Oh, sure, there are some nice things in the Bill. There is the ability restored to judges to use discretion in imposing a victim fine surcharge. And there are additional provisions to allow for judges to consider Indigenous ancestry or marginalization for other reasons in sentencing accused individuals. There are provisions that allow for easier changes to bail or probation conditions where they are not manageable for an individual. Well, those changes are fraught with problems best suited for another blog post.
The purpose of the Bill, as touted by Jody Wilson-Raybould, is to address issues that contribute to delay in our justice system and to provide needed assistance to the most vulnerable people in our population.
For the reasons I outline in this blog post, the Bill fails in those goals.
While it may seem like a clever idea at first blush, the elimination of preliminary inquiries for all but the most serious offence is anything but. Preliminary inquiries serve an importance purpose: they require the Crown to demonstrate that there is evidence to warrant an accused person be committed to stand trial. These inquiries focus on triable issues, not Charter arguments or applications for exclusion of evidence.
However, they also serve a more important role. They are an effective tool of discovery for defence in complex or lengthy trials with multiple witnesses. It is useful for defence to get a sense of how the witness’s evidence may differ from a police report and to explore areas of cross-examination that are discovered to be futile before trial. The reason for this should be obvious to anyone with a basic understanding of the justice system: the less time spent following a rabbit down a hole in trial, the better.
Preliminary inquiries save court time. They are usually only used in cases where the actual trial is set to last a number of days or weeks. This is time that could be used by other cases, or time that could be devoted to civil, family, and administrative matters that now take a backseat in scheduling thanks to the Jordan decision. Instead of running a trial where the evidence is too weak to secure a conviction (say, for example, the case of the murder of Tina Fontaine) a preliminary inquiry would weed out those trials and spare the justice system the time and expense.
In British Columbia, of course, this is less of an issue. Our charge approval standard is a substantial likelihood of conviction, and so criminal trials rarely proceed without there being a substantial body of evidence to support the charges. But the rest of Canada does not adopt this standard.
So what could be improved? Why not have the rest of the country adopt the higher charge approval standard to weed out those cases that have little to no chance of conviction before they even get to the preliminary inquiry stage? Rather than fast-track more trials to Supreme Court, isn’t it more sensible to prevent those cases from being heard at all? After all, this approach is more in keeping with the recognition that our criminal courts operate on a beyond a reasonable doubt standard.
Elimination of Preemptory Challenges in Jury Selection
Call it the Colten Boushie amendment. I wrote on this topic a few weeks ago. And while I recognize that preemptory challenges are rife for abuse, they also play an important role in allowing juries to be made up for those who actually should be sitting on a jury and not people who don’t want to be there or who are not willing to take their role seriously.
And while Bill C-75 does provide a mechanism for a judge to determine a person is not fit for jury empanelment, and recognizes that juries are not impartial, it still rests with the judge to be alive to particular considerations that may arise in a case such as racial inequity, gendered violence, and the like. Judges are imperfect humans like the rest of us. And no one judge can possibly be aware of all systemic issues that may impact an accused or a Crown witness. So this leaves the decision-making power out of the hands of those who are better attuned to the case at that stage.
There are more sensible ways to deal with the issue of jury selection, which I addressed in my earlier post. There are also other options, such as placing further limitations on the number of peremptory challenges, or requiring a lawyer seeking to exercise such a challenge to explain their reasons for doing so in an in-camera hearing, and perhaps with someone who is not the trial judge in cases where there are concerns about the manner in which the challenges are being exercised.
It’s about crafting legislation that uses a scalpel to carve away injustice, rather than a hammer to smash what little semblance of a justice system we’ll have left if C-46 and C-51 pass.
Increasing Penalties for Summary Offences to 24 Months
Currently, most summary offences have maximum penalties of six months’ jail. Some have eighteen-month maximums. These are generally considered to be more serious offences. C-75 seeks to increase the maximum sentence of a summary offence to 24 months’ jail. Yes, four times higher than it is currently.
This is problematic because it creates a whole new range for sentencing options for judges. And that range isn’t smaller: it’s larger. If one of the goals of C-75 is to reduce the number of Indigenous and minority offenders in jail, allowing judges to impose higher sentences for the same offences is not going to achieve that goal. It will do the exact opposite. And research is clear that Indigenous offenders often receive longer sentences than their non-indigenous counterparts for the same offences, despite the fact that Indigenous ancestry is to be considered in sentencing.
But hey – maybe the tourists will have an easier time finding all the Native people if they’re all conveniently located in one place: jail.
I joke, but it’s not a laughing matter. As maximum sentences are set higher, judges tend to perceive offences as more serious and Crown tends to treat them as more serious. As an adjustment to this, overall sentences become higher for everyone. The whole point of the summary/indictable distinction was to classify offences based on severity. But when you can get a federal jail sentence for a summary offence, everything is suddenly severe.
Increasing the Limitation Period for Summary Offences
This is a clear end-run around Jordan. The Government can’t legislate a timeline in which a trial must take place for it to not violate the right to be tried in a reasonable time. Scratch that. This Government probably would if it could. But what it has done instead is extend the time before the clock starts ticking.
