Case Explained: The Carney government’s crime victim legislation is bad constitutional law – Legal Perspective

Kent Roach is a professor of law at the University of Toronto and the author of Wrongfully Convicted.

Buried deep in Bill C-16 on protecting crime victims, introduced in early December, are dangerous provisions that purport to tell the courts how to apply the Charter.

Specifically, the bill mandates courts not to count some pretrial delay in determining whether the accused’s Section 11(b) Charter right to a trial in a reasonable time was violated under the Court’s 2016 decision in Jordan. It also attempts to overrule a 1987 Supreme Court decision that says a permanent stay or halt to proceedings is the minimum appropriate and just Charter remedy when an accused’s right to a speedy trial is violated.

These changes were introduced without the use of the notwithstanding clause or an explanation of how they can be reconciled with the Charter. In my view, they cannot.

The Charter decisions that Bill C-16 attacks are controversial. Nevertheless, they are decisions that the Supreme Court was entitled to make and it has declined invitations to overrule them. It seems as if the government now wants to do this for the Court.

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Legal rights and remedies, such as Section 11(b), are the most frequently litigated parts of the Charter. But they will never be politically popular. The Charter was almost enacted without them. They were added at the last minute in response to concerns that without them, the Charter would be a toothless tiger like the 1960 Canadian Bill of Rights.

Bill C-16 deems that the time taken by the accused to challenge claims of state secrecy or other public interests, which are used by the Crown to prevent disclosure to the defence, will no longer count as precharge and pretrial delay.

They will also apply to late attempts by the accused to circumvent elaborate legislative restrictions on access to records and sexual history in sexual cases.

Such litigation, in sexual assault and terrorism cases, may be required to prevent wrongful convictions.

The only exception is if the prosecutor has not acted in good faith. But this is no comfort; prosecutors act in good faith. If they do not, it is impossible to prove bad faith.

It has been a fundamental tenet since the 1980s that Charter violations depend not on the state’s intent, but the effects of its actions on the rights-holders.

The party that brought Canada the Charter appears to be turning its back on its more unpopular implications. This may be good politics for a government determined not to lose votes to the Conservatives on crime, and it also responds to a recent report decrying the use of stays in sexual-assault cases.

Nevertheless, it remains bad constitutional law.

Indeed, it is worse constitutional law than the provincial governments have pursued. They at least have the courage and candour to use the notwithstanding clause to override Charter rights.

This proposed legislation, like pre-emptive uses of the override, should not be dignified as a legitimate form of dialogue between courts and legislatures. Dialogue requires listening to the other side, not telling it what it should say.

This bill purports to have Parliament interpret Charter rights and remedies. This should never happen without the clear signals and hopefully sober second thoughts that come with the use of the notwithstanding clause.

Indeed, a private member’s bill similar to Bill C-16 candidly used the override.

We live in a fearful age where constitutional lines are crossed almost every day. But even if you think now is not the time for constitutional niceties, this bill will backfire.

This 166-page bill is a recipe for more delay. It makes necessary more protracted pretrial litigation by expanding restrictions on access to records in sexual cases and then says some of it should not count as delay. Victims and witnesses as well as the accused suffer from delay.

The government is not taking ownership for its refusals to find more efficient ways to resolve pretrial issues. This includes its failure to remove Canada’s cumbersome two-court approach to litigating access to state secrets that requires satellite litigation and appeals in the Federal Court before returning to the trial court. Rather than fixing our overly complex system, the government is trying to legislate away unpopular Charter rights and remedies.

If the government proceeds on this dangerous course, it should at least refer these novel provisions to the Supreme Court to determine whether they are constitutional. This was the recommendation of a 2017 Senate committee that also took objection to the Court’s speedy trial jurisprudence. If not, Bill C-16 may win some votes, but will ultimately result in more delay.