Attorney General Arif Virani on how he works to expedite federal judicial nominations

Virani spoke about his priorities and challenges in filling vacancies and passing legislation

Attorney General Arif Virani on how he works to expedite federal judicial nominations
Minister of Justice and Attorney General of Canada Arif Virani

Minister of Justice and Attorney General of Canada Arif Virani has been in this role since 2023 and was first elected to parliament in 2015. Before that, he worked as a government lawyer in Ontario’s Ministry of the Attorney General.

Virani spoke with CL Talk about his career, judicial nominations, and legislative priorities. He explained his efforts to expedite federal judicial nominations despite over 60 vacancies nationwide.

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Below is a summary of the conversation, edited for length and clarity:

Tell me a bit about your career before you joined politics.

I studied political science and history at McGill for my undergraduate degree and law at the University of Toronto. I then worked for a few years on Bay Street at Fasken Martineau, doing commercial litigation. I also received the Fox scholarship to do barrister training in England.

I switched to working as a Crown Counsel a few years into my career. I was working at the Attorney General's office in the constitutional law branch, where I did litigation work related to the Charter and the division of powers, providing legal advice and arguing cases at all levels of court around the country. I did that for about 12 years until I put my name in the ring to run for office in 2015.

What drove you to go into politics?

I read a book about the Prime Minister's father when I was 16 or 17. That piqued my interest in one day running for office.

I was also confronted with some of the legal work I did as Crown Counsel and extracurricular, including creating a legal clinic in Ontario called the South Asian Legal Clinic of Ontario, or SALCO. That was a great idea, and we got up and running, and it took about nine years. I realized through that process that it might have gone a bit faster had we had an ally on the inside, particularly at the decision-making table like the Cabinet table. We would have benefited from an ally inside, and I wanted to be that ally.

Pragmatically, I had an affiliation with the Liberal Party, but it had many leaders over a short time. When Justin Trudeau took over, though, I was comfortable with him. I thought he presented an opportunity for the Liberal Party to return to governing the country.

Lastly, in 2014, I was unhappy with the government, and I have always been honest about that. I decided if I wanted to change the government, I should be part of that change and put my name on a ballot.

Tell me about your previous roles in government.

I've been very fortunate to have been given the nod from the Prime Minister to take on several different tasks.

I came here as a Ugandan refugee in 1972 at the tender age of one, and the first thing that the Prime Minister asked me to do was assist John McCallum as his parliamentary secretary of the Syrian refugee resettlement. So that's what I occupied myself with for the first year and a half of my political career. It was a fantastic experience; it was coming full circle for a refugee to assist the next wave of refugees 42 years later.

After that, I was given the nod to be the parliamentary secretary to the minister of heritage. There, I got to work on promoting multiculturalism and Indigenous language protection, which I never thought I would touch on as a parliamentarian. This was one of the most rewarding files I've ever touched. It gave me a sense of historical injustice and how much work needs to be done on reconciliation.

I then served as parliamentary secretary to two ministers of justice. That was right up my alley as a constitutional and human rights lawyer. I served under Jody Wilson-Raybould and David Lametti as both of their parliamentary secretaries. I learned how the department works, which has served me well in my current role.

I was most recently parliamentary secretary to the minister of international trade, which gave my work a global dimension.

All those responsibilities gave me a good background and understanding of how Ottawa operates, including work that was externally facing, international and domestic, and a lot of legal work.

According to the Office of the Commissioner for Federal Judicial Affairs Canada, 65 federal judicial vacancies across Canada are currently available. Is that number consistent with your records, and what is your government doing to address those vacancies?

The current number of vacancies is 61, and we're doing a great deal. This has been honestly one of my top priorities since taking office because I feel this is very much the bread and butter or meat and potatoes part of my job. We need to appoint judges of the highest calibre who represent the diversity of this country.

In the last 12 months, I have personally appointed 92 judges. When you combine my record with David Lametti’s, it is 122 judges.

