Several criminal defence lawyers in Whitehorse worry that a number of proposed changes in the federal government’s new justice reform bill would actually be detrimental to accused persons and offenders.
Federal Justice Minister Jody Wilson-Raybould introduced Bill C-75 in the House of Commons March 29. The 300-page bill is intended to address delays and issues of fairness within the Canadian justice system, but lawyers across the country have warned that some of the proposals, if adopted, would actually have the opposite effect.
Among the most contentious of the proposed changes is the elimination of preliminary hearings in all cases save for homicides.
Vancouver-based defence lawyer David Tarnow, who often practices in the Yukon, said the preliminary hearings are a crucial tool for defence lawyers.
“I have a case coming up in Yukon and we had a preliminary last summer and it revealed all sorts of important things that I had no idea (about) from reading the documents I was given by the Crown,” Tarnow said in a phone interview.
“I know the courts are worried about time, but the individual’s future is at stake, I have to have a full understanding of what the case is about, especially when it’s a serious case.”
The Yukon Legal Services Society’s executive director David Christie and staff lawyer Vincent Larochelle agreed.
“Preliminary hearings are a very important part of the criminal justice system,” they wrote in an email.
“They ensure that an accused is aware of the case against him. This is of utmost importance. In addition, preliminary hearings will crystallize some of the issues that could arise at trial, this in turn contributes to speedy and fair trials. Yukon Legal Services Society does not support the proposal to remove preliminary hearings.”
Another proposal that’s drawn the ire of defence lawyers is the elimination of peremptory challenges. Peremptory challenges were recently put in the national spotlight during the high-profile Gerald Stanley trial.
Stanley, a white Saskatchewan farmer, was charged with second-degree murder after fatally shooting Colten Boushie, a young Cree man, after Boushie and his friends drove on to Stanley’s farm. During jury selection, observers in the court said that Stanley’s defence challenged any potential jurors who looked Indigenous, resulting in an all-white jury that ultimately acquitted Stanley of murder.
Christie and Larochelle described the proposal to eliminate peremptory challenges as “populist, reactive legislation, based on one high-profile case.”
“Based on our experience at Legal Aid, we do think that peremptory challenges are an important aspect of jury trials,” they wrote.
“Often, the accused in the Yukon is an aboriginal person and the defence uses peremptory challenges as a means to try to get a more representative and fair jury. C-75 doesn’t consider this. It would be problematic to remove peremptory challenges without filling the void that this will create.”
Whitehorse-based defence lawyer Jennie Cunningham said that for her, the biggest issue with Bill C-75 is that it does not speak to eliminating mandatory minimum sentences, which was among the calls to action from the Truth and Reconciliation Commission. In fact, the bill proposes introducing some new mandatory minimums for certain crimes.
“Mandatory minimum sentences are being challenged throughout Canada and judges have found many of the sections to be unconstitutional…. It was surprising that that was not part of this justice reform bill, that there wouldn’t be some sort of clawback to Tory mandatory minimum sentences,” Cunningham said.
She also added that the proposal to place the onus on the offender during bail hearings involving intimate partner violence bucks national justice trends of focusing on rehabilitation instead of incarceration.
“Those changes are kind of against what has been working in terms of getting people into programming” and oversimplify a complex problem, she said.
While all the lawyers that the News spoke to said Bill C-75 isn’t all bad news — the proposed changes to bail breaches, for example, are promising — they were unanimous is hoping that the problematic sections being identified by lawyers across the country would be addressed before the bill’s next reading.
“I mean, having things get through the system a little more quickly is one thing, but to the detriment of the accused, who are facing serious jeopardy?” Tarnow said. “That’s just wrong.”
Contact Jackie Hong at firstname.lastname@example.org