Dylan R. Clarke is a CUSP fellow at West Neighbourhood House and a contributor to the Macdonald-Laurier Institute.Most Canadians recognize this familiar adage, even if they rarely stop to think about what it means in practice. Unfortunately, in Canada’s criminal courts, it’s not just a slogan — it’s a daily reality.For nearly half a century, while crime rates have generally declined, the number of people held in pretrial custody — all of whom are presumed innocent — has risen relentlessly in every province, growing by about five percent each year since 1978. At that pace, the remand population doubles every 15 years.Clearly, Canada has a court congestion problem, and it’s leading to a systemic failure of justice.In 2016, the Supreme Court of Canada attempted to cure chronic court delay by imposing strict, judge-made deadlines on how long criminal cases may take. Under its Jordan decision, cases that exceed these timelines are presumptively thrown out, regardless of their merits. The predictable result has been thousands of cases stayed and withdrawn each year due to the strict deadlines. Faced with the fallout, courts are now stretching Jordan’s “rare and exceptional circumstances” exception to keep cases alive, an improvisation that has once again reached the Supreme Court in Vrbanic. This cycle of rigid rules followed by ad hoc escape hatches suggests a deeper problem: the Court didn’t fix the delay problem, but passed it along. We now need Canada’s legislatures to effectively address this legal crisis.Unfortunately, we’ve seen this same situation play out before. The Court made a similar mistake in the 1990s, inadvertently setting ceilings at six to eight months in Askov, which it had to rapidly self-correct two years later in Morin, the prevailing framework up until Jordan. Justice Cory himself apologized publicly. The jurisprudence on the constitutional right to a trial within a reasonable time has never been our most well-thought-out area of the law.Six months, eight months, eighteen months, thirty months — none of these numbers have any special constitutional significance; they merely reflect one of the Supreme Court’s most Kafkaesque exercises in arbitrariness. What counted as an unconstitutionally lengthy delay has apparently shifted between 1990 and 2016 — by a wide margin. The Supreme Court is clearly at the point where it is making public policy from the bench rather than performing its role in judicially reviewing acts of Parliament or executive action..While the Supreme Court’s ultimate goal — swifter justice — may be noble, the better course is to allow provincial legislatures, or where appropriate, Parliament, to take the lead. The principle of subsidiarity suggests that such matters are best addressed locally. Governments closest to the problem are usually most capable of responding to it. As Justice Rowe reminded us in oral arguments during R. v. R.B.-C., “Canada doesn’t start in Scarborough and end in Mississauga.” When courts try to tackle complex, polycentric issues, Jordan’s one-size-fits-all framework is the inevitable and unfortunate result.However, if provincial legislatures do tackle the problem, they must first carefully examine the sea of available data on how to construct these ceilings. For example, certain crimes take substantially longer than others to reach a result, and this may differ dramatically across provinces with different caseloads.The separation of powers demands a new approach to the right to trial within a reasonable time that confines the Court to its proper role in judicially reviewing acts of Parliament and not judicial policymaking.If we were to revisit the law regarding the right to a trial within a reasonable time, several different paths could be considered. One approach would involve legislatively setting ceilings, which would be established through consultation with experts. Another option could be to implement ceilings that vary depending on the type of offence and geographical location. Additionally, it would be beneficial to clearly define exemptions rather than relying on the vague notion of “rare and exceptional cases.”The future of the right to a timely trial cannot be reduced to rigid deadlines on the one hand or endlessly flexible standards on the other. We need a practical, evidence-based approach — one that uses real data to shape rules that respond to how justice operates across the country. The Supreme Court can’t tackle this alone — nor should it. The right to a speedy trial dates to the Magna Carta. We must act now to preserve it, before it loses its legitimacy.Dylan R. Clarke is a CUSP fellow at West Neighbourhood House and a contributor to the Macdonald-Laurier Institute.
