Reducing Delays and Modernizing the Criminal Justice System

Following careful review and passage by Parliament, legislation (former Bill C-75) to modernize the criminal justice system and reduce delays received Royal Assent on June 21, 2019.

The reforms are a key component of the federal strategy to transform the criminal justice system to make it more efficient, effective, fair and accessible, while protecting public safety. They also aim to reduce the overrepresentation of Indigenous persons and vulnerable populations in the criminal justice system.

The Bill will come into force in stages. Parts of the law came into force upon Royal Assent (repeal of unconstitutional provisions and human trafficking), some will come into force 30 days after Royal Assent (victim surcharge), some 90 days after Royal Assent (preliminary inquiries, reclassification of indictable offences, judicial case management, jury provisions, and miscellaneous measures to enhance efficiencies), and others 180 days after Royal Assent (bail, administration of justice offences, Youth Criminal Justice Act amendments, and intimate partner violence).

About the new law

This legislation is entitled: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. It responds to the Supreme Court of Canada’s 2016 decision in Jordan, which imposed strict timelines to complete criminal cases and stated that if those timelines are not met, the proceedings must be stayed, meaning they do not proceed.

The Canadian criminal justice system has been under significant strain. While the rate of crime in Canada has been declining, cases are more complex and the time it takes to complete a trial is increasing. The resulting delays negatively impact victims and those affected by crime, as well as the accused and their right under the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. Left unaddressed, delays reduce public confidence in the criminal justice system.

Changes under the Act aim to make Canada’s criminal justice system more efficient, accessible and effective, all the while continuing to ensure that it protects public safety. Recognizing that responsibility for Canada’s criminal justice system is shared between the federal and provincial/territorial governments, Bill C-75 was developed through close collaboration between the federal, provincial and territorial governments and addresses agreed upon priority areas for legislative reform including bail, administration of justice offences, reclassification of criminal offences, preliminary inquiries and judicial case management.

The reforms also seek to address the overrepresentation of Indigenous persons and vulnerable populations, including people with mental illnesses or addictions, who are overrepresented in the criminal justice system due to a number of intersecting social and historical factors. These groups are more likely to be denied bail, or, if released, are often subject to stricter conditions. In addition, while Indigenous persons and vulnerable populations are over-represented as victims and offenders in the criminal justice system, they are underrepresented on juries.

The new law includes:

• streamlining bail processes to ensure fair and swift access to justice
• creating a new process to more effectively and efficiently deal with certain administration of justice offences (i.e., offences against the criminal justice system such as failing to abide by a curfew condition), including for youth
• reclassifying offences to provide prosecutors with the discretion to more efficiently deal with less serious conduct, freeing up limited judicial resources
• restricting the availability of preliminary inquiries to offences carrying the most serious penalties to ensure criminal cases can proceed more efficiently to trial, and to reduce the impacts of testifying twice on victims
• improving the jury selection process to make it more transparent and promote fairness and impartiality
• providing judges with more robust tools to manage the cases before them

In addition, the legislation merged with reforms previously introduced in other bills:

• Building on amendments included in Bill C-28, An Act to amend the Criminal Code (victim surcharge), re-enacts the victim surcharge regime and provides greater judicial discretion to impose the surcharge, in response to the Supreme Court of Canada’s December 2018 decision in R v Boudreault
• Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons), which brings into force new provisions to facilitate the prosecution of human trafficking offences
• Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts, which repealed provisions previously declared to be unconstitutional by the Supreme Court of Canada or appellate courts (for example: the prohibition of abortion, bawdy house offences, vagrancy, anal intercourse, etc.)

Modernizing and clarifying bail

Under the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right not to be denied reasonable bail without just cause. However, the bail regime was outdated, complex, and relied on measures that did not always address the safety of our communities. The new law will:

• streamline and update bail practices and procedures
• increase the scope of conditions that can be imposed by police
• provide guidance on imposing reasonable and relevant conditions
• ensure release at the earliest reasonable opportunity and that the circumstances of Indigenous accused or members of overrepresented and vulnerable populations are taken into account

This means police will be able to impose appropriate conditions without having to seek court approval as often, reducing strain on court resources.

