Canadian justice 101

To hear the Lord Chancellor and the Minister for Courts extol the benefits of Canadian-style courts in Parliament and interviews, to support their radical reform proposals arising from the first Leveson Inquiry Report (while materially departing from its recommendations), one might think that the ‘modernising’ model in the Courts and Tribunals Bill (‘the Bill’) mirrors the Canadian criminal justice system (‘CJS’). But the Lord Chancellor’s proposals are not just on a different continent, but on a different planet, than Canada’s CJS.

First and foremost: UK ministers could not be more wrong in suggesting that Canadians do not care about jury trial. In July 2025, the Supreme Court of Canada reiterated that jury trial is ‘flourishing’ in Canada (R v Varennes [2025] SCC 22 [166]). Jury verdicts always must be unanimous; proposals to move to a majority-type model as in England and Wales (‘E&W’) were definitively rejected as undermining juries’ integrity. In Varennes, the SCC asserted that the ‘great strength and virtue’ of the jury verdict rest upon ‘members of the community having come together’ and ‘reasoned together … to reach their unanimous verdict. It is truly a magnificent system for reaching difficult decisions in criminal cases. It has proven itself in the centuries past and continues to do so today.’

Essential precepts of the Canadian CJS

The following describes just some of the foundations of the Canadian CJS which are not present in either the current CJS in E&W or what would emerge if the Bill were enacted in its current form. (For more detailed analysis, see Laura Hoyano’s briefing papers (CTB0129) requested by the Justice Select Committee at tinyurl.com/4cu7u3a8.)

