Invoke nothwithstanding clause to avoid Jordan ruling havoc, PQ says

The Supreme Court's Jordan ruling is wreaking havoc for Crown prosecutors in Quebec. The Parti Québécois wants the province to invoke the nothwithstanding clause to prevent suspects from going free without trial.

PQ's Hivon says accused murderer who walked free on Thursday an example of what can't be tolerated

In a decision last year, the Supreme Court imposed strict limits on how long a suspect can wait for trial. It has led to dozens of cases being thrown out or stayed. (Chris Wattie/Canadian Press)

As the Jordan ruling continues to wreak havoc on prosecutions in Quebec, there are growing calls for the province to invoke the the notwithstanding clause to prevent suspects from walking free without trial. 

A Montreal man — Sivaloganathan Thanabalasingam — was released Thursday after spending nearly five years behind bars waiting to be tried for his wife's murder. His trial was to begin Monday. 

Sivaloganathan Thanabalasingam had a second-degree murder charge stayed on Thursday. (La Presse)
It is the first time a suspected murderer in Quebec has seen charges stayed because of the strict limits the Supreme Court placed last year on the length of time it takes to bring someone to trial. 

But since the court's so-called Jordan ruling, scores of cases have been stayed in Quebec and across Canada, as defence lawyers cite the ruling. There are almost 800 requests for stays currently before Quebec courts.

The time limits — 30 months for Superior Court cases and 18 for lower court cases — have strained an underfunded justice to the point of crisis, said Véronique Hivon, the Parti Québécois justice critic​.

"We have to think about the rights of victims and the security of people," Hivon told CBC's Daybreak on Friday. "Because it is such an exceptional situation, we are asking the justice minister to look at the use of the notwithstanding clause."

Parti Québécois MNA Véronique Hivon said the Jordan ruling is damaging people's confidence in the justice system. (Jacques Boissinot/Canadian Press)

Bypassing the Charter

The notwithstanding clause, also known as Section 33 of the Constitution, allows provincial legislatures to pass laws that override parts of the Charter.

In this case, it would be invoked to override section 11b, which holds that anyone accused of a crime "be tried within a reasonable time."

While Hivon acknowledged the importance of upholding the legal rights of the accused, she said that has to be weighed against potential damage to people's confidence in the justice system. 

"We cannot tolerate that such cases just be thrown away," she said of the stay of proceedings in the case if Thanabalasingam.

The PQ first called on the Liberals to use the notwithstanding clause in November. At the time, Quebec Justice Minister Stéphanie Vallée shot down the idea.

More support for notwithstanding clause

However, the idea of invoking the notwithstanding clause appears to be gaining more traction. 

"Why not invoke the clause at the provincial level?" asked Manon Monastesse, who heads a federation of women's shelters, La Fédération des maisons d'hébergement pour femmes, Friday.

Conservative leadership candidate Lisa Raitt indicated in a tweet that she was receptive to the idea as a potential solution to what she called "a serious matter."

Quebec justice minister 'stunned'

Quebec Justice Minister Stéphanie Vallée says she's concerned that invoking the notwithstanding clause may only bog down the justice system even more. (CBC)
Vallée spoke to reporters Friday afternoon, saying she would not comment on the ruling to stay Thanabalasingam's murder case because "the appeal delay is pending, and we are actually studying the opportunity to appeal the decision."

The Crown prosecutor's office has 30 days to appeal.

But Vallée said the ruling shocked her.

"I was stunned, I must admit, by the decision."

She added that her ministry is studying the possibility of invoking the notwithstanding clause but is concerned it's a route that may only further bog down the already clogged system.

"For the moment, it's not necessarily the opportunity or solution for the matter," she said. "Using the notwithstanding clause would probably create additional motion and more judicial activities."

14 judicial vacancies

Quebec's justice minister didn't hesitate to point fingers at her federal counterpart in Ottawa, saying nothing has been done to appoint judges to Quebec Superior Court in spite of the 14 spots which have been vacant for months, even years.

"There are three positions created in 2012 that have never been filled so far, and [as] the days pass, we have six judges that have retired from the Superior Court, and we need those human resources. We need them."

Vallée said Quebec has done its part by planning to hire 16 judges, 52 prosecutors and hundreds of support staff. Now Ottawa must act to fill in the gaps.

"We are putting money on the table, but I cannot appoint Superior judges. It's the constitutional right of the federal Justice Department," Vallée said.

"I hope that my colleague takes this opportunity to act, because it's urgent situations such as the decision yesterday [that] puts a face on the emergency."

Quebec's bar association has also been calling on Ottawa to push ahead with the nomination to ease some of the backlog in the system.

"Justice Minister Jody Wilson-Raybould has no reason not to proceed with the nomination of federal judges in Quebec," Claudia P. Prémont, the head of the bar association, said in a statement Friday. 

"The Quebec Bar Association considers the current situation cannot continue and that all judicial positions need to be named to resolve delays in our courts." 

Vacant spots to be filled shortly, Ottawa says

A spokesperson from the federal Justice Ministry responded via a statement, saying that since the Liberal government took office, three judges have been appointed to Quebec Superior Court.

The statement goes on to say that the ministry "will shortly fill further vacancies with highly qualified candidates who reflect Canada's diversity."

As for the addressing the Jordan ruling, "federal, provincial and territorial Ministers of Justice will be meeting later this month to discuss its impact, and possible ways to address delays in the justice system."