The Current - Thousands of criminal cases dismissed because Jordan rule

Episode Date: December 2, 2025

The Supreme Court is set to hear a case about the time limits it placed on criminal trials in 2016. Victims who watched those they accused walk free are demanding change — and justice. But a criminal defence lawyer says governments need to fix the justice system, not violate the rights of the accused.

Hi there, Steve Patterson here, host of the debaters, the show where Canada's funniest comedians compete for your laughter. This week's episode is right on cue. Is pool superior to darts? Two sharpshooting debaters are taking this one on, so listen wherever you get your podcasts. This is a CBC podcast. Hello, I'm Matt Galloway, and this is the current podcast. Back in 2016, the Supreme Court of Canada's Jordan decision introduced strict deadlines to ensure that people charged with crimes had the right. to be tried within a reasonable time. Now, almost a decade later, thousands of victims are not getting their day in court. Last year, more than

10,000 criminal cases were stayed or withdrawn in Canada because they exceeded that Jordan deadline. These include serious charges, like murder and sexual assault. Emily Quint had her case of an alleged sexual assault stayed after the case took too long to be heard. We spoke with her last year

about what that experience was like. I wanted accountability. Like, I wanted to be able to say this is what happened to me and for at least somebody out there to say we believe you and this person will be held accountable for that. My case never made it through the system. We were very, very close. I testified and I endured cross-examination and then my case was completely tossed out because we had reached Jordan time limit. And this was something I had never heard about in my entire life.

And all of a sudden, the past two years of my life, every grueling moment, it was just over. Emily says the first two days she showed up at court. She was told to wait because there wasn't a courtroom or staff available to hear her case. A few months later, she says the trial was set to resume. she got a call saying the charges had been stayed because the time elapsed had been found to violate the accused charter right to have the charges heard within a reasonable time. I remember in that moment I was like begging and pleading like, what can I do? Like, this can't be happening.

And then I started to get really angry and I was like, why are the rights of a perpetrator of violence held with more importance than a rights of a survivor? And like, maybe this person did deserve the right to a timely trial. but I also deserve the right to a trial, a full trial and a fair trial. And I feel like I was robbed of that. It was like, how am I going to live in a world that doesn't protect me? It doesn't protect us. Survivors aren't deep important enough.

Like, it was like I actually put my blood, sweat, and tears into the last two years, and it was just all over in a moment and there was nothing I could do. Now, the federal government, along with British Columbia, Ontario and Quebec are headed to the Supreme Court on Thursday asking for more flexibility. A lawsuit has also been launched. Catherine Marshall is a lawyer representing 22 people

who are suing the federal government claiming the staying of their criminal cases because of Jordan violates their charter rights. Catherine, good morning. Morning. We heard from Emily Quint on the program and just heard a couple of clips from her about what she went through.

Tell me about some of the people who were part of this lawsuit. Yeah, so it's a lot of individuals who have been just let down by the system. Some of my clients include women who were told literally the day before their trial was supposed to proceed that there wasn't a judge available and there was going to be no trial. and that because the Jordan timelines had been maxed out, their case was going to get tossed out. I have clients in the lawsuit who have had no contact orders breached 36 times. Their abusive partners are not put into jail. They just keep getting let out again and again and again, pending trials that never happen.

so these are people who really are motivated to change the system because the way the system is working right now is well it's not working what impact does that have on them and again we heard that in emily's voice but what she's gone through when a case is stayed because of a timeline limit what impact does that have on those individuals oh it's it's the most traumatic thing it's almost more traumatic than the initial you know assault that occurred because it takes so much bravery to go to the police, to have charges pressed, to go through the criminal court system, which can be really brutal for survivors. You end up having to go through a lot of really difficult moments. And then to be told, well, you went through all of this, but nothing's