1. Since 1898, criminal law and procedure across Canada have been comprehensively codified in the Criminal Code of Canada (CCC), which is readily accessible to the public. English law still has no statute stipulating the elements of murder, to inform those governed by it. Canadians would not comprehend how a UK court could debate the very existence of an offence or its elements, like peeling an onion and discovering what the law has been all along, only no one had noticed before.
2. The CJS is grounded on enforceable constitutional guarantees for defendants (and complainants), under the Canadian Charter of Rights and Freedoms (1982). Scholars in E&W still engage in abstruse debates over what is a constitutional right.
3. Canadian defendants have a constitutional right to jury trial on charges punishable by amaximum of 5 or more years (Charter s 11(f)) – a very broad swathe of offences. Leveson and the Lord Chancellor contend that jury trial is not a constitutional right in E&W.
4. Importantly, CCC s 553 confers a much wider defence statutory right to jury trial than the Charter, when the Crown charges on indictment (including indicted ‘hybrid’ offences). The indicted defendant’s right to jury trial has no minimum or maximum sentence threshold. There is no strict equivalent of E&W’s either way charges: the Crown elects whether to prosecute a hybrid offence by indictment or summary trial. The summary trial is heard by a provincial court judge alone, with the sentence capped at two years less a day. The trade-off is that if the prosecution want a higher sentence, they accept the defence’s choice of mode of trial. With a short list of exceptions for minor indictable ‘absolute’ offences ( e.g. simple drug possession, theft under CDN$5,000), every accused has the right to trial by jury if charged on indictment. Canadians thus have wider access to jury trial for a greater range of offences than under the Bill, which would sweep all either way offences into the magistrates’ courts.
5. In Canada, constitutional and statutory rules govern the mode of trial and defence rights, not judicial discretion as the Bill proposes.
6. Jury trial is a defence right which can be waived by the defence only, for all charges on indictment. Canadian courts have concluded that defendants cannot be compelled to use a right intended for their benefit such as jury trial, if they on legal advice conclude their best interests lie in a professional trier of fact delivering a reasoned appealable judgment; this is so notwithstanding that there may be a substantial public interest in having a jury (R v Turpin [1989] 1 SCR 1296). The Attorney General’s consent is required for waiver of jury trial in murder cases but that is very rarely withheld; the AG is required to consent if refusal would affect other defence constitutional rights including trial without delay (Varennes). In E&W the right to jury trial is transformed into a requirement. Leveson recommended adoption of the Canadian system of defence right of election of judge-alone trial in the Crown Court, but neither the Government nor the Criminal Bar Association has taken a position on this.
7. All defendants charged with any class of offence, and in all circumstances, have an enforceable constitutional right to trial ‘within a reasonable time’, with effective remedies (Charter s 11(b)). The SCC ruled that this guarantee set up a presumption for superior court trials of a maximum 30 months from formal charge in court to the end of evidence and argument, and 18 months for cases tried in the provincial courts (including trials there on indictment) (R v Jordan 2016 SCC 27). (Time limits also apply for rendering judgment in judge-alone trials, if not delivered orally.) The Crown can rebut the presumption only by ‘exceptional circumstances’ which must be (a) reasonably unforeseen or unavoidable, and (b) could not be reasonably remedied; chronic institutional delay and the offence’s gravity are irrelevant. The presumption is enforced, even in crises like the COVID-19 pandemic, and has been instrumental in alleviating trial backlogs. Jordan time limits are closely monitored in all cases; the 2023 Ontario Practice Direction (tinyurl.com/mpc7zxtu) sets an expectation that all criminal trials will be completed within 15 months of the date of the sworn information (the formal commencement of criminal proceedings against the accused, requiring court approval). Courts have observed that the Jordan rules also benefit complainants and society as a whole. In E&W, Custody Time Limits are the only meaningful mechanism to enforce the HRA/ECHR Article 6 right to trial within a reasonable time, to the detriment of bailed cases in the queue.
8. Defendants charged with any indictable offence (except murder and treason) who have waived jury trial, can also elect whether to be tried by a superior court judge or provincial court judge sitting alone, with the same sentencing powers (the latter still benefits defendants due to the shorter delay limits).
9. Unlike the Crown Court Digital Case System in E&W, Canadian judges sitting with or without a jury do not have access to any case papers at any point, apart from what is necessary regarding an application.
10. All judgments by judges sitting alone are reasoned, facilitating grounds for appeal by defence and prosecution.
11. The Canadian CJS is differently balanced than its E&W counterpart, recognising that miscarriages of justice include wrongful acquittals, not just wrongful convictions. Appeal rights are the same whether verdicts are by jury or judge-alone. The Crown has a right of appeal from an error in law, including in evaluating evidence (e.g. sexual history). Most appeals lie as of right without a leave filter. The default remedy is a new trial. There is no convention that appellate judgments must be unanimous (as in the EWCA); indeed the defence has an automatic right of appeal to the SCC, without leave, if one judge on the provincial Court of Appeal dissents on a point of law. The SCC, admired for their criminal and evidence legal expertise, bind all courts in all Canadian jurisdictions. In contrast, the UKSC hears criminal appeals extremely rarely.
12. All judges apart from jurors in Canada are professional, legally trained public officers. Lay magistrates were abolished in the 1980s as the public lacked confidence in their competence. To preserve the primacy of lay adjudication in jury trials, no juror can have any connection with the justice system, so judges, lawyers and police officers are disqualified by statute.

For some of the reasons why a defendant might prefer trial by judge alone, see ‘Judge-alone trials can deliver justice – but only if defendants choose them’, Laura Hoyano, Counsel, May 2020: tinyurl.com/5b54rfes.

Why do judge-alone trials take less court time than jury trials in Canada?

Judge-alone trials are typically significantly shorter than jury trials, due to three categories of factors: (i) procedural, (ii) practical and (iii) evidentiary.

Obviously, jury trials require procedures that are unnecessary where the judge sits alone. These include jury selection, challenges for cause (including any argument for leave to challenge for cause), swearing-in, introductory and mid-trial instructions/corrections, mid-trial applications on admissibility of evidence or permissibility of questions, pre-charge conferences between the trial judge and counsel, mapping routes to verdict, the charge to the jury and questions from jurors.

