INTRODUCTION
In Hameed v. Canada (Prime Minister) (“Hameed (FC)”), Brown J. seized the opportunity to “encourage” the federal government to fill the too many judicial vacancies on the federal bench. In my Slaw post, “When a Judge Finds His Dream Case: Hameed v. Canada (Prime Minister)” (February 28, 2024), I suggested in not so many words that Brown J. was perhaps too eager to find a way to have an impact on the problem that Chief Justice Wagner had himself not only spoken about but had identified in a letter to then Prime Minister Justin Trudeau. Now the Federal Court of Appeal (“the FCA”) has told Brown J. in no uncertain terms that he was “out of his lane” when he issued his decision: Canada (Prime Minister) v. Hameed (“Hameed (FCA)”).
However, not only does the FCA explain where Brown J. went wrong from a legal perspective, it also seizes its own moment to caution the importance of our democratic institutions remembering where they fit in the democratic infrastructure. It is on this obiter that I want to focus in this brief post because, intentionally or not, the FCA’s own short statement takes its place among those that our current circumstances have attracted.
As Brown J. explained, Hameed had his case postponed several times because, as the Ottawa Superior Court Trial Coordinator told him, the court’s resources were inadequate for the number of cases it had to hear. Hameed sought a writ of mandamus requiring the Prime Minister and Minister of Justice to fill vacancies in the superior or Federal Courts within specified timelines or, in the alternative, that the court issue four specified declarations. Justice Brown refused to issue mandamus, but did issue the declarations.
Justice Brown based his declarations on constitutional conventions. The first is that the Governor General (under section 6 of the Constitution Act, 1867) and the federal Cabinet (under section 5.2 of the Federal Courts Act [“the Act”]) appoint judges on the advice of the Prime Minister and Minister of Justice.
Without exploring whether a practice has become a convention, Brown J. discovered second and third constitutional conventions in addition to that relating to that governing the exercise the appointment process itself, recognizing that they are unenforceable in law: “the Court should now recognize that the relevant constitutional conventions include not only the responsibility to take steps to fill vacancies as soon as possible, but in this appalling and critical situation, to materially reduce the present backlog to what it was as recently as the Spring of 2016, that is to reduce the vacancies to the mid-40s across the federally appointed provincial Superior Courts and Federal Courts”. (Hameed (FC), para. 131; my emphasis)
In short, Brown J. conjured these purported constitutional conventions more or less out of the blue.
FEDERAL COURT OF APPEAL’S DECISION
Since Brown J.’s decision, the problem of too many judicial vacancies has dissipated, and therefore the FCA had to consider whether the matter was moot. Despite the reduction in the number of vacancies, Boivin J.A., writing for himself and for Locke and Heckman JJ.A., held the case was not moot because there was still a live controversy arising out of the request for a declaration that the Prime Minister and Minister of Justice had a duty to appoint judges. Furthermore, “there is still an adversarial context with respect to the jurisdiction and constitutional issues raised by the Appellants. As these latter issues are, in and of themselves, elusive and seldom come before the Court, they are sufficiently important to warrant the expenditure of judicial resources, even if this case were found to be moot.” (Hameed (FCA), para. 12)
Next, the FCA determined that the Federal Court lacked jurisdiction to hear the case.
The FCA noted that although the cases Brown J. cited “confirm the Court’s power to determine all relevant questions of law—including constitutional questions—when it has subject matter jurisdiction, [they] do not stand for the principle that the Federal Court has jurisdiction over a constitutional case involving the executive branch when its subject matter jurisdiction is nonexistent ….” (Hameed (FCA), para. 31; my emphasis ). The FCA stated, “the Federal Court’s analysis in respect of judicial appointments made pursuant to section 5.2 of the Federal Courts Act is flawed as it disregards the requirements of the definition of a federal board. The Federal Court relied on authorities that were inapplicable or uninstructive to find that the Prime Minister and Minister of Justice were acting as federal boards in this case”. (FCA, para.37)
Addressing in detail the reasons on which Brown J. based his determination that the Prime Minister and the Minister of Justice constituted a federal board under section 18 and 18.1 of the Act, the FCA rejected each one. Furthermore, Brown J. failed to explain “how the Prime Minister and Minister of Justice in this case were empowered to advise in the judicial appointment process by any Act of Parliament or by any order made under a prerogative of the Crown.” (Hameed (FCA), para. 38)
Accordingly, the Federal Court did not have jurisdiction to consider Hameed’s application. This was sufficient to dismiss the appeal. Notably, however, Boisvin J.A. went on to consider Brown J.’s determinations regarding constitutional conventions that he described as “of concern”. (Hameed (FCA), para. 56)
On Brown J.’s treatment of constitutional conventions as “judge-made rules”, the FCA said:
This is misconceived and contrary to the non-legal nature of constitutional conventions …. Furthermore, contrary to what the Federal Court suggests at paragraph 122, a recognition of a constitutional convention in a previous decision does not transform the said convention into common law as constitutional conventions cannot crystallize into laws “unless it be by statutory adoption” ….
