Last week, the federal government announced Bill C-75, which is legislation that would change many sections of the Criminal Code. It would change how juries are selected, bail hearings are conducted, sentencing and the availability of preliminary inquiries. The reaction to Bill C-75 has been significant and mixed. The reaction from criminal defense lawyers has been almost entirely negative. In this article, I address the impact that Bill C-75 would have on the preliminary inquiry and why these changes are a poor solution to address the problem of lengthy waits for trials.
The purpose of a preliminary inquiry is to determine whether there is sufficient evidence for the Crown to proceed to trial. It is usually held long before the trial happens. For larger, more complex cases, it is an important opportunity for both the Crown and defense to better understand the strength and weaknesses of their case. Often a case won’t go beyond the preliminary inquiry. It will either become clear to the Crown that there is no reasonable prospect of obtaining a conviction or the evidence will cause the defendant to realize that the case against them is a strong one and they plead guilty.
Currently, a defendant has a right to a preliminary inquiry if the Crown has chosen to prosecute the offence by way of an Indictment (as opposed to proceeding summarily). There are some offences, such as murder, where the Crown is required to do this. As a general rule, the Crown will proceed by way of an Indictment where the case is more serious.
Bill C-75 proposes to eliminate the availability of the preliminary inquiry to only offences where there is a risk of life imprisonment. Examples of offences that carry this punishment include murder, committing an indictable offence for a criminal organization and arson. The list is relatively short, so this change would take away a defendant’s right to a preliminary inquiry in many offences where they would otherwise have one.
In their official announcement of this new legislation, the Liberal government wrote that “the elimination of the preliminary inquiry for certain offences may lead to speedier trials, thus protecting the right of the accused to be tried within a reasonable time.” So their stated purpose is to speed up trial time (an issue that I wrote about previously in this column), but this simply isn’t a good way to do so.
The new legislation is being proposed in the face of known facts about their use. These facts suggest that their removal would be unlikely to make a significant reduction in trial delays and will unnecessarily deprive defendants of an important right. Even by their own statistics, the number of preliminary inquiries has been declining consistently since 2004. In 2015 and 2016, only 3 per cent of cases proceed to a preliminary inquiry. Statistics Canada has issued a comprehensive report with these and related statistics. Simply put, the government’s proposed initiative is not being made with careful consideration of the relevant data.
The decision to take away the preliminary inquiry from defendants who would otherwise be entitled to one simply doesn’t make sense. If the government’s intention is to help speed up the time that it takes to get to trial, there are other options that are available. The most obvious (and arguably the most difficult amongst them) is to simply devote more resources to the criminal justice system (i.e. more Crown attorneys, more judges, and more funding for legal aid).
Another option that is available would be to standardize the charge approval process. In both B.C. and Quebec, the process in which charges are laid is very different than in Ontario. In those provinces, it is necessary for a Crown attorney to approve the laying of a charge. As a result, fewer charges are entered into the system and, consequently, fewer charges are withdrawn (presumably because of more rigid process involved in laying a charge). Inevitably, this has the effect of freeing up court resources, which would likely have a greater impact on speeding up trial times. For further information on why a Crown-led charge approval process makes sense, read Nancy Seto’s article in the Georgia Straight.
I am one of several lawyers voicing this opinion. Last year, Daniel Brown wrote a persuasive piece in the Toronto Star when the Attorney General of Ontario was publicly contemplating eliminating the preliminary inquiry. Now, with Bill C-75 having had its first reading in the house, presented by a majority government, the threat is more immediate. However, there is still time for the government to reconsider.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
Last week, Justice Minister Jody Wilson-Raybould unveiled her self-described “bold” criminal justice reforms. The legislation, Bill C-75, was billed as a silver bullet to unclog our courts and bring about a “cultural shift” in the justice system. The changes may be bold, but in this case the proposed reforms will likely result in more delays, more racial inequality and more unfair trials.
