Some Initial Thoughts on the Senate Report on Criminal Justice Reform

Is delaying justice, denying justice? Yes, but the delay is a denial for all not just specific groups. Justice Cory in Askov recognized the societal dimension to a speedy trial. Although s. 11(b) is couched as an individual legal right, it is in fact a value we all share and an interest involving the public good. We all have a stake in justice and therefore we are all impacted when justice fails us. I have said this many times before – admittedly almost like a broken record – but what is as stake, when the justice system fails, is who we are as a nation. In our 150th year we need to look toward a cohesive and responsive future, which respects all citizens. To me respect comes from a robust and mindful justice system that provides access to those who need it and confidence to those who do not. Thus, the priority in the Senate Report to properly fund Legal Aid across the country should be, in my view, a number one priority.

Law reform is about “best practices.” Indeed, the interim Senate Report from August 2016 and the one now placed before us speaks of this.  “Best practices” is about excellence, integrity and confidence. It is about innovation and alternate strategies. Keeping this in mind, the Senate Report makes fifty recommendations to reform the justice system but identifies thirteen as uniquely pressing and urgent.

In my view, the highlight of these recommendations are the alternate strategies, looking at the administration of court in a subtle way or rather in a different way. Do we need to be bound by the traditional court structure or is there more we can do? Can we borrow from other cultures? Can we bring something that will work better? These innovative forward looking recommendations deserves attention and should receive heightened importance. Under this rubric, we can see many of these thirteen priorities as connected, such as the effects our justice system has on our Indigenous peoples of our country. Can we not learn from their unique perspective and collaborative approach?

Additionally, taking notice of mental health and the fact that substance abuse may go hand in hand with this issue is another priority that connects with innovative strategies and to me is extremely timely and urgent.  The increase of fentanyl use and the carnage resulting from it needs to be addressed. Again, specialized courts and embedded treatment centres id badly needed to address and alleviate the pressure on the justice system.

Again, connected to the above, is the call for a hard look at what needs to be criminalized under our Code. A better and smarter approach to what behaviour needs to be underlined by the criminal law will streamline the system and increase public confidence in the administration of justice. Often administrative penalties can provide the incentive to change behaviour where the criminal law cannot or does not.

Increased and better use of technological change is a must and is an integral part of court innovation. We have technology now but is it being used in the best way? Are we ensuring that the use of technology is sustainable and manageable? Are we providing the right incentives for all stakeholders to use the best practices when it comes to technology? This needs to be explored.

The idea of “judicial officers” to do some of the work of a judge or justice requires a deeper look. It is attractive and it can work to focus the system on those issues that need judicial oversight. However, we must ensure that such a change will not simply be shifting the work elsewhere. A simple shift will not change the culture of the court system.

I have not commented on some of the priorities which cause me concern. The issue of whether there is an alternate remedy under 24(1) to a stay is a complex issue. As a defence lawyer, I am hard pressed to envision an alternate remedy when the Charter breach involves the administration of justice, the most egregious type of Charter violation. Such a violation engages fair trial and full answer and defence concerns. It is a violation that recognizes potential for miscarriages of justice. It is a weighty issue which will need to be explored further by the courts and by me as well in a future blog posting.

Also, my view of the need to retain the preliminary inquiry causes me concern with the recommendation to restrict or end the process. I have spoken on this issue before and written about possible alternatives such as permitting a civil form of questioning where the inquiry is not to determine whether there is sufficient evidence for trial. The preliminary inquiry, as I wrote in my blog on the Stinert decision, is not just an archaic vestige of the past but can be an important safeguard in our justice system which has its roots in the all-important principle of the presumption of innocence. We must be cautious in moving away from such a protection.

I will end my initial thoughts here with a promise to delve deeper into the “big picture” of the law reform in a future posting. In the meantime, I encourage everyone to review the Report and to start thinking about what kind of justice system they envision for Canada.