going to happen. You're not going to have your day in court. No trial or no judge is going to hear the facts. It's devastating. The Globe and Mail is reporting that in 2023, 2024, there were 525 cases of sexual assault that acceded the Jordan limits and were stayed or withdrawn. That's 13% of all sexual assault cases, more than one in eight. Beyond the individual, what is the impact broadly on people's confidence in the justice system if that's happening? Oh, I mean, you know, people have a right to a justice system that is actually administering justice. And I think the public faith in our court system is really eroded because all we read about are cases getting thrown out, tossed, you know, stayed, whatever you want to call it, and also, you know,

reading about offenders who are not serving jail time, you know, the catch and release bail system. And at the end of the day, as taxpayers, we're all paying to support a system that, you know, is supposed to be giving justice to people, and that's just not happening. Your lawsuit is suggesting that the 22 people you're representing, their charter rights have been violated because of cases being stayed because of Jordan. There's also the charter right to have your case heard within a reasonable time frame. So how do we square, I mean, it's as though there are two competing charter rights in some ways. How do we square that?

Yeah, I mean, that's a really good question. And I know there'll be like a criminal defense lawyer who's on the show later. And look, this issue has nothing to do with the right of an accused person to a speedy and fair trial. This has nothing to do with the burden of proof or the fact that accused people are innocent and tell proven guilty. That is not what this is about. This is about the right to victims to trial fairness and the right that victims have to actually have their cases go to trial. And right now, the core system is so backlogged.

It's in a crisis. And until that crisis is fixed by appointing more judges, building more courthouses, getting more resources, my view, and this is what we're arguing in our charter case, is that the Jordan timelines should be suspended with respect to sexual violence and domestic violence cases. Because those are the cases that are getting thrown in out the most. Where does that leave that charter right then for people to have their cases heard within a reasonable time frame? Well, I think reasonable is a case-by-case thing. I mean, I think what the Supreme Court of Canada decided in 2016 was that a reasonable time frame was 18 months to 30 months.

I think that was arbitrary. You know, what if it took 31 months? You know, is that unreasonable? Or if 30 months was reasonable? I think it's got to be a case-by-case thing. I think if the Crown is causing the delays, that is unreasonable. If the defense counsel is causing the delays, that matters. But I think the arbitrary cap is a huge problem.

That's why we have cases where they're being thrown out like the day before trial. There is new criminal justice legislation that's coming from the federal government that will, among other things, address Jordan. those delays. Are you confident that that will make a meaningful difference to what you're talking about? No. I mean, I saw some of the legislation, or I read about some of the legislation that's coming out. I don't think what's being proposed is going to make a meaningful change. There's some proposals about, you know, maybe suspending the Jordan timelines when it comes to the evidence collecting part of a case. So I think what really needs to happen is that more judges need to be

pointed immediately. I think courthouses need to be sitting longer. The reality is your average court day is like 10 a.m. to 4 p.m. We should have courthouses having evening sittings. That happens in the UK, for example. So I'm not really confident about that, but I did also read today that apparently the block capic was about to table a piece of legislation to amend the criminal code to deal with the Jordan ruling. So we'll see what that says. Catherine Marshall, good to speak with you. Thank you very much. Thank you. Catherine Marshall is a lawyer representing victims of crime in a lawsuit against the federal government.

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Watch free on CBC Gem. Daniel Brown is a criminal defense lawyer, also past president of the Criminal Lawyers Association. He's with me in our studio in Toronto. Hi, Matt. You and I've spoken about this before, but for people who don't know what this is, what are the Jordan timelines?

These are sort of the outer edges of what is reasonable for a case to make their way through the court system. More minor charges, have an 18-month ceiling, serious charges, a 30-month ceiling. So the expectation that your case will be completed within two and a half years, unless you've done something yourself, the defendant has done something to extend those timelines by delaying intentionally. They can't benefit from that. A defendant can't

benefit from a pandemic. Those types of delays are subtracted from the overall delays. Also, when a case is extremely complex, those cases are also excluded from these Jordan ceiling. So there already are a lot of exceptions built in to this right to have a trial within a reasonable amount of time. But the question is sort of why is it that no matter what we set this timeline at, we simply can't meet those deadlines. Why were the deadlines introduced in the first place? I mean, this is, we say Jordan, this was a case that was in front of the Supreme Court. Yeah. So, I mean, the case, first of all, it started with a constitutional right, just like all these other constitutional rights that are enshrined in our charter rights and freedoms, the idea

