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University of Miami Inter-American Law Review

Abstract

In 2016, the Supreme Court of Canada issued a landmark ruling in R v. Jordan, requiring prosecutors to try their case within eighteen months in provincial courts and thirty months in the superior courts. Through its holding, the Court sought to protect a defendant’s right to be tried within a reasonable time, a privilege enshrined in the Canadian Charter of Rights and Freedoms. However, at the time of the decision, the Canadian judicial system faced a vacancy crisis. A total of forty-three judicial vacancies existed in the federal courts, a figure that would later rise to eighty-six in August 2023. In due time, Jordan’s shortened timeframe to try cases quickly clashed with increased vacancy rates, leading to prolonged trial delays, the dismissal of serious criminal charges, and weakened public trust in the Canadian justice system. To address these effects, an Ottawa-based lawyer filed suit against the Prime Minister and Minister of Justice in 2023. In Hameed v. Canada, Yavar Hameed requested a writ of mandamus, seeking to compel both officials to fill all vacancies. The Federal Court of Ontario denied the writ but issued declaratory relief. By relying on unbinding constitutional conventions, the court ordered the Prime Minister and Minister of Justice to reduce the number of vacancies and make judicial appointments within a reasonable time of a vacancy opening. On appeal, however, the Federal Court of Appeal reversed the lower court’s decision, holding that it lacked jurisdiction and deviated from established precedent that restricted its reliance on constitutional conventions. This note will analyze the courts’ decisions in Hameed, illustrate why the appellate court correctly reversed the lower court’s ruling, and propose a series of executive and legislative reforms the Canadian federal government should adopt to address judicial vacancies and mitigate their impact.

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