Michael Ford (post until Oct. 31/18)

Fennel: 'Culture of complacency' not addressed in Bill C-75

A move by the federal government to reform Canada’s criminal court system and improve efficiency does not address the “culture of complacency” encountered by accused individuals, says Toronto criminal lawyer John Fennel.

“It’s going to require a real sea change to ensure accused are respected at every level,” says Fennel, an associate with Hicks Adams LLP.

Bill C-75, which amends the Criminal Code, the Youth Criminal Justice Act and other laws, received first reading in March. The proposed changes to the Criminal Code include eliminating peremptory challenges of potential jurors, restricting the use of preliminary inquiries, providing for more discretion in “administration of justice” offences — such as breaches of bail or sentencing orders — and providing more onerous interim release requirements for domestic violence cases.

“From my perspective on the defence, it seems to me the ‘culture of complacency’ relates to the complete lack of urgency in the system,” says Fennel, referring to a term used by the Supreme Court of Canada in the landmark Jordan case in 2016 that laid down time limits for cases to be heard.

“Where there is urgency, it’s not for the right reasons. It should be to keep people who should not be detained out of custody, about having cases tried on their merits and having individuals' Charter rights upheld. The urgency should be about doing justice, not about getting on the road before traffic picks up,” he tells AdvocateDaily.com.

“In Bill C-75, there are a number of measures designed to make it easier to keep people locked up and for the prosecution to present their case without it being challenged,” Fennel adds.

In a statement introducing the bill, Justice Minister Jody Wilson-Raybould said, “This proposed legislation responds to the Supreme Court of Canada’s Jordan decision by taking concrete steps to make our criminal justice system more effective and efficient while respecting the Canadian Charter of Rights and Freedoms,” the CBC reports.

“More importantly, it will make a significant contribution to a necessary culture shift in the way our criminal justice system operates,” she added.

But Fennel says the legislation will do no such thing, in part because “making a cultural change when it comes to the law is pretty difficult.” And the proposed changes will do little to speed up the system, he says, pointing to set-date courts and ongoing delays as accused wait to receive disclosure from the Crown as examples of the system’s ingrained inefficiency.

Fennel also says the “ridiculously long” timelines stipulated by the Supreme Court in Jordan — calling for cases to be stayed if they take longer than 18 months to reach provincial court and 30 months for Superior Courts just allow prosecutors to hold off on providing disclosure.

“Many of my clients are frustrated at the slow pace of disclosure. They want to know the case against them and we wait months to get it,” Fennel says.

Under Bill C-75, preliminary inquiries will be allowed only for the most serious offences that bring a life sentence — the rationale being that they take up valuable court time and, with enhanced disclosure, they’re less necessary, he explains.

But Fennel says preliminary inquiries — which are used to determine if there’s enough evidence to send a case to trial — take up a very small amount of court time, so a plan to cut back on those hearings “is worse than pointless, because you’re taking away a device that resolves many cases.”

At the same time, he says, electronic disclosure means the defence has to contend with mounds of information, making it vital to test the evidence in a preliminary inquiry.

Peremptory challenges became a hot-button issue earlier this year after a Saskatchewan farmer was acquitted of second-degree murder in the fatal shooting of a young aboriginal man who was on his farm, the CBC reports, noting that the defence excluded five potential jurors who appeared to be indigenous.

The federal government's plan to remove the challenges entirely is “foolish,” Fennel says, noting that “compared to the size of the jury pool, it’s a very small number of people who are cut out” due to concerns by either the defence or the Crown.

“In an individual case they can seem like a problem, but when you look at it over the long run, peremptory challenges promote diversity on the jury and keep people who shouldn’t be on juries off them.”

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