A MOTION FOR CHANGE
Justice Minister Jody Wilson-Raybould introduced a bill thursday designed to overhaul the canadian criminal justice system, including measures to reduce court delays and improve jury selection fairness for indigenous and marginalized peoples. it was ‘bold
To predictable howls of dismay, Justice Minister Jody Wilson-Raybould has unveiled what she properly calls a “bold” reform of the sleepy, slow-moving and lost-in-another-century criminal justice system.
Because the minister is a politician, and a lawyer by training, her language was judicious.
But make no mistake: What she was finally doing was delivering a good, if imperfect, kick in the pants to what is arguably the most hidebound institution in the country.
It was the second such boot to the collective rear, the first having come in July of 2016, when the Supreme Court of Canada in a case called R v Jordan decried what it called “the culture of complacency” in the courts and attempted to set some limits on how long it should take to get to trial.
In Bill C-75, the government proposes to do much, and much of it appears to be about a genuine culture shift.
But easily the most controversial moves would see Ottawa abolish preliminary inquiries — these occur in provincial courts and allow lawyers on both sides to conduct a dry run of their case before trial — for all but the gravest offences and eliminate peremptory challenges in the jury selection process.
The former are beloved of the criminal defence bar, many of whose members know from experience that a case exposed at prelim may lead to plea deals or dropped charges — in other words, that they actually may save court time.
The latter became a hot issue in January in the murder trial of Saskatchewan farmer Gerald Stanley, who was acquitted in the shooting death of a young Indigenous man named Colten Boushie.
It was an enormously unpopular decision among First Nations, who believe Stanley’s lawyers used the challenges — which allow both defence and prosecution to knock out a number of potential jurors for no given reason, simply because they don’t like the cut of a person’s jib — to weed out visibly Indigenous people.
In fact, peremptory challenges are just as often used by defence lawyers as a way of increasing the diversity of the jury (saying no to the next white guy so they might get the black guy behind him in line).
And as often as not, says criminal lawyer Daniel Brown, a director of the Criminal Lawyers Association, “Prosecutors and defence lawyers work together. We notice when there are too many of one type (whether by skin colour or profession).”
Brown was disappointed and called the government’s efforts “a misguided attempt at addressing delay in the court system.” He said that “removing procedural fairness (preliminaries) isn’t the way to increase efficiencies” and that abolishing peremptory challenges is “a solution to a problem that didn’t exist.”
He said “400,000 cases go through the criminal system but a single example (the Stanley case) is enough to eliminate a 200-year-old protection?”
Frank Addario, another lawyer and past-president of the CLA, agreed. With prelims, he said, often “either the Crown says, ‘My case sucks,’ or a defendant learns he’s not untouchable, or the judge says, ‘You two need to meet in the middle.’ ”
Addario said he wondered if Wilson-Raybould’s real intent was to prevent victims of violence from having to testify twice, once at the prelim and again at trial. After all, this government’s ubiquitous “gender lens” is evident in C-75, in that while bail restrictions are generally eased, they are toughened for repeat offenders who commit intimate partner violence.
“To which I say,” Addario said, “if that’s the motive, then just say that, that potentially, there’s a species of case like that.”
And if the government really wanted to increase jury representativeness, Addario said, “with a stroke of a pen, it could have said to the provinces this is what we mean …” He was referring to a process whereby a defence lawyer can “challenge the array,” the actual jury pool, but the Supreme Court already ruled this isn’t what it means for an accused person to have the right to a representative jury.
But Addario agreed that “the aspirations are fine,” particularly the legislation’s big push to reduce the administration-of-justice offences, which account for a quarter of all cases in court and range from failure to comply with a judge’s order to breach of probation and the like.
These clog the courts and make criminals out of those on the margins — the poor, the Indigenous, the mentally ill, people of colour — by, for instance, releasing them on patently unreasonable conditions (such as putting a homeless alcoholic on probation and ordering him to avoid alcohol and be home by 9 p.m.) and then convicting them for breaching the conditions when they fail.
Addario acknowledged the hard truth of what most lawyers and players in the system know all too well: Probably fully 80 per cent of the poor buggers before the courts don’t belong there. Their so-called “crimes” are too minor; their vulnerabilities are too great; they need help, not jail.
“They (the 80%) shouldn’t be there,” Addario said. “The criminal court is not there to solve social problems. She (Wilson-Raybould) seems to have internalized that and is slowly trying to turn that into legislation.”
Those cases should be removed from the criminal system and moved to alternative systems, like British Columbia has done with impaired driving cases, dealing with them under the Motor Vehicle Act, or with smart diversion programs.
One learned fellow in the courts puts it this way, “The 10 per cent need the blunt instrument of criminal law.” The rest need anything but.
And a little technological advancement would be nice.
As Brown put it, a little incredulously, “We still communicate (to prosecutors) by fax machine, we insist on inperson appearances, so unless an accused has a lawyer he needs a full day off work, rather than being able to get documents electronically ...
Still, it’s a start, which is all the Supreme Court in Jordan really asked — do something.