Politics

Liberals propose major criminal justice changes to unclog Canada's courts

Bill ends most preliminary inquiries, updates bail system and changes jury selection process

Kathleen Harris - CBC News

March 29, 2018

Minister of Justice Jody Wilson-Raybould tabled major criminal justice reforms designed close gaps in the system and streamline the courts. (Adrian Wyld/Canadian Press)

The Liberal government tabled a major bill today to modernize Canada's criminal justice system and speed up court proceedings by, among other things, eliminating preliminary inquiries except in the case of crimes that carry a life sentence.

The changes also include an end to peremptory challenges in jury selection, something which became a flashpoint during the trial of Gerald Stanley, who was found not guilty of second-degree murder in the death of 22-year-old Indigenous man Colten Boushie.

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'This is a significant step forward of bold reforms,' says Justice Minister Jody Wilson Raybould.  12:40

Some observers said the jury process in Stanley's trial was biased because the defence team excluded five potential jurors who appeared to be Indigenous. CBC News has not independently determined the reason for their exclusion.

The bill also takes steps to address the over-representation of Indigenous persons in the criminal justice system and addresses domestic, or "intimate partner" violence.

It would impose a reverse onus on bail applications by people who have a history of abuse, which would require them to justify their release following a charge.

The bill also makes strangulation an elevated form of assault and allows for a higher maximum penalty in cases of repeated partner violence.

Calling the bill, which weighs in at more than 300 pages, a "bold reform," Justice Minister Jody Wilson-Raybould said the changes it makes will render the system more fair, modern and efficient. While crime rates have gone down, criminal cases have become more complex and trials are taking longer, she said.

"This bill that was tabled today makes substantive changes that are going to transform the justice system in terms of efficiencies, in terms of recognizing vulnerable individuals and Indigenous peoples and the impacts the system has on them," she said at a news conference on Parliament Hill.

The Jordan fallout

Many of the new measures being announced today are aimed at addressing a 2016 Supreme Court ruling that stayed drug charges against Barrett Richard Jordan after he waited 49 months for a trial.

That 5-4 judgment, known as the Jordan decision, described a culture of complacency around court delays and set strict time limits for criminal trials — 18 months for proceedings at provincial court and up to 30 months for cases at Superior Court.

That sent provinces and territories scrambling for ways to meet the new time frames, and led to hundreds of cases being dismissed due to lengthy delays.

"This proposed legislation responds to the Supreme Court of Canada's Jordan decision by taking concrete steps to make our criminal justice system more effective and efficient while respecting the Canadian Charter of Rights and Freedoms," Wilson-Raybould said in a statement.

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Justice Minister Jody Wilson-Raybould explains what her justice system reform bill will do  1:55

"More importantly, it will make a significant contribution to a necessary culture shift in the way our criminal justice system operates."

The bill will restrict preliminary inquiries to those accused of an offence punishable by life imprisonment, which is expected to reduce the number of preliminary inquiries by 87 per cent. There are now more than 9,000 a year.

But many criminal defence lawyers are opposed to the idea, saying it could have the opposite effect, since the preliminary inquiry process can weed out some cases that don't have enough evidence to go to trial.

"What we know is that the preliminary inquiry takes up about three per cent of the time in the Ontario Court of Justice," said criminal defence lawyer Michael Spratt. "We also know that that preliminary inquiry ends up saving a lot of time down the road.

"It narrows issues, it shortens trials and sometimes it eliminates the need for trials, but of course when the preliminary inquiry is eliminated in the vast majority of cases we won't have those benefits."

Country-wide consultation

The announcement comes after Wilson-Raybould wrapped up 18 months of cross-country consultations with stakeholders and her provincial and territorial counterparts. A report on the results of that process published this month said participants called for changes to "administration of justice" offences that are blamed for creating backlogs in the system.

Those offences involve failure to follow bail or sentencing orders, such as breach of probation, failure to appear in court, or failure to comply with conditions set by a court.

"In particular, they cited 'condition creep,' where excessive conditions are placed on an accused person in the name of public safety," the report reads. "Participants said that many of these conditions do not contribute to public safety and can set people up to fail, resulting in longer criminal records."

The report cited the example of alcoholics ordered by courts to stop drinking who don't subsequently get the community support they need to stay away from alcohol.

Participants also said courts sometimes place conditions on people who don't have the mental capacity to understand and follow them.

Today's bill allows for more discretion in administration of justice offences through an escalating response or "ladder approach" which gives police and Crown attorneys the option to conduct a hearing. Judges at such hearings could decide to take no action against the accused, release them or impose new conditions instead of laying new charges.

It also modernizes the bail system, giving police the authority to impose a broader scope of conditions on accused persons without seeking court approval — something which could reduce the strain on limited court resources.

"Under the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right not to be denied reasonable bail without just cause," says background material from the Department of Justice. "However, the current bail regime is outdated, complex and relies on measures that fail to increase the safety of our communities."

Vulnerable, marginalized people

The stakeholder report said many working in the justice system believe it is overburdened by vulnerable and marginalized people which it wasn't designed to deal with.

"As well, they felt the system is burdened with a large number of lower level offences that are not a public safety concern," it reads. 

Wilson-Raybould was tasked in her mandate letter from Prime Minister Justin Trudeau to review and assess changes in the criminal justice system over the past decade, including sentencing reforms, and to increase community safety, get value for money and address gaps in the system.

She was also directed to increase the use of restorative justice.

Asked why the bill did not overhaul the mandatory minimum sentencing regime, Wilson-Raybould said the issue remains under review while court challenges continue. She said the government will move in a responsible way to make changes that will "stand the test of time."

"There is a diversity of perspectives," she said.

Cold feet on penalties?

Conservative MP Michael Cooper welcomed the fact that the bill does not repeal mandatory minimum sentences that were brought in by the Conservative government, saying it could be a sign the Liberals are getting cold feet.

"I'm certainly pleased, because there is an important role for mandatory minimum sentences in terms of holding criminals to account for serious offences," he said.

Cooper said one of the easiest ways Wilson-Raybould could curtail court delays is by filling dozens of judicial vacancies.

NDP justice critic Alistair McGregor welcomed the initiatives to help reduce delays in the court system, but said the government should have acted on its promise to limit mandatory minimum sentences.

He said the bill shows a "lack of courage" in failing to address other problems, such as people being charged with pot possession while legislation to legalize marijuana makes its way through the parliamentary process.

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