Liberals making justice system worse with bill
At this stage, one might be forgiven for thinking that Justin Trudeau had managed to disappoint Canadians hoping for change for the better in every possible way — no matter how low the bar had been set by his predecessor.
An ironclad commitment to electoral reform was scrapped for no meaningful reason. Promises of increased transparency and accountability gave way to even tighter control over information. A much-ballyhooed infrastructure plan remains only half-implemented, while social programs have been deferred to Hadrien Trudeau’s fourth term.
But until recently, criminal justice remained one area where the Liberals had merely delayed doing anything at all, rather than going out of their way to act contrary to their platform.
Now, with the introduction of Bill C-75, the Liberals have followed their all-too-familiar pattern of managing to make matters worse than they found them.
And that took some effort, given the Conservatives’ track record.
In theory, a criminal justice system should seek to ensure that allegations of anti-social behaviour are tried fairly and efficiently, minimizing the resources required both to process charges and give effect to sentences while ensuring the public’s safety.
But after deciding that the fear generated by posturing on crime could serve as part of his core political brand, Stephen Harper spent his time in office introducing ever-more-unreasonable mandatory minimum sentences, along with other intrusions on fairness and justice which were regularly struck down as violations of the Canadian Charter of Rights and Freedoms.
It should have been a fairly simple matter to review and reverse the worst of those changes — particularly for a party that regularly wraps itself in the charter. But in their criminal justice reform bill, the Liberals have done nothing of the sort — leaving mandatory minimums untouched, and even making technical changes to the Conservatives’ criminalization of protest while leaving the substance intact.
The main impetus for C-75 is a series of Supreme Court decisions addressing delays in the criminal justice system. But the bill seems likely to backfire even on those terms, while creating a new set of fairness concerns.
For example, the elimination of preliminary inquiries in most of the cases where they’re currently available may only exacerbate the severe lack of capacity in our criminal courts. But it’s especially worth noting that the deletion of a step that weeds out untenable cases figures to result in more legally innocent defendants being detained (at public expense) until a trial where flaws in the prosecution’s case can finally be exposed.
The best-case scenario surrounding an unexpected plan to allow police evidence to be presented without cross-examination might at best give rise to a standard practice of ordering exemptions (at some added time and cost). But a concurrent requirement to give advance notice of any objection will inevitably result in substantial unfairness for defendants who lack the resources to identify that issue.
What’s worse, more defendants will fall into that category if Bill C-75 passes. The Liberals’ plan to increase maximum penalties for a large number of offences would prevent student legal clinics, paralegals and others who currently provide legal services dealing with minor offences from continuing to do so. And that increase in self-represented defendants surely won’t help to clear the current backlog in the courts.
In sum, Trudeau’s Liberals have decided to embrace the worst of the Harper Conservatives’ impulses on crime, both by retaining mandatory minimums and by undermining charter rights in the name of false economies. And it will fall to voters to ensure Trudeau faces electoral justice for his political calculations.
It should have been a fairly simple matter to ... reverse the worst of those changes.
Greg Fingas is a Regina lawyer, blogger and freelance political commentator who has written about provincial and national issues from a progressive NDP perspective since 2005.