The federal government has recently tabled new legislation that could dramatically affect the way criminal offences are prosecuted in Canada. The proposed Bill C-75 would introduce sweeping amendments to the Criminal Code aimed at improving the efficiency of the criminal justice system and reducing the impact of increasing court delays. Several of the suggested reforms are further designed to address the over-representation of indigenous persons and vulnerable populations (e.g. people with mental illnesses and addictions) in the criminal justice system.
At 300 pages, the totality of the proposed changes in Bill C-75 is immense in scope. The following is a list of the nine most significant proposals that Canadians should be aware of.
1. Restricting the availability of preliminary inquiries to offences punishable by life imprisonment
Preliminary inquiries are discretionary hearings held at the request of either the Crown or accused in order to assess whether there is sufficient evidence to commit the accused to trial. These hearings are also generally useful for narrowing the issues at trial and can facilitate early resolution in certain cases.
Currently, a preliminary inquiry is available for any accused that is charged with an indictable offence and who elects to be tried in Superior Court. Bill C-75 proposes to limit the use of preliminary inquiries to only those offences that are punishable by imprisonment for life, such as first and second degree murder.
By reducing the number of preliminary inquiries, the government hopes to free up court resources and expedite the completion of cases. The drastic reduction in preliminary inquiries would also ease the burden on witnesses and victims who might otherwise have to testify at both the preliminary stage and trial. While the preliminary inquiry may have historically provided the accused with an opportunity to learn the full extent of the case against them, the increased obligation on the Crown to disclose all relevant evidence to the accused prior to trial has reduced this concern.
However, criminal defence lawyers have cast doubt on the on the government’s assertion that preliminary inquiries contribute to court delay. In 2015/2016, only 3% of all cases prosecuted in Canada were subject to a preliminary inquiry. It is argued that the current practice surrounding preliminary inquiries actually leads to faster case processing, as an accused may be more willing to plead guilty after hearing the case against them.
2. Eliminating peremptory challenges and other changes to the jury selection process
Bill C-75 calls for the abolishment of peremptory challenges from the jury selection process, meaning that Crown and defence counsel will no longer be permitted to exclude a potential juror without any justification or explanation. Many Canadians will recall the controversial acquittal of Gerald Stanley for the murder of Colton Boushie, a young Cree man, by a jury panel that lacked any Indigenous representation. The use of peremptory challenges by defence counsel to exclude five potential jurors who appeared to be Indigenous prompted accusations of racial bias in the jury selection process. By doing away with peremptory challenges, the government hopes to foster the selection of juries that are more representative of Canadian society.
While few dispute that there is a need for greater diversity on Canadian juries, defence lawyers have cautioned that peremptory challenges are most often used in furtherance of this goal rather than as an impediment. Particularly in cases where the accused themselves are Indigenous-identifying or otherwise racialized, it is argued that these challenges can serve to increase the representativeness and fairness of juries.
It should be noted that challenges for cause will still be available to both the Crown and defence, which allow potential jurors to be screened out for impartiality through questioning. Bill C-75 additionally provides judges with increased discretion to stand aside potential jurors for reasons of “maintaining public confidence in the administration of justice”[1] – meaning, judges too would be permitted to screen potential jurors for improper biases.
3. Increased measures to address intimate partner violence
The legislation proposes a series of amendments that target offences involving violence against an intimate partner. The Code would be amended to define “intimate partner” as a person’s current or former spouse, common-law partner, or dating partner.[2] This is much broader in scope than the Code’s current conception of domestic violence, which limits the definition to the abuse of a current spouse or common-law partner.
First, Bill C-75 would reverse the onus on bail hearings for individuals charged with an offence involving intimate partner violence (IPV) where they have previously been convicted of an IPV offence. Generally, the onus lies with the Crown to show why the accused should be detained. With the proposed amendment, once an individual is convicted of an IPV offence, they will have the burden of proving why they should be released on bail if charged with any subsequent IPV offence. Not only would it be presumed that bail should be denied, but the accused must also justify why they should receive the least onerous form of release.
Further, where an offender that is found guilty of an indictable offence involving IPV also has previous IPV-related convictions, it is proposed that the court may impose a sentence exceeding the maximum term of imprisonment for that offence. For example, an individual convicted of aggravated assault involving IPV (s.268 of the Criminal Code)[3] - which normally carries a maximum penalty of 14 years imprisonment - could be liable to life imprisonment if previously convicted of an IPV offence.[4]
Other proposals include specifying that evidence of intimate partner violence is an aggravating factor for sentencing purposes, and adding strangulation as an elevated form of assault.
4. Streamlining the bail system and promoting less restrictive forms of release
Any person charged with an offence has the right to not be denied reasonable bail without just cause. This principle further entails that an accused person should be released on the least onerous conditions possible. In practice, many Canadian courts overemploy the use of sureties and cash deposits when less restrictive forms of release would be reasonable. Bill C-75 proposes to codify the requirement that the court should exercise restraint when imposing onerous release conditions, and that the Crown must prove why a less restrictive form of release is unreasonable at every step. This follows the “ladder principle” approach outlined by the Supreme Court of Canada in R v. Antic, 2017 SCC 27.
