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Courts - Inadequate Judicial Appointments. Canada (Prime Minister) v. Hameed
In Canada (Prime Minister) v. Hameed (Fed CA, 2025) the Federal Court of Appeal allowed a Crown/PM appeal from a partly granted JR, here respecting "an order of mandamus or, in the alternative, a declaration pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c F-7, to compel the Prime Minister and the Minister of Justice to appoint judges to fill vacancies in the Federal Courts pursuant to section 5.2 of the Federal Courts Act, and across Canada in provincial superior courts pursuant to section 96 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)":[1] In a letter dated May 3, 2023, and addressed to the Prime Minister of Canada, the Right Honourable Richard Wagner, Chief Justice of Canada and Chair of the Canadian Judicial Council, expressed "“deep concern with regard to the significant number of vacancies within Federal Judicial Affairs and the government’s inability to fill these positions in a timely manner”" (Hameed v. Canada (Prime Minister), 2024 FC 242 (Decision) at para. 1). Chief Justice Wagner further described the issue of judicial vacancies as "“untenable”" and underscored the threat these vacancies pose to democratic institutions (Decision at para. 1).
[2] Shortly after, on June 20, 2023, Yavar Hameed (the Respondent) brought an application before the Federal Court based in part on that letter. In so doing, the Respondent sought an order of mandamus or, in the alternative, a declaration pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c F-7, to compel the Prime Minister and the Minister of Justice to appoint judges to fill vacancies in the Federal Courts pursuant to section 5.2 of the Federal Courts Act, and across Canada in provincial superior courts pursuant to section 96 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.). The Respondent further requested that the Prime Minister and Minister of Justice fill the vacancies "“within the later of three months of the date of [the Federal Court’s] Order, or within nine months of their having become aware the positions would be vacated”" (Decision at para. 25). The Respondent otherwise sought a declaration to that effect (Decision at para. 26).
[3] On February 13, 2024, the Federal Court (per Brown J.) partly granted the Respondent’s application (Decision at para. 20). In its Decision, the Federal Court considered a number of issues: its jurisdiction to hear the application, the applicable federal common law and constitutional conventions, the admissibility of the Respondent’s evidence, the issues with respect to granting mandamus, the Respondent’s standing to bring the application to the Federal Court, and the grounds for granting declaratory relief.
[4] More particularly, the Federal Court dismissed the requested order for mandamus on the basis that neither the Prime Minister nor the Minister of Justice have a legal duty vis-à-vis the judicial appointment process (Decision at paras. 166-174). However, the Federal Court issued a declaration on the basis of a newly recognized constitutional convention to the effect that "“judicial vacancies on the provincial Superior Courts and Federal Courts must be filled within a reasonable time”", and with "“[the] expectation that the number of vacant positions will be materially reduced to the mid-40s”" (see Decision at paras. 18, 20).
[5] Specifically, the Federal Court issued the following declarations at paragraph 200:1. All federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice. In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet.
2. Appointments to fill judicial vacancies under section 96 of the Constitution Act, 1867 and section 5.2 of the Federal Courts Act must be made within a reasonable time of the vacancy.
3. Appointments to fill current judicial vacancies are required for the reasons set out in the letter from the Chief Justice of Canada and Canadian Judicial Council to the Prime Minister of Canada dated May 3, 2023, reproduced herein.
4. The Court makes Declarations 2 and 3 above in its expectation that the number of said judicial vacancies will be materially reduced within a reasonable time such that the total number of judicial vacancies returns to the mid-40s, that is, to the number of federal judicial vacancies in the Spring of 2016; in this manner the Court expects the untenable and appalling crisis and critical judicial vacancy situation found by this Court as identified by the Chief Justice and Canadian Judicial Council will be resolved.
[Emphasis in the original] [6] Before this Court, the Prime Minister and the Minister of Justice (or the Appellants) appeal the Federal Court’s Decision and primarily argue that it lacked jurisdiction to hear the case. Further, the Appellants argue the Federal Court made a number of errors, namely in recognizing a new constitutional convention, in admitting some evidence, and in granting the Respondent public interest standing. . R. v. S.A.
In R. v. S.A. (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal, here regarding Charter s.11(b) ['unreasonable trial delay'] issues - and involving a useful practical discussion of unfulfilled judicial vacancies and their effect:[1] This is a Crown appeal from a stay of proceedings following a finding of unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The application judge found that the delay in this case was unreasonable even though it fell below the applicable ceiling under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which in this case was 30 months. In her view, a factor that contributed to the delay was unfilled judicial vacancies. In assessing the reasonableness of the delay, she considered what would be typical for a comparable case in the jurisdiction if the court were not under-resourced. She found that the case had taken six to ten months longer than “what should be typical” (emphasis in original). Ultimately, she concluded that this was one of the “rare and clear” cases where a stay of proceedings was warranted.
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[18] The application judge’s findings of fact are owed deference on appeal, but her legal analysis, including her determination that the delay is unreasonable for purposes of s. 11(b), must be correct: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.
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(1) The Jordan framework
[20] In order to explain where the application judge went off track, it is necessary to briefly review the well-known Jordan framework.
(a) The presumptive ceiling
[21] Central to the Jordan framework is the “ceiling beyond which delay is presumptively unreasonable”: Jordan, at para. 49. This ceiling – 30 months in the Superior Court of Justice and 18 months in the Ontario Court of Justice – is the “most important feature” of the new framework: Jordan, at para. 49.
[22] Ceilings are intended to provide “meaningful direction” to those working within the administration of justice about their s. 11(b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: Jordan, at paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108.
