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“I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.” ~~ John G. Diefenbaker

Judicial misadventures in unwritten constitutionalism: The Federal Court invents a convention and egregiously runs with it


The federal government has made a total hash out of judicial appointments since 2016. It has allowed lengthy vacancies to persist and is slow to replace retiring judges, even when their retirements are anticipated by a mandatory retirement age (although it has been a bit quicker lately). It’s a problem that contributes to major backlogs and a serious access to justice crisis, and as with many things (given the utter lack of transparency around how we’re governed in Canada) we don’t quite know why the government seems so bloody incompetent on this file. [One thing we know that isn’t the issue: there is no shortage of lawyers in this country, nor lawyers who want to become judges].

It is against this background that yesterday’s ruling by Justice Henry S. Brown was likely greeted with little more than nodding heads. Justice Brown issued a declaration to the effect that the federal government must make judicial appointments in a timely manner and suggested that the vacancies should be reduced from their current number of approximately 75 to the mid-40s . . . .

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