There is need of swifter justice in our courts. Dockets are overflowing and it can take years for a criminal allegation to reach trial. This is not because victims or accused people want to delay cases. Every actor in the justice system wants to speed up the process but we can’t. Our courts are clogged with petty offences that all too often are the result of addiction, mental health and poverty. These offences could be prevented or diverted from the criminal system, leaving our courts to tackle serious and violent crimes. But Wilson-Raybould ignored this root cause of delay and chose to grab the lowest-hanging and most counterproductive fruit.
Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.
Preliminary hearings account for only about three per cent of all court time. In that context, Wilson-Raybould’s claim that her legislation will reduce their use by 87 per cent sounds a bit less inspiring. What Wilson-Raybould conveniently leaves out is that preliminary hearings not only increase fairness but actually save court time by weeding out weak cases, focusing trials and increasing the likelihood of guilty pleas. Under the new rules, more cases will go to trial and those trials will be longer and less focused. Wilson-Raybould has inexplicably chosen to prefer policy-based-evidence-making over evidence-based-policy-making.
Under the new rules, more cases will go to trial and those trials will be longer and less focused.
Fairness seems to be taking a backseat to expediency on Wilson-Raybould’s priority list. 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.
The justice minister also claims that the new bill will bring a “cultural shift” to the courts by eliminating the peremptory challenge: the ability of both the Crown and the defence to exclude jurors. After the Colten Boushie trial, there was a public outcry because it appeared that the defence purposefully excluded Indigenous jurors. So a month later, we get a new law. But in most cases – and every case I have been involved in – defence lawyers actually use their peremptory challenges to increase a jury’s racial diversity. If I am representing a racialized accused, I can exclude the 12th white juror to give the next racialized juror a chance to be selected. In simple terms, the new rule will actually mean more all-white juries.
Perhaps most galling is what is not in the new law: the elimination of mandatory minimum sentences. This change would reduce court delays and increase fairness. It also has decades of evidence and study to back up its positive impacts. And, if you care about such things, it was also an explicit election promise.
Bill C-75 has been widely condemned in the legal community. It has also shown that, like her predecessors, Wilson-Raybould is willing to draft reactive legislation based on one high-profile case, is willing to disregard evidence, is willing to sacrifice trial fairness, and is willing to break promises.
In other words, Wilson-Raybould would have been right at home in Stephen Harper’s Conservative cabinet.
Michael Spratt is an Ottawa criminal lawyer and co-host of the legal and political podcast The Docket.
On Thursday, the federal government released Bill C-75, an omnibus bill aimed at reducing court delays. Unfortunately, good intentions stop at the preamble, especially for those of us who believed in the government’s pre-election promise to bring a principled approach to criminal justice reform.
Speeding up the system has been on the agenda since the Supreme Court’s Jordan decision, which strengthened the law surrounding breaches of the right to trial within a reasonable time. However, in my opinion, C-75 uses Jordan as a pretext to erode Charter rights and procedural safeguards.
Bill C-75 purports to speed up the system by eliminating preliminary inquiries for all but the most serious offences. On a superficial level, one might expect that removing a step in the pretrial process would unencumber judges enough for matters to proceed to trial more quickly.
However, C-75 reclassifies a myriad of offences, giving the Crown discretion to prosecute them summarily. To further incentivize this option, the bill increases the maximum penalty for summary offences from six months to two years. Summary offence trials, like preliminary inquiries, occur in provincial courts, which are already the most congested courts in our system. C-75 may very well take many preliminary inquiries off the provincial court docket, but it will replace them with many more trials.
Promptness is not the only meaningful metric for assessing justice reform. Preliminary inquiries are discretionary, and since they slow down the process, an accused will generally only opt for one where it will enable counsel to obtain essential disclosure, narrow issues, or arrive at a fair resolution. Narrowing issues means shorter trials; resolution results in fewer trials; and disclosure creates fairer trials.
