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Piecemeal reform

Tackling trial delays and wrongful convictions and ending the over-representation of Black and Indigenous people in Canada's justice system will require more commitment fromthe government.

Lady justice

The year 2020 proved a capable foe for the best-laid plans, with all sorts of promises, consultations, and legislation falling by the wayside amidst a global pandemic. Now, with a mass vaccination campaign underway, those plans have returned with a new urgency.

The Trudeau government's justice files, already pruned of broken and forgotten promises of their first mandate, seem particularly ripe for action.

With a possible election looming on the horizon, Ottawa is laying the groundwork to fulfill some of its commitments. Other files, however, appear stalled if not altogether abandoned.

Prosecutions and sentencing

Since they first took over government five years ago, the Trudeau Liberals have faced high expectations around criminal justice reform. As CBA National has reported, criminal lawyers hoping for change have been left wanting.

Asked whether she has any optimism that significant criminal justice reform would be coming in 2021, criminal defence lawyer Allison Craig didn't mince words. "No," she told CBA National.

"I have lost all faith in any government, frankly, doing any criminal justice reform anytime soon," says the partner at Lockyer Campbell Posner. "It's an unpopular topic."

In his mandate letter, issued after the 2019 election, Justice Minister David Lametti has no shortage of big files: Establishing a new review mechanism to handle wrongful conviction applications; providing competency training for judges around sexual assault and trauma; reducing the over-representation of Indigenous and Black people in the justice and carceral systems; reducing the nagging issue of trial delays; and expanding the use of drug treatment courts as an alternative to prosecution.

To date, many of those initiatives have been piecemeal, if they've begun at all.

Lametti's mandate letter commits the government to "make drug treatment courts the default option for first-time non-violent offenders charged exclusively with simple possession to help drug users get quick access to treatment and to prevent more serious crimes."

As CBA National reported in September, efforts to decrease prosecutions for simple drug possession have been largely unsuccessful. As Neha Chugh, who practises in Cornwall, pointed out, drug treatment courts aren't even an option in her city: "We don't even have a rehab."

There are only about two dozen drug treatment courts across the country, mostly in major cities, and operate with limited capacity. Ottawa funds those courts to the tune of about $3.6 million per year — new investment may finally bring some of those courts to smaller cities and rural regions.

In 2020, the Public Prosecution Service of Canada released new prosecutorial guidelines, discouraging Crown attorneys from pursuing simple drug possession cases. While there is ample skepticism over whether those guidelines will make a significant dent in the number of drug cases winding their way through the courts, Craig says she's seen a real difference in recent months. "I have had cases with simple possession being withdrawn," she says.

Hanging over this government — but not explicitly mentioned in Lametti's mandate letter — is its stated commitment to end the over-representation of Black and Indigenous people in Canada's prisons and jails.

For the past two years, Ottawa has touted a pan-Canadian strategy to tackle the disproportionate numbers in the justice system, and is consulting with stakeholder groups on that front. What will come of it all is unclear. The government has had the opportunity to peel away mandatory minimums, supported by academic studies and consultations that have repeatedly shown them to be ineffective. But has not done so, nor has it signalled any intention to revisit them. A long-awaited report on the state of Canada's criminal justice system, released in October 2019, doesn't commit Ottawa to any particular plan of action.

As CBA National reported in July, a lack of action in Parliament may push the courts to step in. "Parliament could actually do what it committed to years ago and lift the restrictions on conditional sentences and remove mandatory minimums," says Promise Holmes Skinner, who practises criminal defence in Toronto and North Bay. "But we won't hold our breath."

Tony Paisana, a partner at Peck and Company, says this pan-Canadian strategy appears to be an attempt to tackle many social and societal factors that lead Indigenous and Black people to get ensnared in the justice system. He says he "completely encourages and supports" that approach. "There's no simple solution in criminal law," he adds.

"But here's the issue I take with it: When it comes to criminal law reform of other issues, seemingly the government takes the position, in many cases, that the criminal law power is the only power that can address the issue," Paisana says, noting the government's recent effort to criminalize conversion therapy.

When it comes to the over-representation of Black and Indigenous peoples in prison, "suddenly that criminal power is forgotten and we now need some broad-based thing that does not include it."

