The home stretch: Delivering on justice reforms

By Justin Ling August 13, 201813 August 2018

The home stretch: Delivering on justice reforms

 

As the Trudeau government approaches the last year of its mandate, its promised reforms to our justice system present a mixed picture.

Since taking office, the Liberals have been seized with improving the speed and efficiency in the criminal justice system. Adding a greater sense of urgency to the task was the Supreme Court’s ruling in 2016 in  R. v. Jordan, which imposed ceilings on trial delays and instigated a political panic over the idea that murderers could be released because their case has been too-oft delayed. Even prior to that, Justice Minister’s Jody Wilson-Raybould’s November 2015 mandate letter from the prime minister outlined three specific commitments on that front: The expansion of information technology to expedite the justice system, “exploration of sentencing alternatives and bail reform,” and the establishment of a “unified family court.”

The first of the three promises appears to be well on track. While there is scant mention by the government of their plan to drag the Court Administration Service’s Courts and Registry Management System into the 21st century, the government insists that change is on the way.

Ottawa’s commitment was enough to warrant a 2016 letter to Wilson-Raybould, from the chairs of the CBA committees for the tax and federal courts, lauding the modernization initiative, noting that it would promote efficiency, facilitate the process for litigants, and save the whole system money.

This year’s federal budget also provided millions in new justice funding, including some funding for Unified Family Courts. The government also amended the Judges Act to allow for the expansion of a number of family courts to several provinces, with some $20 million per year behind it, starting next year. “The merits of the [unified family court] model are clear: it provides family law participants with a single court/venue to resolve their proceedings, thereby reducing duplication, confusion and delay, while eliminating conflicts of jurisdiction and multiplicity of litigation,” CBA President Kerry Simmons wrote to the justice minister earlier this year.

Sentencing alternatives and bail reform, however, have proven surprisingly more difficult for the federal government.

According to the government’s mandate letter tracker, which Ottawa uses to grade itself, it is “underway — on track” when it comes to both sentencing reform and the modernization of the criminal justice system.

Daniel Brown couldn’t disagree more. “They’ve missed the mark completely,” the director for the Criminal Lawyers’ Association told CBA National. “They got distracted pursuing zombie laws that were unnecessary to address, in the circumstances.”

Brown, who also runs his own firm, says there were plenty of issues for the Trudeau government to tackle that would have made a real, measurable, and immediate difference. He would’ve liked to have seen greater effort to reform mandatory minimum and conditional sentences, as well as parole reform.

“They certainly never campaigned on the reforms they’ve brought forward, and the things they did campaign on, they haven’t achieved,” Brown says, pointing to the Justice Minister’s decision to axe preliminary hearings for most offences and to end the practice of peremptory challenges for jury selection.

Brown also points to inaction by the federal government on conditional sentences. The Harper government had eliminated them for a variety of non-violent offences, such as fraud. Bringing those sentences back, Brown argues, would be hugely significant in freeing up court time, and creating a reasonable alternative between the current options: A lenient plea deal, or a harsh sentence at trial.

The Canadian Criminal Justice Association has also called on the federal government to bring them back, in large part to tackle the societal problem they were initially designed to address: The over-representation of Indigenous peoples in Canadian jails.

Ottawa has taken steps to stop reduce the strain on the courts, softening the rules around bail and taking a crack at reducing administration of justice offences. But as CBA National has previously reported, there is concern that the changes are inadequate to deal with the scope of the problem. The legislation does, too, eliminate the mandatory victim surcharge where it would cause undue hardship for the offender (that Harper-era clause was on track for a constitutional challenge regardless.)

But Brown says there are other, more significant, issues at hand. “Pardons is another area where there’s room for reform,” he says.

The other big one, he says, is mandatory minimum sentences. “Since 2005, instances of crimes involving mandatory minimum sentences have steadily increased compared to crimes that had no minimum sentence,” Brown added. Some 60 charges were amended during those years to add mandatory minimum sentences.

The government could have tackled many of these changes early, he argues. That could have had a relatively immediate, positive, impact both on trial delays and on incarceration rates. But with the clock counting down, hopes for across-the-board reform appear to be fading.

Also, despite running on a platform of reconciliation with First Nations and Indigenous peoples, Trudeau’s first mandate has been beset by several challenges. Indigenous communities have pushed against Ottawa-backed pipeline projects, both in protest and in court. Meanwhile, a perception that the criminal justice system is stacked against Indigenous peoples has only grown.

Ottawa has undoubtedly taken some initiative. An inquiry into missing and murdered Indigenous women is ongoing, despite internal issues and public criticism regarding its structure and function. A new framework regarding land claims and self-governing agreements is, according to the government, taking shape. It remains optimistic that it will come online before the 2019 election. Last year, Ottawa scrapped the National Energy Board and replaced it with a new body with mandated Indigenous input — but, according to Bernie J Roth, Laura K. Estep and Dan Collins of Dentons, the change “appears to be largely a rebranding exercise” with its final impact yet to be determined.

Joyce Thomas, a human rights and indigenous law practitioner based in London, Ontario, says the Trudeau government’s think-big strategy may have been well-intentioned, but may prove ultimately to be a failure.

“I think they thought: We’re showing a strong front. Even though the projects are large, it shows a commitment that we’ll make some headway,” she says: “At this point now, most Aboriginal lawyers, and Aboriginal, Indigenous communities are feeling like nothing’s happened.”

Land claim agreements are a good example. While the government has been working on a new framework on how those are managed, it also promised to sign more agreements with First Nations in its first mandate. The government’s own mandate letter tracker notes that promise is facing challenges. The same can be said for their commitment to move on from the Indian Act, and for their promise to ratify the United Nations Declaration on the Rights of Indigenous Peoples.

“I think there’s still a long way to go,” Thomas says.

New legislation likely won’t solve, in the short term, many of the legal challenges facing Ottawa on the Indigenous front. To that end, it’s probable that many of Trudeau’s 2015 promises to Indigenous peoples will be carried over to his 2019 campaign.

With just a year to go, the Justice Minister has her work cut out for her. Her justice reform bill, C-75, which is set to face stiff opposition when it comes before the House of Commons Justice Committee this fall. What’s more, given the Senate’s independent streak of late, it could even meet more vigorous opposition when it reaches the upper chamber.

This isn’t to say there hasn’t been progress on other fronts. The government’s decision to legalize marijuana has moved along relatively smoothly, in spite of delays. And in response to the Supreme Court ruling in Carter v. Canada, the government adopted legislation on physician-assisted suicide. But its planned effort to crack down on impaired driving has yet to roll out fully. And citizen-led challenges to everything from Canada’s relatively-new regimes around sex work and physician-assisted dying are also looming on the horizon.

According to the government's mandate letter tracker, of the dozens of commitments pertaining to justice, only six have been deemed "fully met." Another 55 are "on track," while 12 are facing challenges.

We’ll see if the government can improve those numbers after its final kick at the can this fall.

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