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The federal government is challenging a court decision directing it to step up the pace of judicial appointments to address an “untenable” number of vacancies.

In a notice of appeal, the government says the Federal Court overstepped its constitutionally limited role and acted without jurisdiction.

In a February decision, Federal Court Justice Henry Brown said constitutional convention requires Ottawa to appoint a new judge within a reasonable time of a vacancy.

The government is asking the Federal Court of Appeal to set aside the judgment and dismiss the underlying application brought by Yavar Hameed, an Ottawa-based lawyer.

In his application, Hameed said he had experienced significant delays in litigation proceedings in the courts on behalf of vulnerable clients.

Among the material filed in the case was a May 2023 letter to Prime Minister Justin Trudeau from the Canadian Judicial Council and Chief Justice Richard Wagner, expressing “deep concern” about the 85 judicial vacancies on superior and federal courts.

“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,” the letter said.

“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.”

In his February ruling, Brown found the “significant and unacceptably large” number of vacancies remained essentially unchanged, saying the prime minister and justice minister “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.”

Brown said he “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 judge also noted his expectation that the “untenable and appalling crisis” would be resolved through steps to lower the total number of judicial vacancies to the mid-40s, where it stood in the spring of 2016.

The government’s notice of appeal says Brown erred by recognizing a constitutional convention that does not exist.

The notice also says the court substituted its own view on the timeliness of federal judicial appointments for that of the executive branch.

In addition, the government argues the court was mistaken in considering the letter from the judicial council and the chief justice to be “expert evidence.”

It also takes issue with the judge interpreting the federal non-response to the letter “as a reviewable decision that would warrant relief” from the court.

The government also contends the court relied on “hearsay facts and opinion contained in the letter.”

Justice Minister Arif Virani, who took over the portfolio in July, said last month he had made it his personal mission as minister to address the appointments issue.

Hameed will have an opportunity to file his own arguments in court as the case unfolds.

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