The combined effects on Jordan and Cody on the justice system have been noticeable and palpable for anyone who regulars the courts, with 11(b) waivers by defence echoing the halls of courtrooms, and judicial pressure to have matters heard in a timely manner.
The impact on civil matters is even more pronounced. Without a Charter right to timely proceedings in private matters, many civil lawyers have been complaining about an even more pronounced delay in civil proceedings. The oft touted solution of increased judicial appointments obviously comes at an increased cost to the public purse, and so the government has also contemplated alternative solutions to this backlog.
Last Thursday, the federal government introduced Bill C-75, which introduces a number of reforms to the criminal justice system. Some of them are very clearly intended to address the Jordan effect, as explained by the Department of Justice,
Bill C-75 would amend the Criminal Code, the Youth Criminal Justice Act and other Acts, to reduce delays in the criminal justice system and to make it more modern and efficient. These amendments would respond to the Supreme Court of Canada decisions in R. v. Jordan (2016) and R. v. Cody (2017), and also address concerns identified in the June 2017 Senate Report “Delaying Justice is Denying Justice”. Bill C-75 proposes broad changes, including with respect to modernization and clarification of bail, the way administration of justice offences are addressed, preliminary inquiries, the classification of a number of criminal offences, and judicial case management.
The removal of preliminary inquiries for all offences, except those punishable by imprisonment for life, has been floated in some circles over the past year, but there are good reasons to proceed with this step with caution. The Globe editorial last year stated,
Defence lawyers see it differently. Eliminating a step that might force a Crown prosecutor to concede that the evidence against their client is weaker than advertised is not something they would naturally support.
As my classmate from Western Law Stephanie DiGiuseppe has noted, preliminary inquiries perform a similar function as examinations for discovery in civil trials. There would be a greater opportunity to test the evidence if sued for sexual assault than if an offender was arrested for it.
Defence lawyers Anne London-Weinstein of the Defence Counsel Association of Ottawa and Leonardo Russomanno of the Criminal Lawyers Association stated in the Ottawa Citizen last year,
There is no evidence that curtailing preliminary hearings will alleviate delays. Quite the contrary, there is evidence they contribute to a more efficient system.
The preliminary hearing is held only in the most serious of cases. As such, it represents an insignificant use of time and money expended in our criminal justice system.
While it is true that the law related to first-party disclosure to the accused has become more generous since a case called Stinchcombe, the law in relation to records not in possession of the Crown, but relevant to the trial, has become much more restricted.
The Justice Department on the other hand, has estimated that this move will reduce the number of preliminary inquiries nationally by 87%. They justify these changes with para 89 of the Court’s decision in R. v. S.J.L., where they noted there is no constitutional right to a preliminary inquiry.
Michael Spratt also highlights in the Ottawa Citizen one of the changes that could be counter-productive to reducing wait times,
In an out-of-the-blue change, the new bill would shield police officers from cross-examination in some cases. If an accused wants to actually ask a police officer any questions they will need to apply to the trial judge for permission. Here is a prediction: These applications will always be granted; that is just how oppressive and odious Wilson-Raybould’s new rule is. But of course, all of those applications to ask questions of police officers will eat up court time and cause more delays.
Where there is less controversy is the expansion of spouse and common law partner violence to include past partners and less formal relationships by using the term “intimate partner.” Prof. Peter Jaffe notes that violence between people who are dating has been treated as less serious because of the lack of financial intricacies between the parties, but the violence is of course just as objectionable.
