Legal ‘reforms’ punish people Supreme Court sought to protect

Posted on April 10, 2018 in Child & Family Policy Context – Opinion/Contributors – The constitutional problem flagged by Canada’s Supreme Court is that people who are presumed innocent should not endure the hell of a criminal prosecution for an unlimited period of time. The federal government has responded, however, by taking more rights away from the very group the court sought to protect.
April 9, 2018.   By

The federal government’s latest bill on criminal justice reform contains a colossal contradiction, amidst a few long-awaited reforms. By trying to jam a populist peg into a constitutional hole, Bill C-75 emasculates criminal defendants’ rights, in the name of speedy justice. The means became the end.

The bill’s stated purpose is “to decrease court delays by making the system more efficient.” There is the problem right there. Efficiency is great for McDonald’s and FedEx, but unnerving for circumcision and criminal justice. Or to mangle Groucho Marx: efficient justice is to justice what efficient music is to music.

To its credit, there are positive aspects in the bill on bail, and an effort to reduce overbroad and unachievable judicial orders that cause senseless convictions; and, a merciful end to the insanity of unpayable federal victim surcharges. These changes are welcome.

But then come the clunkers: a crass, reactionary step backwards on jury trial fairness, by eliminating peremptory challenges based on their misuse in high-profile Indigenous cases (good), but nothing to improve Indigenous jury representativeness in the hundreds of other cases with no profile (bad); the shielding of police testimony from defence scrutiny, as if we all should just trust that police accounts are infallible commandments of truth; and the casting out of preliminary hearings as if a self-evident plague to our courts. All of these latter changes take away procedures used by the criminally accused to defend themselves.

This bill was supposed to be the feds’ reaction to the Supreme Court of Canada’s landmark decision in Jordan, wherein the Court changed the rules on trial delays, but Bill C-75 misses the court’s point. That decision didn’t seek to cut down on trial delays in order to appease police, prosecutors, judges, and complainants. The point was to vindicate the Charter rights of defendants to a fair trial within a reasonable time.

Yet parts of this new federal bill does the opposite. In too many ways, they’ve managed to set back due process rights of those presumed innocent until proven guilty.

If our federal and provincial attorneys general were to better prioritize, all the garbage charges would be thrown out, all the overcharging and over-incarceration of mentally ill and Indigenous people would stop, thereby freeing up time for only those prosecutions with a real prospect of conviction and a serious public interest.

The justice system is not an assembly line, where the point of efficiency is innovation, competitiveness and profit. Getting a defendant to trial faster is not measured in widgets or dollars. It’s not about the frustration of privileged judges and lawyers; it’s not about improved prosecution stats, or their vertical and horizontal integration. It’s not to satisfy Treasury Board or even voters.

The point is to protect defendants and their constitutional rights because they’re innocent until proven guilty. The point is to live in a country where all human beings are treated humanely by our justice system, and that means while you may not get your day in court within a year of getting charged, you’d better get it within a few, or else that system does more harm than good.

The speedy trial right was created in the common law because it’s inhumane for the state to accuse a citizen of wrongdoing, with the attendant shame and agony that accompanies such an accusation, and then do nothing to prove it.

The constitutional problem flagged by the Supreme Court in Jordan is that people who are presumed innocent should not endure the hell of a criminal prosecution for an unlimited period of time. But then the feds responded by taking more rights away from the very group the court sought to protect.

Left to populism, that group does not fare well. Hence they’re protected by the Constitution, a bulwark against the powerful state, to prevent governments from currying electoral favour by misusing police, prosecution and prisons.

Pre-election, Prime Minister Trudeau promised progressives to swim upstream against populism, to reverse the Harper government’s various punitive measures — mandatory minimum sentencing laws, and the like. To date, however, Canadian civil liberties continue to be sold down the river.

Michael Bryant is the executive director of the Canadian Civil Liberties Association.

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