Justice Committee on March 23rd, 2026

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Good morning, Minister.

We in the Bloc Québécois have looked at your bill and we are fairly supportive of it. We may want to propose amendments, but it's a step in the right direction.

That said, I'd like to get some clarification from you, starting with the calculation of court delays. I think the Supreme Court was right to say that two years for a Court of Quebec or provincial court trial and three years for a superior court trial are reasonable time frames. It should be possible to conduct trials within those time frames. However, outrageous things have happened: individuals accused of violent crimes against others, crimes the public as a whole considers appalling, were released because their trial couldn't be held within a reasonable time frame. We add our voice to the many voices who find this unacceptable and want something to be done. You are the justice minister, so obviously, this concerns you directly.

In the previous Parliament, the Bloc Québécois introduced a bill that would have made it possible to deviate from those deadlines in cases involving crimes of violence against the person, or primary designated offences. Obviously, the deadlines would have been incorporated into the Criminal Code, but a companion provision would have made it possible to deviate from the time frames in certain circumstances, such as in cases involving primary designated offences. Unfortunately, the bill died on the Order Paper, when Parliament was dissolved last spring.

Now we're examining a bill that tackles the problem by reworking the way the time limits are calculated. Although it's a step in the right direction, it seems to me a rather timid approach.

Minister, don't you think the bill needs a provision like the one we had proposed in our bill? Through the notwithstanding clause under section 33 of the charter, the courts would have been exempted from the judicial deadlines in the Jordan decision, on a very rare basis—only in extreme cases where it was unfortunately necessary. Would that not have been a good idea?

[Sean Fraser, Liberal, Central Nova, NS]

I have a different approach, but I agree that we need to examine the circumstances in cases where charges are thrown out before the court has a chance to rule on them.

The bill has two strategies. The first deals with the problem of delays in general. The decisions in Jordan and other cases have complicated the problem, and it's had consequences. However, court delays have the effect of denying victims justice in our society, and we have put forward new rules to reduce delays and remedy that.

That will address the underlying problem of delay.

Separately, we're also trying to deal with the consequence not only by calculating time in a particular way or by excluding certain applications but also by directing the court to consider remedies other than a stay. I prefer this approach to using section 33. I think it is cleaner and has an opportunity to address the situation.

If the committee has an opportunity to engage on the best way to address the delay issue, I would welcome your feedback, and the feedback of those in the Senate who may be watching. I really believe in the process of Parliament and would welcome testimony, supported by expert witnesses, as to the best way to address delays, but the approach laid out in Bill C-16 is my preferred strategy.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I admit that I do like the idea of tightening the rules first and finding a way to calculate the time limits to avoid, if possible, trials collapsing, especially in the most serious cases.

The fact remains that it won't be possible to keep that from happening in some cases. Holding a trial within a reasonable time frame is in the interest of not only the victim, but also the accused. If the person is innocent and has to wait five years to be found innocent, that is unacceptable. If the person is guilty and it takes five years for them to be sentenced, that is unacceptable to the victim, and it also affects how the length of the sentence is calculated. No one wins, and delays are costly.

With that in mind, I ask you this again: In an extreme case, when there is no possible way to hold a trial within a reasonable time frame or to calculate the time frame such that it would be considered reasonable, shouldn't we make an exception and choose the lesser of two evils? While a case like that might not come up but once every two years, it could prevent a woman from being murdered by her new partner or a rapist from killing the woman next door.

Minister, in those extreme cases where it's not possible to hold a trial within a reasonable time frame, isn't it appropriate to invoke section 33 to override the charter provisions so that the accused still stands trial?

[Sean Fraser, Liberal, Central Nova, NS]

Before I go to that particular remedy, I have to ask myself.... It's very serious when you invoke the notwithstanding clause. It's a decision to say that we're going beyond what is reasonably justifiable in a free and democratic society, and I don't take that lightly.

There are components of this bill that would address the issue in a slightly different way. They would address the problem in a way that I believe would be effective. Time will tell.

Specifically, we didn't look at just the seriousness of a crime, but also the complexity of the nature of a charge before the court. It's often the complexity, not the seriousness, of a charge that brings the delay to a standard that is unacceptable according to the timelines in the Jordan decision. We tend to see them in cases involving organized crime or complex drug trafficking where there's a preponderance of evidence from different sources, often of a digital nature. Increasingly, we're seeing them in sexual assault cases, which have a very complicated evidentiary regime that we're also trying to address with this legislation.

By extending the permissible timeline for those complex cases, I think we can solve the problem without necessarily resorting to reliance on the notwithstanding clause to address a problem that you and I agree is a very serious one.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Fortin.

Mr. Baber, we'll move over to you for five minutes.

[Roman Baber, Conservative, York Centre, ON]

Thank you, Mr. Chair.

Attorney General, welcome back.