Amendments to subsection 515(6) of the Criminal Code would create a reverse onus for persons alleged to commit an offence including intimate partner violence if there is a history of this same offence. The government has justified this in light of s. 11(e) of the Charter as follows:
- the change is not an absolute denial of bail, but a limited restriction
- this restriction is limited to those who already have an elevated risk of violence, and a higher risk of reoffending towards intimate partners
But the proposed reforms go before changing the definitions and creating reverse onuses, and seek to amend Section 718.3 so that the principles of sentencing so that there will be judicial discretion to exceed the maximum sentence imposed on an offender,
Maximum penalty — intimate partner
(8) If an accused is convicted of an indictable offence in the commission of which violence was used, threatened or attempted against an intimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against an intimate partner, the court may impose a term of imprisonment that is more than the maximum term of imprisonment provided for that offence but not more than
(a) five years, if the maximum term of imprisonment for the offence is two years or more but less than five years;(b) 10 years, if the maximum term of imprisonment for the offence is five years or more but less than 10 years;(c) 14 years, if the maximum term of imprisonment for the offence is 10 years or more but less than 14 years; or(d) life, if the maximum term of imprisonment for the offence is 14 years or more and up to imprisonment for life.
This change would make the presence of intimate partner violence one of the most aggravating factors in the Code, but also demonstrates the need to ensure the absence of previous convictions where it is not warranted.
To help protect against the pressure to enter into plea provisions, Bill C-75 would amend subsection 606(1.1) to ensure the facts that a plea is being entered into supports the charge. The government believes that this measure is a sufficient one to alleviate against the danger of an innocent accused pleading guilty due to denial of bail or the wait for a lengthy trial.
In reaction to the death of Colten Boushie and the acquittal of Gerald Stanley, there have been concerns about the racial compositions of juries, with peremptory challenges in particular being highlighted. Family members of Boushie noted that defence counsel appeared to use a peremptory challenge to remove every potential Indigenous juror, resulting in an all-white panel.
Bill C-75 would abolish the use of peremptory challenges for jurors, and instead put the onus on a judge to ensure that the determination for a ground of challenge is true. Defence lawyers have also questioned the rationale for this change,
Some defence lawyers tell CBC News they actually use these challenges to make juries more diverse — by challenging some would-be white jurors — to ensure a fairer trial for visible minority clients.
“This one case is going to strip away peremptory challenges, and it’s only because of the [Boushie] backlash, which should tell you how crassly political this whole bill is,” Solomon Friedman, a prominent Ottawa-based defence lawyer, said in an interview with CBC News.
“I use peremptory challenges to get a more diverse and representative jury, to see if I can get racialized individuals on the jury. That is now gone. We cannot do that now.”
Friedman said the jury pool is overwhelmingly white, older and middle class.
Finally, the changes proposed by Bill C-75 would hybridize almost all of the indictable offences that are punishable by a maximum penalty of 10 years or less, and increase the default maximum penalty to under two years for summary convictions.
While this would allow the Crown far more control over how they elect in such offences, presumably allowing for better management of cases in respective courthouses, an unintended effect would be to exclude licensed paralegals in Ontario from the vast majority of their existing scope of practice in criminal law. While lawyers may not particularly mourn this specific impact, paralegals have shown some potential to meet the demand for legal representation for smaller criminal matters.
Perhaps what’s most confusing is that just last month the Department of Justice released a report, What we Heard Transforming Canada’s Criminal Justice System, which appeared to emphasize collaborative approaches and restorative justice,
Many participants felt Canada’s criminal justice system is too quick to criminalize the symptoms of vulnerable and marginalized people. They felt this was especially true for people with addictions and mental health issues. They said the system lacks understanding and compassion for offenders and victims of crime. They also said the justice system isn’t well integrated with the other social support systems.
Many called for an approach that tries to solve problems instead of looking only at facts and guilt. These participants felt the system is overburdened with vulnerable and marginalized people, which it is not intended to treat. As well, they felt the system is burdened with a large number of lower level offences that are not a public safety concern.
This report was understood as a welcome change in direction from the “tough on crime” approach employed by the previous government, which makes some of the changes proposed here appear contradictory.
Although crammed in immediately prior to a long weekend, Bill C-75 is likely to keep legal analysis and members of the criminal defence bar active for the next few months.