The new law will ensure that police and the judiciary are required to consider the least restrictive means of responding to criminal charges, including breaches of release, instead of automatically detaining the accused. This will help to eliminate unduly complex bail arrangements which inevitably lead to new charges against the accused without increasing the safety of the community. In addition, judges will be explicitly required to consider, when conducting bail hearings, the circumstances of accused who are Indigenous or members of vulnerable populations.

More discretion on administration of justice offences

An administration of justice offence is an offence committed against the criminal justice system after another offence has already been committed or alleged. Common examples are:

• failure to comply with conditions set by police or courts (such as orders to abstain from consuming alcohol or illegal drugs)
• failure to appear in court
• breach of probation conditions (such as failing to report to a probation officer)

Currently, a disproportionate amount of resources are used to address these offences – a large number of adult criminal court cases include at least one administration of justice offence. Most of these cases result in a guilty verdict and a prison sentence.

The new law allows an escalating response – a “ladder approach” – to certain administration of justice offences, including those involving failures to comply with conditions of release and to appear in court by:

• giving police and Crown Attorneys an additional tool to direct certain administration of justice offences to a hearing, as opposed to laying new charges – provided no harm has been caused to a victim (i.e., physical, emotional, property damage or economic loss)
• allowing a judge or justice at the hearing to review existing conditions of release, and either take no action, release the accused on new conditions or detain them
• requiring that police and courts take the circumstances of the accused into account when conditions are imposed or a hearing is held (including, for example, considering whether the person is Indigenous, has mental health issues, is homeless or living in poverty)

Youth Criminal Justice Act

Changes to the Youth Criminal Justice Act will:

• further encourage the use of alternatives to charges, such as extrajudicial measures and review hearings, in response to administration of justice offences
• restrict the use of conditions imposed on young persons at the bail stage or at sentencing to those that are required for criminal justice purposes and that can be reasonably complied with
• narrow the circumstances in which a custodial sentence could be imposed for an administration of justice offence

These measures will reduce administration of justice charges, including for youth, and the resources they entail without affecting public safety. They promote consistency in approaches across Canada while respecting both the Canadian Charter of Rights and Freedoms and the Canadian Victims Bill of Rights.

Overrepresentation

Indigenous people and vulnerable populations tend to be disproportionately impacted by onerous and unnecessary bail conditions. They are also more likely to be charged with breaching minor conditions, and more likely to be caught in the “revolving door” of the criminal justice system.

Bill C-75’s bail and administration of justice reforms also include requiring that circumstances of the accused, in particular Indigenous accused and accused persons from vulnerable populations, be considered at bail, and in determining how to address a breach of conditions.

Indigenous people are also overrepresented as victims in the criminal justice system. The legislation strengthens the criminal law’s response to intimate partner violence (IPV) whose victims are predominantly women, including many Indigenous women. The changes will:

• create a reverse onus at bail in cases of IPV where an accused has a previous IPV conviction
• allow a sentencing judge to impose a higher maximum penalty in cases involving a repeat intimate partner violence offender
• require sentencing courts to treat violence against Indigenous women and girls more seriously, as called for by the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls released on June 3, 2019

Reclassification of offences

Offences in the Criminal Code are classified as summary conviction or indictable. Hybrid offences are offences that may be prosecuted either summarily or by indictment. The classification of the offence helps determine which level of court will hear the case and the sentencing range. For example, summary conviction offences provide for terms of imprisonment that would be served in provincial/territorial correctional facilities (less than two years), whereas indictable offences carry maximum penalties of two years imprisonment or more. Any sentence of two years or more is served in a federal penitentiary. The classification of the offence is also used to determine whether certain procedural options, such as a jury trial, would be available.

