Federal government facing pushback over bill to transform justice system

Thestar.com
October 1, 2018
Jacques Gallant

One thing that both the prosecution and the defence seem to agree on is that the federal government’s push to cut preliminary inquiries in most criminal cases will not solve the long-standing problem of delays in the criminal justice system.

That’s one point that emerged during weeks of testimony before the House of Commons’ standing committee on justice and human rights regarding Bill C-75, the Liberals’ massive -- and much criticized -- legislation to revamp the justice system introduced in March by Justice Minister Jody Wilson-Raybould.

Numerous changes are being proposed to legislation introduced earlier this year by Justice Minister Jody Wilson-Raybould to revamp the justice system.

Conservative and NDP MPs on the committee (where Liberals hold the majority) have said they will be proposing dozens of amendments to the bill. The committee is expected to hear those in October.

The Star consulted the briefs of several Ontario and national legal organizations that were filed with the committee, to get a sense of their stances on three big issues in the bill: limiting preliminary inquiries, increasing the maximum sentences for summary offences, and eliminating peremptory challenges during jury selection.

Preliminary inquiries

These hearings are typically held before trials in Superior Court, which handles the most serious criminal cases, where witnesses testify under oath and allow for a lower court judge to determine if there is enough evidence to send the accused to trial. The government has proposed limiting preliminary inquiries only to cases where the maximum term of imprisonment is life, such as murder.

Many groups who testified before the justice committee said the push to limit prelims requires further study, while also noting that preliminary inquiries are already only used in a small number of cases.

“There is no evidence to suggest that preliminary inquiries are a major cause of delay in the criminal justice system, while the available evidence suggests they may be irrelevant to that question,” Legal Aid Ontario says in its brief filed with the committee. “Secondly, there is evidence that preliminary inquiries may serve to change the ‘trajectory of cases’ by screening out cases so that more matters are resolved without the necessity of a trial.”

In its brief, the Criminal Lawyers’ Association has also argued that the change be scrapped, but if maintained, they suggest an amendment to allow for either the Crown or defence to ask permission from the judge to conduct a prelim if it’s in the “interests of justice.”

Interestingly, the association that represents federal Crown prosecutors agrees with the defence side, at least with regards to the argument that cutting prelims will not speed up the system.

“I think it is really significant that both sides of the front line are in agreement that reducing prelims ... will not address delay,” Ursula Hendel, president of the Association of Justice Counsel, said before the committee.

The president of the Ontario Crown Attorneys’ Association, which represents all provincial Crown attorneys, did not return the Star’s request for comment. The one provincial Crown attorney association that did file a brief with the committee, the Alberta Crown Attorneys’ Association, said in their submissions that:

“There are many benefits to appropriate preliminary inquiries (which are typically much shorter than the trial): They can narrow the issues resulting in shorter trials; they can result in guilty pleas when an accused is faced with the strength of the Crown’s evidence; and, they can result in resolutions where the Crown’s evidence does not hold up on the stand.

From a Crown perspective, preliminary inquiries also allow the Crown to test the strength of its case and, oftentimes, mend unforeseen holes or difficulties in the evidence -- resulting in a stronger prosecution at trial.”

Increasing sentences for summary offences

The Liberal government wants to shift some of the caseload away from Superior Court by increasing the maximum penalty for all criminal cases heard in provincial court -- known as “summary offences” -- to two years less a day in jail. The move would allow the Crown to prosecute more cases in provincial court that were traditionally heard in Superior Court, where cases tend to take longer to come to an end.

But as the Star reported earlier this year, the move would cause an access-to-justice issue by effectively prohibiting law students and paralegals from representing impoverished accused persons, as they regularly do now. That’s because the Criminal Code only allows them to handle cases where the maximum term of imprisonment is six months.

Law students (under the supervision of a criminal defence lawyer) and paralegals tend to represent individuals who can’t afford a lawyer, but also don’t qualify for legal aid. Summary offences that currently have a maximum term of imprisonment of six months include public nudity and causing a disturbance.

There is a provision in the Criminal Code that allows provinces to create a program where law students and paralegals can represent accused if the term of imprisonment is above six months, but only Alberta and British Columbia have created such a program since that provision was enacted in 2002.

The effect this change would have on legal representation was the focus of the submissions from the Law Society of Ontario, which regulates lawyers and paralegals. The regulator argued that it could lead to more self-represented individuals, who can slow down the system as they try to navigate it.

“Regulated agents currently provide affordable and accessible representation to vulnerable clients who might not otherwise have representation. While the Law Society supports the government’s intention in developing the bill, the provisions ... will have the unintended and counterproductive effect of restricting access to justice, particularly for marginalized people.”

The regulator suggested an amendment to create a separate category of summary offences that would retain a maximum term of imprisonment of six months, so that law students and paralegals could continue representing people charged with such crimes. A similar amendment was suggested by other groups.

Eliminating peremptory challenges

These challenges allow both the Crown and defence to each dismiss a certain number of potential jurors during jury selection without having to give a reason. Peremptory challenges received widespread attention following the acquittal earlier this year of Saskatchewan man Gerald Stanley, who had been charged with murder in the death of Colten Boushie, a 22-year-old Indigenous man. The defence had reportedly used peremptory challenges to keep anyone who appeared Indigenous off the jury.

The Canadian Bar Association said in their submissions that the changes to the jury selection process, including to peremptory challenges, “seem insufficiently considered” and require further study.

“While we share the concern that peremptory challenges may be misused to racially discriminate against Indigenous people, our experience is that they are more frequently used to the benefit of Indigenous and other racialized persons,” the association said in their brief. “Those populations are disproportionately drawn into the criminal justice system, and often use this same process precisely to avoid an ‘all-white’ jury.”

On the other hand, Toronto-based Aboriginal Legal Services said they were “completely supportive” of eliminating the challenges.

“Government neglect and the use of peremptory challenges has had a corrosive impact on efforts to encourage Indigenous people to volunteer as jurors,” they said in their brief.

Several groups, including the Canadian Civil Liberties Association and Aboriginal Legal Services, supported the recommendations regarding the jury process made to the committee by University of Toronto law professor Kent Roach, who supports eliminating peremptory challenges.

Among other things, he recommends expanding the power of the parties to challenge the composition of a jury panel “on the grounds of significant under-representation of Aboriginal people or other disadvantaged groups that are over-represented in the criminal justice system.” The judge should also be allowed to raise such concerns, Roach recommends.