A Bloc Québécois bill tabled Thursday proposes updating the Criminal Code to regulate the maximum delays for trials, as dictated by the Jordan decision, but by including a first use of the notwithstanding provision by the federal government.
The short text in the name of Bloc MP Denis Trudel codifies the fact that a trial must last a maximum of 18 months for cases heard in provincial court, and 30 months for criminal cases. He specifies that this calculation begins when the charges are filed and ends at “the actual conclusion” of the trial.
The idea is also to allow the prosecution to establish “the reasonableness” of a delay, as in the case of “exceptional circumstances”. Additionally, delays caused “solely or directly by the conduct of the defense” would not count in calculating the length of the trial.
The bill ultimately aims to prevent certain criminals, accused of the most serious crimes, from availing themselves of a stay of proceedings under the Jordan decision. These are primary offenses, defined by section 487.04 of the Criminal Code. The text ultimately proposes using subsection 33 (1) of the Canadian Charter of Rights and Freedoms, the so-called notwithstanding provision, to protect this aspect from legal challenge.
“This would be the first time that a project tabled in the Parliament of Canada, therefore at the federal level, has invoked the notwithstanding provision to override the protections of the Canadian charter. It’s big,” analyzes constitutionalist Stéphane Beaulac.
At a press briefing on Thursday, Bloc MP Rhéal Fortin explained that the main objective of the bill is to force the Trudeau government to fill vacant judge positions, a well-documented cause of the explosion in justice delays.
He believes that elected officials from other parties, as well as “a good number of citizens”, would agree with the idea of overriding the Charter to prevent the calendar from derailing serious criminal charges.
“You go hunting, you wear a bib. You go to war, you wear armor,” he said in comparison to using the notwithstanding clause.
In April, the leader of the Conservative Party of Canada, Pierre Poilievre, declared before a gathering of police officers that he intended to toughen criminal laws with “any tool” at his disposal, leaving “the people” to judge whether this is consistent with the Constitution.
In 2016, the Supreme Court ruled that the administration of justice would be better served by imposing maximum trial lengths. This led to the release of many accused, including those of serious crimes, since the trials could not be held within the allotted time.