Bill C-75 also adds a provision that explicitly requires judges to consider the circumstances of accused who are Indigenous or members of vulnerable populations when making decisions regarding bail and release conditions.
5. Processing “administration of justice” offences without new charges
Administration of justice offences (AOJOs) refer to offences against the justice system that are committed after being charged with another offence. These include the failure to appear in court and non-compliance with bail conditions. Such offences represented 23% of all criminal court cases in 2015/2016 and often result in a guilty verdict.
Bill C-75 would allow the police and Crown to forgo the laying of new charges for AOJOs that have not caused harm to victims. Instead, the accused would be referred to a judicial hearing where the presiding justice would have a number of options to dispose of the charge, including: taking no action, varying the terms and conditions of release, or revoking bail.
6. Increasing the maximum penalty for all summary conviction offences and introducing more “hybrid” offences.
Bill C-75 proposes a coordinated swath of amendments regarding the classification of offences in the Criminal Code. First, the bill proposes to reclassify all current indictable offences that carry a maximum penalty of ten years imprisonment or less (e.g. impaired driving causing bodily harm) as hybrid offences, meaning that the Crown would have the discretion to proceed either by indictment or summarily, each carrying a different range of possible penalties and procedural rights. Most importantly, summary offences can only be tried in provincial courts, where the defendant has no right to be tried by jury nor the right to a preliminary inquiry.
Currently, the maximum penalty of imprisonment for summary conviction offences is six months, unless otherwise stated by law. Bill C-75 proposes to set the default maximum penalty at two years less a day for all summary offences, raising the penalty for the vast majority of offences that are punishable on summary conviction, which are mostly minor offences such as shoplifting. Further, the bill would raise the limitation period to prosecute summary offences from six months to twelve months.
Overall, the government’s rationale for reclassifying the offences as described is that Crown attorneys will now be afforded greater discretion to streamline less serious cases into provincial court for quicker processing, thereby improving overall efficiency and freeing up resources in superior courts. However, some commentators have suggested that this will overburden resources in provincial courts, increasing overall delay.
One other consequence of the increased penalty for summary offences is that it would prohibit law students and paralegals from representing defendants in court, as the current regime only permits agents to appear on summary conviction matters punishable by a maximum of six months imprisonment.
7. Allowing the admission of written police evidence in lieu of oral testimony for “routine” matters
Under Bill C-75, routine police evidence may be admitted in written form without requiring the oral testimony of an officer. This is in stark contrast to the general requirement that all evidence be introduced through oral testimony and subject to cross-examination. Furthermore, the transcript of an officer’s testimony from an earlier proceeding in the presence of the accused may also be admitted at trial in the place of oral testimony. A judge would retain discretion to allow such evidence and to require the officer to attend court for examination upon request by either party.
While this is likely another measure aimed at accelerating criminal proceedings, many commentators are concerned about its effects on the accused’s right to a fair trial and to make full answer and defence. Further, the breadth of the provision appears to define almost all police conduct as routine, calling into question its use as a tool to introduce uncontroversial police evidence.
8. Introducing judicial discretion to exempt offenders from payment of “victim surcharge”
Every individual that is convicted of an offence in Canada is automatically imposed with a fine intended to help fund services for victims of crime. This surcharge is applied to each offence cumulatively, amounting to $100 per summary conviction offence, $200 per indictable offence, and 30% of any fine imposed by the court for the offence.
Bill C-75 re-introduces previous legislation that attempted to grant judges with limited discretion in relation to the imposition of the victim surcharge. First, under the proposed legislation, a judge would be able to reduce the cumulative effect of the surcharge in cases where the offender is convicted of multiple administration of justice offences, such as failing to appear in court or victimless breaches of bail conditions.
Most importantly, a judge would be permitted to exempt an offender from the surcharge requirement altogether if the offender demonstrates that it would cause undue financial hardship. Considering the precarious financial situation of many offenders, greater flexibility in the victim surcharge requirement would ensure that the fine is employed fairly and equitably.
9. Repealing various unconstitutional provisions in the Criminal Code
Finally, Bill C-75 proposes the elimination of several provisions that have long been declared unconstitutional by Canadian courts. Though these provisions are currently of no force or effect, many Canadians might be surprised by certain offences that are still technically ‘on the books’. For example, abortion[5], anal intercourse[6], and spreading false news[7] are all offences that would finally be repealed if Bill C-75 passes.[8]
The Takeaway
As of now, Bill C-75 has only passed the First Reading stage of the legislative process, meaning that there are several steps that must still be taken before it officially becomes law. As such, it will be important to keep an eye on Bill C-75 as the legislative process continues, since it could undergo many changes prior to being put to a final vote. Ultimately, Bill C-75 presents drastic changes to Canada’s criminal justice system that should command the attention of every Canadian citizen.
About Saul Moshe-Steinberg: Saul received his law degree from the University of Toronto in 2018. His coursework was focused on criminal law, and he has defended vulnerable and low-income accused as a caseworker for Downtown Legal Services. Saul begins his articles at a criminal defence firm in Toronto this fall.