Law Times

Law Times • apriL 9, 2018 Page 3 www.lawtimesnews.com Sharp response from criminal defence lawyers in Ontario Sweeping changes proposed for Criminal Code BY SHANNON KARI For Law Times U nder the federal gov- ernment's proposed changes to the Crimi- nal Code, an individual charged with selling street-level amounts of crack cocfeeaine will be entitled to a preliminary hearing, but someone prosecut- ed for a significant white collar fraud will not. The potential differences in procedural rights are part of sweeping changes in legislation introduced by the Liberal gov- ernment on March 29. They have been billed as necessary measures to address court delays and modernize the criminal court system. Much of the initial reaction to Bill C-75 has focused on the elimination of preliminary hearings except for offences that carry maxi- mum sentences of life in prison and the removal of the right to peremptory challenges in jury selection. But the legislation has pro- voked a sharp response from the criminal defence community in Ontario, suggesting that several amendments will reduce the fair trial rights of accused persons, give more discretionary powers to police and further clog the al- ready over-burdened provincial courts. "If this is the realization of the government's goal to do better, it is an abject failure," says Michael Lacy, president of the Ontario Criminal Lawyers' Association and a partner at Brauti Thorning Zibarras LLP in Toronto. "The Liberal government has once again demonstrated that they are more interested in their public image than meaning- ful and measured criminal law reform. At least when the Con- servatives were tough on crime, they did not at the same time strip away substantive procedur- al protections that ensure just and true verdicts," adds Lacy. The head of the largest crimi- nal lawyers' organization in the country says there was a lack of consultation over the changes and he predicts they will spark numerous Charter challenges. Not included in the bill is any reform in the area of mandatory minimum sentences, which the Supreme Court has said put too much of the sentencing discre- tion in the hands of a Crown attorney rather than the trial judge. "The failure to get rid of mandatory minimums is con- spicuous," says Megan Savard, a partner at Addario Law Group LLP in Toronto. As well, the decision to remove peremptory challenges "will undermine the rights of the groups they say they want to protect," Savard adds. When the amendments were introduced, the federal govern- ment said it would lead to the elimination of nearly 90 per cent of preliminary hearings. In a letter to the government last spring, the Canadian Bar Association noted that prelimi- nary hearings currently make up only two per cent of all court ap- pearances and the majority last less than two days. Preliminary hearings are an effective way for the Crown and defence to reach a resolu- tion without a trial, explains Mi- chael Dineen, a partner at Dawe Dineen in Toronto. "An accused might be more willing to plead guilty after a preliminary hearing once he sees the case against him," says Dineen, who also teaches crimi- nal procedure at the University of Toronto law school. For substances such as crack cocaine, a trafficking conviction carries a maximum life sentence under the Controlled Drugs and Substances Act no matter how small the amount. This entitles a street-level dealer to a preliminary hearing and jury trial. That remains unchanged un- der Bill C-75 and it suggests the removal of preliminary hear- ings for offences such as sexual assaults where the Crown pro- ceeds by indictment is policy driven, says Dineen. "There is obviously something to limit- ing the number of court appear- ances for vulnerable witnesses, but there is also the right to full answer and defence," he says. As well, the amendment to put the onus on a defendant charged with a domestic assault- related charge to be granted bail if they have previously been con- victed with a similar offence is a "cosmetic change," says Dineen. "In practice, these bail hearings are already taken very seriously." The amendments are a re- sponse to the Supreme Court decision nearly two years ago in R. v. Jordan, which set pre- sumptive limits of 18 months to be tried in provincial court and 30 months in Superior Court. Despite concerns after it was released, it does not appear to have resulted in a significant number of cases being thrown out as a result of unreasonable delay. For example, in the first three months of 2018, there have been three reported cases of stays be- ing granted by Superior Court judges in Ontario. None in- volved a serious personal injury offence. Not long after Jordan was is- sued, a murder charge in Alberta and one in Ontario were stayed as a result of delay. The appeal courts in both provinces have since overturned those rulings. Michael Spratt, a defence law- yer in Ottawa, echoes the view that the amendments are po- litical in nature. "There is a need to ensure that matters proceed to trial more quickly. But there has not been a wave of charges thrown out for delay. The gov- ernment wants to be seen to be taking action, but the proposed changes will likely cause fur- ther delay and confusion in the courts," says Spratt, a partner at Abergel Goldstein & Partners LLP. Other amendments include changing the maximum sen- tence for all summary convic- tions, including minor offences such as shoplifting, to two years in jail. This will prevent para- legals or students at law school clinics from acting on behalf of defendants in any of these mat- ters. The higher summary convic- tion maximums will also create a "resource problem" for prov- inces, says Savard. "More cases will be prosecut- ed summarily. You will find an overloaded OCJ [Ontario Court of Justice]," she says. Other mea- sures that give police the author- ity to impose several conditions, including the requirement of a $500 deposit when issuing a "promise to appear" instead of requiring a bail hearing, are also a concern. "When you give more discre- tion to the police, you open up the potential of an abuse of that discretion," says Savard. As well, another amendment would permit a court to allow police officers to tender what it describes as "routine" evidence by affidavit or declaration in- stead of in person in court. "The definition of routine police evidence is basically every single thing a police officer does. It conf licts with the standard jury instruction that police are not entitled to an enhanced pre- sumption of credibility," Savard says. "The provision is too broad," Spratt agrees. "Requiring an ac- cused to beg the court's permis- sion and disclose why they want to cross-examine a police officer will result in unfairness and ex- acerbate court delays." LT NEWS Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts No Matter the Size or Type of Case, We Can Handle It From the complex to the simple; our range of expertise enables us to handle whatever size or type of legal issue you may have. We are committed to providing forward-thinking and flexible legal counsel while maintaining client service excellence. That's what we like to call Right-sized Thinking®. PalettValo_LT_Apr9_18.indd 1 2018-04-03 1:13 PM Megan Savard says a move to remove peremptory challenges in jury selection 'will undermine the rights of the groups they say they want to protect. ' [T]he proposed changes will likely cause further delay and confusion in the courts. Michael Spratt

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