THE BLOG
04/17/2018 13:03 EDT | Updated 04/17/2018 13:03 EDT

Bill C-75 Fails To Deliver Necessary Changes To The Justice System

The bill focuses on attempts to curb courtroom delay, ending intimate partner violence and diversifying juries.

Justice Minister Jody Wilson-Raybould has introduced a massive, 300-page bill to overhaul the justice system. While many aspects of Bill C-75 are intended to curb courtroom delay, others are focused on ending intimate partner violence and diversifying juries.

But will this bill be effective? I recently read Bill C-75. Here's what you need to know.

Preliminary inquiries

One of the most controversial aspects of Bill C-75 is its proposal to do away with preliminary inquiries in the vast majority of criminal proceedings.

Generally speaking, preliminary inquiries are used to test the strength of the Crown's case prior to proceeding to trial. Adults charged with an indictable offence will normally have the right to seek a preliminary inquiry.

Bill C-75 restricts preliminary inquiries to only the most serious of offences. If passed into law, they will only be available to adult offenders facing the possibility of life in prison.

The Justice department believes restricting preliminary inquiries in this manner will reduce them by approximately 87 per cent, nationwide.

Proponents of adopting this measure say it will significantly help in curbing courtroom delays. They say that it will free up judges and court time, and allow for criminal proceedings to move in a more expedient manner. They also argue that preliminary inquiries are outdated legal relics, which are in dire need of reform in any event.

After all, there was a time when Crown disclosure obligations prior to trial were less onerous than they are today. This meant that an accused person may not know the entirety of the Crown's case against them until they were mid-trial, which put them at a serious disadvantage.

But in 1991, the Supreme Court of Canada expanded disclosure rights and held that an accused has a right to access all of the evidence held by Crown prior to trial.

Given this significant development, some have argued that preliminary inquiries are no longer necessary. Even with it, though, preliminary inquiries continue to serve an important and essential role in our criminal justice system.

They help lawyers determine whether a long and costly trial process is necessary. They also help test the evidence and ensure trial fairness. At the end of the day, they help in ensuring that court time is used in an appropriate and resourceful way.

For this reason, their removal may ultimately end up ironically contributing to, rather than curbing, delay.

Intimate partner violence

During the election, the Liberals promised to crack down on intimate partner violence. Some of the measures in this bill appear to be an attempt at making this campaign promise a reality.

For starters, it makes strangulation an elevated form of assault and creates higher penalties for those who re-offend in the context of domestic relationships. It also extends the definition of domestic violence to violence against former partners, in addition to current partners. Finally, and perhaps most controversially, it imposes a reverse onus on bail applications by people accused of domestic assault who have a history of abuse in their past,meaning the presumption is in favour of detention from the start.

Imposing a reverse onus on bail applications for some offenders, and not others, is problematic.

If it's to become law, this portion of the bill is likely to be challenged as a beach of Charter protections. There is a reasonable likelihood that it will be ultimately struck down.

As a general rule, the government should avoid implementing laws that are constitutionally questionable. Doing so will inevitably result in costly court challenges, which contribute to delay, and ultimately undermines the objective of this law in the first place.

And while expanding the definition of domestic violence to include former partners seems like a good idea in theory, it may not be so in practice.

Establishing a past history of intimacy may create practical difficulties for the Crown, and at the same time, erode the significance of violence within the context of a domestic partnership.

It muddies the water and creates confusion around what domestic violence actually means.

Domestic violence is an multi-dimensional issue that requires multi-dimensional reform. Changes to our criminal justice system will mean nothing without increased community education and more funding for support services.

If the Justice Minister truly wants to deliver on her campaign promise, she would be wise to explore other options for addressing domestic violence, beyond those embodied in this bill.

Jury selection

The decision to re-haul the jury selection process in Bill C-75 seems to have been made in reaction to the acquittal of Gerald Stanley.

As a general principle, reactionary reforms to the justice system should be discouraged.

There will always be anomalous cases and unpopular decisions in our criminal justice system, which are an uncomfortable reality and agonizing aspect of a properly functioning system overall.

Unpopular courtroom decisions should not be a catalyst for unnecessary change.

That being said, jury reform is long over-due; as is the need to meaningfully address systematic racism.

This is particularly so when it comes to the treatment of Indigenous people within the context of our criminal justice system.

One of the ways that Bill C-75 seeks to foster diversity is through the creation of a more equitable juries. It wants to achieve this by doing away with peremptory challenges during the jury selection process.

More from Sarah E. Leamon:

Peremptory challenges are used to exclude potential jurors without explanation or reason.

They are often used to disqualify jurors who may be more sympathetic to one party or another in a proceeding by virtue of their sex, gender, age or visible racial identity. They have been blamed for the under representation of visible minorities on jury panels.

It's in the best interests of fundamental justice for juries to be diverse and representative of society.

So, while it may not be wise to do away with peremptory challenges altogether, the notion of restricting them to some degree, and creating concrete guiding principles in relation to them, seems reasonably prudent.

The Justice Minister has described this measure as a "necessary culture shift," but only time will tell if it will be effective in achieving its objective.