Law Times

Law Times • sepTember 11, 2017 Page 7 www.lawtimesnews.com Whither the criminal justice agenda? BY MATTHEW GOURLAY N early two years into the federal government's mandate, it's fair to ask — what has become of its criminal justice agenda? Although the Liberals' election plat- form did not contain much in the way of specific commitments to rolling back the Harper "tough on crime" agenda, Prime Minister Justin Trudeau made clear that his government would take a more bal- anced, less ref lexively punitive approach to the justice file. The mandate given to Jody Wilson- Raybould as minister of Justice ap- peared to suggest that reform was in the works. Upon taking office, Wilson-Raybould was directed by Trudeau to "conduct a review of the changes in our criminal jus- tice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increas- ing the safety of our communities, getting value for money, addressing gaps and en- suring that current provisions are aligned with the objectives of the criminal justice system." Whatever this review entailed, two years in, there seems to be relatively little to show for it. Even though Wilson-Raybould has repeatedly indicated that mandatory minimum sentencing provisions are under review, I am not aware of a single mandatory minimum having been abol- ished or reduced since the change in gov- ernment. More troublingly, many of the crimi- nal justice reforms the government has proposed are of the simplis- tic ilk favoured by the previ- ous government. Bill C-51, introduced in June, would make a number of Criminal Code amendments in the name of "strengthening sexual assault law." In reality, the bill runs the gamut from the redundant to the manifestly unconstitu- tional. As to the former, it pro- poses to amend s. 273.1 to stipulate that an unconscious person can- not consent to sex. This is, of course, already the law in Canada, so the amendment is fatuous. It may well be designed to respond to the general public's dim awareness of re- cent controversy over circumstances in which a drunk person can consent to sex. But that is a different issue entirely and C-51 does not purport to address it. As to the unconstitutional aspects, bill C-51 would expand the "rape shield" law (s. 276) to cover not just past sexual conduct but also communications of a sexual nature. This means that before cross- examining the complainant on their own prior statements (provided they contain sexual content), the accused would need to disclose the communica- tions to the court and to the complain- ant and seek permission to ask ques- tions about them. Needless to say, requiring the defence to give the complainant a preview of the cross-examination would severely limit its forensic utility. It is also not clear to me what problem this reform purports to address. Witnesses are always open to cross-examination on their prior statements, pro- vided the questions are rel- evant and the evidence they seek to elicit is admissible. The so-called "twin myths" targeted by the ex- isting rape shield provisions simply do not apply to prior statements of the complainant as they do to prior sexual activity. In my view, this proposed reform is a blatant attack on the accused's right to make full answer and defence and if en- acted will likely be struck down by the courts. Like many of the Harper-era initia- tives, it seems designed more to appeal to the partisan "base" than to make a posi- tive difference in the system. It's a different base, certainly, but the same pandering impulse exists. Another contemplated reform, not yet formalized in legislation, would lower the Criminal Code's blood alcohol limit for drivers to 0.05 from 0.08. While not as egregious as the proposal just discussed, this, too, strikes me as mis- guided. Alcohol-driving offences are already among the most heavily charged and liti- gated offences in Canada. They take up a disproportionate amount of court time given that the exis- tence of a mandatory minimum penalty and the relative aff luence of many accused tend to produce trials rather than pleas. Especially in the post-Jordan era, where court time is at a premium, it seems to me that the proper approach is divert- ing low-level drinking-driving offences out of the criminal system altogether as has been done in B.C., not bringing vastly more of them into it. To give credit where credit is due: One salutary development (contained in the otherwise discreditable bill C-51) is the re- peal of a number of Criminal Code provi- sions that have been rendered obsolete by judicial findings of unconstitutionality. But this is just a small step toward a more thoroughgoing revision of the loose, baggy monster that is today's Criminal Code. And to be fair, the impending legaliza- tion of marijuana is a big deal. But the criminal law aspect is easy to accomplish: Remove the relevant offences from the books. The real work lies in designing and implementing a regulatory regime to take their place. A government truly committed to sen- sible, evidence-based law reform would revive the Law Reform Commission, give it adequate funding and commit to tak- ing its recommendations seriously. Given what we've seen over the past two years, I remain to be convinced that this is that sort of government. