A discussion paper issued by the federal Department of Justice is suggesting that for certain offences, the assurance of lower penalties or no time in jail in exchange for reduced protection under the Charter of Rights and Freedoms could lead to a more efficient criminal justice system.
A number of options to achieve these goals arise in the proportionality discussion paper issued by the federal steering committee on justice efficiencies and access to justice.
The discussion paper, which dates back to last year, went out to a number of groups representing participants in the justice system on May 16 along with an introductory letter from Lori Sterling, associate deputy minister for the Justice Department and a member of the committee.
“The full protection of the Charter is necessary and strict rules of evidence are appropriate to ensure fairness to a person charged with a serious criminal offence,” wrote Sterling.
“However, we feel it is necessary to ponder the following question: Is this protection necessary and appropriate with respect to every offence? In the post-Charter world, moving towards greater proportionality is challenging, but, the committee believes, essential.”
The main options examined by the committee included:
• Increased hybridization
• The right of the Crown to make a “no jail” election
• Administrative approaches to first-time offenders in impaired driving matters
• Making minor property crimes provincial offences
• Criminal arbitration for some offences
The discussion paper committee included 17 members: the deputy attorneys general from five provinces; several senior judges from the provincial and superior courts; a representative of the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers; and two people from the Canadian Association of Chiefs of Police.
Amendments to the Criminal Code to provide for more administrative sanctions for first-time impaired drivers and the creation of a criminal arbitration process attracted the most interest from committee members, the discussion paper noted.
The paper approvingly cited changes to the Motor Vehicle Act in British Columbia in 2010, which imposed immediate administrative penalties on people accused of impaired driving, as a way to increase justice efficiency.
However, a B.C. Supreme Court judge struck down some of the changes a year later and required the B.C. government to amend the act to provide for more rights of appeal.
The discussion paper states that for most offences in the criminal courts, the court doesn’t impose a custodial sentence upon conviction.
“Yet, the trial of these offences can involve frequent and lengthy Charter applications. Strict rules of evidence also apply in such cases. Is this necessary?” the steering committee asks.
In response, it suggests the right of the Crown to make a “no jail” election for certain offences, which may mean that “the liberty component of s. 7 of the Charter may not come into play or may be reduced.”
A criminal arbitration process could deal with some of these “no jail” cases separately from the criminal court
system, the committee suggests.
“Accused persons would face a less expensive, less intimidating, and less complex option to deal with their criminal charges,” according to the discussion paper.
“For any kind of criminal arbitration to work effectively, the accused would need to waive his/her Charter rights, particularly the right against self-incrimination.” Any arbitration process would also need to involve services for offenders with addiction or mental-health issues, according to the committee.
The potential changes outlined in the discussion paper “provide some good points of debate,” says Enzo Rondinelli, a Toronto defence lawyer and a member of the adjunct faculty at Osgoode Hall Law School.
“Something has to be done” to deal with problems such as overburdened courts, limited legal aid resources, and “a growing number of mandatory minimums leading to more contested trials and incarceration,” says Rondinelli.
Dispensing with Charter applications for certain offences may be reasonable, yet Rondinelli suggests “there are many cases that should not be in the system.”
While the discussion paper looks for efficiencies after an individual is already in the system, it doesn’t address what to do about the number of minor charges laid by police each year, says Carissima Mathen, a criminal law professor at the University of Ottawa.
“It is all post facto, after the decision has been made to charge.” Any changes, she suggests, need to be “paired up” with increased funding for programs that deal with the social conditions that lead to people committing multiple minor offences.
Catherine Latimer, executive director of the John Howard Society of Canada, echoes that view. Finding greater efficiencies is “critically important,” she says.
“But this should not be done by compromising the Charter rights of the accused. Maximizing front-end programs and alternatives to the criminal justice system, such as mental-health and substance abuse programs, would be economical and effective.”
