The potential differences in procedural rights are part of sweeping changes in legislation introduced by the Liberal government on March 29.
They have been billed as necessary measures to address court delays and modernize the criminal court system. Much of the initial reaction to Bill C-75 has focused on the elimination of preliminary hearings except for offences that carry maximum sentences of life in prison and the removal of the right to peremptory challenges in jury selection.
But the legislation has provoked a sharp response from the criminal defence community in Ontario, suggesting that several amendments will reduce the fair trial rights of accused persons, give more discretionary powers to police and further clog the already over-burdened provincial courts.
“If this is the realization of the government’s goal to do better, it is an abject failure,” says Michael Lacy, president of the Ontario Criminal Lawyers’ Association and a partner at Brauti Thorning Zibarras LLP in Toronto.
“The Liberal government has once again demonstrated that they are more interested in their public image than meaningful and measured criminal law reform. At least when the Conservatives were tough on crime, they did not at the same time strip away substantive procedural protections that ensure just and true verdicts,” adds Lacy.
The head of the largest criminal lawyers’ organization in the country says there was a lack of consultation over the changes and he predicts they will spark numerous Charter challenges.
Not included in the bill is any reform in the area of mandatory minimum sentences, which the Supreme Court has said put too much of the sentencing discretion in the hands of a Crown attorney rather than the trial judge. “The failure to get rid of mandatory minimums is conspicuous,” says Megan Savard, a partner at Addario Law Group LLP in Toronto. As well, the decision to remove peremptory challenges “will undermine the rights of the groups they say they want to protect,” Savard adds.
When the amendments were introduced, the federal government said it would lead to the elimination of nearly 90 per cent of preliminary hearings.
In a letter to the government last spring, the Canadian Bar Association noted that preliminary hearings currently make up only two per cent of all court appearances and the majority last less than two days.
Preliminary hearings are an effective way for the Crown and defence to reach a resolution without a trial, explains Michael Dineen, a partner at Dawe Dineen in Toronto.
“An accused might be more willing to plead guilty after a preliminary hearing once he sees the case against him,” says Dineen, who also teaches criminal procedure at the University of Toronto law school.
For substances such as crack cocaine, a trafficking conviction carries a maximum life sentence under the Controlled Drugs and Substances Act no matter how small the amount.
This entitles a street-level dealer to a preliminary hearing and jury trial.
That remains unchanged under Bill C-75 and it suggests the removal of preliminary hearings for offences such as sexual assaults where the Crown proceeds by indictment is policy driven, says Dineen. “There is obviously something to limiting the number of court appearances for vulnerable witnesses, but there is also the right to full answer and defence,” he says.
As well, the amendment to put the onus on a defendant charged with a domestic assault-related charge to be granted bail if they have previously been convicted with a similar offence is a “cosmetic change,” says Dineen. “In practice, these bail hearings are already taken very seriously.”
The amendments are a response to the Supreme Court decision nearly two years ago in R. v. Jordan, which set presumptive limits of 18 months to be tried in provincial court and 30 months in Superior Court.
Despite concerns after it was released, it does not appear to have resulted in a significant number of cases being thrown out as a result of unreasonable delay.
For example, in the first three months of 2018, there have been three reported cases of stays being granted by Superior Court judges in Ontario. None involved a serious personal injury offence.
Not long after Jordan was issued, a murder charge in Alberta and one in Ontario were stayed as a result of delay. The appeal courts in both provinces have since overturned those rulings.
Michael Spratt, a defence lawyer in Ottawa, echoes the view that the amendments are political in nature. “There is a need to ensure that matters proceed to trial more quickly. But there has not been a wave of charges thrown out for delay. The government wants to be seen to be taking action, but the proposed changes will likely cause further delay and confusion in the courts,” says Spratt, a partner at Abergel Goldstein & Partners LLP.
Other amendments include changing the maximum sentence for all summary convictions, including minor offences such as shoplifting, to two years in jail. This will prevent paralegals or students at law school clinics from acting on behalf of defendants in any of these matters.
The higher summary conviction maximums will also create a “resource problem” for provinces, says Savard.
“More cases will be prosecuted summarily. You will find an overloaded OCJ [Ontario Court of Justice],” she says. Other measures that give police the authority to impose several conditions, including the requirement of a $500 deposit when issuing a “promise to appear” instead of requiring a bail hearing, are also a concern.
“When you give more discretion to the police, you open up the potential of an abuse of that discretion,” says Savard.
As well, another amendment would permit a court to allow police officers to tender what it describes as “routine” evidence by affidavit or declaration instead of in person in court.
“The definition of routine police evidence is basically every single thing a police officer does. It conflicts with the standard jury instruction that police are not entitled to an enhanced presumption of credibility,” Savard says.
“The provision is too broad,” Spratt agrees. “Requiring an accused to beg the court’s permission and disclose why they want to cross-examine a police officer will result in unfairness and exacerbate court delays.”