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This is the second part of a two part series that originally was posted to North-Shore.Info. Start at the beginning here.
In part 1 of this series, we saw briefly what the Liberals’ crime bill C-75 intends to accomplish and looked at one of the big tasks it set for itself: creating a legislative response to some recent Supreme Court decisions. Although those are perhaps the most important aspects of the bill, the remaining sections will also have major impacts on the lives of those who have to deal with the legal system. So here, we’ll look at how Bill C-75 gives more power to prosecutors to decide how to go after people, how it changes the treatment of youth, and finally how it is reacting to social movements, namely those around the death of Colton Boushie and #MeToo.
Probably the most controversial aspect of the bill is the discretion it proposes to give the crown about how to prosectute cases. Bill C-75 will turn a large number of indictable offenses into hybrid offenses, giving more power to prosecutors to decide how to pursue cases.
Crimes in Canada fall into two categories: Indictable offenses are the more serious and summary offenses are the less serious. Certain crimes are considered hybrid offenses and leave the crown attorney the discretion to decide whether to pursue it as indictable or summary depending on the context, and even to change their mind to secure plea deals.
Under this bill, most indictable offenses that carry a maximum penalty of under 10 years will become hybrid offenses, meaning the crown could choose to pursue them summarily. However, it also increases the maximum sentence for a summary offense from six months to two years (the maximum stay in a provincial jail). This has the strange effect of meaning serious crimes could be turned into less serious ones, but that less serious crimes can now be punished more seriously.
Similar to what we saw in the part 1 about trying to take breaches of conditions out of the courts, this seems to be a measure designed to free the crown’s hand to secure plea deals by offering to change the offense to summary. The courts are basically guilty plea machines and this hopes to put even more pressure on people to plead out.
Typically, people fight harder against indictable offenses: the consequences of having one on your record are way worse, regardless of what the charge is. Poor people with indictable charges are more likely to get Legal Aid and be given more assistance to deal with what are considered to be more complex cases. However, this measure also means that maximum penalties for minor crimes can increase fourfold. By having the option to seek an 18 month sentence through a summary charge rather than needing to use a more serious indictable one, the crown can reduce the resources available to defendants and also make it more likely that they won’t fight, even though the sentence and the facts are the same. For all the Conservatives’ claim this measure is about dealing with delays by being soft on crime, to me it looks more like a way to railroad more defendants into convictions more quickly.
As well, being able to proceed summarily makes it more likely that prosecutors and police will use certain unusual charges to target social movements. One current example, and one that the Conservative party keeps bringing up, is Unlawful Assembly while Masked (UAWM), a charge invented in 2014 that has recently been laid for the first time, targeting anarchists in Hamilton and other cities. Until now, police and crowns have chosen to use more conventional charges against masked demonstrators, ones related to specific actions they carry out, because the constitutionality of UAWM is far from certain, criminalizing as it does participating in a demonstration without yourself committing any other crime.
It seems likely that UAVM violates the Charter of Rights and Freedoms by making it illegal to simply be present at a demonstration. Since it is a serious indictable charge that carries a possible ten year sentence, it is very likely that those charged under it would fight it and it is very likely that the crown and police would have a hard time overcoming Charter objections. But if they can lower the sentence and make the charge less serious by pursuing it summarily, then the risk of Charter challenges becomes much less and therefore the law is more likely to be used. Since UAVM essentially makes mass arrests legal in a way they have usually not been in Canada, making this law easier to apply is actually hugely dangerous.
The Liberal government draws its legitimacy from being seen as responsible to progressive social movements; this allows them to de-activate those movements, keeping them in the realm of protest rather than having them become forces that can actually impose their will on the state. One of the biggest surges of popular anger in the last year followed the not-guilty verdict handed down to the man who killed indigenous youth Colton Boushie.
Although racism pervades every aspect of the justice system, anger here latched on to the fact that the killer was a white man and was tried by an all-white jury. This is not a new problem: for instance the Iacobucci commission was launched in 2011 to investigate the absence of native people on juries in Ontario. But the Liberals didn’t take an honest look at how the Indian Act excluded indigenous people from basic things like voting until two generations ago, or how residency on reserves often means you aren’t on jury lists, or how much of a financial burden it is to end up on a jury. No, the Liberals chose the bluntest instrument. The defense lawyer in the Colton Boushie case used a tool called peremptory challenges to exclude all jurors who looked native, people were mad about that, so they’re just getting rid of peremptory challenges.
