⚖️ Vacant

Crippling court delay and not a judge in sight. Can the federal government dig itself out of this hole?

Good morning. And welcome to all of the newest subscribers. Today’s issue is a special edition, looking at the data behind the currently excessive number of judicial vacancies.

Office space scene. Two men drag another away. Caption on the image says "Me, adding one last column to the spreadsheet:"

Office Space

— Dylan Gibbs


3 min read

  • Special edition: are we really that short on judges?



Too much room at the inn

Canadian courthouse with motel vacancy sign out front

Last week, a Toronto judge threw out firearm charges because the prosecution took too long. The root cause was a lack of judges.

Had the judicial positions in Toronto been filled, this case and others would not have been delayed.

2024 ONSC 293 at para 50, quoting 2023 ONSC 5829

It’s not just a Toronto problem. The federal government currently has 78 vacant positions to fill across the country. And it’s not just a problem for criminal cases. The entire court system is facing a delay crisis, made worse by a lack of judges. It’s bad enough that Chief Justice Richard Wagner openly criticized the federal government’s appointment process back in May.

There’s no shortage of commentary about judicial vacancies, but there is a shortage of charts. So, here are a few insights I gleaned from data posted on the Federal Judicial Affairs website between 2009 and today.

Vacancy rate for federally-appointed judges

Line chart showing vacancy rate increasing from 4.1% in 2009 to 7.8% in 2024 for federally appointed judges

Source: Federal Judicial Affairs / Internet Archive

The vacancy rate is based on the number of empty full-time judicial positions. It’s down from the astronomical high set early last year — but the broader trend still isn’t great. And it’s even worse after accounting for supernumerary judges.

Part-time contributions: A vacancy opens up every time a judge goes part-time by electing supernumerary status. The position is treated as vacant, even though supernumerary judges typically still do about half the work of a regular judge. The vacancy rate shows how many full-time positions are sitting empty, but it doesn’t tell us how many part-time judges serve as a backstop.

Number of supernumerary judges

Line chart showing fluctuations in the number of supernumerary judges, increasing from 2009 to 2019 then declining to 2024

Source: Federal Judicial Affairs / Internet Archive

The number of supernumerary judges has declined significantly since 2019. Not only do the courts have more vacancies — they have less part-time support to deal with those vacancies.

To be fair, assuming a supernumerary judge does 50% of a full-time judge's work, courts have effectively exceeded their full-time capacity since 2009. Because supernumerary judges create a vacancy even though they continue working for the court, it’s possible to have 1.5 judges for a single position. It happens frequently.

But it’s all in what you’re used to — the recent drop in full-time equivalent resources is unprecedented over the past 15 years.

Full-time equivalent resources as a percentage of full-time positions

Line chart showing full-time equivalent judicial resources as a percentage of full-time positions. The percentage oscillates between 108% and 111% between 2009 and 2021, before dropping to 105% by 2024

Source: Federal Judicial Affairs / Internet Archive

Root causes: The data doesn’t explain the reasons behind the growing number of vacancies, but at least one thing is clear — the increase isn’t driven by the government creating more judicial positions. Although the number of vacancies has grown 117%, the total number of full-time judicial positions has increased only 12% during the same period.

Vacancies vs. full-time positions

Source: Federal Judicial Affairs / Internet Archive

Big picture: Justice Minister Arif Virani promised to speed up appointments, and he recently announced changes to make the appointment process more efficient. But he also said there’s a “frustrating” lack of diverse applicants. Given the government’s commitment to diversity, the lack of diverse candidates is a major barrier to getting back on track. Paired with less supernumerary judges, the courts are a long way from returning to the glory days of their judicial complement.