C-75 would also repeal peremptory challenges, which recently upset the Boushie trial, where the defence notoriously used challenges to eliminate Indigenous jurors. However, most often, peremptory challenges are not used this way; they are used to achieve fair and representative juries.
During the peremptory challenge process, each potential juror is brought forward and asked to look upon the accused. You can learn a lot from that look. Some potential jurors appear with defiance, contempt, or fear on their faces. Others show compassion, interest, or equanimity. I prefer the latter on my juries. I don’t expect these jurors to give a preferential trial; but I hope that they will be more inclined to exercise fairness.
Bill C-75 also codifies the power of a judge to stand aside a juror — remove them from the jury pool — to maintain public confidence in the administration of justice. Judges arguably already have the power to stand aside jurors in the extremely rare circumstances where this factor is at play.
The federal government could have responded to the Boushie debate by providing counsel more freedom to vet jurors or by creating a mechanism to challenge discriminatory use of the veto. Instead, it proposes to repeal one of the few tools counsel have to eliminate jurors who may not believe in the presumption of innocence.
The most troubling aspect of C-75 is that it will allow the Crown to introduce written evidence from police officers about routine matters, and force the defence to apply for permission to cross-examine. The definition of routine matters is so broad it could cover the entire spectrum of police evidence. Applications to cross will be numerous and time consuming, and will undoubtedly clog up the system.
As society becomes increasingly aware of intolerable police practices, such as carding and induced confessions, the federal government is tabling legislation that seems to protect such behaviour, by eliminating the discovery-focused cross-examination that occurs at preliminary inquiries and by making it much more difficult to cross-examine police officers at trial.
Cross-examination has been called the greatest legal engine ever invented for the discovery of truth. Limits on cross examination interfere with a trial’s essential function: the search for truth. Cross-examination also provides a check and balance on police abuse and corruption. Without this form of transparency, abuses will have fertile ground in which to flourish.
My prediction if Bill C-75 passes into law: the Canadian justice system will be slower and less fair, and it will encourage police abuse and an increase in wrongful convictions. Bill C-75 is a massive step backwards for justice reform in Canada.
Stephanie DiGiuseppe is a litigation lawyer in Toronto, specializing in criminal and constitutional law.
Liberals introduce legislation to speed up Canada’s criminal-justice system
Toronto Globe and Mail
29 March 2018
The federal government is proposing to scrap most preliminary inquiries, abolish peremptory challenges and make it easier for accused people to be released on bail as part of sweeping legislation intended to speed up Canada’s snail-like criminal-justice system.
As The Globe and Mail reported on Monday, the limits on preliminary inquiries and related proposals would be the biggest structural changes to the justice system thus far under the current government. Bill C-75, introduced in Parliament on Thursday, is a response to a Supreme Court ruling in the summer of 2016 in a case known as Jordan that roiled the lower courts by setting time limits for trials.
The changes “are a direct response to issues that have plagued the courts for too long,” federal Justice Minister Jody Wilson-Raybould told reporters.
The bill goes beyond problems caused by delays to address a longstanding concern that Canada’s provincial jails contain more people awaiting trial than have been found guilty − and that many of them are Indigenous, addicted or mentally ill people denied bail. The changes to preliminary hearings would also address concerns that complainants in sexual-assault cases are obliged to tell their story over and over in court proceedings.
The bill would also abolish peremptory challenges of jurors, which came under fire when a Saskatchewan farmer was acquitted in the death of an Indigenous man after his defence team challenged potential jurors who appeared to be Indigenous themselves. Amid the outrage that followed, Ms. Wilson-Raybould tweeted that the justice system needed to do better.
The bill drew a mixed reaction. Ontario Attorney-General Yasir Naqvi said he expected the changes to make a real difference in reducing delays. Quebec Attorney-General Stéphanie Vallée asked why the government had taken so long. The wider legal community offered both applause and criticism.
