Bill C-75: Right goals, wrong tools

September 25, 2018

Over the next few weeks, witnesses will gather on Parliament Hill in Ottawa to share their views on Bill C-75, the federal government’s latest shot at Criminal Code reform. There is no doubt that our Criminal Code needs reform. It is rife with unconstitutional provisions, mandatory minimum sentences, and all manner of other ill-advised, expensive and ineffectual “tough on crime” provisions.

We have a justice system that continues to disproportionately incarcerate Indigenous People and racial minorities, a biased jury selection process, a culture of court delay, and a flawed bail system. It’s clear that we need to make changes.

While Bill C-75 tries to tackle these problems, it also creates new problems that need to be addressed. Some of the proposed reforms are great. Others don’t go far enough. And a few are a serious affront to fair trial rights and the presumption of innocence.

Canadian Civil Liberties Association is keeping up the pressure to make real Criminal Code reform a reality.

On Monday, Abby Deshman, CCLA’s director of the Criminal Justice Program, appeared before a House of Commons Committee to urge some specific amendments. Here are some key points from Deshman’s brief:

  1. We shouldn’t be pursuing “efficiency” by shortcutting constitutional rights (or, our justice system is not a fast food restaurant)

As our Michael Bryant, CCLA’s executive director and general counsel, has said before, Bill C-75 emasculates criminal defendants’ rights, in the name of speedy justice. Rights like an accused person’s right to cross-examine a police officer. The Bill proposes to create an evidentiary shortcut, outlining a few scenarios in which prosecutors would be able to put police officers’ affidavits and prior testimony into evidence at a criminal trial. Cross-examination might be allowed – but only if the accused requests it, and the judge grants it. These provisions are an affront to fair trial rights and the presumption of innocence. There’s also no evidence that they will speed up trials (see point 3 below for more on that). These clauses should be removed entirely.

  1. It will take more than restating the law to reform our bail system

We have said a lot about the problems in Canada’s bail system. Reform is necessary, and there have been some good suggestions about how legislation can reset legal culture. Bill C-75 is targeting the right problems here – but the proposed changes don’t go far enough. We (and others) think a complete rewrite of the law of bail and pre-trial release is necessary. But short of that, about smaller changes that will make a big difference in bail courts across the country, and help the operation of bail come closer to aligning with the presumption of innocence, the Charter right to reasonable bail, and the law. We are urging the Committee to take us up on these suggestions.

  1. And while we’re on the subject of “more is needed,” let’s look at jury selection reform and administration of justice offences too

Administration of justice offences are criminal charges for actions that, under normal circumstances, would be completely legal. Actions like drinking alcohol, being outside your house past 7 pm, or entering a Shoppers Drug Mart. They are crimes only because a court has previously ordered someone not to do these things, and they represent an enormous portion of the matters coming before our criminal courts. Surely our justice system has more important things it should be focusing on.

Bill C-75 proposes to create a parallel non-criminal process to deal with some of these matters – it’s an interesting idea, but without stronger provisions we’re worried that it will backfire. The decision of whether to send a person to this alternative process is entirely in the hands of prosecutors and police officers – who already have the power to decide not to charge someone, or withdraw a charge that has already been laid. Set against the background of a risk-averse system, this type of process is likely to widen the net of people caught up in the justice system. The Bill would create a new court proceeding that could be used to process people the police currently choose to release with a warning. Nothing in the law would require people who are currently being charged to be diverted to the alternate pathway.

More will also be necessary if the government really wants to tackle systemic racism and discrimination in our jury selection process. Lots of great suggestions have been put before the Committee this week; we hope they will be taken up.

  1. Sentencing reform needs to be done (more) carefully

The Bill proposes some broad-brush changes to sentencing in Canada. Maximum sentences for all summary conviction offences, for example, would be increased from six months to two years less a day. What doesn’t appear to have been considered, however, is that these changes would significantly restrict access to justice by effectively prohibiting law students, articling students, and paralegals from representing some of the most vulnerable accused persons. They would also have significant immigration impacts. Maximum sentences should not increase without also taking steps to insulate individuals from these collateral consequences.  (And, while we’re talking about sentencing reform, what happened to the promise to roll back mandatory minimum sentences?? We have a countdown clock – we’re still waiting.)

  1. Evidence-based solutions require… evidence

If you want to make the criminal justice system faster, you need to have evidence about what is unjustifiably slowing it down. Unfortunately, evidence is lacking. Bill C-75, for example, proposes to significantly restrict preliminary inquiries in the name of efficiency. We do know that cases with preliminary inquiries – a pre-trial process designed to ensure that the Crown has a solid case against the accused – take longer than cases without preliminary inquiries. But we don’t know that this process causes these cases to take longer. Cases that tend to use a preliminary inquiry may by nature be longer cases for any number of reasons. The most recent published academic study on this matter concluded that “alterations to the preliminary inquiry are unlikely to have a significant impact on the speed or efficiency with which cases are resolved in the criminal justice system.” And the Committee has heard from many witnesses arguing the preliminary inquiries help speed up the criminal process by weeding out unmeritorious cases and prompting early resolutions without a full trial. While the benefits of eliminating preliminary inquiries are uncertain at best, many in the legal community have also raised significant concerns about the impact that eliminating preliminary inquiries will have on the right to a fair trial.

There have been many good suggestions for amendments to Bill C-75 put before the Committee. We hope that the government is listening. But there is also a broader message here too: this Bill does not approach the comprehensive reform that our criminal justice system needs. Too many important sources of injustice (large barriers to record suspensions and mandatory minimum sentences to name just two) are left untouched.

We hope the government takes the steps necessary to fix Bill C-75. But even if it does, this will be just the first step on the road to meaningful criminal justice reform.