Other time savings come from the practical benefit of not involving 12 additional people, in a setting that is foreign territory for them. That means 12 fewer chances for someone to be late or absent. Twelve fewer people to shuffle in and out at every break or every objection. If a witness is delayed or unavailable, other matters in the trial can be dealt with in the meantime. The court can sit earlier or later if need be to finish a witness, without having to be concerned about jurors’ personal schedules. The pace of the trial is generally much quicker.

Court time is used more efficiently, crucially eliminating the knock-on effects of trials overrunning their listing. A continuation (adjournment) can be set for a later date convenient to all parties. Counsel and the judge do not have to continue the trial, derailing waiting scheduled cases, thereby avoiding the endemic listing problems in E&W where even fixtures fall off the list repeatedly just before, or even on, the trial date, inducing complainant withdrawal. Conversely, the listing office need not build in a buffer to provide for the possibility of overrunning. There is more flexibility to respond to court and witness time constraints such as written submissions, sitting longer days, and postponing rulings to more convenient times.

Evidentiary factors also contribute to reducing trial time. When the trier of law is also the trier of fact, it is not strictly necessary to hold a voir dire to determine the admissibility of evidence, as these can be blended with the trial proper, thus avoiding duplication of evidence and witnesses having to reattend. This does not mean that a voir dire is never permitted or necessary when proceeding by judge alone; the evidence on the voir dire can be applied to the trial proper.

Finally, jury trials often require a different, more cautious approach to evidence and in speeches, which lengthen the proceeding. A trial judge may indicate that she has got the point, or request clarification of a party’s position, whereas a jury is a mute and usually unreadable audience for advocates. Cell-site or medical evidence are examples where an expert’s oral evidence can be much briefer, as methodology and terminology do not require explanation to educate the jury.

In Canada the accused can re-elect judge-alone up to 60 days before the trial date without the Crown’s consent, and thereafter with the Crown’s consent until the trial commences; consent is usually automatic given the resource savings involved. In Ontario, if re-election is possible, counsel at a case management conference provide two time estimates, for both modes of trial. These factors result in judge-alone estimates which are commonly around 50%, or even briefer, than a jury trial for the same case. The difference is especially pronounced in less complex cases; jury trials are likely to be set for a minimum of 5-7 days, whereas the same case before a judge alone could run 1-3 days. A jury trial would never conclude in a single day. For a worked example of what would be charged here as rape, with trial by judge alone being 2-3 days, and by jury 1-2 weeks, see ‘Why Is a Jury Trial so Much Longer Than a Trial Without a Jury?’, David Amber: tinyurl.com/35uuuhxu.

Counsel’s trial estimates (and those given by ministers to the Justice Select Committee) do not include the time to write judgments. Trial judges are usually allocated judgment-writing days; judicial assistants are available for research and editing, abridging the judge’s time commitment to writing.

Judge-alone trials are highly valued by the criminal Bar and the public across Canada because the system is predicated on defence choice and confidence in the fairness and competence of the professional bench. It is one of the two decisions only defendants make, the second being how to plead. Usually, they will defer to their advocates’ advice, but they may nevertheless feel strongly that they wish to be tried by their peers. Provided the Crown is proceeding by indictment, no one – not their counsel, not the Crown and not the court – can override their decision. This is not regarded as ‘gaming the system’ as Sarah Sackman MP has called it in Westminster, but rather the defence exercising a fundamental right. Canadians accept this as fair. The right of election is well-known as it is usually noted by the media reporting on trials.

Not a ‘pick and mix’

Many efficiency benefits would be lost through the introduction of otiose procedural hurdles, such as a judicial process to predict a likely sentence before any evidence is heard and tested, as the Bill proposes. Simplicity, where everyone involved knows the rules from the outset, is key to Canadian trial efficiency and efficacy.

England and Wales can learn a great deal from the Canadian CJS. But it is not a pick-and-mix sweet shop to be browsed by UK justice ministers. It is a complex, carefully designed, interlocking adversarial system, grounded on a profound respect for express, enforceable, constitutional and statutory rights for defendants and complainants. More profound, and fairer, changes are required here to achieve the results of the Canadian CJS, which respect those rights – especially the right to, but not the requirement of, trial by jury.