[23] In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates and well aware that “resource issues are rarely far below the surface of most s. 11(b) applications”: Jordan, at para. 117. To this end, the ceilings set in Jordan were said to “reflect[] the realities we currently face”: Jordan, at para. 57.
(b) Cases below the ceiling
[24] The majority signalled that stays of proceedings under the ceiling will occur only in rare cases where there is clearly unreasonable delay: Jordan, at para. 48. By remarking upon the anticipated rarity of staying cases under the ceiling, the majority made specific note of three factors that had been considered in calibrating the ceilings of 30 months for cases in the Superior Court of Justice and 18 months for cases in the provincial court: the increased complexity of cases, their inherent needs, and a certain “tolerance for reasonable institutional delay”: Jordan, at para. 83.
[25] As explained above, the defence may establish unreasonable delay below the ceiling only if the defence can establish two things, that: “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (emphasis in original): Jordan, at para. 82; see also R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at paras. 4, 70, 104. In determining whether a case took markedly longer than it should have, case-specific factors will inform how to characterize the delay: Jordan, at para. 51; K.J.M., at para. 75. Those factors will include the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.
[26] As for local conditions, trial judges “should ... employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: Jordan, at para. 89. At the end of the day, trial judges assessing whether the case has taken markedly longer than what was reasonably required are advised to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[27] I also note that, as for the Crown’s role in the matter, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded if the Crown has done its part to ensure that the matter proceed expeditiously: Jordan, at paras. 90, 112.
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[34] The application judge raises a valid practical concern about judicial resources. As she noted, it is one that is shared by Canada’s judicial leaders, who have publicly expressed the concern that delays in filling judicial vacancies have a detrimental effect on the administration of justice and the functioning of the courts. Here, however, the problem is that the application judge allowed her practical concern to cloud her legal analysis. In my view, there are several problems with the application judge’s approach.
[35] First, the focus was erroneously placed upon whether this and other cases could have been heard more quickly if all judicial vacancies had been filled. But the legal question was not whether the case could have or should have taken less time if there had been more judicial resources. As the Supreme Court explained in K.J.M., at para. 107, “the issue is not whether the case should reasonably have been completed in less time.” Rather, the issue is “whether the case took markedly longer than it reasonably should have”: K.J.M., at para. 107 (emphasis in original). In answering that question, the application judge should not have started from the position that the state acted unreasonably in failing to fill every judicial vacancy. Instead, she should have started from the position that the state brought the respondent to trial within a presumptively reasonable time, and, from that starting point, should have asked whether the respondent had rebutted the presumption of reasonableness.
[36] Second, the application judge found that the “failure to provide adequate judicial resources is unreasonable.” To be sure, judicial vacancies should be filled in a timely manner. About that, there is no question. But the reasonableness inquiry under s. 11(b) engages with a very specific legal framework. Although delays in filling judicial vacancies may be understandably described as “unreasonable” in a colloquial sense, it is not unreasonable, in and of itself, within the meaning of s. 11(b) of the Charter. Conflating those uses of the term unreasonable constitutes error.
[37] Third, the application judge found that, if all vacancies were filled, “it would be highly unusual for cases not to be heard when scheduled.” Again, that is not the legal question. The command of Jordan is not to ask whether the case could be heard when first scheduled, but whether it took markedly longer than it reasonably should have.
[38] As a practical matter, I would note that some jurisdictions in Ontario, including Toronto, schedule on the basis that not all trials will go ahead on their trial dates, especially first trial dates. As this court noted, “[t]he practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial” and “given the pressures on the parties to set dates in order to keep the case moving forward, ... a first trial date may be more aspirational as to timing than it is realistic”: R. v. Campbell, 2022 ONCA 223, 412 C.C.C. (3d) 510, at para. 24. Other reasons a case may not go ahead as scheduled include last-minute resolutions, sickness and so on.
[39] Whatever the reason, those trials that do not proceed on their trial dates fall within the “collapse rate”, something that has “always existed in the criminal courts”: R. v. Lui, 2024 ONSC 2022, at para. 26. As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or “stack” trial lists. Code J. noted this reality in the Toronto region: “[t]here are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably ‘collapse’, either on the trial date, shortly before the trial date, or shortly after the trial date”: Liu, at para. 27.
[40] A judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials. Done properly, stacking will generally reduce trial delays. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.
[41] In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 92 O.A.C. 345 (C.A.), at para. 27, aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.
[42] Fourth, the basis of some of the statements in the decision under review appear speculative. For instance, it is said that trials being set in 2022 “were set with the expectation that the court would have a full complement of judges at the time of the trials.” Similarly, it is said that cases were “scheduled with the expectation” that the court would have “adequate judicial resources”, an expectation that was not met because of unfilled judicial vacancies.
[43] Although those responsible for filling judicial vacancies must work with all diligence, the aspirational goal of a full complement of judges is not always realistic. As recognized in R. v. Als, 2024 ONSC 1428, at para. 45, “[o]ut of a complement of approximately 90 judges in the Toronto region, there will always be a certain degree of turnover that cannot be accurately forecast and there isn’t really a practical capacity to appoint judges on stand-by in excess of the statutory limits to await such un-forecast vacancies.” Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times,[1] but that is not the constitutional yardstick for determining whether there is unreasonable delay below the ceiling. Quite simply, if the accused was brought to trial within a reasonable time, it does not matter how many judicial vacancies there were and, conversely, if the accused is not brought to trial within a reasonable time, the fact there was a full complement of judges will not necessarily save the prosecution.
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