Talal Fouani, 48, was charged in June 2022 for “laundering money for organized crime” in relation to a police investigation “into a massive, cross-border drug trafficking operation involving Mexican cartels.” According to the Alberta police, the $55-million drug bust was the largest ever in Alberta, “involving nearly one metric tonne of methamphetamine and six kilograms of cocaine.”

Two weeks after Fouani was charged there was a targeted shooting that took place against Fouani in which he was seriously injured and his wife was killed. Fouani believed that the shooting was in relation to his charges. The accused in the shooting, Michael Tyrel Arnold, 35, begins his trial in February 2025 for first degree murder and attempted murder. 

Fouani pleaded guilty in March 2023 and has yet to be sentenced. The case has taken 30 months despite the 18-month ceiling and Fouani’s defence lawyer applied for a Jordan application. The Jordan application was dismissed when Justice Greg Stirling found that much of the delay was caused by the defence “including 14 applications filed by Fouani’s previous lawyer, Yoav Niv.”

As the number and complexity of pre-trial motions has increased in Canada and the time to trial has lengthened there has been an emerging debate about how to improve motions practice in criminal cases. This is fuelled in part by the experience in the U.S. where despite similar pre-trial motions, proceedings are often much quicker to trial. One obvious difference is that in the U.S. there is often no right to an oral argument and motion was decided on the basis of the written materials.

The practical effect is that motions tend to be adjudicated serially over many months or even several years because of the need to coordinate the materials as well as judicial and counsel calendars. Some efforts are underway to move pre-trial motions along but the results are not yet known. The reliance on oral submissions as the conclusion of the advocacy process has deep roots in our culture and affection for it runs deep with both judges and lawyers.

One of the challenges in realising the ambitions for timeliness underlying the Jordan time limits is the practical incentive it places on the defence to wait to see if the prosecution fails to act promptly. There is little incentive in most cases to collaborate in order to achieve timeliness.

The broader implications of delays in justice are often in tension with the choices of the parties. This is one of the reasons why delays are so recurrent in history. Put simply delays can suit some of the purposes of the parties even where the end result undermines confidence in the system itself. The calculus becomes even more complicated when the effect of systematic delays may be to discourage or divert disputes away from the court system entirely.

These observations support the need for a neutral arbiter to be responsible for the timely performance of cases within the system and undergirds the observation that timeliness in history has mostly been achieved when arbiters take on and discharge the responsibility for timeliness.