Minister of Justice Sean Fraser says 'having the automatic result be a stay can’t be an acceptable outcome.'Sean Kilpatrick/The Canadian Press
Justice Minister Sean Fraser says judges need to consider different options when criminal cases exceed strict deadlines to complete trials but what such a shift should look like in practice must be decided by the courts.
The federal government in recent months tabled several bills to bolster public safety. Among them was a bill last week that proposed a range of measures to toughen the Criminal Code, including changes to increase penalties for violence against women and address the challenge of cases derailed by court delays.
The bill also proposed changes in how deadlines are tallied in complex cases so that more trials are completed, rather than stayed because of unreasonable delays.
Canada’s courts have long been overworked and the process from start to finish is often slow. If a judge finds an accused person has experienced an unreasonable delay, violating their protections in the Charter of Rights and Freedoms, the long-standing remedy is a stay of proceedings. That means charges are effectively shelved without a conclusion of guilty or not guilty.
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The proposals on delays were intended to make clear that “having the automatic result be a stay can’t be an acceptable outcome,” said Mr. Fraser in an interview on Wednesday.
Over the past several years, about 10,000 criminal cases annually – 4 per cent of the total across Canada – are stayed or withdrawn that have exceeded deadlines created by a Supreme Court of Canada ruling in 2016 known as Jordan.
Mr. Fraser cited the impact of stays on victims in cases of sexual assaults. Several hundred such cases are derailed by Jordan each year.
The bill proposes to amend the Criminal Code to tell courts to look at alternative remedies beyond a stay when there is an unreasonable delay.
The wording states a stay should not be ordered unless a judge “is satisfied that no other remedy would be appropriate and just in the circumstances.” There are new factors for a judge to consider, such as the impact of a stay on the victim of an offence and “the interest that society has in having a final decision” on the allegations at hand.
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The bill, however, does not name other remedies. Nor did Mr. Fraser on Wednesday.
“It will be for the courts to determine,” he said.
In the Jordan decision, the Supreme Court sought to speed up the justice system by imposing strict deadlines to complete criminal trials, 18 months in provincial court and 30 months in superior court.
The remedy for a finding of unreasonable delay was set in a 1987 Supreme Court precedent known as Rahey. The top court decided a stay of proceedings is the minimum remedy for the Charter violation.
Numerous legal experts reacted negatively last week to Ottawa’s proposal on alternatives to a stay. The Canadian Civil Liberties Association called the potential of a stay “the strongest constraint requiring the justice system to run on time.”
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Mr. Fraser said the Rahey precedent was decided in a particular context and suggested the context has now shifted following Jordan.
But it remains unclear how this would play out in the courts if the legislation is passed.
“When you see that there’s been such a profound impact of the Jordan decision, where we see such an enormous volume of cases being thrown out, it may be that we have to recalibrate as a society to determine what outcomes are we willing to accept,” he said.
Last week’s bill is part of a wider push by Prime Minister Mark Carney’s government to make public safety a central part of its first year in office. In October, Ottawa proposed stricter rules on bail, to jail more people accused of crimes ahead of trial.
“It’s an essential ingredient for the country that he’s trying to build as Prime Minister,” said Mr. Fraser, “for Canadians to be safe and to feel safe in their communities.”
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According to Statscan’s crime severity index, crime across the country had been in decline for years, in data back to the late 1990s, until the index reached a low in 2014. It has since risen somewhat and the latest annual data, for 2024, show the index at about the level of the early 2010s.
Polls have shown Canadians in general support a stricter approach to crime, with tougher laws and penalties, alongside denying bail to more people accused of crimes. Ottawa has cited this public sentiment as a driving force behind its proposals, which had largely been outlined last spring on the federal election campaign trail in the Liberals’ policy platform.
The government’s plan last week to revive some mandatory minimum punishments that were struck down by the courts is another example of getting tougher on crime. It is a specific break from the Liberals’ approach under then-prime minister Justin Trudeau, whose government repealed 20 minimums three years ago, and it marks a shift toward a long-held Conservative position.
“It’s not been necessarily some deliberate attempt at rebranding,” said Mr. Fraser.
“It’s a reflection of the fact that the Prime Minister is a unique person who has come into his career in politics with a focus on public safety and economic matters. It’s a different government than existed previously in a number of different ways.”