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Opinion Legislation to end stays is not the answer to court delays

Kent Roach is a professor of law who teaches both criminal law and constitutional remedies at the University of Toronto

The Senate committee's recent report on trial delays has been lauded by commentators. It seems especially pressing given the Supreme Court's recent decision to stay drug and weapons charges because of trial delays in a recent Newfoundland case.

Unfortunately, the Senate committee's report hinges on a constitutionally suspect and policy-inadequate recommendation that Parliament remove stays as a remedy for violating the Charter right to a trial in a reasonable time.

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This part of the otherwise admirable 205-page report bristles with outrage at the thought of even one murder or sexual-offence prosecution being stopped because of a Charter violation. But under the Charter, courts, not Parliament, decide what remedies are appropriate in individual cases.

Read more: Courts shaken by search for solutions to delays

Related: Trial limits leave dead man's parents on long road to justice

In other parts of the report, the committee avoids simplistic silver-bullet solutions. For example, it recognizes that curbing delays requires comprehensive reform involving all levels of government and decreased use of the criminal sanction. But when it comes to stays, the report uses a simplistic and unconstitutional bullet.

One of the distinct features of the 1982 Charter is its guarantee of the discretion of courts to order appropriate and just remedies. This distinguishes the Charter from the U.S. Constitution as well as the failed 1960 statutory Canadian Bill of Rights.

In 1987, the Supreme Court, as part of its early determination to make the Charter real, made clear that once a reasonable time had elapsed, no fair trial could take place. This meant judges must enter a permanent stay of proceedings.

The 1987 decision was controversial. Justice Gérard La Forest warned in dissent that the drastic remedy of a stay would limit the Charter right. In subsequent cases, the Supreme Court used stays more cautiously in other contexts. It ruled that less drastic alternative remedies, as well as social interests that would be harmed by stopping a criminal case in its tracks, should be considered.

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But the Supreme Court never reconsidered its 1987 ruling that stays were the minimum remedy for speedy trial violations, pointedly noting in the Jordan case that it again not been asked to do so.

But now the Senate wants the federal government to push the issue and amend the Criminal Code to provide alternative remedies. But this plays down a fundamental separation of power and Charter issue. The idea that Parliament determines remedies for violating the Charter is a dangerous form of self-dealing that threatens the separation of powers.

If Parliament today legislates to restrict stays, what is to stop it from also legislating when it is outraged by other court-ordered remedies – including the sentence reductions that the Senate urges as a less drastic alternative to stays?

To its credit, the Senate committee recognizes that constitutional principle is at stake to the extent of saying that a reference to the Supreme Court is necessary. But references decide abstract questions of constitutionality: remedies depend on the details of particular cases.

The Supreme Court may well change its mind on stays for speedy trial violations, but this should come in a particular case where the Court acknowledges that it is overturning precedent and hopefully can demonstrate the adequacy of alternative remedies.

But Parliament may not be happy with these alternatives. Sentence reductions especially in serious cases could spark outrage by victims and then legislative curtailment or capping. The use of costs as a remedy essentially fines the state for violating the Charter and could add inefficiency upon inefficiency.

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The Senate's proposal is also flawed policy because it proposes to treat the delay disease by removing the most irritating symptom of the disease: the stay.

To be sure, the Senate recommends some other cures, such as abolishing preliminary inquiries and better charge screening. But it ignores Parliament's ability to legislate speedy trial standards used in most U.S. states to establish guidelines faster than the constitutional minimum as a way of shaping the culture of delay. There would be no problem of establishing softer statutory remedies for better statutory standards.

We have been here before. The 1990 Askov speedy trial decision set off a similar wave of panic. The system eventually responded with more judges, more prosecutors and more flexible standards. The system did so without harming constitutional principle by attempting to have Parliament dictate to courts what remedies are appropriate and just when the Charter rights of the accused are violated.

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