Senior criminal defence lawyers are raising the alarm over Supreme Court of Canada Chief Justice Richard Wagner’s suggestions for amendments to the Criminal Code — an action they warn could put him in a conflict.
Justice Wagner co-chairs a COVID-19 court response committee with Attorney General and Justice Minister David Lametti.
The committee is getting ready to release national guidelines to allow courts to resume full operations after restricting their operations due to physical distancing measures brought on by the pandemic.
“The Chief Justice being the most senior judge at the apex of the Canadian criminal justice system weighing in at this juncture and providing his imprimatur, as it were, on proposed changes is unusual to say the least,” said Adam Boni, a Toronto-based senior criminal defence lawyer.
“These very legislative changes, if they occur, could very well be subjected to challenge under the Canadian Charter of Rights and Freedoms, and the Supreme Court of Canada could very well be called upon down the road to adjudicate on the issue of their constitutionality and whether they can continue and should continue, and whether they should have been enacted in the form they were at the time.”
While each province and territory governs how its individual courts run, Wagner told CBC News in an interview last week the Criminal Code is the main avenue for the federal government to make changes because it regulates how in-court jury trials are conducted — how juries are selected, the number of jurors and the rules of conduct.
Wagner said amendments to the Code could allow judges to hear cases in different regional jurisdictions and permit the introduction of evidence through video conferencing.
Wagner also said it has been suggested that his committee consider recommending a reduction in the size of juries — cutting them from twelve members to six, for example.
“Those are more serious amendments that would need to be considered properly with proper discussions and consultations,” Wagner said.
“But there are various types of amendments that could facilitate the holding of trials in the future.”
John Struthers, president of the Criminal Lawyers’ Association, said a chief justice calling for politically charged legislative changes, which could contravene the Charter, is highly problematic.
Smaller juries controversial
Struthers and other criminal defence lawyers said they are open to changes to improve the way the justice system works, but they warn that any proposals that could alter the structure of jury trials must be approached with great caution.
“A twelve person jury, which is large enough to temper biases, has been with us since Magna Carta,” Struthers said.
“Facing your accuser and determining credibility in a personal day in court is fundamental to a fair trial. Only non-controversial witnesses and issues should be decided remotely.”
Jordana Goldlist, a Toronto-based criminal defence lawyer, said she supports Wagner’s role on the committee and she thinks courtrooms can be re-shaped to support public health measures while maintaining the in-person hearings seen as key to a fair trial.
“There’s no reason that the jury box could not be modified in such a way as to ensure social distancing,” Goldlist said, noting transparent shields are being brought into courtrooms already.
But Goldlist said she doesn’t want to see trials go completely virtual.
“To appear by video, it takes the humanity out of the criminal justice system,” Goldlist said.
“If you take the human element out of the equation, you’re really doing a disservice to everyone involved. It eliminates the justice from the system, and it really just gives us this robotic system.”
In the U.S., there have been attempts to reduce the number of jurors. Studies there have suggested that, more often than not, smaller juries are less likely to follow evidence accurately, while larger juries tend to do a better job at reconstructing evidence accurately during deliberations. Smaller juries are also less likely to be representative of the public at large — a key right of the accused, said Boni.
“We are now in a time in history in this country and around the world where people are demanding not just access to justice, but access to fair and equal justice irrespective of race, colour or creed,” Boni said.
“The George Floyd incident in the U.S., which ignited protests, has driven home to everybody in the system that we need to make sure that people in the system who are having their trials, and the community that may be affected, feel that they have been fairly and equitably treated. So any attempts that are made to curtail traditional trial processes have to be undertaken very carefully.”
Black and Indigenous people are grossly overrepresented in Canada’s justice system, and Boni said he worries changes to the trial process could affect the accused.
“I would suggest that the changes suggested are not going to save time. They’re actually only to cause more controversy, more litigation,” Boni said, adding that he fears measures that would “compromise the integrity of the criminal trial process … I hope I’m wrong.”
Time to separate ‘wheat from the chaff’
Instead of looking at changes to jury trials, which only make up about five per cent of criminal cases, Boni said the court system should pursue a new COVID-19 criminal court strategy which could see the prosecution decide which cases should go to trial and which should not.
“This is the process of separating the wheat from the chaff,” Boni said. “The Crown attorney has tremendous power to relieve backlogs through judicious, reasonable, vigorous use of discretion.”
In Ontario alone, the province is dealing with a pileup of at least 30,000 cases, according to the Criminal Lawyers’ Association.
Leo Russomanno, a criminal lawyer and executive member of the Defence Counsel Association of Ottawa, said the federal government should remove the requirement of consent on the part of the Crown to have a judge-alone trial for murder charges — a measure he said would result in fewer jury trials.
“We would stress the importance of making the system more efficient, as opposed to [making] prosecutions easier,” Russomanno said.
“We’re wary of anything that takes choice away from the accused, as to how they are tried.”
Russomanno said the system is being clogged by less serious cases involving property crimes and administration of justice offences.
NDP Leader Jagmeet Singh, who is a lawyer, was asked to weigh in on the subject Monday, but he said he needed time to reflect on the suggestions to ensure there is fairness in trials.
In an email statement, Conservative justice critic Rob Moore said his party will closely review any proposal the government puts forward.
“We will always stand up for victims’ rights,” the statement said.
Prime Minister Justin Trudeau signalled on Tuesday that his government is going to revisit eliminating mandatory minimums from the Criminal Code — something that has been suggested by the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls and, most recently, the Parliamentary Black caucus.
“Over-incarceration is a real problem for the spread of this virus. I’m pleased the prime minister has signalled his government’s willingness to deal with the mandatory minimums and get rid of them, as they should long ago,” Boni said.
“But I’m disappointed that it’s taken this crisis for the government to finally act.”