The problem is this tool has many other uses, as it is basically just a way to exclude a potential juror without relying on one of the established reasons for doing so. It could, for example, be used to exclude a white supremacist from a jury, or someone like me who would never find anyone guilty. It might mean that lawyers will have a harder time excluding specific jurors on the basis of race (on the grounds that they’d be “sympathetic” one way or the other), but it does nothing to reflect the structural inequalities in Canadian society that become visible on juries. But if the goal is just to throw a bone to anti-racist protestors to stop the growth of a movement against the courts, then maybe it will be enough.
Many measures in Bill C-75 make things tougher for people accused of sexual assault and domestic violence. This is specifically a response to the #MeToo campaign but is more generally aimed at feminist movements to end sexual violence. Notable measures include: increased penalties upon conviction; and reverse onus bail hearings for repeat offenders (meaning the defendant has to argue why they should be released instead of the crown having to argue why they shouldn’t). These measures go against the direction of other aspects of C-75 (easing bail, giving options to reduce sentences) and clearly are meant to show that the state considers there has been too much leniency for these crimes relative to others. It’s “tough on crime” politics for leftists who don’t mind prison.
As well, the need to protect survivors was often invoked as another reason to do away with preliminary inquiries (as we discussed in part 1), since having to testify twice is very retraumatizing. Like with jury selection above, the abysmal failure of the legal system to take sexual and intimate partner violence seriously for so many decades meant that frequently movements against patriarchy could not encourage survivors to use these system (like how their racism meant indigenous people and people of colour often feel the need to stay away). This is a theat to the courts’ legitimacy, and so the government moves to address the issue as narrowly as possible.
It should come as no surprise that politicians, as people who love power, would choose to listen to those feminists who believe that prisons and courts will somehow help get rid of patriarchy. To individualize these problems and believe that putting this or that asshole away for longer will in any way address the issue of violence against women is a tragic over-simplification. The courts become no more legitimate or feminist as a result of this bill. As well, to use the way courts retraumatize survivors in order to take away rights from all defendants is really sneaky and should be opposed.
With all the talk about children separated from their parents and jailed in the US, it’s worth mentioning the ways the Liberals intend to change how young people are locked up here in Canada. A big chunk of Bill C-75 deals with changes to the youth criminal justice act. On an average day in Canada, about 900 youth are in jail in Canada, with between 6000 and 7000 more in some sort of program that falls short of prison. About half of these youth are indigenous. Kids who are locked up or placed in a facility under restrictive conditions are way more likely to continue going to jail as adults than are other youth, so how the court system treats its youngest victims has a huge impact on the future of both those individuals and their communities.
The main thrust of the Bill C-75 reform is to reduce the number of youths in prison by increasing the number in restrictive programs that are technically not prison. Moreso even than adults, youth spend a lot of time in the justice system for breaches of court ordered conditions and like with adults Bill C-75 will seek to reduce this by lessening the number of conditions and dealing with them outside of court.
Although I’m extremely skeptical of the current that seeks to extend the control and violence of prison out into the rest of society by way of conditions, supervised release, social worker supervised facilities (like halfway houses), and the like, these are still way better than being in jail. However, these reforms will only apply if youth are sentenced as youth, but Bill C-75 also makes it easier for courts to sentence them as adults. At the moment, before a crown can seek to sentence a youth as an adult, they need permission from the attorney general, which offers some oversight and makes it harder to do. In the future, the local crown’s office can make the decision, meaning more youth will not have access to the protections that the Youth Criminal Justice Act and the changes in Bill C-75 provide.
This text has been very long, but I’m glad you stuck with it. Bill C-75, like the Conservative Crime Omnibus bill before it, is deliberately long and convoluted as a way of keeping us from understanding what’s happening. It’s hard to get an overall picture of what a bill like this is doing, and so most commentary has focused on particular aspects. But having opinions about whether eliminating prelims or trying kids as adults or making certain offenses hybrid misses the point – the overall vision contained in a bill like this one. It’s a progressive bill, but in a limited sense: it addresses specific areas of the criminal code and related legislations that have been identified as problems and addresses them narrowly. The concern for efficiency in the system masks overrides big questions like people being pressured into pleading guilty and certain important measures, like bail reform, are unlikely to be implemented in practice, as they remain within the arbitrary purview of JPs and judges who can really do whatever they want.
There is still a lot more stuff in this bill (we didn’t even get into all the weird laws they’re deleting: anal sex and “inducing miscarriage” will no longer technically be crimes), but I hope this summary gives a good sense of what C-75 is trying to do and that it can be the beginning of a conversation. This is one of the biggest changes to the justice system in recent decades, and although Canadian politics aren’t as dramatic as the permanent spectacle south of the border, it’s worth taking a little time to build up an analysis of this, as we will have to deal with these changes in every moment of struggle in years to come.
