Calling on the feds to close the federal courts’ funding gap

With the Carney government’s first budget fast approaching and concerns growing over a weakening economy and an exploding deficit, the Canadian Bar Association is sounding the alarm that Canada’s creaking justice system is being starved of much-needed funds to fulfill its constitutional mandate.

In a submission to Finance Canada, the CBA states that the federal courts are facing a structural funding gap amid a surge in immigration cases, cybersecurity risks, and new translation requirements. This has led to growing delays and could undermine the courts’ independence and effectiveness.

Jordana Sanft, a lead signatory on the submission and chair of the CBA’s Federal Courts Bench and Bar Liaison Committee, says they acknowledge there are a lot of funding pressures right across the government. However, unlike other areas of government, the courts' mandate is not discretionary — it occupies a unique role within our constitutional framework. The judiciary must be adequately resourced to apply and interpret the laws enacted by Parliament.

"The independence of the judiciary in upholding the rule of law is a critical facet of our country’s government and the protection of its citizens,” she says, noting it’s also essential to maintaining public confidence in our institutions.

“Other countries are throwing some of those concepts out of the window. That’s not Canada, right?”

Structural funding shortfalls for years

The Ottawa-funded courts, including the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, and the Court Martial Appeal Court of Canada, receive their day-to-day funding through the Courts Administration Service (CAS), which has a budget of $208.7 million for the current fiscal year. 

The agency has operated under structural funding shortfalls for many years. Federal Court Chief Justice Paul Crampton says the situation has become so serious that confidence in the immigration system and the integrity of the courts is at stake.

“It’s access to justice because if people have to wait... You know the old axiom, ‘Justice delayed is justice denied,’” he recently told CBC News. 

“If the courts aren’t adequately funded, the rule of law will suffer, and then democracy could suffer.”  

Justice Crampton is due to retire this month after 16 years on the bench.

According to the CBA, the courts have developed a funding gap of approximately $35 million per year due to the growing volume and increasing complexity of proceedings.

At the Federal Court, the number of immigration-related cases has quadrupled from 6,424 in 2020 to 24,667 last year. In the first eight months of this year, the court received 18,887 filings. 

Without sufficient resources, applicants face delays of months or even years to receive a decision or resolution.

Then there are cybersecurity threats, which require investment to protect sensitive court data. There’s also additional pressure in the area of translation, after recent changes to the Official Languages Act required rulings in precedential cases to be translated before they can be delivered.

A relatively simple solution?

Jatin Shory, a Calgary immigration lawyer and chair of the CBA’s immigration law section, says that cases before the Federal Court involving the issuance of a work permit inside Canada are now taking 200-plus days. 

They used to take a month.

“For us, the solution is relatively simple,” he says. 

“We need more money. We need more judges. And we need more judges with immigration experience.”

The Federal Court is taking measures to make its procedures more efficient, including reducing the standard time allocated for some immigration hearings and limiting the number of documents to be filed. The goal is to allow judges to handle more cases each week. 

Still, Justice Crompton says more changes may be required. 

"I'm quite concerned that in the absence of additional resources, delays are going to increase and we may have to take other measures that will reduce the services that the court provides to the public."    

Sanft, a partner at Lenczner Slaght in Toronto who specializes in intellectual property litigation, says that even though the increase in the courts’ caseload has primarily come from the immigration stream, it has had an impact on other procedures before the federal courts. That’s because they share the same registry officers and the same judges. 

“Every one of these judges also has immigration cases. If you call the (court) registry, they're feeling the stress,” she says. 

“We're trying to do everything we can to be helpful. But we don't like to see them overworked and stressed out.”

The CAS, along with the Supreme Court of Canada, has been exempted from the Carney government’s Comprehensive Expenditure Review, which requires most government departments to slash spending by 15 per cent over the next three years.

Agency at a crossroads

However, the agency says it has already had to reduce its operating budget by 10 per cent due to reduced funding and has tapped into the government’s $248 million capital budget for court modernization and expansion simply to maintain operations. 

That budget envelope calls for the construction of a brand-new federal courthouse in Montreal, the modernization of the Toronto courts, and the opening of a new facility in Oakville. CAS must repay funds borrowed from the capital budget by 2028-29.

The agency says it finds itself at a “crossroads,” with access to justice at risk if it is forced to resort to significant restructuring and a reduction in service levels.  

The political pressure on Finance Minister François-Philippe Champagne in the run-up to his Nov. 4 budget is huge, given the trade war with the United States and expectations of a soaring fiscal deficit. His department has received more than 3,700 pre-budget submissions from organizations like the CBA, businesses, and other groups. The likelihood is high that most submissions called for increased spending on behalf of their special interests, not less.

The CBA isn’t just asking for more money, however. The organization would also like to see an independent review of how changes in internal departmental policies, particularly those related to immigration, may have resulted in unintended pressures on the courts. Building on that, there should also be an apolitical process established to ensure stable multi-year funding for CAS that recognizes the courts' constitutional mandate and keeps pace with growing caseload complexity.

Trevor Farrow, dean of Osgoode Hall Law School at York University, says while he’s aware of the competing pressures for scarce funding, he bemoans the fact that it’s often seen as “a zero-sum exercise,” where a budget increase for one portfolio leads to a cut elsewhere.

We need to examine the foundational elements of society, he says, drawing a comparison to a house with a foundation and a roof. 

“To me, the justice system is one of those foundational portfolios. No one likes spending a lot of money on the foundation and roof because you don’t really see it,” Farrow says.

“It’s way more fun to build a kitchen and paint the walls than it is to build a foundation, but the kitchen is nothing without a foundation.”