The Charter challenge, filed in Federal Court March 31, 2025, alleges that prosecutors’ and judges’ approval of plea deals that unfairly hurt victims, and courts’ dismissal of hundreds of sexual assault and IPV prosecutions as violations of accused’s Charter s. 11(b) speedy trial rights, have denied the plaintiffs and other complainants access to justice while exposing them to further threats, harassment and violence from the offenders: Alexander et al. v. Canada and A.G. Canada.
The novel lawsuit seeks an order declaring that Ottawa has unjustifiably infringed — and continues to unjustifiably infringe — the plaintiffs’ rights under s. 7 of the Charter, which guarantees “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Along with their $15-million (estimated) Charter damages claim, the plaintiffs seek a Federal Court declaration that the defendant federal government and attorney general “have a constitutional obligation to adopt and diligently implement laws, policies and regulations that are designed to protect not just the accused person’s [Charter] s. 11(b) rights [to a trial within a reasonable time] but also the victim’s s. 7 rights.”
Their statement of claim also asks the court to strike down ss. 28 and 29 of the Canadian Victims Bill of Rights as an unjustified breach of the plaintiffs’ s. 7 right to fundamental justice.
(Sections 28 and 29 of the federal victims bill of rights state that no cause of action or right to damages arises from an infringement or denial of a right under the victims bill of rights and no appeal lies from any decision or order, solely on the grounds that a right under that Act has been infringed or denied.)
Kathryn Marshall, Marshall Law
“Until the crisis in the justice system is fixed, no Jordan caps [should be applied] on sexual assault and intimate partner violence cases because hundreds of cases are getting stayed every year,” Marshall said.
She added that she doesn’t believe that the Supreme Court’s majority contemplated when deciding Jordan that federal and provincial governments would not act quickly to fix undue trial delays, or that governments would stand by as hundreds of sexual assault and IPV charges were tossed out due to violations of the Jordan ceilings.
Marshall noted that some complainants have had to flee the country to escape perpetrators who violate ineffective peace bonds that were issued as part of plea deals that Crowns told them were necessary to prevent charges being thrown out for violating the accused’s s. 11(b) timely trial rights.
“The argument we’re making in this case is that the s. 7 rights of complainants are being violated because they are not getting even the opportunity to have a fair trial,” she said. “Also, the Jordan decision is being weaponized against them by the Crown to coerce them into ... agreeing to ... bad deals, and it’s resulting in ... these dangerous offenders being let out and ... walking the streets.”
“Why are the defendants’ rights more important than the victims’ rights?” Marshall queried. “And ... if you look at the Jordan ceilings, why do the rights of the victims not get considered whatsoever in this whole shit show?”
Marshall said the government could have, and “should have, imposed some guidelines here.”
She argued the government should also move immediately to “impose some guidelines with respect to how the Jordan ceiling is applied in sexual violence [and] intimate partner violence cases, recognizing that those cases take longer to go through the system, and that they form, proportionately, ... the bulk of the cases that are being pushed through the system.”
The plaintiffs’ statement of claim alleges that the defendants, “through the use of Jordan law to garner plea deals, failure to implement any legislation based on existing facts, failure to appoint sufficient judges in a timely manner, and failure to adequately fund the judicial system and fix the issues within it have failed in their duty to protect the plaintiffs from harm and violate their s. 7 rights.”
Their court filing alleges the defendants “have chosen to remain complacent and allow the crisis in the criminal justice system to worsen. The defendants know, or ought to know, that their lack of action and urgency to enact legislation to guide the issues related to the Jordan law has seriously and negatively impacted the lives of individuals victim to sexual assault and/or IPV. They have allowed ... their abusers to walk free, criminal cases to be unjustly stayed and victims to be stripped of their right to justice and safety.”
Marshall pointed to the Supreme Court’s majority statement in R. v. JJ, 2022 SCC 28, that “the broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community. While the emphasis on an accused’s fair trial rights under s.7 should be primary, the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.”
She also noted that in Jordan, the majority said that to achieve timely trials — which is both possible and constitutionally required — provincial legislatures and Parliament may need to take “a fresh look at rules, procedures and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focuses on what is truly necessary to a fair trial. ... Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.”
The statement of claim describes the plaintiffs as people living in Canada and the United States who “have been and will continue to be exposed to threats and fear of violence and harassment, interfering with their physical and psychological integrity and their ability to make fundamental life choices because of the Jordan law and ss. 28 and 29” of the Canadian Victims Bill of Rights.
The plaintiffs say they “will continue to bear a disproportionate share” of the resulting burden and effects. The statement of claim outlines their individual circumstances.
One plaintiff, who now lives in the United States, was beaten and left for dead by her abuser, but multiple charges against him were stayed due to court backlogs and Jordan, according to the statement of claim.
“For the charges that were not stayed, she was forced to accept a peace bond because of the actions of the Crown,” the plaintiffs allege. After her abuser was set free, having faced no punishment for his crimes, he began to stalk her. “Fearing for her safety, [she] has been forced to flee Canada, as she lives in constant fear of her abuser harming her again. She now must reapply annually for a restraining order against her abuser.”
Another plaintiff was nearly killed by her ex-husband and suffered massive brain trauma from the attack that happened in their home in front of their children, the statement of claim says. “An immediate protection order was put in place. Charges laid included resisting arrest, assault causing bodily harm, and assault on a police officer. A trial for the charge of assault was scheduled to begin approximately 21 months after the day of the incident. However, one week before the start of the trial, the perpetrator submitted an application to the court requesting a stay of proceedings, stating that it took an unreasonably long time for the case to reach trial, citing the Jordan law. The charges were stayed and her abuser walked free without consequence.”
The statement of claim says that plaintiff has been in constant fear for her life since, with her husband breaching protection orders 37 times and the plaintiff having to secretly relocate thousands of miles away with the children. “A permanent protection order was established by their family judge, limiting all contact between her ex-husband and their children. Despite these measures, he has continued to try to reach out, leaving her in a constant state of fear. She has had to change her appearance, install security systems, and even sleeps with a golf club beside her bed for protection.”
“The plaintiffs continue to live in communities alongside not only their perpetrators, but other individuals accused of serious violent crimes against them — in constant physical and mental fear,” the statement of claim says.
Correction: This story originally made a mistaken reference to a Charter s. 11(d) speedy trial right. It is Charter s. 11(b) that guarantees the right to a trial within a reasonable time.
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.