Where Liberals are going with justice reform bill
CONTENTIOUS ITEMS Police evidence, jury selection could see changes
OTTAWA • Two weeks of expert testimony on a 300-page justice reform bill have wrapped up at the House of Commons, and MPs are now set to consider amendments on contentious items such as how trials handle police evidence.
Bill C-75 is the long-awaited legislation to deal with chronic court delays. But it has met skepticism from many legal experts who feel it doesn’t do enough to fix the problems, and in some cases might worsen delays.
Here are some of the particularly controversial changes the government may be considering.
POLICE EVIDENCE
The bill as written would allow for “routine police evidence” to be provided at trial by written affidavit rather than oral testimony. The aim is to speed up trials and reduce the need for police officers to testify.
But critics argue that the definition of “routine” evidence could encompass nearly everything, and that cross-examination of police evidence is crucial for a fair trial.
There are indications the Liberals aren’t comfortable with this section of the bill. “As a person who used to practice criminal law as a defence lawyer, that seems troubling to me, to be honest with you,” Liberal MP Colin Fraser told justice officials appearing at committee.
Don Beardall, an official with the Public Prosecution Service of Canada, responded that Crown prosecutors would only use affidavits when the evidence is uncontroversial. “No sane Crown is going to attempt to use these provisions for evidence which we feel will be in any way contentious from the perspective of the defence,” he told the committee.
JURY DIVERSITY
Peremptory challenges, which allow prosecutors and defence lawyers to reject jurors on sight, sparked widespread outrage following the Gerald Stanley/Coulten Boushie trial. Stanley’s defence team reportedly used the challenges to block Indigenous jurors.
Bill C-75 scraps peremptory challenges, but defence lawyers argue they frequently use them to get more jury diversity in cases where a person of colour has been charged. They also argue this measure is a knee-jerk reaction to the Stanley trial.
“The reality is this: there actually has been no objective research conducted by this government, or any other, on the use of peremptory challenges in the criminal justice system,” said Ottawa defence lawyer Solomon Friedman.
But other witnesses supported scrapping the challenges. “What you can never do is kick white people off a jury,” said Jonathan Rudin, program director of Aboriginal Legal Services. “You can’t do that because there are too many of them. But you can kick everybody else off.”
University of Toronto law professor Kent Roach, who has extensively studied jury selection, supported getting rid of the challenges but also submitted five suggestions for improving jury selection, such as expanding challenges for cause (where jurors answer questions to test for bias).
Witnesses also stressed that, regardless of the changes in C-75, it is provinces that ultimately have to do more to improve jury pools.
LEGAL REPRESENTATION
The bill gives prosecutors more freedom to use summary convictions for less serious offences. Summary convictions proceed in lower courts and are generally quicker, but come with a lower maximum sentence.
However, the bill “harmonizes” summary convictions by making the default maximum two years — meaning the limit is being raised for many crimes that currently have a six-month maximum sentence.
Most provinces only allow law students and paralegals to represent clients when they face sentences of up to six months. The loss of those options would likely result in more clients trying to represent themselves, one of the biggest causes of court delays.
It is not yet clear if the government will amend the bill to address this, or leave it to provinces to find a fix.
REVERSE-ONUS BAIL
Bill C-75 makes widespread changes to the bail system to try to prevent people from falling into a cycle of violating conditions and getting slapped with more charges. For the most part, witnesses have applauded the proposed changes.
But the government is proposing a reverse onus for repeat offenders of domestic violence, meaning the burden is on the suspect to prove why they should be granted bail.
Rudin, from Aboriginal Legal Services, said this would have an unintended consequence of targeting Indigenous women because of the frequency of “dual charging,” where police charge both partners over a domestic violence incident. He said 40 per cent of female prisoners in Canada are Indigenous.
“The provision of this bill will make a shameful situation worse,” he argued. “Reverse onuses make it too easy to keep people in jail, and often the wrong people.”