Concerns over federal bill expressed

Recently, jury composition has become an important issue on the public agenda.

Ontario lawyers practising criminal law have expressed opinions on Bill C-75, as well as on a proposed amendment to the provincial Juries Act, Bill 52. 

Personally, I am concerned about Bill C-75’s negative impact on access to justice, as well as its limiting work opportunities for law students across Canada. The bill seeks to create a more efficient justice system and to speed up court proceedings; however, one of the unintended consequences of the bill is the negative impact it will have on marginalized groups in our society. 

Currently, the federal bill has not passed its second reading and has been referred to the Standing Committee on Justice and Human Rights for further study. In the meantime, it’s important to point out the flaws of the bill.

In my opinion, there are two major ways that Bill C-75 will harm marginalized groups. These groups include people from racialized groups and Indigenous persons, people with mental health or addiction issues and those with little economic means who are not in a position to retain a lawyer.

Given that the charter statement for Bill C-75 clearly says this bill seeks to address the over-representation of particular groups within the justice system, it is ironic that the bill seeks to eliminate the preliminary hearing for the majority of indictable offences, which will severely and negatively impact the groups that the bill seeks to protect.

One area that would negatively impact marginalized groups — especially those with little or no economic means — is the inevitable wider use of private investigators by the defence. Currently, as part of the preliminary hearing, the defence has the opportunity to explore the background of the complainant or witnesses, something that is generally not part of the disclosure.

Elimination of the preliminary hearing will mean the defence will have to resort to using a private investigator to obtain that information. While this will not be an issue for accused individuals who have the economic means to retain lawyers and private investigators, this will negatively impact those in our community who don’t have the economic means to retain a lawyer or a private investigator, putting them at a great disadvantage during trial.

Under the bill proposed, disclosure will be another area that will have terrible repercussions for the poor in our community. While it is true that the Crown has a disclosure obligation, that does not mean and certainly does not amount to organized disclosure. It is not unusual for the defence to receive a number of electronic discs as disclosure, having to review and print the contents of the disc, and then go through every piece of paper to organize the disclosure, figure out what is relevant, what is peripheral and what, if anything, is missing.

This is well and good for a defence counsel who is trained to carry out this task. However, it is a lot to ask of an unrepresented accused who doesn’t have a legal education, most often may not have a formal education and, to top it off, may be suffering from either addiction or mental health issues, making it even more difficult to function.

The preliminary hearing provides the benefit of compelling the Crown to organize and present its case with a logical and methodical flow.

The unrepresented accused has the opportunity to hear the witnesses and evidence against them before they are committed for trial and will know the case they have to meet.

The preliminary hearing also provides the accused with the opportunity to be in a real courtroom, see how the court functions and have the opportunity to cross-examine witnesses before having their trial in the Superior Court. 

All of the above are invaluable procedural protections for all accused but especially for those who are marginalized and don’t have the means to retain legal representation.

Bill C-75 proposes to raise the maximum sentence for summary conviction offences to two years less a day from the current six months. This will mean that law students working at Legal Aid clinics will no longer be able to represent low-income individuals who are charged with summary conviction offences.

This is unfortunate because many vulnerable and marginalized individuals in our society do not qualify for Legal Aid if they make more than the bare minimum limit set by Legal Aid or if they are “not likely” to receive a jail sentence. For these individuals, the only option for legal representation is students at the Legal Aid clinics, but, unfortunately, Bill C-75 will take that option away from the most vulnerable and those who need it most.

Those who depend on the services of students working at Legal Aid clinics are the least equipped to navigate the criminal justice system, often with little or no resources and most often with no formal education or even a rudimentary understanding of our justice system.

Having legal representation for anyone, but especially for those with mental disabilities, those with addiction issues and those with little economic means could mean the difference between an acquittal and a conviction.

A conviction will negatively impact the life of an individual for many years to come, affecting their future job prospects, their ability to cross the border (which may also have an impact on employment) and other opportunities including volunteering.

While efficiency within our criminal justice system is important and in fact protected under the Charter, it is not more important than procedural protections and having a fair justice system.

We Canadians have the privilege of living under a constitutional democracy, and our elected government must ensure that an accused has a fair fighting chance within the criminal justice system, when defending themselves against the state with its infinite resources.

Sayeh Hassan is a criminal defence lawyer with Walter Fox & Associates in Toronto.