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  • May 01, 2018
  • Michael Spratt

Things were supposed to be different.

During the lead-up to the 2015 federal election the then third-party Liberals made lots of promises. This is, after all, what third parties tend to do. But to those who work in the criminal justice system they were the right kinds of promises. Our soon to be Prime Minister, Justin Trudeau, promised to reform the criminal justice system. He promised to repeal the glut of mandatory minimum sentences enacted by the previous Conservative government. He promised to address the overrepresentation of marginalized, racialized, and Indigenous peoples in our courts and in our jails. He promised to embrace evidence-based justice policy.

It was a bold promise given that over the preceding decade criminal justice policy had become a partisan political dumping ground — raw meat the Harper government could throw to its base. You see, Harper had reduced criminal justice policy to a simple flow chart. Step one: Promise ‘tough on crime’ legislation in reaction to a high profile but rare incident. Step two: Table a bill while ignoring the advice of experts. Step three: Cling like grim death to the talking points, at least until step four — when the Supreme Court strikes the law down.

And then Trudeau actually won the election and for a time it seemed like he would follow through on his promises. He gave Jody Wilson-Raybould, Canada’s first Indigenous Minister of Justice, explicit instructions to “review the changes in our criminal justice system and sentencing reforms over the past decade” and to “reduce the rate of incarceration amongst Indigenous Canadians” and to “modernize the court system.” Wilson-Raybould went on to double down on these promises in a 2016 speech to the Criminal Lawyers’ Association.

And then nothing happened.

The evidence didn’t change. Mandatory minimum sentences continued to disproportionately impact marginalized and Indigenous Canadians, exacerbate court delays, and fail to produce community safety benefits. Our courts are still overburdened with minor offences driven by poverty, mental health, and addiction. And Indigenous Canadians still disproportionately fill our court dockets and our jails.

But then Step 1 happened. And Trudeau decided to follow the Harper flow chart so there was legislation in reaction to a high profile case.

In February, Gerald Stanley was found not guilty for his role in the death of Colten Boushie. And then Raymond Cormier was acquitted of the murder of Tina Fontaine. Both victims were young Indigenous kids.  The circumstances of both cases were tragic and marked by the all too common systemic failures that has become emblematic of Canada’s relationship with Indigenous people. Both verdicts resulted in a national outcry. And so, the Liberal government finally acted.

Wilson-Raybould introduced her self-described and long-promised “bold” criminal justice reform. The legislation, Bill C-75, was billed as a silver bullet to unclog our courts and bring about a “cultural shift” in the justice system. The changes may be bold, but they will do little to address the overrepresentation of Indigenous people in the criminal justice system, and will likely result in more court delays and more unfair trials.

But perhaps it should not have come as a surprise that the government’s cynical legislation missed the mark. After all, it took the recent public outcry about two high profile Indigenous victims of crime for the government to purport to address the fact that the justice system has always acted disproportionately against Indigenous accused.

And so on to Step 2 — ignoring the advice of experts.

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by many criminal law experts. But again, this should come as no surprise. For a government which seems to pride itself on overly lengthy consultations it seems that no criminal lawyers were actually consulted on Bill C-75.

If the Justice Minister had consulted the defence bar (or even cared to look up the statistics), she would know that eliminating preliminary hearings won’t speed up court cases. If she had asked, she would have been reminded that in his 2007 report on the wrongful conviction of James Driskell, who spent 13 years behind bars for a crime he did not commit, Justice Patrick Lesage noted that preliminary hearings are an important safeguard for trial fairness.

If the Minister had listened to defense counsel, she would understand that until the systemic barriers to jury service for Indigenous and racialized people are addressed, scrapping peremptory challenges is a counterproductive way to ensure a representative jury.

And there has been no support for the one provision in the bill that the government refuses to talk about — the shielding of police officers from cross-examination by allowing the boys in blue to simply file an affidavit instead of testifying.

Currently we are on step 4 of the Harper flow chart with Wilson-Raybould and her parliamentary secretaries Marco Mendicino and Bill Blair sticking to their talking points about the “bold” legislation.

The sad reality is that it will take years for the cycle to be completed. It takes a long time for legal challenges to reach the Supreme Court. In the meantime, the damning impacts of Wilson-Raybould’s unfair and likely unconstitutional legislation will be felt by the disproportionate number of poor, marginalized, and racialized individuals that will continue to be targeted by the police and prosecuted in our courts.

Breaking this 4-step criminal justice cycle would have been so easy. All Wilson-Raybould had to do was keep the promises the Liberals made in 2015.

But Wilson-Raybould chose to betray the promise to reform Harper’s punitive, time-consuming, and counterproductive justice policy. Instead, she has introduced regressive legislation that will negatively impact the very communities she has promised to help while eroding important mechanisms to ensure trial fairness.

The Harper government embraced its 4-step system and passed law after law that removed judicial discretion from sentencing and embraced harsher and more vindictive punishments. But at least the Conservative measures did not imperil due process. And that is exactly what Wilson-Raybould has done — something worse than Steven Harper ever did.

Michael Spratt is a Partner at Abergel Goldstein & Partners in Ottawa. He regularly appears as an expert witness before the House of Commons and Senate on criminal law policy and legislation. Michael is also a blogger and host of the podcast "The Docket."