I want to leave politics aside for a second and have a legal chat. I think you went to Dalhousie law school. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

That's correct.

[Roman Baber, Conservative, York Centre, ON]

I went to Western. I have a very vague recollection of first-year constitutional law, so I hope your memory is better than mine.

Here's what I remember about how the charter was born. Attorney General Jean Chrétien sealed the deal of the notwithstanding clause with section 33. He agreed that in our Westminster parliamentary system, Parliament is supreme. Because Chrétien was a gentleman, he had faith that section 33 would not be used willy-nilly and only used in the most extreme cases.

Are you with me so far?

[Sean Fraser, Liberal, Central Nova, NS]

I'm with you, yes.

[Roman Baber, Conservative, York Centre, ON]

To start, would you agree that you and I could come up with a scenario where the invocation of the notwithstanding clause would be appropriate?

[Sean Fraser, Liberal, Central Nova, NS]

I would like to see what that scenario is before I agree in the abstract.

[Roman Baber, Conservative, York Centre, ON]

You would not say that you would never invoke the notwithstanding clause. There could be an extreme scenario—such as the one Chrétien contemplated—that would make you invoke the notwithstanding clause.

[Sean Fraser, Liberal, Central Nova, NS]

I don't like to deal with these things in the abstract. Perhaps that's the legal training you referred to, but I've not seen an example where I believe it was necessary.

[Roman Baber, Conservative, York Centre, ON]

Let's talk about Jean Chrétien's example, then.

Jean Chrétien's example was this. If the Supreme Court were to say that possession of child pornography is protected by freedom of expression, that would lead to absurdity—an absurdity of the type that should be struck down by the Supreme Court. If they were to say that, it would be absurd. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

I feel like what you're trying to do is engage in a philosophical debate about the notwithstanding clause in the abstract.

[Roman Baber, Conservative, York Centre, ON]

We're having a legal chat.

[Sean Fraser, Liberal, Central Nova, NS]

What's important is that we have an opportunity with a bill that's designed to combat intimate partner violence and the exploitation of kids online right now, and I feel, frankly and with respect, like we're wasting our time on an issue that's not actually going to advance the cause of the legislation.

[Roman Baber, Conservative, York Centre, ON]

I'm sorry, Minister, but if I may, I'm talking about Senneville. I'm talking about the reason that prompted.... You specifically said that you've considered Senneville in Bill C-16.

[Sean Fraser, Liberal, Central Nova, NS]

Certainly.

[Roman Baber, Conservative, York Centre, ON]

Let's look at what happened with the co-accused, Mathieu Naud, who pleaded guilty to possession of more than 250 videos involving the rape of children aged five to 10. The Supreme Court struck down the mandatory minimum sentence for Naud and agreed to maintain and not interfere with the nine-month sentence that the court below, the court of first instance, had imposed.

This is what I suggest to you: Would you not agree that striking down the mandatory minimum sentence in a situation where you have 250 videos of children being raped is the type of absurdity that Chrétien potentially had in mind?

[Sean Fraser, Liberal, Central Nova, NS]

You and I agree on the heinous and unacceptable nature of the behaviour you've described, and I think we equally want to stamp that behaviour out of Canadian society.

Where I think we have a point of disagreement is on the correct way to address that problem. I believe the changes we're making in this law will address the issue you're dealing with, because the Supreme Court, as you will know, will strike down a provision based not on the facts before the court but on a reasonable hypothetical that could emerge under those rules.

With the changes we've made, I believe we have protected the mandatory minimum for the heinous acts that you've described. That person should face serious criminal penalties, and I have faith that after this bill is adopted into law, we won't see that same circumstance play out.

[Roman Baber, Conservative, York Centre, ON]

Attorney General, I think you're doing the opposite. You're undermining the mandatory minimum sentence by allowing for judicial discretion—

[Sean Fraser, Liberal, Central Nova, NS]

The mandatory minimum doesn't apply. It's been struck down.

[Roman Baber, Conservative, York Centre, ON]

If I may finish, you have the ultimate safety valve against absurdity, which is the notwithstanding clause, and I submit to you respectfully that protecting children from rape is your most important job. This is not just about children being raped in the videos that Naud was watching. It's about children who will be raped in the future because your government is failing to crack down on this heinous industry, which it can do through deterrence.

Why wouldn't you impose a mandatory minimum sentence for child pornography?

[Sean Fraser, Liberal, Central Nova, NS]

In this circumstance...this is very important. We agree equally that this behaviour needs to be addressed, including with stronger criminal penalties for people who would abuse and exploit our children, full stop.

The laws we are adopting in Bill C-16, should this committee and the two houses of Parliament adopt them, will offer the kind of protection you're looking for. The only difference that you and I don't share an opinion on is that where the penalty would be intolerable to society, there should be some discretion for the court.