When Conservative Leader Pierre Poilievre intimated at an event in late April that he would be willing to invoke the Charter’s notwithstanding clause to implement criminal legislation, it caused a media furor.
Canadian Affairs was just one of many outlets to publish commentary decrying Poilievre’s plan.
So it is remarkable that a federal bill — tabled a mere month later by the Bloc Québécois — was barely remarked upon. The bill proposes using the notwithstanding clause to carve out an exception to the Supreme Court’s Jordan ruling, which allows criminal charges to be thrown out for undue delay.Â
The Bloc, of course, are not about to become the next governing party. And the bill is unlikely to pass. But it’s a notable signal nonetheless, not least for what it says about the further erosion in support for the Charter at the federal level.
The Bloc’s Bill C-392 proposes to exempt serious offences — such as murder, child pornography, sex trafficking and sexual assault — from a requirement that trials be held within 30 months of a person being charged. It invokes the Charter’s notwithstanding clause to protect this exemption from challenge.Â
As we noted previously, we are sympathetic to politicians wanting to override controversial Supreme Court rulings that have had sweeping policy implications.
With this bill, the Bloc are targeting a ruling that has had particularly profound implications for the administration of justice in this country. The Jordan decision has resulted in hundreds of individuals charged with serious crimes — including murder, drug trafficking and sexual abuse — walking free because of unreasonable delays in getting their cases to trial.Â
But we would maintain that the answer is not, even in these cases, to override the protections that the Charter affords to citizens. Rather, the answer is for politicians to address the root of the problem.
Fortunately, in this case, the problem is very much within politicians’ ability to control. The issue of undue court delays is largely a failure of our federal political leaders — who are responsible for staffing superior and appellate courts — rather than a failure of the courts themselves.
On this matter, the Trudeau government’s track record has been especially woeful. In July 2023, Canadian Affairs reported that there were 81 vacancies in federal courts, versus a total of 914 sitting judges. Today, the number of vacancies is slightly improved, at 57.Â
As various judges (including the Supreme Court’s chief justice) have noted, this failure to promptly fill vacancies directly affects courts’ ability to expeditiously hear cases. Some judges have explicitly pointed to the government’s failure to appoint judges when explaining their decisions to stay proceedings on serious charges, such as child sex abuse and sexual assault. Bizarrely, the government is currently appealing a court order requiring it to increase the pace of judicial appointments, rather than simply filling the vacancies.Â
Sources familiar with the legal system have suggested that the slow pace at which vacancies are filled is, at least in part, a function of the Liberal government’s fixation on creating a more diverse judicial bench.
This, if true, is a travesty. Yes, diversity is important, and should be pursued. But we must get our priorities straight. The efficient and fair administration of justice must be the paramount consideration in the short and long term.Â
Canada has a robust legal bar full of talented and qualified individuals capable of serving as judges. Judicial vacancies need not exist in this context.
The silver lining of all this is that politicians need not invoke the notwithstanding clause to prevent criminals from walking free. They can get to the same result by simply doing their job, which enables judges to do their jobs too.