Six months is a long time to have the proverbial sword of Damocles hanging over your heard, and to worry about whether that lipstick you stole from Sephora before you started receiving treatment for your depression will lead to a criminal charge. A lot can change in a year. And yet the Government wants to allow prosecutors and police to delay the laying of charges for up to a year.
The intention here is obvious: allow the Crown to delay gathering evidence, delay its disclosure obligations, and drag its heels in bringing charges because the Jordan timeline only starts ticking from the date the information is sworn. It’s buying the Crown an extra six months to get their act together while defence counsel is still expected to respond in the current pressure-cooker timeline imposed by the Supreme Court of Canada.
From a defence counsel perspective, this places a greater strain on our resources. Clients who are charged will often hire us at the outset of an incident. We must then keep files open longer, check up on the progress of files for longer, and spend more time updating clients on the little information we can glean. Meanwhile, the Crown is able to get themselves in a position in which they can say at the first appearance they are ready to proceed to trial.
This change significantly un-levels an already imbalanced playing field. And it does so with no purpose other than to undermine the court’s decision.
Allowing Police Testimony by Affidavit
The most dangerous assumption we can make is that police have no reason to lie. Such an assumption guarantees that they will. And if you eliminate the truth-seeking function of cross-examination on important issues, then the temptation to lie or omit details becomes all the more important.
In our criminal justice system, police already rely on Certificate and affidavit evidence. Affidavits are frequently used to support the issuance of production orders and warrants. However, they are also something an officer may be cross-examined on. And the police are required to give full, frank, and fair disclosure.
A quick CanLII search will reveal just how frequently police fail in that obligation. It’s not always intentional, but misleading evidence intentional or otherwise, when there is no cross-examination, is incredibly dangerous to our system and concept of justice.
And so that Bill C-75 purports to allow police to testify about “routine police evidence” by Affidavit is troubling. What is more troubling is the definition of “routine police evidence.” It includes the following:
gathering evidence and making observations;
analyzing, preserving, or otherwise handling evidence;
identifying or arresting an accused or otherwise interacting with an accused; or
other activities similar to those undertaken in the course of police duties
If you distill that down, what Bill C-75 defines as “routine police evidence” is, in fact, all of policing. Literally an entire impaired driving case could be run by Affidavit evidence from the police. The initial traffic stop is an interaction with an accused, followed by gathering evidence and making observations, which leads to the analysis of breath sample evidence, and somewhere along the way there is the implementation of Charter rights which is part of police duties.
All in a handy little Affidavit.
And while Bill C-75 allows an accused person to apply to the court for the right to cross-examine, the procedure requires revealing one’s hand in advance. The whole concept of a good cross-examination is that the witness does not know where it is going until it is too late to get away from there. A good cross examination is like peeling an onion. To explain what you’re after in advance and so the witness is aware eliminates the effectiveness of this tool for the defence. And cross-examination is often the only tool in defence counsel’s tool kit to guard against wrongful conviction of their client.
Reversing Onus in Bail Hearings
The last initial point I want to make about the dangerous changes in Bill C-75, at least for this post, is with respect to the reversal of the onus in bail hearings. Again, this is an end-run around recent Supreme Court of Canada jurisprudence that took issue with how cash was used to prevent people from obtaining bail, and redefined the framework for the assessment of reasonable bail.
Because our justice system presumes innocence until guilt is proven (or did, until now…) the burden rests with the Crown to show that a person must be detained. The Charter even guarantees that a person not be denied bail without just cause. And the burden generally only shifts to an accused person to prove why they should be released where they’ve breached the conditions of their earlier release.
But assuming a person cannot be released on a domestic violence charge due to a prior conviction and reversing the burden in those cases is a far cry from these principles. There is no reason to believe that a person who completed their sentence for a prior offence and later is charged — but assumed innocent — on a subsequent offence poses more of a risk. Already a criminal record is a relevant consideration on bail. But to use a criminal record as a basis to reverse the onus in a bail proceeding flies in the face of the most basic tenets of our justice system.
In my experience, most domestic violence charges result in release of an accused, with conditions that protect the complainant. They do not generally lead to serious breaches and usually in the cases where there are breaches it is very much consensual contact between partners who do not want to be separated and who mutually do not support the conditions imposed by the court. And so denying release serves no valuable purpose in all but the most severe cases.
In my experience, those cases end up an accused being detained or with an accused in a reverse-onus breach situation in any event. So the Crown gets there. There is no need to reverse the onus at the outset.
One prior conviction is defining a person by their very worst day, and judging their ability to be permitted in society after having served their sentence based on that worst day. It turns a single spousal assault conviction into a life sentence. The easiest way to keep people accused of domestic violence from early pleas rather than trial is to impose Charter-infringing consequences on conviction.
As I said at the outset of this post, the Government’s legislation does not achieve goals of minimizing delay. If anything, it enhances it by using more court time, in less effective ways, undermining the fundamental principles of justice, and putting those who are Indigenous, visible minorities, mentally ill, and addicted at risk of longer and more severe incarceration.
This Bill needs serious consideration by our government, and the few benefits gained by passing it should not come at the costs outlined here.