To compare, the average annual number of appointments for the government I sought to replace in 2015 was 65. So, on that metric, we're working at a pace that is almost twice the pace of the previous government.

However, your audience consists of scrutinizing Canadian lawyers, and I'm one of them. That doesn't mean the pace is necessarily as brisk as it needs to be. So, what are we doing to keep up the pace?

I immediately gathered my team on the political side and said, “How are we doing with the applications? And do we need more staff?” I added to the staff, on top of my political stuff, to deal with judicial vacancies.

I also said, “How do we diagnose what's taking so long? What's increasing the length of time?” One thing I heard about was security checks. We made two targeted changes to security checks to speed them up. One is that when an individual applies through the comprehensive evaluation form, we will do the security check simultaneously to speed things up. Secondly, I worked with the Privy Council Office and the Department of Justice to say, “I've got a constitutional imperative to appoint judges and meet the requirements of not causing delays that might go offside of Jordan.” Therefore, I don't think my applicant should be treated the same way as an application, with all due respect, to the Port Authority in Vancouver or a registrar's office in Halifax. Until I intervened, they treated all security obligations equally, whether for a judicial or another vacancy.

We also said that the Judicial Appointments Committees would run for three years instead of two because some of the JACs were lapsing, which creates a gap in time when applications are not being considered.

Lastly, I extended the maximum time for an application to be assessed from two to three years, creating a longer window for an application to sit there.

I protect myself and our government by never appointing somebody the JAC did not recommend. The JAC will determine whether a candidate is recommended or highly recommended. I only consider recommended or highly recommended candidates because that gives some integrity to the process.

Honestly, I'm a bit of a pain in the rear end for my staff regarding how frequently I interrogate them. “How many more are we getting next week? What is it looking like? What do you need me to do?”

My staff jumps around if I take longer than about 45 or 60 minutes to review a set of applications because I review them quickly. And I do so because I understand the urgency; it's literally a constitutional and very high priority for me.

Are you looking to change anything else about the Judicial Advisory Committees?

I've convened meetings of the JACs, which hadn't been done for about four or five years. We had a Zoom call convening the chairs of the Judicial Appointments committees around the country.

I emphasized to them the importance of their work and speed. I wrote to them and asked them to meet frequently, including as frequently as monthly, when they have a backlog of applications to deal with.

We made changes to the composition back in 2015. There are eight members of a JAC. One is a representative from the law society, the CBA, representatives named by the provincial chief justice, attorney general, and three government nominees.

You have one ex officio non-voting member from the Office of the Commissioner for Federal Judicial Affairs, which is important. We also try to ensure that it's a diverse composition because we're trying to provide high-quality jurists who represent the diversity of this country.

I've been very active in doing a travelling roadshow around the country. Whether in Vancouver, Halifax or anywhere in between, from coast to coast to coast, I have frequently engaged with bar associations. I'll say quite openly to the people that are listening. “If you think you have the aptitude and capacity to do this, I encourage you to look at the application, fill out the application, and submit an application.” You need to have ten years of call, but sometimes, people need a gentle nudge to put in an application. I'm providing that nudge nationwide, including with groups like the Indigenous Bar Association, the Canadian Association of Black Lawyers, the South Asian Bar Association, and the Federation of Asian Canadian Lawyers.

You name it, it's critical for me to get the word out among those communities to feed that deep applicant pool.

In terms of changing the composition of the JACs, we're trying to ensure that they remain vibrant and sit regularly.

A few have expired in one part of Quebec, Alberta and Manitoba. Manitoba has no vacancies, but Quebec and Alberta do. I hope to have good news for you soon concerning the reconstitution of both JACs. Any extended time lag for the existence of a judicial appointments committee can cause delays further down the line.

What happens after you review candidates?

