McCARTHY: Access to justice and the courts should reflect the will of the people

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When it comes to debate and decision-making in relation to the rights and freedoms of Canadians, why is it assumed by some that the courts should have a monopoly on policy choices?

Canada has a unique Constitution that includes a limited override provision forged by a grand compromise that gave Canada ownership over its Constitution in 1982. Yet this limited override provision also known as the “notwithstanding” clause, is often misunderstood.

We face a crisis in our Courts in terms of available judicial resources which in turn impacts access to justice. This crisis is rooted in the 2016 decision of the Supreme Court of Canada in R. v. Jordan that imposed a Charter mandated 30 month time limit for bringing criminal cases to trial in the Superior Court of Justice.

Criminal cases are being stayed or withdrawn because such cases cannot always proceed to trial within the 30-month time frame. Furthermore, because of the priority that must be given to criminal cases, Judges are often unavailable to preside over and adjudicate cases involving family law, child protection and civil litigation.


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A policy choice was made by well-intentioned Judges of the Supreme Court of Canada in a case decided long before the pandemic. Now with Court operations negatively impacted by the effect of the COVID-19 pandemic over the past 15 months, access to justice has been impeded by the growing backlog of cases in all areas of law. Despite the efforts of members of the judicial branch of Government to deal with the backlog, it continues to worsen.

It is time for a pause or time out from the burden of the 30 month time limit associated with the Jordan decision. In my recent appearance before the House of Commons Standing Committee on Justice and Human Rights, I urged MPs to allow Parliament, made up of the peoples’ representatives, to make a policy choice in favour of easing the burden upon our Courts and increasing access to justice for all by temporarily overriding the effect of the Jordan decision and its interpretation of section 11 (b) of the Charter by invoking the “notwithstanding” clause under section 33 of the Charter.


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Why should the Court’s policy choice remain unchecked when circumstances have so drastically changed and we face a growing crisis in our Court system?

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The ripple effect on all cases before our trial Courts is having a devastating impact on the ability of Judges to hear and adjudicate all matters within their jurisdiction. This adverse impact on access to justice and the ability of our dedicated Judges to adjudicate all cases within their jurisdiction threatens the fundamental principle of the rule of law.

To suggest, as some have, that no Government should ever invoke the notwithstanding clause is to deny the legitimacy of a unique Canadian Constitutional instrument that enables citizens to participate through their elected representatives in an important policy choice.  The “notwithstanding” clause was included in the Constitution of Canada to be rarely used and, by its own terms, is time limited to five years if not re-enacted.

A conversation can and must take place between branches of Government on this important policy choice concerning access to justice, the availability of scarce judicial resources and the rule of law. If our parliamentary democracy is to be preserved and our constitutional rights maintained in a balanced manner, then policy decisions associated with our rights must be part of an ongoing conversation that obviously will include the Courts but must also include our elected Members of Parliament and the Legislatures.

— Todd J. McCarthy is a Senior Partner at Flaherty McCarthy LLP


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