that we're going to be presumed innocent until proven otherwise, the right to reasonable bail. One other right is the right to a trial in a reasonable amount of time. Now, what is reasonable has changed over the years in the early 90s? Reasonable was eight to 10 months. By the mid-2000s, reasonable was 12 months. What happened in Jordan was they actually pushed the goalposts all the way back to 18 months or 30 months. And the expectation is that this would surely give the prosecutor enough time to get these cases through the court system and give some of the court system and give some certainty because there was a lot of flexibility in the way that these earlier cases were being decided. So they said, here's the drop-dead date, get these cases done. And what we see

is that there's been a delay creep. If the prosecutor knows that they have 18 months to complete a case, they'll take 18 months to complete a case. So these things are becoming aspirational targets to complete a case as opposed to finite deadlines. You're suggesting that the people are filling the time, the prosecutors are filling the time. It's not just a matter of, I mean, Catherine Marshall was talking, but there aren't enough judges. The courthouses are not operating in a way that is commensurate with the demand and the need. You're suggesting that this is something else? I think that that's a factor.

I think the idea that at times that you need to appoint judges in an expeditious way, I think that's one thing. I think we only have so much money to dedicate to any part of Canadian life, including the justice system or the health care system. And I think we have to work within those boundaries. And if those boundaries say, we can't prosecute every single case that comes into the court system, well, we need to come up with solutions. In British Columbia, one solution is that not every case comes into the court system. They scrutinize cases on the front end to see which ones are viable prosecutions.

Right now, more than half of the cases that come into the justice system are state or withdrawn, but not before a huge amount of time and effort is spent working on those cases and preparing those cases. So who's going to determine whether those cases come in front or not? for those who are looking for justice, if their case does not proceed, they will feel as though the system has failed them. Right. So we know that there are certain cases that are really important. We heard Emily, the recording before, talk about her sexual assault case.

Well, that's a case that ought to be prioritized. Homicide cases ought to be prioritized. Domestic violence cases ought to be prioritized. But what we see is, in fact, we spend a lot of time in court where cases are doomed to fail. Their minor property offenses, they're minor offense that could have been dealt with in some other way where we're prosecuting mental illness, where we're prosecuting drug addiction, where we're prosecuting homelessness. And if we treated those things like a health crisis rather than a criminal justice issue, it would free up the court to deal with the things that matter.

In the meantime, you have provinces like Albert, pardon me, British Columbia, who are going in front of the government and saying, listen, we need to look at those timelines. We need to look at those timelines. We need to look at the drop dead date. The Attorney General of British Columbia, Nucky Sharma, says that there needs to be some discretion for cases that are close to the line. She says, we're not saying the timelines aren't important, but should it be that you just fall off a cliff after a certain time? Is she right, that there needs to be more discretion in what those timelines are? I think already there's discretion built into these timelines. But she says that there's a drop dead date. And if you have a drop dead date, a number of cases are just going to fall off that

cliff because there isn't any discretion. And this was an issue that was addressed by these same crown attorney's offices at the Supreme Court just a few years ago. And what the Supreme Court said at that time was if there isn't a consequence like a case dropping off a cliff, a prosecution no longer being viable, it's a meaningless right because if the prosecutors know there'll always be exceptions and they don't need to actually meet these deadlines, we're going to see cases where people languish in the justice system. We're talking now about denying bail to people on the front end, even more frequently, and yet face of the prospect that you might have to wait two and a half years or more for your case to get through the justice system, a case shouldn't take

two and a half years or more unless it's one of these exceedingly complex cases that are already accepted from these delay rules. There are reasonable ways, you think, to speed up the justice system? I think there's lots of reasonable ways. I think one of them is having off ramps. Once cases come into the justice system, you have ways to deal with people that are suffering from mental health an addiction that don't require you to consume court time to prosecute them. There is in some jurisdictions, in some provinces, they use a much higher level of scrutiny on cases that come into the justice system. So in Ontario, we ask, is there a reasonable prospect of conviction before a case remains in the justice system? But in British Columbia, where they have much better

