Criminal defence lawyers say certain provisions in the federal Liberal government’s proposed bill C-75 will increase, not decrease delays in the criminal justice system.
Bill C-75 was unveiled March 29 and the Department of Justice says the legislation will “protect the vulnerable, serve victims, keep communities safe and decrease court delays by making the system more efficient.”
However many criminal lawyers took to social media almost immediately, outraged when the bill was released last week.
“This piece of legislation is a betrayal of the liberal promise that the federal government would approach much-needed justice reform through evidence-based policy making. Instead what we have here is a piece of legislation that would trade away a number of well-established procedural protections that ensure the fairness of criminal trials in the hopes that the results would be a decrease in the delays that have plagued the criminal justice system for decades. What is astounding about this trade off is that there is no evidence that any of the measures proposed by the government will, in fact, decrease delays. They may actually exacerbate them,” says Annamaria Enanajor, partner at Ruby Shiller & Enenajor Barristers, in an email comment.
Bill C-75 will restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.
Frank Addario at Addario Law Group says eliminating preliminary inquiries will not speed up the system but slow it down. He says the process actually promotes settlement.
“The reality is, it’s not really contributing to delay,” Addario says. “I think that evidence will not bear out the claims that eliminating preliminary inquiries will produce more efficiencies.”
The legislation is “cynical, reactionary” and produces results counter to the government’s stated objectives, says Michael Spratt, partner at Abergel Goldstein & Partners LLP.
The Conservative government brought in mandatory minimum sentences they said would keep the streets safer but studies showed they increased recidivism and made the streets more dangerous, he says.
Two provisions in the bill that are intended to speed up the process, but Spratt says will serve to do the opposite, are the elimination of the preliminary inquiry and letting the Crown introduce police evidence by affidavit without calling on the police to testify.
“I think both of these provisions are actually going to result in unfair proceedings and will actually result in increased court time,” Spratt says.
The use of preliminary inquiries actually speed up the process, says Spratt, because they prevent delays from happening once trials start as issues can be identified and there is no need to pause to explore third-party records or further disclosure because they have already been handled.
Allowing the Crown to introduce police-officer evidence on paper is a “bizarre provision that came out of left field,” Spratt says.
“That not only weakens the court system and weakens protections against wrongful convictions but it’s going to increase delay because defence counsel are going to have to bring applications to cross examine these officers on their affidavit,” he says. “The fact that we have to take up court time arguing over whether the Crown should take advantage of these procedural short cuts that undercut fairness is in and of itself going to create more delays than those short cuts are ever going to save."
Spratt says the new Liberal plan is a reaction to the Gerald Stanley verdict that will actually make juries whiter, he says. Bill C-75 eliminates peremptory challenges, which are used by the defence and the Crown to eliminate without a stated cause, potential jurors from contention.
An all-white jury served on the trial of Gerald Stanley, the Saskatchewan farmer acquitted of second-degree murder in the death of Colten Boushie. During the trial, defence counsel used peremptory challenges to eliminate potential jurors who were Indigenous.
While the Stanley verdict represented a case where a white accused was provided a white jury via peremptory challenges, defense lawyers more often use peremptory challenges when they have a non-white accused and want to put someone on the jury who looks like their client, says Spratt.
“There was one anecdotal example in the Stanley Trial of defence counsel using peremptory challenges to exclude Indigenous individuals but in 99 per cent of the cases the opposite is actually true,” he says.
“When you look at the peremptory challenge changes by removing peremptory challenges we are probably at risk of having even whiter juries,” he says.
Addario says if the government wanted to make juries more representative, they should have amended s. 629 of the Criminal Code which states that “the accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.” That has been interpreted, including by the Supreme Court, to mean that the racial makeup of a jury can not constitute impartiality.
“I think the government’s goal of getting more representative juries is a fantastic one,” Addario says. “With the stroke of the pen the federal government could have said that the jury array is not going to be impartial unless it’s representative.”
Spratt says it is especially disappointing that there is no minimum sentence reform in the bill, “something that everyone agrees would create a fairer and speedier court system.”
He says it is unfortunate that without extensive consultations, the government is getting rid of peremptory challenges while keeping mandatory minimums.
The bill also makes the courts stricter with respect to those accused of domestic violence by increasing the maximum term of imprisonment for repeat offences involving intimate partner violence and provided that abuse of an intimate partner is an aggravating factor on sentencing, according to the legislation.
Addario says that domestic partner violence is a serious issue but must be addressed at the root cause. He says it is ineffective to try and deal with it with the court system.
“It’s obviously progressive for the government itself to acknowledge that intimate partner violence is a very serious social problem, and my only caution to the wider community is when the government responds to a social problem with the big stick of punishment it should also make a clear statement that the big stick is not the solution to the problem, it’s a response to the problem and the problem remains unsolved. By the time the police arrive, it is already too late to solve the problem of intimate partner violence,” he says.