“I don’t think they’ve actually got to the heart of the Jordan problem as yet,” Toronto lawyer Frank Addario said in an interview on behalf of the Criminal Lawyers Association. The Jordan ruling set limits of 18 months in Provincial Court and 30 months in superior courts from charge to trial completion.
Preliminary inquiries are used to determine if the Crown has enough evidence to go to trial. They have been a staple of the justice system since the first written Criminal Code in the 1890s.
The government’s proposed law would eliminate an estimated 87 per cent of the 9,100 preliminary inquiries held each year, Ms. Wilson-Raybould said. Such proceedings would not be available unless the criminal offence carries a maximum penalty of life in prison. Crimes such as sexual assault, and many drug offences, would not be eligible.
Mr. Addario said the elimination of most preliminary inquiries will swing the balance to the Crown, and away from the protection of the rights of the accused.
The new bill still needs to be debated in Parliament and approved before becoming law. Last April, as legal challenges over delays mounted in several provinces and judges threw out cases, Ms. Wilson-Raybould met with her provincial counterparts at their request and publicly promised changes in five areas. They met again in September. Ontario, Quebec and Alberta have poured millions of dollars into hiring extra judges, prosecutors and court staff since the Jordan ruling.
The legislation also attempts to reduce the number of “administration of justice offences” (including the violation of a bail condition) that land in court.
It would also allow prosecutors to treat 136 offences currently punishable as “indictable” (more serious) as less serious “summary” offences. It would hike the maximum penalties for summary offences to two years less a day to give prosecutors greater options; currently, some are as low as six months.
The one area of the five the government did not touch on involves mandatory minimum penalties. The previous Conservative government established or increased obligatory penalties for 60 drug, gun and sexual offences. They are perceived to clog the system because fewer people plead guilty when they face mandatory jail terms.
“What we want to be able to do is advance sentencing reforms that will stand the test of time,” Ms. Wilson-Raybould said in explaining the lack of action on minimum sentences.
In an interview, Ms. Vallée said she was surprised at the lack of a response on minimum penalties. “We did have a lot of discussion around the table when the ministers met.”
She said delays still beset the justice system in Quebec. “The pressure of Jordan is still there,” she said. “I’m surprised that it took almost two years at the federal level to come up with a response.”
Mr. Naqvi said the reduced number of preliminary inquiries would mean fewer delays. “These are really bold reforms,” he said in an interview.
Ian Carter, an Ottawa lawyer authorized to speak for the Canadian Bar Association, which represents 36,000 lawyers, said there is no evidence preliminary hearings cause delays. Generally, though, he supported the proposed changes.
“My overall take is that it’s a bold bill introducing significant changes to the justice system.” For instance, the bail changes mean “more people are going to be released on bail with fewer conditions, and the bail hearings themselves will be faster. All good things.”
The government would single out those charged with repeat domestic-violence offences for tougher treatment in bail court. They would have to show why they should be released, rather than the Crown having to demonstrate why they should be locked up.
Mr. Addario said the government missed out on more beneficial approaches. “The way to have attacked the Jordan problem would have been to attack mandatory minimums, which are clogging the courts,” he said. He also called for a change to the system under which police in some provinces lay charges and the Crown does it in others, and for something to be done about “the number of cases involving drug addicts and mental-health cases coming into the courts.”
OTTAWA—The Liberal government has proposed sweeping reforms to Canada’s legal system to change the ways juries are selected, to streamline bail conditions, and to speed up trials.
Federal Justice Minister Jody Wilson-Raybould said the bill aims “to bring about a wide-reaching cultural shift in the criminal justice system and how it is administered throughout the country.”
Tabled Thursday in the House of Commons, Bill C-75 would amend the criminal code, the youth justice act and other laws. A key part the 200-page package addresses concerns that the legal system is stacked against Indigenous people. It proposes to abolish what are known as peremptory challenges, which allow Crown and defence lawyers to dismiss a certain number of potential jurors without having to give a reason for their objection.