delay prospects, it's because they use the substantial likelihood test. Is there a substantial likelihood of conviction. And that sounds closer to that proof beyond a reasonable standard that the Crown has to meet at the end of the day anyway. So if we spent less time prosecuting cases that have no hope of being successful and focus more on the cases that need to be prosecuted, should be prosecuted, should have those resources dedicated to it, you're going to find that a lot of these problems are resolved. I guess just if you go back to not just Emily's story, but the stories that even Catherine Marshall is talking about, where does that leave the victims of crime?

If they feel, if they don't feel like the system, I mean, justice has to be done, but it has to be seen to be done. And they don't feel like it's being seen and they don't feel like it's being done. Yeah. And I can appreciate that perspective. But also, you have to imagine that even waiting two and a half years for your day in court doesn't feel like justice. So justice delayed for a victim is also a denial of justice. And the idea behind these efforts to speed up the justice system is it's not just good to hold an offender accountable at the time that they're committing an offense. But it also, brings closure. It offers even a greater chance of success for a victim of crime to be able to tell their story in court. What is there, and I'm not speaking about you or specifics, but what is there to prevent a defense lawyer from dragging out a case so that it goes to that deadline? It's rag the puck, get to that line. We hit the deadline. I'm sorry, the case is dismissed. Yeah. Well, I mean, that... Have you heard of those stories? Well, it would not be a sensible approach because if a defendant... Has it been done, though?

Because when a defendant causes delay, they can fire their lawyer, hire a new lawyer, decline early trial dates. But when they do that, all of that time that they've spent messing around in their case gets deducted from that 18-month ceiling. So it isn't 18 months from beginning to end. It's 18 months subtracted from any delay that the defense, either the defense lawyer or the defendant themselves caused. So it's a bit of a misnomer to think that the defense can cause these types of obstructions

in the justice system and then benefit it from a later. That's absolutely not the case. And so those delays are subtracted. And if it puts them under the 18-month ceiling once you subtract those efforts, then the case won't be stayed for delay. The federal government is introducing, we're told, later this month, legislative changes to help address issues with delays. Jordan will be part of that legislation. Catherine Marshall was not particularly confident that that will deal with what's at the heart of this matter. Are you?

No. And part of what also we're doing here is we're talking about giving less flexibility to judges to craft, for example, sentences that would be fair to an accused person. Everyone's talking about mandatory minimum sentences and other harsh punishments. I think what will be specifically part of this. I mean, if you follow the narrative is that it's going to extend the runway in some ways for some of those cases. Well, I don't think that you can opt out of a constitutional right. And I don't think that you can legislate your way around a. constitutional right. But more importantly, the less flexibility that people have when they're solving their cases, the harsher the punishment will be at the end of the case, the less likely someone is even to accept responsibility and to plead guilty. So we have these sort of approaches where we make it hard for people to get criminal records pardon. We make it hard for them. They get

automatically deported when they're convicted of serious crimes. Well, there's a cost that comes with that in these mandatory minimum sentences. When you take away the flexibility to negotiate a suitable outcome, it puts more burden on the trial system and more time is spent prosecuting cases that don't need to be there. I have to let you go, but just very briefly, what's at stake here, do you think? Oh, I think the reputation, the justice system is at stake. We need to figure out a solution to the problem. But the answer isn't making cases take longer. That's not good for anyone in the system. Daniel Brown, thank you very much. Daniel Brown, criminal defense lawyer here in Toronto. We did ask to speak with Sean Fraser, the federal

attorney general, as well as attorneys general in Ontario and British Columbia, but they weren't You've been listening to the current podcast. My name is Matt Galloway. Thanks for listening. I'll talk to you soon. For more CBC podcasts, go to cbc.ca.ca slash podcasts.