Trials at the B.C. Supreme Court (above) have been cancelled due to delays in appointing judges. (Alistair Eagle for The Lawyers Weekly) Click here to see full sized version.

British Columbia Supreme Court Chief Justice Donald Brenner says he has had to cancel some trials in his province because of the Conservative government’s delays in appointing judges to his court.

Meanwhile nine of the 17 judicial appointments advisory committees (JACs) across Canada which vet judicial candidates for the federal Minister of Justice — including the B.C. JAC — have been inoperative since their two-year mandates expired October 31, 2008.

“I have to say that the [judicial] appointments were simply slow in coming, and I can’t claim to know the reason for that because it’s entirely in the hands of the office of the minister of justice,” Chief Justice Brenner responded when asked why there have been delays in filling Supreme Court vacancies that date back to last spring.

Chief Justice Brenner said he has raised the issue of delays with Justice Minister Rob Nicholson’s office. Nicholson’s judicial affairs advisor, David Near, left his post in late January.

“We would encourage timely judicial appointments,” stressed the chief justice. “It’s just very, very important for the people of British Columbia.”

The Lawyers Weekly telephone and e-mail inquiries to Nicholson’s communications director Darren Eke were neither responded to, nor acknowledged. Nicholson appoints both the JACs and the superior court judges across Canada.

As of Feb. 4 there were 34 federal judicial vacancies nation-wide, and 1065 full-time and supernumerary judges on the federal Bench.

At that time there were no JACs operating in: B.C., Alberta, Saskatchewan, Manitoba, south and western Ontario, Yukon, Nunavut, and the Northwest Territories. The special JAC for the Tax Court was also non-operational.

However Margaret-Rose Jamieson, a senior counsel with the Office of the Commissioner for Federal Judicial Affairs , told The Lawyers Weekly the new JACs (which will have three-year mandates) “will be up and running in the immediate future.”

“Almost all the members for the new committees have now been appointed,” she said in an e-mail, adding that “historically it has not been uncommon that there be some lapse of time between outgoing and incoming committees.”

Chief Justice Brenner said delays in replacing the B.C. Supreme Court judges who retired, went supernumerary or were promoted in 2008 has the court’s remaining judges working overtime. Litigants also face frustration and additional costs. “It means we have to turn litigants away who have had matters scheduled for some time, and we find we just can’t provide the judges to hear the cases.”

The chief justice said his court ran about 10 percent down from its full complement of 88 full-time judges for some of the last year. “Fortunately our trial schedulers do a masterful job of juggling, and my judicial colleagues come in to cover when we have shortages,” he said. “But you can only do that for so long and eventually it catches up to you, and you simply have to say to some litigants: ‘We unfortunately can’t provide a judge for your cases.’”

Nicholson did appoint four judges to the B.C. Supreme Court on Jan. 23, but at press time there were still seven vacancies, including three new positions slated to do work for the nascent federal Specific Claims Tribunal.

Chief Justice Brenner emphasized there were a large number of retirements and supernumerary elections on his court last year. “To be fair to the government, 2008 for our court was a somewhat unusual year,” he said.

The chief justice said he is “optimistic” that the B.C. JAC will be up and running soon. However he noted Nicholson already has available for appointment a pool of a dozen or so judicial candidates who have been rated “recommended” by the previous B.C. JAC.

B.C. Chief Justice Lance Finch, who leads the B.C. Court of Appeal, noted that six full-time members of his 15-judge court elected supernumerary status in 2008. “We still have two vacancies and I have been hopeful that those vacancies would be filled and so far they haven’t been,” he said. “The last two elections occurred around May and June, so they are six months [old] or so. We have had longer delays in the past, but it’s not optimal.”

Chief Justice Finch praised the work done by the defunct B.C. JAC, notwithstanding fears expressed two years ago by the Canadian Judicial Council that the Harper government’s changes to the committee’s composition had imperiled the JACs’ independence.

“I can only go by the quality of appointments made to our courts out here, and I think they have been overall very, very good,” Chief Justice Finch observed. “In terms of the appointments to our court I would say they have been uniformly excellent. I have absolutely no complaint about the quality of any judge who has been appointed [to the court of appeal] since the committee was revised.”

Chief Justice Brenner also described the JAC system as “a very good system” in principle. “I think it certainly has served us historically well in B.C. and I think we have a very strong Bench,” he said.

Tax Court Chief Justice Gerald Rip, whose 20-member court has two vacancies — one dating back about two years and the other more than six months — says filling judicial vacancies typically takes several months, regardless of whether the Conservatives or Liberals are in government. “I have never seen anybody appointed within one or two months,” he observed. “We are not that worried at present.”

Federal Court Chief Justice Allan Lutfy told The Lawyers Weekly that the Conservative government’s appointments to his court have been timely. The 33-member national trial court has two immediate vacancies, which are only weeks’ old.

Overall nationally “I don’t think there is a systemic problem,” the chief justice said. “The total number of full-time [judicial] positions [across Canada] is 850 and in the last two years, the number of vacancies has always been around 25 and 30 — which is less than four per cent of the total complement. And so given ongoing attrition, I think that’s a respectable number. Now there may be, in certain provinces at a given time, a particular problem that is not reflected in those national statistics... but on the whole I think the number of vacancies [at any given time] over the last couple of years has been consistently low.”