Why the new justice reform bill, C-75, is anything but just

April 3, 2018

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.

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.

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