The changes under the Act will:

• hybridize or reclassify indictable offences that are punishable by 10 years imprisonment or less so they are punishable either as indictable or summary offences
• standardize the maximum penalty of imprisonment for all summary conviction offences to 2 years less a day
• extend the limitation period for commencing proceedings for summary conviction offences from 6 to 12 months

Reclassification will harmonize and streamline the existing classification scheme and provide more flexibility for prosecutors to efficiently respond to less serious conduct, depending on the facts of the case. The reclassification will not change the existing maximum penalties for indictable offences. However, for many summary conviction offences, the maximum penalty will increase so that more cases can proceed summarily. Serious conduct will continue to be treated appropriately. These changes will contribute to a more efficient system, including by allowing cases involving less serious conduct to be addressed more quickly in provincial courts. This will also free up resources for superior courts to deal efficiently with more serious cases.

Agents (including law school students, articling students, paralegals and others) will be able to continue to appear on summary conviction proceedings pursuant to criteria established by a province or territory, in addition to their existing authority to approve programs to allow them to appear, and will be able to attend court in place of the accused to seek an adjournment of the proceeding on all summary conviction matters without prior authorization. The changes maintains jurisdictional flexibility for provinces and territories to establish their own criteria and reflect the regional diversity in the regulation of legal representation across Canada.

Restricting availability of preliminary inquiries

A preliminary inquiry is an optional hearing held by a justice of the provincial court. Generally, it is available where an adult is charged with an indictable offence and elects to be tried by the Superior Court and one is requested by either the accused or the Crown. Preliminary inquiries are intended to determine whether there is enough evidence to send the accused to trial and they are used by both the Crown and the accused to, among other things, test the evidence of the case. Use of the procedure varies across provinces, and some argue that its purpose has been significantly reduced by the obligation on the Crown to provide the accused with all relevant evidence relating to his or her charges.

Under the new law, a preliminary inquiry can only be requested in the case of an adult accused of a crime that is punishable by 14 years or more of imprisonment. The preliminary inquiry judge can also limit the issues to be explored and the witnesses to be heard.

These measures will reduce the number of preliminary inquiries while ensuring they are still available for those accused of offences carrying the most serious penalties. This can free up court time and reduce the burden on some witnesses and victims, including victims of certain sexual offences, who otherwise would have to testify twice – once at the preliminary inquiry and once at the trial.

Jury selection

Under the Canadian Charter of Rights and Freedoms, every person charged with an indictable offence carrying a maximum penalty of five years or more is guaranteed a right to trial before an impartial jury.

Juries that are viewed as not being representative of Canadian society may lead to a lack of confidence in the justice system. This new law changes the Criminal Code to improve the jury selection process by abolishing peremptory challenges, which allow Crown and defence counsel to exclude a potential juror without giving a reason. The law will also empower judges to decide whether to exclude jurors that have been challenged by either the defence or prosecution (e.g., because they may be biased in favour of one side), and allow a judge to “stand aside” (or “stand by”) a potential juror while other jurors are selected in order to provide for an impartial, representative jury. These changes will promote fairness and impartiality in the selection of jurors and in the criminal justice process.

Fostering judicial case management

As stated by the Supreme Court of Canada in Jordan, judges are uniquely positioned to encourage and foster culture change within the criminal justice system. The law strengthens their case management powers to support them in this role by providing them with more robust tools to manage the cases before them. Case management judges have also been given additional powers in relation to the admission of certain evidence and changing the trial venue. The process for making rules of court will also be simplified.

Victim Surcharge

In response to the December 2018 Supreme Court of Canada decision in Boudreault, which struck down the victim surcharge regime in its entirety, the new law builds on amendments included in Bill C-28 and re-enacts the victim surcharge regime in the Criminal Code.

The new law requires a surcharge to be imposed for every offence for which an offender is sentenced but, in keeping with the Boudreault decision, provides greater judicial discretion to depart from imposing the surcharge, in appropriate cases. It allows for judicial discretion to not impose a victim surcharge where payment would cause undue hardship to the offender given their precarious financial circumstances or where it would otherwise be disproportionate to the degree of responsibility of the offender or the gravity of the offence. Sentencing courts must provide reasons for departing from the presumption that the surcharge should be imposed.

Sentencing courts will have discretion to ensure just and fair sentences for all offenders, but particularly for Indigenous persons and vulnerable or marginalized offenders who are overrepresented in the criminal justice system and disproportionately impacted by the victim surcharge.