The outside of the Supreme Court of Canada in Ottawa in Oct., 2025.Sean Kilpatrick/The Canadian Press
The real answer to the challenges created by judge-made time limits for criminal proceedings in Canada is to fix the problem of delay, not to pretend that failure doesn’t matter.
Nearly a decade has elapsed since the Supreme Court of Canada set timelines for criminal proceedings, and now the federal Liberals are throwing up their hands and crying uncle. Under proposed legislation known as Bill C-16, judges would be encouraged not to toss cases that breach an accused person’s right to a timely trial. It is an admission that the system simply cannot get its act together. Justice delayed would be all but woven into federal law.
And what are those time limits, set by the Supreme Court in 2016, in a case called Jordan? In superior court, 30 months, and in provincial court, 18 months. This is hardly a headlong rush to trial. By contrast, the U.S. Speedy Trial Act says a trial begins 70 days after charge, with some allowance for pre-trial motions and complex cases.
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It’s time to get back to the hard work of rethinking and reconfiguring the system, work that got underway almost immediately after the ruling but faded out during the early days of the pandemic, never to return.
Is a fix even possible? Of course it is. Recall the energy post-Jordan, the federal-provincial meetings at the highest political and bureaucratic levels, the reforms such as the curtailing of preliminary inquiries, the judges becoming tougher case managers, the consideration of new technologies, the players in the system beginning to work together to determine what was inessential and could be dropped.
Pouring money into an inefficient system is not the answer. We don’t even know how bad things are. Statscan reports that nearly 10,000 cases exceeded Jordan timelines and were stayed or withdrawn in 2023-24. Some of these, though, may have been lost for other reasons.
Change won’t happen without improved transparency for the public, not just legal insiders, so the critical choke points and slowest jurisdictions can be identified and reformed, and all the players, Crown attorneys, judges, administrators, police, accused and their counsel and legal aid, can be held accountable.
Bill C-16 illustrates the very complacency about delay that the Supreme Court concluded was the problem’s root cause. The proposed law says judges must consider answers other than a stay when they find unconstitutional delay in a case. A stay has been the system’s minimum response to unconstitutional delay since 1987. That’s when justice Antonio Lamer, later the chief justice, made the common-sense observation in a case called Rahey that no one can be tried past the point where delay has become unconstitutionally long.
The government doesn’t specify in Bill C-16 what any new, alternative responses might be. (Presumably a sentence reduction would be one response.) But it does set out, as factors for judges to consider, the sorts of things courts once had to mull in deciding how much delay was too much, such as any harm caused to the victim or the accused by the delay. Jordan dispensed with such amorphous, case-by-case considerations. The timelines confronted a system-wide problem and were meant to shock all the players in that system into action. Now, in a slightly different form, the old approach is back.
Perhaps the Liberal government is counting on the Supreme Court losing its assertiveness. Michael Moldaver, a co-author of the ruling, retired three years ago. In 2006, when he was an appeal-court judge in Ontario, he said in a speech he was “mad as hell” about delay. His anger and refusal to accept excuses rang out in Jordan – a simple case of hard drugs being sold over the telephone that lasted more than four years.
Canadians should be, like Mr. Moldaver, mad as hell about the complacency and delay. The private sector has to meet deadlines. Why not the criminal and for that matter the civil courts?
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Timely justice is not some throwaway right. Swift, predictable resolution is the most powerful deterrent of crime, as the Supreme Court said in Jordan. It also allows victims to move on with their lives. For accused who may not be guilty, it takes them out of limbo. Jordan confronted Canadians with the horror of delay so entrenched the system no longer really perceived it as a serious problem.
The federal government should return to playing a leadership role in finding solutions, rather than trying to opt out of a constitutional right.