Paisana says it's no secret what needs to be done. A litany of studies, court decisions, and the Truth and Reconciliation Commission report all point to abolishing mandatory minimums and reforming conditional sentences as a clear-cut way to make the justice system fairer, and reduce the over-representation of Indigenous and Black people.

"You cannot, in one breath, say that we are committed to addressing the problem of over-incarceration of Indigenous peoples, but yet still ignore those two very specific, statistically-supported recommendations," he says.

The courts are already stepping in, striking down a slew of mandatory minimums in recent years. In doing so, however, they have created a provincially asymmetric sentencing patchwork. Meanwhile, the Supreme Court seems set to hear a challenge on the onus restrictions of conditional sentencing in the coming year.

Wrongful convictions

One issue that appears to be moving forward is a plan to "establish an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed," as Lametti's mandate letter puts it.

Currently, individuals who feel that they have been subjected to a miscarriage of justice must petition the minister to review their case. However, that system has been beset by delays and inaction. In 2019, Glen Assoun was finally exonerated in the murder of his ex-girlfriend after a two-decade ordeal. His application for a review sat on the Attorney General's desk for a year-and-a-half, even as the evidence made clear Assoun's innocence.

According to the most recent annual report on the ministerial review of miscarriages of justice, the department has 51 active files, but did not complete a single investigation in the past year. Nor did the minister make any decisions for remedies. Only ten investigations are underway.

By taking that responsibility off the minister's desk, there is hope that it could create a system to address miscarriages of justice and wrongful convictions.

What remains to be seen is just how robust that system will be: Whether it will involve a small office, with scant resources, saddled with the same backlog; or whether it will be a well-financed, well-staffed office with the ability to investigate cases and provide real expedient action.

Right now, private groups are saddled with the responsibility of investigating these claims.

"The problem that's faced by Innocence Canada, now, is that there's just not the resources," Craig says. "We know there's hundreds and hundreds of cases out there right now."

Having the majority of the work being done, currently, by groups like Innocence Canada and pro-bono lawyers is "not a sustainable model," says Paisana.

According to Craig, the dearth of resources has also meant that those wrongfully-convicted of lesser crimes, including drug crimes and sexual assault, are often left to languish. She points to the case of Anthony Hanemaayer, who was convicted of a sexual assault that, only years later, was correctly attributed to Paul Bernardo.

Craig notes that getting this new system right will be tricky, but Ottawa already has plenty of resources pointing them in the right direction. "Commission after commission has outlined what it should be," she says. "If it's going to be done right, I think it's going to be a longer, medium-term project."

Trial delays

It's been nearly two years since Parliament passed C-75, the only significant legislation from the Trudeau government tackling the court system. It was supposed to speed up trials, reduce the likelihood of Canadians getting sent to prison on administration of justice offences like bail violations, and make trials fairer. Lawyers warned at the time that it wouldn't reach those lofty goals.

Paisana says he has certainly seen a shift in the justice system in the past few years -- an attempt to avoid delay and get cases moving. "However, I wouldn't attribute that to Bill C-75," he says. He says the change was "a direct response to the clarion call in Jordan."

Paisana says the elements that the Canadian Bar Association and others warned would have little effect, such as eliminating preliminary hearings. Meanwhile, the measures that were met with accolades haven't been properly implemented. "In particular, we were very supportive of the judicial referral hearing for bail breaches," he says. But no such hearing has been held yet, to his knowledge. "So, really, what is happening is you have this legislative reform that could help, but isn't being implemented, or is not being used."

Craig echoes the sentiment. Asked whether she's had the benefit of one of these referrals, Craig says, "It's never even been given to me as an option," adding: "I have crowns insisting that I set trial dates on breaches of bail."

Craig warns that, once things return to some semblance of normal, the impact of COVID-19 is going to become apparent.

"More changes have to happen more quickly," Craig says. "The backlog is enormous. Jury trials are cancelled again. At some point, in short order, they're going to have to do something."

Even as progress seems slow, the incoming Biden administration south of the border has shown what prioritizing the justice file looks like: His platform committed vast justice reform, including the end of cash bail, a reduction in sentencing, and a commitment to prison decarceration.

Craig points to the societal conversation that underpins the Democrats' justice pledges as being something to watch in 2021.

"The recent attention to causes such as defunding the police — I am a little hopeful that it'll create a little bit of momentum."