Secondly, the Federal Court’s declaration of a new constitutional convention, that judicial vacancies must be filled within a reasonable time, without applying the test for recognizing new conventions is also concerning (Decision at para. 20). While the Patriation Reference established that courts could recognize new constitutional conventions, it equally articulated certain requirements for the recognition of constitutional conventions by courts …. (Hameed (FCA), paras. 58, 59; citations omitted)
Rather than applying the Supreme Court of Canada’s three part test to decide whether a new constitutional convention has emerged, Brown J. infers a new constitutional convention that judicial vacancies should be filled in a timely manner from the convention that the Prime Minister and Minister of Justice have “exclusive authority to advise” about appointments. This is impermissible and a major clue that Brown J. was seeking to invade the jurisdiction of the executive.
OBITER: EVERYBODY STAY IN THEIR OWN LANE
Justice Brown’s taking jurisdiction and the manner in which he found new constitutional conventions to underlie his declarations leads the Federal Court to issue a rebuke not only about judges staying in their proper lane, but, in a slight non sequitur, also other branches of government:
… the judicial branch of government, like the other two branches of government—the executive and the legislative—fortify themselves by acting properly within their legitimate spheres of competence. In the case at hand, in deciding as it did, the Federal Court overstepped its jurisdictional bounds…. That being said, just as the judiciary must accord respect and deference to the legislative and executive branches, so too must those branches reciprocate that respect and deference. This appeal serves as an important reminder that maintaining reciprocal respect and deference between the branches of government is a fundamental principle in a democracy under the rule of law. (Hameed (FCA), para. 62; citation omitted)
And so while Brown J. overstepped his bounds, the FCA takes the opportunity to remind the executive and legislative branches that the constitution provides them, too, bounds that they should respect. Just in case, hypothetically, there are perhaps premiers out there who have a tendency to ignore the constitutional structure. (Never mind President Donald Trump’s disrespect for the courts, not that the Federal Court of Canada would have that in mind, of course).
This statement by the Federal Court of Appeal must be seen in the context of recent statements by other judges about the importance of judicial independence. Telling the executive and legislative branches that they should acknowledge and abide by the appropriate role of the judiciary goes to principle of judicial independence. A statement that courts should take care to stay within their own jurisdiction also requires they respect and defer to the jurisdiction of the other branches. Overzealous courts encourage public disdain or lack of respect by the public.
Developments and processes in the United States have a tendency to filter down to Canada or to be misapplied by Canadians, whether a rise in opposition to vaccinations, misunderstandings about how our political system works or a growing disrespect for judges, among other things.
In the United States, President Trump is not the only politician to show contempt for the courts, whether in cases in which he is a defendant or in government cases, but he is certainly the most significant and powerful. His call to impeach judges whose decisions he did not like impelled Chief Justice Roberts of the Supreme Court of the United States to issue a rare statement: “Chief justice pushes back against calls to impeach judges who rule against Trump”.
At least one Canadian law organization has felt compelled to “express [its] grave concern” about Trump’s attacks on the legal system in the United States, especially his retributive actions against law firms that acted against his interests: “Statement from the Federation of Law Societies of Canada on Threats to the Rule of Law, the Independence of the Bar and Judicial Independence in the United States” (March 21, 2025). (On Trump’s treatment of the law firms, see my Slaw post, “’Let’s Kill All the Lawyers’: Trump’s EOs in the Spirit of Bills of Attainder” [April 2, 2025]).
In Canada, Premier Doug Ford of Ontario has been particularly outspoken about his disagreement with judges (see, for example, the CBC story, “Ford rants about ‘bleeding-heart judges’ who are ‘overruling the government‘”). His comments elicited a statement on April 30, 2025 from the provinces’ three chief justices: “Public Statement by Ontario’s three Chief Justices regarding Judicial Independence”. Chief Justice Wagner of the Supreme Court of Canada said, “I support, entirely, their statement” (quoted in The Globe and Mail, “Supreme Court Chief Justice says Canada has strong legal system amid Trump clashes with U.S. judiciary” (June 10, 2025)).
How does all this relate to Hameed (FCA)? The Federal Court of Appeal may have chastised Brown J. for his foray into the executive world of judicial appointments, but it did not need to do so to overturn his decision. The FCA’s comments about the branches of government respecting each other’s constitutionally mandated roles and avoiding straying over the boundaries (not always so clearly delineated) should be seen in light of these developments and statements to which I referred, as well as others.
While it may more often be overreach by the executive or the legislature with which we need to be concerned if we value judicial independence rather than forays by judges that threaten the functions and responsibilities of the other branches (not everyone will agree with that assessment, of course), stepping too far out of bounds may have other consequences. Underlying the “improper” treatment of courts and lawyers both in the United States and Canada risks contagion to the general public. While criticism of the courts and judges (and lawyers) is often warranted, the type of criticism, the language used and who is making it are significant. Maintaining the borderlines in the relationships among the three branches is a precondition for maintaining a constitutional democracy in which the public, even while being critical and disagreeing, nevertheless treats the judiciary and the executive/legislature as legitimate. Both judges and the executive and legislature play a crucial part in that objective.0