Last week, Justice Minister Jody Wilson-Raybould introduced a massive, 300-page bill, aimed at rehauling our criminal justice system.
While many aspects of Bill C-75 are intended to curb courtroom delay, others are focused on ending intimate partner violence and diversifying juries.
But will this legislation be effective in achieving its objectives?
Some critics are doubtful…but while the bill is far from perfect, there are some positives aspects.
I read Bill C-75 over the weekend so you don’t have to. Here’s what you need to know:
One of the most controversial aspects of Bill C-75 is its proposal to do away with preliminary inquiries in the vast majority of criminal proceedings.
Generally speaking, preliminary inquiries are used to test the strength of the Crown’s case prior to proceeding to trial. Adults charged with an indictable offence under the Criminal Code will normally have the right to seek a preliminary inquiry, should they wish to.
Bill C-75 restricts preliminary inquiries to only the most serious of offences.
If passed into law, preliminary inquiries will only be available to adult offenders facing the possibility of life in prison.
The Justice Department believes that restricting preliminary inquiries in this manner will reduce their number by approximately 87 percent, nationwide.
Proponents of adopting this measure say that it will help significantly in curbing courtroom delays. They say that it will free up judges, and court time, and allow for criminal proceedings to move in a more expedited manner.
They also argue that preliminary inquiries are outdated legal relics, which are in dire need of reform in any event.
After all, there was a time when Crown disclosure obligations prior to trial were less onerous than they are today. This meant that an accused person may have not known the entirety of the Crown’s case against them until they were mid-trial, which put them at a serious disadvantage.
But in 1991, the Supreme Court of Canada expanded disclosure rights in the case of R. v. Stinchcombe. There, it was held that an accused has a charter right to access all of the evidence held by Crown.
Given this significant development in the law, some have argued that preliminary inquiries are no longer necessary.
Even with this development, though, preliminary inquiries continue serving an essential role in our criminal justice system.
Preliminary inquiries help lawyers determine whether a long and costly trial process is necessary. They also help test the evidence and ensure trial fairness. At the end of the day, they help in ensuring that court time is used in an appropriate and resourceful way.
For this reason, their removal may ultimately end up ironically contributing to delays, rather than curbing them.
Intimate partner violence
During the election, the Liberals promised to crack down on intimate partner violence. Some of the measures in this bill appear to be an attempt at making this campaign promise a reality.
Bill C-75 seeks to do a number of things in relation to this issue.
For starters, it makes strangulation an elevated form of assault and creates higher penalties for those who reoffend in the context of domestic relationships.
It also extends the definition of domestic violence to violence against former partners, in addition to current partners.
Finally, and perhaps most controversially, it imposes a reverse onus on bail applications by people accused of domestic assault who have a history of abuse in their past.
Imposing a reverse onus on bail applications for some offenders—and not others—is problematic, to say the least.
If it is to become law, this portion of the bill is likely to be challenged as a breach of charter protections. There is a reasonable likelihood that it will ultimately be struck down.
As a general rule, the government should avoid implementing laws that are constitutionally questionable. Doing so will inevitably result in costly court challenges, which contribute to delay, and ultimately undermines the objective of implementing such laws in the first place.
And while expanding the definition of domestic violence to include former partners seems like a good idea in theory, it may not be so in practice.
Establishing a past history of intimacy may create practical difficulties for the Crown, and at the same time, erode the significance of violence within the context of a domestic partnership.
It muddies the water and creates confusion around what domestic violence actually means.
Domestic violence is a multidimensional issue that requires multidimensional reform. Changes to our criminal justice system will mean nothing without increased community education and prevention programs and more funding for support services.
If the justice minister truly wants to deliver on her campaign promise, she would be wise to explore other options for addressing domestic violence, beyond those embodied in this bill.
The decision to rehaul the jury selection process in Bill C-75 seems to have been made in reaction to the acquittal of Gerald Stanley, which occurred earlier this year. An all-white jury found Stanley not guilty in relation to the shooting death of Colten Boushie, a young Indigenous man.
The decision sent shock waves through our country. Both the justice minister and the prime minister conveyed their personal views using social media.
As a general principle, reactionary reforms to the justice system should be discouraged.
There will always be anomalous cases and unpopular decisions in criminal justice. This is an uncomfortable reality and agonizing aspect of a properly functioning system.
Unpopular courtroom decisions should not be a catalyst for unnecessary change.
That being said, jury reform is long overdue in this country, as is the need to meaningfully address systematic racism.
This is particularly so when it comes to the treatment of Indigenous people within our criminal justice system.
One of the ways that Bill C-75 seeks to foster diversity is through the creation of a more equitable juries. It wants to achieve this by doing away with peremptory challenges, used by both Crown and defence, during the jury selection process.
Peremptory challenges are used to exclude potential jurors without explanation or reason.
They are often used to disqualify jurors who may be more sympathetic to one party or another in a proceeding by virtue of their sex, gender, age or visible racial identity. Peremptory challenges have been blamed for the under-representation of visible minorities on jury panels.
It is in the best interests of fundamental justice for juries to be diverse and representative of society.
So while it may not be wise to do away with peremptory challenges altogether, the notion of restricting them to some degree, and creating concrete guiding principles in relation to them, seems reasonably prudent.
The justice minister has described this measure as a “necessary culture shift”. but only time will tell whether it will be effective in achieving its objective.
To conclude, Bill C-75 has potential…but in many ways, it also misses the mark. In some aspects it goes too far, in others…not far enough.
Perhaps the most disappointing part of this bill is that it does nothing to address the main factor contributing to delay in our criminal justice system: mandatory minimum penalties.
Bill C-75 still has a long way to go.