The move comes after a reportedly all-white jury acquitted a Saskatchwan farmer of murder in the fatal shooting of Colten Boushie, a 22-year-old Indigenous man. The high-profile acquittal of Gerald Stanley prompted protests across the country, and an emotional and highly publicized trek to Ottawa by members of the Boushie family, who pleaded for change.
“I can understand the desire to respond to the Stanley case, and to the occasional abuse of (peremptory challenges), but they are not getting at the problem of non-representative juries,” said lawyer Frank Addario, a former president of the Criminal Lawyers’ Association.
“The criminal code could have been amended to require representative juries, which would create an obligation on the part of the provinces to create representative jury panels…This was a good opportunity to right that wrong.”
Wilson-Raybould said systemic racist attitudes across the justice system are “a challenge that we face” but said the bill “is a start” towards enacting changes that fall within federal jurisdiction.
“This is a call to action for all actors in the justice system,” she said.In response to a Supreme Court of Canada ruling that slammed a “culture of complacency” in the legal community, the bill takes square aim at reducing criminal trial delays by proposing new limits on preliminary inquiries. It would restrict the pretrial hearings to cases where the offence carries a possible life sentence, such as murder. There are some 9,100 preliminary inquiries held each year. Thursday’s change would reduce that by 87 per cent, Wilson-Raybould said.
The legislation would also reclassify many offences. All indictable crimes with maximum sentences of 10 years or less — 136 in all, ranging from theft over $5,000 to prison break offences — could be prosecuted as summary offences, a more streamlined process.
Under this change, the maximum penalty for “summary conviction” offences would be raised to two years less a day, up from six months for many offences now. The federal Justice Department believes more prosecutions would shift into provincial courts — freeing up court time in superior trial courts. Upon conviction, those sentences would be served in provincial jails, not penitentiaries.
“Once passed, this legislation will have a real effect on court delays,” Wilson-Raybould told reporters. She said the measures are supported by police and provinces and territories.
Ontario Attorney General Yasir Naqvi told the Star Thursday he’s confident that the provincial court has the necessary resources to deal with an influx of summary conviction offences, and has no plans to add more judges.
“We feel that we have the capacity within the Ontario Court of Justice to deal with those additional cases given now that preliminary inquiries will not be taking place in a large number of cases,” he said.
Naqvi had urged Ottawa last year to amend the criminal code to limit the use of preliminary hearings. He argued this was necessary in the wake of the Supreme Court of Canada’s landmark 2016 ruling, Regina vs. Jordan, which set strict timelines to bring criminal matters to trial: 18 months in provincial court and 30 months in Superior Court.
“This is a time to engage in bold reform; the Supreme Court of Canada was very clear in calling everyone out on the complacency in the system,” Naqvi said. “The need (for preliminary hearings) is far, far limited given that we live in this new reality in trying to get these cases done in either 18 or 30 months.”
Preliminary hearings, which take place in provincial court, traditionally served two purposes: a discovery purpose, allowing defence lawyers to know the case against their client, and a screening purpose, meaning a judge would decide whether there was enough evidence to send the accused to trial in superior court.
Defence lawyers have argued preliminary hearings still serve a purpose, particularly when it comes to narrowing issues ahead of a trial, thereby saving time.
“The experience of people who work in criminal law is that preliminary inquiries are a useful tool to reduce delay, settle cases, and sharpen up the issues for trial,” Addario, the criminal defence lawyer, said.
The legislation, which comes with 100 pages of explanatory notes, does not offer more money to help provinces pay for more services in provincial courts and jails that are expected to handle more criminal cases, or for more legal aid services, or addictions and mental health services, to deal with Indigenous offenders or other marginalized groups Wilson-Raybould insisted must be given more support.
Among the other measures announced Thursday:
- Steps to curb intimate partner violence. These include a reverse onus at bail for accused persons charged with an offence involving such crimes and with previous convictions. As well, strangulation would become an elevated form of assault.
- Updated bail procedures to increase the scope of conditions that can be imposed by police without having to seek court approval.