The federal government's proposed omnibus crime bill could free more accused criminals than it incarcerates, according to the Canadian Bar Association and some lawyers.
R v. Askov | Supreme Court ruling, October 1990
In Canada, the Askov ruling happens when a judge determines whether an accused's right "to be tried within a reasonable time" has been infringed under the Canadian Charter of Rights and Freedoms. It means any case that drags out for an unreasonably long time can be dismissed.
That rule, which comes from a Supreme Court decision in October 1990, now has many lawyers worried the proposed crime bill, which is currently the subject of Senate hearings, will clog the court system.
Bill C-10 makes changes to several existing laws. It creates some new offences, introduces mandatory minimum sentences for some crimes, eliminates pardons and house arrest for some criminals and proposes a number of other changes, including reforms of youth justice laws.
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There is concern surrounding mandatory minimums, especially, as the bar association said they make people fight their charges harder.
"If you're already going to be faced with the worst-case scenario anyway — and for a lot of clients, going to jail is the worst-case scenario — then there's a serious disincentive to resolve the case early," said Eric Gottardi, a Vancouver-based lawyer who is also vice-chairman of the bar association's criminal justice section.
1 in 10 criminal charges go to trial
The bill combines nine previous bills that were never passed in previous sessions of Parliament. Federal Justice Minister Rob Nicholson also said the bill targets people in the business of trafficking drugs and exploiting children, and sends a clear message to them there are serious consequences for their actions.
The bill's downside, added Gottardi, is he thinks more criminals could be walking among the public sooner than they should.
Statistics back up that claim, too, as only one in 10 criminal charges ever go to trial. A large majority reach agreements to plead.
Lawyers believe if most of that majority instead decides to test out a trial, the system could see more and more Askov rulings.
Courts are always backlogged with cases, but the worst, according to Ottawa lawyer Mark Ertel, came in 1993 when there was a shortage of judges.
He said as soon as delays reached eight to 10 months, lawyers would start filing Askov appeals and judges granted the appeals. Ertel estimated hundreds of accused just walked away.
"It's a battle they've been fighting since 1993 and they've been fairly successful fighting it," Ertel said, "But this is a bomb that's going to hit the system and all their good efforts will have been for naught."
Reforms to the Canadian court system have helped reduce wait times.
Currently, delays are about six to seven months, according to Ertel, but he said just a few more trials a month would overload the system in Ottawa.