITO test. [95] Lastly, the Applicant submits that just because the legal duty relied on to compel the appointment

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