The Power of Perspectives

The Canadian Bar Association

Kim Covert

Omnibus Bill C-75 attracts wide-ranging response from CBA

September 25 2018 25 September 2018

 

As is perhaps fitting for omnibus legislation, the CBA Criminal Justice Section’s response to Bill C-75 ranges from “Absolutely!” to “Absolutely not!” and hits “yes,” “no,” and “maybe, if” a number of times in between.

The bill, which represents the federal government’s response to R v Jordan, deals with court delays (as well as reforms unrelated to court delays, such as intimate partner violence), and includes proposals which would “exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections.”

Tony Paisana and Kathryn Pentz appeared before the Standing Committee on Justice and Human Rights on Sept. 19 in support of the CBA submission.

Proposals receiving wholehearted approval have to do with amendments to the bail regime, including codifying principles which direct the officer, justice or judge to give primary consideration to releasing a detainee at the earliest possible opportunity. Other proposals include requiring consideration be given to the overrepresentation of Indigenous people and other “vulnerable populations” in the court system; discouraging the use of cash deposits and sureties; and encouraging a more streamlined bail process.

On the other hand, the Section is opposed to the amendment which would permit “routine police evidence” to be introduced into the record by way of affidavit or solemn declaration, saying it is “inconsistent with existing case law, appears unconnected to any empirical study, and would likely exacerbate problems of delay.” This amendment, which would infringe the right to cross-examination, would also be vulnerable to challenges under the Charter.

Likewise, the Section disagrees with limits Bill C-75 would place on preliminary hearings, restricting them to offences with a maximum sentence of life imprisonment. “Restricting preliminary inquiries to offences punishable by life imprisonment is arbitrary, and the rationale for that distinction is not clear.”

The Section notes that only 25 per cent of eligible cases opt for a preliminary inquiry, only two per cent of all court appearances are used for preliminary inquiries, and the vast majority of preliminary inquiries take two days or less. “Any connection between court delays and the preliminary hearing is speculative at best,” the Section says, while noting that these hearings have a practical value in the criminal justice system. The Section also notes one amendment that is conspicuously absent from Bill C-75 – “meaningful reform to sentencing laws, particularly as they relate to mandatory minimum penalties and the availability of conditional sentence orders. Any worthwhile discussion of reducing court delays should include these important topics, given their significant impact on the effectiveness of the criminal justice system.”

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