Liberal criminal justice reforms a bold betrayal

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Late last month, in the dying hours before a long weekend, Minister of Justice Jody Wilson-Raybould, flanked by her parliamentary secretaries Marco Mendicino and Bill Blair, unveiled her self-described and long-promised “bold” criminal justice reform. 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 and more unfair trials.

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by criminal defence lawyers calling the bill an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”

There is no question that we need swifter justice in our courts. Dockets are overflowing and it can take years for a criminal allegation to reach trial. This is not because accused people want to delay cases — my clients, especially those in custody, beg for earlier trial dates. Every actor in the justice system wants to speed up the process, but we can’t. You see, our courts are clogged with petty offences that all too often are the result of addiction, mental health and poverty. These offences should be diverted from the criminal system, leaving our courts better ready to tackle serious and violent crimes. The Criminal Code is also still overflowing with all of the Harper-era minimum sentences, which are an unfair and oppressive drain on court resources. 

These are the obviously bold reforms the justice system is in desperate need of. It seemed that Wilson-Raybould was on board — not only were these reforms an election promise but, in a 2016 speech to the Criminal Lawyers’ Association, Wilson-Raybould was crystal clear in saying that restoring judicial discretion was an issue of upmost importance. She told the crowd that justice couldn’t be a one-size-fits-all proposition. Specifically, she said that mandatory-minimum sentences were a priority for change and promised that reforms were coming.

Wilson-Raybould also promised transformational and Charter-compliant justice reform and highlighted the all-too-obvious problem of the disproportionate criminalization and incarceration of minorities and marginalized groups.

But after the introduction of bill C-75, it is clear that Wilson-Raybould has chosen to ignore her promises and at the same time turn her back on the root cause of delay. Instead, she seems content grabbing the lowest-hanging, most dangerous 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.

In his 2007 report on the wrongful conviction of James Driskell, who spent 13 years behind bars for a crime he did not commit, Justice Patrick Lesage noted that preliminary hearings are an important safeguard for fair trials. Ultimately, the commission of inquiry found that the preliminary inquiry has a long history in Canadian criminal law and is often of immeasurable assistance to the Crown and more often to the accused in reducing the likelihood of miscarriages of justice. 

But fairness seems to be taking a back seat on Wilson-Raybould’s priority list. The out-of-the-blue change to shield police officers from cross-examination is particularly cynical and counterproductive. If an accused wants to actually ask a police officer any questions at trial, they will be forced to disclose their trial strategy and beg 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.

Wilson-Raybould has betrayed her promise that reforms to Harper’s punitive, time consuming and counterproductive minimum sentence laws were “coming soon”. Instead, she has introduced regressive legislation that will erode important mechanisms to ensure trial fairness and will actually result in increased court delays.

The Harper government passed law after law that removed judicial discretion from sentencing and embraced harsher and more vindictive punishments. But at least the Conservative measures did not imperil due process. And that is exactly what Wilson-Raybould has done – something worse than Vic Toews, Rob Nicholson, Peter McKay, or Steven Harper ever did.

But maybe that is what we should have expected when we blindly trusted two former prosecutors and an ex-police officer with reforming our criminal justice system