It goes to the Prime Minister's Office, and you ultimately have all appointments ratified by Cabinet. I think it's also important to understand that I can only work as fast as there are Cabinet-scheduled meetings. We've had recent instances where people have commented on time lags and delays during times such as COVID. During 2021, there was a five-month period when there was a federal election where we didn't have cabinet meetings, which by necessity delayed the process of making judicial appointments.

Canada's population is growing quickly, so judicial positions should also increase.

We try to calibrate where the needs are and be attentive to them.

The provinces can give us a business case about what they think if their needs expand. There are now 995 federal judges at superior courts around the country. One hundred sixteen of those positions were created by our government since 2015.

In the 2024 budget, after Alberta decided not to use the 17 unified family court judges allocated in 2018, we reallocated them to other parts of the country with acute judicial vacancy needs. Originally, Alberta asked for them, but then they decided they couldn’t use them. We talked and wrote to them about it on repeated occasions.

So, it’s important to show flexibility and be attentive to the business presented by any part of the country.

I'd also encourage people to understand the math on vacancies is not particularly linear. For example, at the beginning of 2023, there were 89 vacancies. David Lametti and I appointed 100 people that year, yet we ended the year with 78 vacancies, so we only made a dent of 11. Why? Some people retired, which we can predict, but many more judges went supernumerary, i.e. part-time status, and were considered vacancies. That is hard to predict. We know when somebody's eligible for supernumerary status, but we don't know whether they will choose that status.

That begs the question of keeping up with those other factors. We're trying to do so as best we can. You don't get to this role without being a type-A lawyer who likes success, and that's what I'm trying to do.

The numbers are significant, but so is diversity. How are you looking at that?

I've contacted 92 people to elevate or appoint them for the first time. I talked to them about the justice system, the administration of justice, and ensuring that it is held in high repute and that Canadians have confidence in it. I firmly believe, and the Prime Minister echoes this, that Canadians' confidence in the administration of justice is enhanced when they see themselves reflected on the bench.

I would say look no further than the last three Supreme Court appointments. Those previous three appointments include the first Indigenous person on the bench, Justice Michelle O’Bonsawin, and the first racialized person, Justice Jamal. Now, with Justice Mary Moreau, we have five women on a panel of nine in the Supreme Court of Canada. It's the first time we have a majority women in the Supreme Court's history, and it may be the first in any G7 country internationally. That's notable.

I think that starts at the top; it doesn't end at the top. We've tried to do that with courts of appeal and superior courts nationwide. And I'm proud of the fact that we are appointing racialized candidates, for example, at a higher rate during my short time as minister than we've done in the past. Fifteen percent of the judges we have appointed since 2015 have been racialized. For me, that number climbs to 21 percent. We are working with LGBTQ people, persons with disability, and Indigenous people.

Bilingualism is not just an asset at the Supreme Court of Canada; it is an asset when I've got a vacancy in Saskatchewan or Nova Scotia; this is an asset everywhere we look. So please, if there's a message to send your readers, consider applying and don't hesitate to keep working on your French. Lifelong learning is a good thing for all of us, but as lawyers, it is critical.

Many advocates for Indigenous communities say that the bilingual requirement is a significant impediment to appointing qualified Indigenous judges. Is there any openness to reconsidering that in any way for the Supreme Court of Canada?

This policy comes from the top right. Prime Minister Trudeau envisaged this when he first became leader of the country, and he has stuck by it for all his appointments to the Supreme Court of Canada.

I think it's an important policy, as it reflects the need for a national court to represent our two official national languages. We've managed to do that and have Indigenous representation in the Supreme Court of Canada. What I would say to people who aspire to that level is that if you are gunning for one of the top jobs in Canada under this government, the requirement to be effectively bilingual and to be able to hear, listen and understand submissions without the use of an interpretive device, is something that is very much a priority for Prime Minister Trudeau, and will remain so.

What are your most pressing legislative priorities?

Three things are on the table in the House of Commons right now. I'd like to see all of those pass the finish line.

