OTTAWA – The federal government has tabled a wide-spanning piece of legislation that aims to reform a number of areas of Canada’s criminal justice system and address court backlogs.
The bill proposes to amend the Criminal Code to:
- Get rid of peremptory challenges of jurors and change the way juries are selected;
- Increase the maximum sentence for repeat domestic abusers;
- Restrict the use of preliminary inquiries to serious offences;
- Change the way to handle offences such as failing to appear or breaching release conditions; and
- Remove parts of the Code that have been found unconstitutional.
Along with these new measures, Bill C-75 wraps in several bills already before Parliament that have not progressed since being introduced. That means the new legislation also includes measures related to victim surcharges; exploitation and trafficking; and cleans up so-called “zombie” parts of the Criminal Code that have been struck down as unconstitutional but not yet wiped from the law.
The legislation also seeks to amend the Youth Criminal Justice Act.
“Our government is committed to ensuring that we have broad-based reform of the criminal justice system,” Justice Minister Jody Wilson-Raybould said at a news conference Thursday afternoon.
She said the proposed changes “aim to bring about a wide-reaching cultural shift” in the justice system and ensure “swifter access to justice.”
Part of what Wilson-Raybould was mandated to do, and had been consulting on, was reviewing sentencing reform and other changes in criminal justice system made in the last decade.
In a June 2017 report titled "Delaying Justice is Denying Justice," the Senate Legal and Constitutional Affairs Committee explored what it called an "urgent need" to address Canada’s lengthy court delays.
Under the proposed legislation, only adults accused of a crime punishable by life imprisonment would be able to request a preliminary inquiry, an extra procedural step that determines if there is enough evidence to send the accused to trial.
Carissima Mathen, a University of Ottawa law professor, told CTV’s Power Play Thursday that use of preliminary inquiries has already declined in recent decades. Restricting preliminary inquiries to serious criminal charges “really puts Crowns on notice that they need to be confident in the strength of their case,” she said.
The legislation would also abolish peremptory challenges when it comes to jury selection. Peremptory challenges allow Crown and defence lawyers to exclude potential jurors without providing a reason.
That issue was highlighted in the recent trial of Gerald Stanley, the Saskatchewan farmer who was acquitted in the shooting death of Indigenous man Colten Boushie. A number of visibly Indigenous people were rejected during the jury selection process in the case.
Wilson-Raybould told CTV’s Power Play that lawyers would still have the right to challenge a potential juror for cause, and that judges could set aside an individual juror if they feel it’s necessary.
Wilson-Raybould told Thursday’s news conference that a number of proposed reforms will help reduce “over-representation” of Indigenous people and marginalized groups in the justice system. She said those groups, including people with mental health and addiction issues, are more likely to remain incarcerated while awaiting trial, and when they are released on bail, they are more likely to be subject to conditions.
Mathen said the bill could tackle the issue of judicial delays, but noted that the federal government doesn’t have total control over the criminal justice system since it’s administered by the provinces.
Bill C-75 would also make other changes aimed at reducing the backlog of criminal cases in Canadian courtrooms, including allowing judges more discretion when it comes to certain offences – such as breaching bail conditions -- that do not involve violence or property damage.
In July 2016, the Supreme Court set new limits for trials in Canada: 18 months for cases before provincial courts and 30 months for cases before superior courts. The ruling, referred to as the “Jordan decision,” came after B.C. drug dealer Richard Jordan waited 49 months between his arrest and conviction.
Several lawyers defending accused criminals -- including alleged murderers -- have used the ruling to successfully have the charges stayed, effectively throwing out the cases and allowing suspects to walk free without ever standing a day in court.
Critics have warned that if the federal government doesn’t fix court delays, it could open the door for hundreds or possibly thousands of people accused of serious crimes to dodge the justice system.
Here are some notable cases stayed due to unreasonable delays.
First-degree murder trial scrapped
Lance Regan was in an Edmonton prison when he was charged with first-degree murder in the 2011 death of a fellow inmate. After more than five years of delays, his case was thrown out by an Alberta judge.
The judge ruled that 24 of those months were the defence’s fault. Regan fired two of his lawyers, including one three weeks before his first trial date.
However, after doing the math, Justice Stephen Hillier found that the delays still surpassed the Jordan ruling limit by eight months.
Hillier said a longstanding shortage of judges in Alberta and “notorious institutional delays” influenced the outcome. The Crown is appealing the case.
Man accused of murdering wife deported to Sri Lanka
Sivaloganathan Thanabalasingham, a Sri Lankan man accused of stabbing his 21-year-old wife to death in 2012, had a second-degree murder charge stayed just days before his trial.
Thanabalasingham spent five years in detention awaiting his trial.
He was deported back to Sri Lanka in July 2017, where he walked free. There is no extradition treaty between Sri Lanka and Canada, so he does not face the risk of being brought back to Canada.
U.K. man accused of machete murder
Van Son Nguyen was charged with second-degree murder in 2013, but had his case stayed due to court delays.
Nguyen waited 55 weeks for a trial after being charged. He was accused of using a machete to stab a man 34 times in a house that was being used as an illegal grow-op.
Nguyen was deported back to the U.K., his home country, in 2017 after the charges were stayed.
Accused child abuser in Manitoba
In Manitoba, a man accused of sexually assaulting the daughter of his former common-law partner had his charges stayed because it took more than 44 months between the charges being laid and the arrest.
The girl was six years old at the time of the first alleged instance of abuse. The man was accused of abusing her until she turned 12.
It took nearly two years for the man to be arrested because police investigating the case didn’t forward the arrest warrant to RCMP in the northern Manitoba community where the man lived.
The judge ruled that the delay was “simply too long and outweighs society’s interest in having the case decided on its merits.”
Drunk driving case in Saskatchewan
In Saskatchewan, a man charged with drunk driving had his case stayed after more than 21 months of delays.
The judge blamed overbooked courtrooms, which often happens under the assumption that some defendants won’t show up in court. When the man accused of impaireddriving showed up for his second trial date in May of 2016, his case was put off for another six months.
Judge Miguel Martinez used his ruling to highlight the problem, saying “Gambling with the court's time serves no one."
B.C. father accused of sexually assaulting daughter
A B.C. man accused of sexually assaulting his daughter had his case stayed in 2017. The father was charged in October 2014, and the initial court date -- set one year after the charges -- was postponed by six months on two occasions.
In dismissing the trial, the judge blasted the Crown for “not pursuing the case vigorously.” In two cases, the judge said, the complainant was interviewed one day before the trial’s start date.
The Crown argued that the complainant was suffering from a mental health crisis and her mother did not forward messages from the police and the Crown. The judge rejected the argument and underscored the importance of a timely trial.
With files from The Canadian Press