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. A call for change in bail BY SENEM OZKIN I t is an undeniable fact that bail courts in Ontario are in crisis. What seems to be becoming even clearer is that no amount of attention to spotlight the is- sues is enough to fix them. The main issue is that what has become the status quo for bail court procedure is not grounded in law but rather seems to be an exercise in avoiding liability for the decisions that are made by the increasingly risk- averse players in the criminal justice system. The law on bail is clear: In a Crown onus situation, where there is a presumption of release, the default position is a release on an undertaking without con- ditions, with the burden on the Crown to show cause why a more onerous release — or a detention order — should be imposed by the court. Despite the law, however, it has become common- place for the Crown to make its bail position contin- gent on defence evidence in bail court — demonstrated by the Crown asking to hear from the proposed surety before formulating its position on bail — and for bail courts to expect that the defence will call evidence on Crown onus hearings to justify release. While this is arguably a reversal of the onus and thus an error of law, it has become the status quo for how our bail courts operate in Ontario. This has led to unnecessarily lengthy bail hearings with extensive cross-examination of sureties and to the Supreme Court of Canada declaring in R. v. Antic that the way we have been doing bail is wrong and needs to change. What exacerbates the problem is that those of us who work in the trenches of the criminal justice system are all responsible for the situation we have created and are guilty of embracing the status quo. This state of affairs is thus similar to the "culture of complacency" the Supreme Court referred to in its seminal decision on delay in 2016 in R. v. Jordan. And much like the need for structural and proce- dural changes that the court spoke about in Jordan, the same is needed in the bail context. So while it is a noble feat to enact new measures to help ensure bail courts operate faster and fairer, noth- ing will change until and unless there is a transforma- tion in the procedure we use in bail court. Given the law on bail outlined above, on a Crown onus bail hearing, the Crown should be responsible for formulating and communicating its position on bail absent any information and/or evidence from the de- fence. Practically speaking, this means the Crown would relay its position to the court, along with any other in- formation it wants the court to consider — such as the synopsis, show cause notes and criminal record — to meet its onus. The defence can then make submissions about the Crown's case, the law on bail and potentially about the plan it is proposing, depending on the Crown's posi- tion, and ask for a ruling from the court on whether or not the Crown has met its onus regarding detention first, if being sought, and second, regarding the form of release sought. Then, for example, if the court finds that the Crown has met its onus regarding a surety bail, the court can move to the surety approval process if a surety is present. It is important to note that the question of whether the accused will be detained or released is a separate is- sue to be decided from the form and conditions of the release, if ordered. As such, if the Crown and defence agree there should be a release but disagree as to the form of the release prior to the matter being addressed in court, it is not appropriate for the Crown, in court, to ask that the accused be detained. Further, given the ample case law that sureties need not testify in court in order to be approved, there is no reason that bail hearings cannot proceed via submissions only without viva voce evidence being called. While this may seem a significant departure from our current procedure, it is analogous to what happens at trial where it is the sole responsibility of the Crown to call evidence to meet its burden of proof. Due to the culture of complacency, however, what has instead been happening in our bail courts is analo- gous to the Crown at trial indicating to the court that it may end up not proceeding with the charge but will make that determination after it has heard defence evi- dence. Just as this cannot be allowed to happen at trial, so, too, it should be banned in bail hearings. If imple- mented, this procedure has the potential to significant- ly cut down delays in our bail courts. Without requiring defence evidence to be called on every hearing and having the Justice make a decision solely on the basis of submissions, bail hearings could be completed in significantly less time than they cur- rently take. This procedure could also eliminate the need for adjournments to secure the attendance of a surety in cases where the court finds the Crown has not met its onus for a surety release. While this article has focused on Crown onus cases, a similarly expedited procedure can be developed for reverse-onus cases, with minor adjustments. Drastic as it may seem, it is time to heed the call of the Supreme Court of Canada and actually do something to fix our broken bail system. LT uSenem Ozkin is a criminal lawyer practising in Newmarket, Ont. This article ref lects the personal views of the author. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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