Criminal Law

Dale: the potential damage from Bills C-51, C-75

By Staff

Bills C-51 and C-75 are the federal government’s response to several recent court decisions and were “cobbled together with little to no research regarding trial fairness and due process,” Toronto criminal and civil litigator Laurelly Dale writes in The Lawyer’s Daily.

“If passed, the Charter rights that Prime Minister Justin Trudeau’s father worked so hard to enshrine will be erased one amendment at a time. Due process is eliminated through four major amendments in Bill C-75,” she says.

Dale, principal of Dale Law Professional Corporation, says that Bill C-51 was the government’s response to the Jian Ghomeshi case, while Bill C-75 is a “knee-jerk reaction” to the Supreme Court of Canada’s decision in R. v. Jordan and another high-court ruling in 2017 on bail issues, as well as one handed down this year by a Saskatchewan court related to the second-degree murder acquittal of a farmer in the shooting death of an aboriginal man.

She notes that Bill C-51 aims to remove preliminary hearings for all those not facing life sentences.

“The minister of justice relied on Jordan to strip away an integral step in the criminal justice system,” she says.

“The intent of Jordan was to preserve the Charter right to be tried within a reasonable time, not to be used as a weapon to deprive an accused of an essential step in the process. Those not facing life sentences will be granted the privilege of having a preliminary hearing. All others will be forced to schedule lengthy trials.”

This will cause additional delays, Dale says.

“I have had several contentious files resolved because of a preliminary hearing or significantly reduced trial time because we were able to focus on the issue,” she says. “Further, the claims that this will reduce court delays is false. Only three per cent of matters proceed to preliminary hearing.”

The second amendment the bill contemplates will categorize all “intimate partner violence” as a reverse onus on judicial interim release, Dale says.

“Increased penalties at the sentencing stage are also included. These amendments are likely in response to two developments,” she says.

The first is the 2017 SCC ruling on bail, reinforcing the right of an accused to be granted judicial interim release pending trial, Dale says.

“The second includes the same falsehoods supporting Bill C-51, specifically that those involved in intimate relationships do not report offences because they have no confidence in the criminal justice system. The data does not support this reasoning,” she says.

According to Statistics Canada, the primary reason intimate violence is not reported is because it was dealt with another way or they felt like it was a private matter, Dale says.

“No confidence in the criminal justice system was one of the last reasons,” she says.

“This amendment will further add to the delays in the criminal justice system by requiring lengthy bail hearings for everyone charged with s. 266 against the vaguely worded ‘intimate partner.’

“Third, and the amendment most likely to increase wrongful convictions, is found in s. 657.01(1), admitting ‘routine police evidence’ by way of affidavit. Police officers are agents of the government authorized to enforce our laws. This authority has limits. Enforcement cannot violate our supreme law, the Charter of Rights and Freedoms, found in Part B of our Constitution Act, or must be an exception that is saved.”

Dale says she’s perplexed by this amendment, particularly when considered in conjunction with eliminating preliminary hearings.

“The phrase ‘routine police evidence’ is broad enough to cover everything an officer does during an investigation,” she says.

“The government seems to be suggesting that although their agents are permitted to investigate, arrest and detain, they are not required to waste their time in court. Further court delays will be caused as counsel would have to argue that viva voce evidence is required.”

The fourth amendment is the government’s answer to the acquittal of the Saskatchewan farmer of second-degree murder, Dale says.

The government’s response is found in s. 633, eliminating peremptory jury challenges, she notes.

Dale assisted at the jury level on a case that reached the SCC on the issue of jury-panel selection for aboriginal peoples.

“The accused was a youthful aboriginal. We ended up with a jury comprised of non-aboriginals, not due to the peremptory challenges but because of the jury selection process,” she says.

“I agree, change should be made to our jury selection to ensure that it is truly a jury of our peers. I further support the amendments in Bill C-75 that would require consideration for indigenous people at the bail stage. Eliminating peremptory challenges will do nothing to eliminate over-penetration of aboriginal peoples in the criminal justice system.”

Dale points to how key stakeholders such as the Criminal Lawyers’ Association were not consulted about Bill C-75.

“At least the Conservatives were upfront about their criminal law mandate. The potential damage expected in Bill C-75 is on par with the reforms made by the Conservatives,” she says.

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