Defence lawyer Annamaria Enenajor photo via Twitter, Gerald Stanley via The Canadian Press
The Canadian government’s proposed changes to the criminal justice system will result in more wrongful convictions and penalize people of colour, according to defence lawyers.Justice Minister Jody Wilson-Raybould announced Bill C-75 Thursday, touting it as a means to reduce court delays “while ensuring that Canadians have a well-functioning criminal justice system that respects their rights and maintains public safety.”
Many believe the bill was in part a response to the Gerald Stanley trial—an all-white jury recently acquitted Stanley of manslaughter and second-degree murder in the death of Colten Boushie, a Cree man. As part of the bill, the government wants to remove the right of Crown and defence lawyers to exclude jurors through a peremptory challenge. However, experts who spoke to VICE raised a number of major concerns with the bill and said it will most likely negatively impact racialized people, who are already overrepresented in Canadian prisons“These changes are worse than anything Harper ever did,” said Jack Lloyd, a Toronto lawyer who specializes in cannabis arrests.Here’s a breakdown of the key concerns over this bill:Scrapping preliminary inquiriesBill C-75 proposes eliminating preliminary hearings in all but the most serious offences (i.e. murder) as a way to “ensure criminal cases can proceed more efficiently to trial.” These hearings serve as a “dress rehearsal” for a potential criminal trial, said Toronto lawyer Dan Stein, which the media can’t report on.“Both sides get to see how strong or weak their case is” in a lower pressure situation, Stein told VICE. The outcome could be that there isn’t enough evidence to go to trial, certain charges are thrown out, or the defence agrees to a plea deal because the evidence is so strong. Eliminating this step could actually make court processes more inefficient because trials will be less organized, and longer seeing as neither the defence nor Crown had the benefit of going through a dry run.
Lloyd said getting rid of preliminary hearings also means people could wrongfully end up in jail because a case that otherwise wouldn’t have made it to trial will go to trial.“They are robbing accused persons of rights to speed up the court process,” he said.Police won’t automatically have to be cross-examinedThe bill will also allow police officers’ evidence to be submitted in signed, written form, without requiring them to be present at trial and cross-examined. Defence lawyers who want to cross-examine cops will need to make a special request to the court.Annamaria Enenajor, a partner at Ruby, Shiller, and Enenajor, said this provision gives police evidence a built-in advantage.
“It amplifies the presumption of credibility of police evidence,” she said, noting often times it’s just the evidence of the accused versus the cops.Recently Toronto police pepper-sprayed a man who was already handcuffed and lied about it under oath.Enenajor said in all likelihood, defence lawyers will default to requesting the right to cross-examine police, but the extra step in having to make such a request will result in more court delays.Abolishing peremptory challengesPeremptory challenges work by allowing the Crown and defence to eliminate potential jurors without having to give a reason. In Stanley’s case, it meant no Indigenous people were on the jury hearing his trial.But Dan Stein told VICE the Stanley trial was an outlier—usually the accused is a person of colour and the defence uses peremptory challenges to get a more diverse jury.
“In most cases, you’d be happy to have a person of colour on the jury,” he explained.
Enenajor said this reform will punish people of colour the most—the opposite of its stated intent. As it stands, if a potential juror gives an accused person a certain look, that alone is good enough for a defence attorney to eliminate them. But under the proposed rules, lawyers will only be able to challenge potential jurors “for cause” because of suspected bias. Ultimately, she said the decision will be left up to the judge.“It’s going to be hard to challenge someone for being discriminatory because no one is going to admit to being racist,” she said.Raising maximum penaltiesBill C-75 is also raising the maximum punishments for summary offences to two years in jail, which is quadruple what the current maximum is for some crimes.This could result in people getting punished more severely. But Enenajor noted it will also negatively impact low-income and racialized people because paralegals, and articling law students aren’t able to run trials where the punishment is more than six months of jail time. Only licensed lawyers are able to run those trials.“[Marginalized] people have less access to proper legal advice and representation before the court,” she said. “People who self-represent increase delays in the justice system and are more likely to be wrongfully convicted.”No reform on mandatory minimums
Notably, the bill didn’t touch on Stephen Harper-era mandatory minimum jail sentences, some of which have already been struck down as unconstitutional.Lloyd said getting rid of those would have been an effective way of decluttering the court system, because people generally choose to go to trial if there is a mandatory minimum as opposed to taking a plea deal.“You might as well try and beat the charges and cross your fingers that you don’t have to go to jail.”Will likely be challengedEnenajor said she’s shocked at the “colossal” scope of the bill, which suggests scrapping centuries-old procedures in some cases.“It really has blindsided the criminal law and defence community,” she said. “It was just astonishing that the government decided to table this before a long weekend without prior consultation.”Even if the government passes Bill C-75 into law, Stein said it will likely be challenged across the country.“Defence counsels are going to be chomping at the bit to challenge this,” he said.Follow Manisha on Twitter.