New code, more problems
Bill C-75 is a criminal justice omnibus bill. It was introduced by the Liberal Government in March of 2018, and has made its way on to the Senate as of December. The Bill introduces many changes to the Criminal Code, one of which is an effort to combat the time pressures imposed upon the state by R v Jordan, 2016 SCC 27. Some of these are arguably beneficial, such as eliminating peremptory challenges in jury trials. Other more concerning changes include allowing the Crown to introduce written police evidence concerning very broadly defined ‘routine matters’ and forcing the defence to apply to cross-examine officers on this written evidence. One change may have a particularly disturbing impact: the maximum penalty for all summary conviction offences will be raised from six months to two years imprisonment.
Now, this fact alone would be no great cause for concern. Summary conviction offences and hybrid offences make up most of the Code. But, in operation with another section, it would leave many individuals without representation in criminal proceedings against them. Section 802.1 of the Code states that law students can appear as agents for individuals, but only when those individuals are charged with an offence whose maximum penalty is no more than six months imprisonment. Effectively, this would gut the Criminal Division of Downtown Legal Services (DLS) and similar programs across most of the country. Services such as these are vital in ensuring that the criminal justice system operates as justly as it can. Legal Aid certificates to hire private criminal defence lawyers are only available when the Crown is seeking jail time—and, seeing as legal clinics that are not affiliated with law schools do not handle criminal matters at all, this would leave those charged with summary conviction offences for which the Crown is not seeking imprisonment to fend for themselves against the overwhelming might of the state.
Unrepresented individuals are by and large unfamiliar with the strictures of the criminal law. They may maintain that they acted in self-defence when their admissions of the facts do not support the defence as defined in s. 34 of the Code. They will be unlikely to mount Charter arguments despite violations of their rights that would be an immediate red flag to a law student. Unrepresented accused may also be tempted to simply plead guilty without regard to their actual guilt or innocence in an attempt to get the proceedings over with. In short, their rights to full answer and defence would be irrevocably prejudiced.
While it is hardly controversial to say so, I think that any world where accused individuals are denied what protections they do have is a worse one. The system is set up with the often-erroneous assumption that the accused will have effective counsel—any change that would push more people to face the state without representation thus ought to be avoided.
Fortunately, there is a solution. The Lieutenant Governor of a province can issue an order exempting law students from the strictures of s. 802.1. This could be done in such a way that carries out the original intent of the law (that serious matters ought not be handed to those who have not yet been called to the bar) while simultaneously ensuring that all of those who depend on clinics such as DLS are not deprived of representation. To all those who feel similarly, I would encourage you to write your local MPP and correspondingly encourage them to support such an order. Doing so would help to ensure a more just Ontario for everyone. And that is a state of affairs that needs no defence.
This article appeared in the January 30, 2019 print edition with the headline: “New Code, More Problems”.
