By Sean Fine for The Globe and Mail
The federal government is proposing to scrap most preliminary inquiries, abolish peremptory challenges and make it easier for accused people to be released on bail as part of sweeping legislation intended to speed up Canada’s snail-like criminal-justice system.
As The Globe and Mail reported on [March 26, 2018], the limits on preliminary inquiries and related proposals would be the biggest structural changes to the justice system thus far under the current government. Bill C-75, introduced in Parliament on [March 29, 2018], is a response to a Supreme Court ruling in the summer of 2016 in a case known as Jordan that roiled the lower courts by setting time limits for trials.
The changes “are a direct response to issues that have plagued the courts for too long,” federal Justice Minister Jody Wilson-Raybould told reporters.
The bill goes beyond problems caused by delays to address a longstanding concern that Canada’s provincial jails contain more people awaiting trial than have been found guilty − and that many of them are Indigenous, addicted or mentally ill people denied bail. The changes to preliminary hearings would also address concerns that complainants in sexual-assault cases are obliged to tell their story over and over in court proceedings.
The bill would also abolish peremptory challenges of jurors, which came under fire when a Saskatchewan farmer was acquitted in the death of an Indigenous man after his defence team challenged potential jurors who appeared to be Indigenous themselves. Amid the outrage that followed, Ms. Wilson-Raybould tweeted that the justice system needed to do better.
The bill drew a mixed reaction. Ontario Attorney-General Yasir Naqvi said he expected the changes to make a real difference in reducing delays. Quebec Attorney-General Stéphanie Vallée asked why the government had taken so long. The wider legal community offered both applause and criticism.
“I don’t think they’ve actually got to the heart of the Jordan problem as yet,” Toronto lawyer Frank Addario said in an interview on behalf of the Criminal Lawyers Association. The Jordan ruling set limits of 18 months in Provincial Court and 30 months in superior courts from charge to trial completion.
Preliminary inquiries are used to determine if the Crown has enough evidence to go to trial. They have been a staple of the justice system since the first written Criminal Code in the 1890s.
The government’s proposed law would eliminate an estimated 87 per cent of the 9,100 preliminary inquiries held each year, Ms. Wilson-Raybould said. Such proceedings would not be available unless the criminal offence carries a maximum penalty of life in prison. Crimes such as sexual assault, and many drug offences, would not be eligible.
Mr. Addario said the elimination of most preliminary inquiries will swing the balance to the Crown, and away from the protection of the rights of the accused.
The new bill still needs to be debated in Parliament and approved before becoming law. Last April, as legal challenges over delays mounted in several provinces and judges threw out cases, Ms. Wilson-Raybould met with her provincial counterparts at their request and publicly promised changes in five areas. They met again in September. Ontario, Quebec and Alberta have poured millions of dollars into hiring extra judges, prosecutors and court staff since the Jordan ruling.
The legislation also attempts to reduce the number of “administration of justice offences” (including the violation of a bail condition) that land in court.
It would also allow prosecutors to treat 136 offences currently punishable as “indictable” (more serious) as less serious “summary” offences. It would hike the maximum penalties for summary offences to two years less a day to give prosecutors greater options; currently, some are as low as six months.
The one area of the five the government did not touch on involves mandatory minimum penalties. The previous Conservative government established or increased obligatory penalties for 60 drug, gun and sexual offences. They are perceived to clog the system because fewer people plead guilty when they face mandatory jail terms.
“What we want to be able to do is advance sentencing reforms that will stand the test of time,” Ms. Wilson-Raybould said in explaining the lack of action on minimum sentences.
In an interview, Ms. Vallée said she was surprised at the lack of a response on minimum penalties. “We did have a lot of discussion around the table when the ministers met.”
She said delays still beset the justice system in Quebec. “The pressure of Jordan is still there,” she said. “I’m surprised that it took almost two years at the federal level to come up with a response.”
Mr. Naqvi said the reduced number of preliminary inquiries would mean fewer delays. “These are really bold reforms,” he said in an interview.
Ian Carter, an Ottawa lawyer authorized to speak for the Canadian Bar Association, which represents 36,000 lawyers, said there is no evidence preliminary hearings cause delays. Generally, though, he supported the proposed changes.
“My overall take is that it’s a bold bill introducing significant changes to the justice system.” For instance, the bail changes mean “more people are going to be released on bail with fewer conditions, and the bail hearings themselves will be faster. All good things.”
The government would single out those charged with repeat domestic-violence offences for tougher treatment in bail court. They would have to show why they should be released, rather than the Crown having to demonstrate why they should be locked up.
Mr. Addario said the government missed out on more beneficial approaches. “The way to have attacked the Jordan problem would have been to attack mandatory minimums, which are clogging the courts,” he said. He also called for a change to the system under which police in some provinces lay charges and the Crown does it in others, and for something to be done about “the number of cases involving drug addicts and mental-health cases coming into the courts.”
This article was originally published in The Globe and Mail on March 29, 2018