The justice system is overburdened, will the new Protecting Victims Act make it worse?

As judicial delays in Ottawa reach crisis levels, some lawyers argue the federal government’s new Protecting Victims Act may be unconstitutional and actually make the situation worse.

Justice Minister Sean Fraser tabled the legislation Dec. 9, proposing sweeping changes to the Criminal Code that aim to protect survivors of sexual assault and gender-based violence, as well as children and youth.

The bill, if passed, would make femicide and murders motivated by hate first-degree murders, even if they weren’t deliberate or planned, if the Crown can prove there was a pattern of abuse, coercive or controlling behaviour.

Fraser said the bill would also criminalize and prohibit coercive or controlling behaviour to allow the criminal justice system to intervene before incidents become fatal.

The Protecting Victim Acts also proposes language to prohibit the distribution of non-consensual deepfake sexual images, the first of its kind in Canada. It would also increase penalties for distributing intimate images without consent, as well as threats to distribute said images (otherwise known as “revenge porn”).

But advocates are sounding the alarm over proposed language that would make it possible for courts not to impose stays if sexual assault cases are delayed beyond the Jordan ceilings.

Those stays effectively end prosecution. Charges are stayed when a judge or Crown attorney decides that it would be bad for the justice system if the case continued. This also means an issue of innocence or guilt is never determined. A judicial stay brings the case to an end.

How did these stays come about?

Section 11 of the Charter of Rights and Freedoms says an accused person has the right to a trial within a reasonable time frame.

Under R. v. Jordan, the Supreme Court of Canada established maximum time frames for determining when a delay is considered unreasonable: 18 months for Ontario court of justice cases and 30 months for Superior Court of Justice cases.

Superior Court handles more serious criminal prosecutions, including all jury trials, civil litigation and family law involving divorce and the division of property. The Ontario court of justice handles the bulk of criminal cases that don’t go before a jury, provincial offence cases, and other aspects of family law.

Fraser said the changes are necessary to bring justice for sexual assault and gender-based violence survivors who want to press charges against their perpetrators.

If the bill receives royal assent, the federal government will work with courts across the country to give “clear guidance on how to deal with court delays,” he said.

He added that the Ministry of Justice will also tackle issues regarding motions, applications and admissibility of evidence, which regularly cause delays in sexual assault cases.

“We had to ask ourselves the question: do we think it’s acceptable to leave the threat of a case being dismissed for delay, knowing the consequence would be the survivor of sexual violence may have their perpetrator go free, despite having committed a crime in some instances? Where I’ve landed on this position is that I’m not comfortable with that consequence,” Fraser told journalists at a news conference at the National Arts Centre on Tuesday afternoon.

“We need to work with other levels of government that also have something to do with the administration of justice … and do what we can to address the systemic delays.”

Attempting to fix a broken system

The Protecting Victims Act builds on recommendations from the Office of the Federal Ombudsperson for Victims of Crime (OFOVC), which urged the federal government to set out criteria for judges if they are considering a stay due to Jordan ceilings.

The OFOVC said more and more sexual assault cases are being stayed every year due to ceilings set in R v. Jordan, according to a recent report.

Data in the report suggests that one in three sexual assault cases in adult courts across Canada exceeded the Jordan limit in 2022-23. Sexual assault cases in adult courts were also most likely to be stayed or withdrawn after exceeding the Jordan limit during this time period.

“When cases are stayed after significant investments of time, money, and emotional energy, the result is a complete loss of value for many people. Survivors are left without resolution,” the report read.

“Community supports are wasted or undercut. Public systems absorb costs without achieving any outcomes. R v. Jordan has made this waste more frequent, visible, and costly.”

The OFOVC also argued that the routine ordering of stays for the most serious sexual violence offences is neither proportional nor minimal, and erodes trust in the criminal justice system by sending a signal that procedural timelines are more important than substantive justice.

“For many, it confirms the broader perception that sexual assault is being decriminalized in Canada, not by statute, but by attrition and delay,” the report read.

“Survivors deserve justice, too. Justice delayed is justice denied.”

Adding a greater burden

Some lawyers and advocates argue that the Protecting Victims Act is vulnerable to legal challenges.

“I think some of the measures in this bill, including the one about stays, might give rise to a lot of litigation. It’s not exactly clear whether this will fulfil the constitutional requirements,” said Suzanne Zaccour, director of legal affairs for the National Association of Women and the Law.

“We’ve seen cases where men who have killed or attempted to kill an intimate partner have had their charges stayed under R v. Jordan, and that is definitely not acceptable…. But we hope that the federal government is working with provincial and territorial governments so the administration of justice runs a bit more smoothly, because the delays are extremely long.”

Mark Ertel, a criminal defence lawyer in Ottawa, said the bill will further burden an already overstretched courthouse in Ottawa.

He said it is common for trials to be set close to the Jordan ceilings, which used to be rare.

“History repeats itself. Trial delays will become even longer, especially for sexual assault cases…. As soon as the courts are told that they don’t have to complete trials within those timelines, the delays will get even longer,” he said.

“This is not in the interest of anyone. I can’t believe that any group interested in protecting the rights of victims would support this legislation,” he said. “It may keep a few cases going that otherwise would have been stayed, but in the long term it will create more institutional delays than we already have, which is clearly not in anyone’s interest.”

What’s another possible solution?

While Ertel agreed that sexual assault victims experience a lot of trauma in the criminal court system, he said the solution isn’t to get rid of a constitutional right.

Instead, the federal government should be providing resources to make sure trials aren’t consistently reaching Jordan ceilings, he said. Cases should be resolved within three to six months in the Ontario court of justice or nine to 12 months in the Superior Court of Justice.

“They need to be done in a realistic time frame so that everyone — the accused person, the witnesses, the complainants — can get certainty and justice in a reasonable time,” Ertel noted.

“We’re worried about victims, so we’re going to make sure they get justice, but we can’t provide them a trial in a reasonable time. And the solution is to abandon them?

“The provincial and federal governments have an obligation. Their obligation is to provide enough resources so that we don’t get into these positions where there are unreasonable delays. If the government were concerned about victims, then the government would fund the system, but they’re not.”

Related

Our website is your destination for up-to-the-minute news, so make sure to bookmark our homepage and sign up for our newsletters so we can keep you informed.