The fundamental one is Bill C-63, which deals with online harms and safety. We spent about three-plus years in consultation on this piece of legislation. It deals with social media platforms' duties regarding the content they post, keeping children safe, removing certain content, and acting responsibly. That's era-defining.

You've seen a progression in some of our actions regarding social media companies, such as supporting local media, but this is fundamentally about keeping Canadians safe, which I feel is one of my fundamental priorities as Minister of Justice and Attorney General.

It's about ensuring a takedown requirement on certain types of material. That includes two of the seven categories with a takedown requirement. Those two categories are child sexual abuse material and what we call revenge porn.

Five other categories of material deal with incitements to violence and terrorism, hatred, and things like bullying a child and inducing a child to self-harm.

I'm very keen to ensure that we have a debate on this bill, that we get it into committee, and that we make any necessary amendments.

There's other work that I'm doing on Indigenous reconciliation that relates to a non-derogation clause to the Interpretation Act, which is fundamentally about ensuring Aboriginal and treaty rights are protected.

The last piece is Bill C-40. I'm very seized with the over-representation we have in the justice system and the correction system of Indigenous and Black Canadians. We're working on strategies to reduce that over-representation and have been doing so for a while. One bill already in Parliament is called the Miscarriage of Justice Review Commission. It would take this responsibility out of my office and dedicate the task to a neutral commission that seeks out cases that might involve wrongful convictions. This is a model that's already used in the United Kingdom.

What is your government doing on domestic violence?

People should look at what I've been saying and what our government's been investing in. For domestic violence, particularly what we call intimate partner violence, I've been quite clear, in the wake of a pretty notorious coroner's inquest here, about calling the rash of intimate partner violence an epidemic in this country.

We've gotten behind a bill that would amend legislation to create a course of control offence in this country. This legislation follows similar legislation passed in other parts of the world, including in the UK.

What about medical assistance in dying?

We passed legislation this spring to extend the temporary suspension on MAID being made available to those with mental illness as the sole underlying condition. That will be addressed in a future Parliament by March 2027. However, a couple of other areas remain to be considered, such as advanced directives and whether they can be applied to the main regime as we now have.

The idea is whether somebody under 18 could be able to provide their consent for the administration of MAID.

There has been a significant increase in auto thefts in Canada.

It's certainly a continuing concern for my government, and I hear about it from my constituents, as do my fellow parliamentary colleagues. In the last couple of months, we've made significant investments in law enforcement and border controls; almost $200 million has been dedicated towards the Montreal Port’s safety and security, Interpol, and law enforcement in Ontario and Quebec. That seems to be the ground zero for auto theft. It's elsewhere but mainly occurring in those two provinces. Those investments are bearing fruit. In the last four or five weeks, CBSA has seized about 600 vehicles at the Port of Montreal.

CBC reported that there are domestic sales of stolen vehicles happening right now. That requires our focus to be somewhat redirected because the vehicle identification number is removed, a new one is put on, and now that stolen vehicle becomes “legitimate for sale.” That's a whole other kettle of fish that doesn't relate to our enforcement requirements at the border. I've raised this with the Premier of Ontario because we've been looking at Service Ontario in Ontario, which deals with vehicle VINing, etc. There's been a privatization of services at Service Ontario. So, is that contributing or not to this phenomenon?

Budget 2024 discusses investments and amendments to the Criminal Code that I will propose to the Budget Implementation Act to determine who's orchestrating this. There's an organized criminality component. Gone are the days of the joyride by the random teenager on a lark. This is orchestrated in Canada with international links. We're proposing to look at aggravating factors and increase maximum penalties.

If you want to get tough with organized crime, you've also got to deal with money laundering and proceedings in unlawful financial activities that arise from the proceeds of crime. Since the fall economic statement, legislation has been on the books on the floor of the House of Commons, and the official opposition has opposed it vociferously. We've got a further set of money laundering initiatives included in the Budget Implementation Act.

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