Bill C-75 (the “Bill”) is a massive bill that proposes to impact a variety of legislation including the Youth Criminal Justice Act, The Controlled Drugs and Substances Act, The Supreme Court Act and nine others. The focus of this article is its proposed impact on the Criminal Code of Canada (the “CCC”).
The Bill also makes a handful of other miscellaneous changes such as limiting historical sexual assaults to 1983 unless the conduct alleged would be an offence under the Bill if it occurred on the day on which the charge was laid (see Clause 55). It adds a subsection (“(c)”) to Assault Causing Bodily Harm (s. 267 of the CCC) to add choking, suffocating or strangling a victim (see Clause 95). It also proposes a new “undue hardship” exception to victim surcharges (see Clause 304)
Another significant portion of Bill C-75 is rudimentary housekeeping that ranges from making pronouns gender neutral to completely unnecessary changes like changing “twenty four hours” to “24 hours” and rewriting clauses to banish words like “thereafter” and “thereto”.
The Bill also cleans up a few zombie provisions (that Bill C-51 isn’t addressing) including:
- Anal intercourse,
- Spreading false news, and
- Procuring miscarriage (Abortion)
Unfortunately, it fails to clean up other of the zombie laws such as:
- Water-skiing at night,
- Issuing trading stamps, or
- Most importantly – s. 229(c) a unconstitutional and dangerous subsection of murder that is still lingering since 1990.
One can only conclude that it was too much paperwork to remove the remaining dead sections while also focusing on stripping the accused of their rights and limiting access to justice in the name of false expediency.
A high number previously strict indictable offence, including seven charges with the word “terrorist” or “terrorism” in the titles, are now hybrid offences (see Clauses 16-23). Many more, which were previously capped at six months imprisonment on summary conviction (such as Indecent Acts in s. 173 of the CCC) are now open ended. Unless new legislation is passed in tandem, this excludes agents such as paralegals, articling students, and law students (especially in law school run legal clinics) from appearing on these matters and exercising a meaningful role in the legal system. By extension, this limits access to justice as the bar for Legal Aid excludes all but those living in absolute poverty.
In addition to excluding a number of actors from the Criminal Justice system, Bill C-75 also casts a wider net by extending the limitation period for summary offences from six months to twelve months (see Clause 318).
There are three proposed changes to the bail system encompassed in the Bill.
First, the Bill proposes to add Gladue considerations to bail hearings as they are already implemented in the sentencing stage. What is interesting about this, is it does not apply specifically to Aboriginal defendants but also opens the door to “accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part” (see Clause 212). This could be used as a springboard to set a precedent for Black defendants in Canada as well.
Secondly, the Bill proposes a reverse onus at the bail hearing for persons alleged to have committed an offence involving violence against their intimate partner if that person has been previously convicted of an intimate partner violence offence (see Clause 226). This reverse onus isn’t proposed for any other offence, nor is there any reasoning cited as to why exclude this singular type of offence despite the obvious looming s. 11(e) issue.
Third, the Ladder Principle, which was reinforced by the Supreme Court of Canada in Antic, reinforced in Tunney, and outlined in s. 515(2) of the CCC is also reworded for clarity and ease of access. The proposed section goes so far as to state:
(2.01) The justice shall not make an order containing the conditions referred to in one of the paragraphs (2)(b) to (e) unless the prosecution shows cause why an order containing the conditions referred to in the preceding paragraphs for any less onerous form of release would be inadequate.
Hopefully now the Ladder Principle cause it to not be ignored or willfully misconstrued as it has been in the past (see Clause 226).
In the spirit of speeding up the criminal justice process, the Bill proposes limiting or removing the integral components of the rights of the accused – Preliminary Hearings and Perempetory Challenges. While Preliminary Hearings can narrow triable issues and lead to speedier trials (or even resolution) the Bill targets Preliminary Hearings under the false guise of efficiency. Currently, Preliminary Hearings are a right for any Defendant facing an indictable charge. The Bill proposes that Preliminary Hearings be removed unless a Defendant is facing the potential of imprisonment for life. This would limit Preliminary Hearings to only the most heinous of crimes such as murder or high treason (see Clause 535).
Jurors can currently be excused in three ways. First, an unlimited number can be excluded by a judge for a variety of reasons, including:
- A personal interest in the matter to be tried,
- a relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness, or
- personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused (see s. 632 of the CCC).
Second, they can also be excluded by either the Prosecution or the Defense (any number of times) on the grounds that:
- The sheriff or other officer who returned the panel partial, fraudulent or willfully misconducted (see s. 629 of the CCC),
- The name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,
- a juror is not indifferent between the Queen and the accused,
- a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,
- a juror is an alien,
- a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627, is physically unable to perform properly the duties of a juror, or
- a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be (see s. 638 of the CCC).
Third, either the Prosecution or Defence can bring a Peremptory challenge subject to s. 634(1). The number of challenges ranges depending on the type of charge, the number of jurors sworn, and whether or not if a judge makes an order for alternate jurors. This allows both sides to replace jurors and draft an impartial jury. Under the proposed Bill, s. 634 is not adjusted in a nuanced way, but it is rather completely removed from the CCC in its entirety with no proposed replacement (see Clause 271).
In another futile attempt to expedite the process and ignore the rights of the Accused, the Bill proposes that “routine police evidence” be optionally given by affidavit (see Clause 277). This would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of calling them at trial to testify.
This change prevents cross examination, wastes more court time than it could possibly save, and will inevitably erode fundamental safeguards of trial fairness. Additionally, the definition given in the Bill of routine police evidence is almost all encompassing, save for a “Die-Hard” type of bizzare scenario where John McClane is called as a witness. The Bill provides a process to compel the testimony of officers. This will doubtlessly be invoked endlessly creating even more delay.
Furthermore, this immediately raises constitutional red flags under s. 7 and the right of an accused to make full answer and defense as well as the right to a fair trial under s. 11(d) of the Charter. A similar issue was explored by the Supreme Court in R. v. Mills where these rights outweighed the privacy rights of complainants and witnesses in sexual assault trials. It is foreseeable that a similar argument could be made here. Until then there the option to object and provide grounds as to why the interests of justice require the officer to testify in person. Again – this will take more time and delay the process and disadvantage the accused who cannot submit his, or his witnesses’, evidence by affidavit.
A read of this Bill (which is no easy task at over 300 pages, in English alone) is reminiscent of a Constitutional Law exam that a professor would present to first year law students. At first glance, it seems like typical legislation but buried within the fact pattern (or here the Bill) there are glaring constitutional issues lurking just below the surface. While it manages to make some token gifts and clean up a few politicized zombie laws, the damage that Bill C-75 proposes is much more sinister.