When the Federal Liberal Government introduced Bill C-75 with much fanfare on March 29, 2018, it is doubtful they expected the backlash they received from the legal community and the public at large. The Bill proposes sweeping and significant changes to the criminal justice system, but fails to incorporate promises apparently long-since-forgotten from the campaign trail. There is no reform of mandatory minimum sentences. There is little respect for the Charter or due process.
Stories quickly emerged in every major and minor media outlet, criticizing the Bill for its elimination of preliminary inquiries, reversal of the onus provisions in certain bail hearings, and removal of peremptory challenges in jury selection. Unfortunately, the news media’s focus on these three significant (and by no means unimportant) changes diverted attention away from some of the much more insidious aspects of Bill C-75.
Late in the evening that day, I sat down to take a stab at understanding this omnibus monstrosity. I penned a, perhaps sarcastic, 2400 word piece criticizing the major changes and some more minor ones. But even in 2400 words I could not break down the issues well enough.
So I’m going now to attempt to explain why, in my opinion, the changes in relation to affidavit evidence from police in criminal cases is one of the most deserving of attention and deserving of criticism.
In a deliberately-timed move, the Liberal Government has introduced yet another phase of its absurd legislation, aimed at chipping away what fundamental principles of justice remained intact after Bills C-45, C-46, and C-51. Bill C-75, introduced on Thursday, is an omnibus bill that is comprised of numerous sweeping and devastating changes to the justice system.
Oh, sure, there are some nice things in the Bill. There is the ability restored to judges to use discretion in imposing a victim fine surcharge. And there are additional provisions to allow for judges to consider Indigenous ancestry or marginalization for other reasons in sentencing accused individuals. There are provisions that allow for easier changes to bail or probation conditions where they are not manageable for an individual. Well, those changes are fraught with problems best suited for another blog post.
The purpose of the Bill, as touted by Jody Wilson-Raybould, is to address issues that contribute to delay in our justice system and to provide needed assistance to the most vulnerable people in our population.
For the reasons I outline in this blog post, the Bill fails in those goals.
One of the biggest questions that defence lawyers have about marijuana legalization has to do with marijuana amnesty and sentencing. Individuals who possess marijuana for personal use are still being charged in Canada. Their charges are still going to court.
Despite the fact that the Government has announced their intention to legalize marijuana, people are still leaving court with criminal records for marijuana offences, and some are receiving jail sentences.
Frankly, I find this practice appalling.
In the past, I have written several blog posts about delays in rendering decisions in Immediate Roadside Prohibition review cases. My complaints have been reasonable: drivers are not receiving their Immediate Roadside Prohibition review decisions in a timely manner, and are left in the dark about why the delay is occurring.
From a lawyer’s perspective, this is frustrating for two reasons. First, I feel that I am doing a disservice to my clients as I am not able to provide them with information they need in their cases. I cannot tell them why there is no decision, or what this means, or whether the extension they’ve been given will be the last extension or the first in a series. Second, it’s frustrating to know that the law requires transparency in decision-making but that drivers who are facing this review process do not receive that.
I’ve frequently argued that there’s no scientific correlation between blood THC concentration and a person’s ability to drive without being impaired. Often, opponents will respond with a bevy of medical articles suggesting the complete opposite, while supporters will do their own research and respond in kind with contradictory literature.
It’s really a question of who is right. Who is believable. Why are studies contradictory? Since well before marijuana was widely legalized in the United States and certainly before Canada announced its intentions to legalize it, scientists the world over have been busy at work. They were trying to determine, what, if any, correlation having marijuana in the system had to traffic incidents, regardless of whether these incidents caused injury or death.
As a Métis person I struggle with the recent decisions in the killings of Colten Boushie and Tina Fontaine. I struggle because I know the history of this country, and how the murder or killing of young Indigenous people is not new, and is not going away. I know the history of the apathy of police to the investigation of crimes against Indigenous people, and I understand the systemic factors that impact the investigation, prosecution, and treatment of Indigenous people in the justice system, whether as victims or as accused individuals.
But I struggle harder with all of this because I am also a criminal defence lawyer. And by virtue of that privilege, I have a particular insight into the frailties of the justice system, as well as the importance of concepts like reasonable doubt and the burden of proof on the Crown. I also know that unless you are sitting in the courtroom through every day of a trial, it’s unlikely that you can form a good picture of the case.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.