Broken promises in C-75

In 2015, prior to the last federal election, the then-third-party Liberals made three promises that warmed the hearts of lawyers who work in the criminal-justice trenches.

First, the Liberals said they were going to base their justice policy on facts, not make up facts to suit a preferred policy. It was a simple promise but a breath of fresh air after a decade of ideologically driven justice policy from the Conservatives.

Harper’s tough-on-crime rhetoric left us with more mandatory minimum sentences, watered-down privacy rights and colder penal policies. The Conservatives said that these measures would deter crime and make our communities safer — even when the evidence suggested precisely the opposite.

Second, the Liberals said they would strengthen parliamentary committees so that they could better scrutinize legislation. Better government, they said, starts with better ideas. Parliamentary committees should not exist to toe the party line but to ensure that expert evidence is incorporated into legislation so new laws actually achieve their objectives.

Third, the Liberals said they would overhaul the justice system to ensure it achieves fair and just results. 

It all sounded so good. But it has all gone so wrong.

After waiting years for the promised justice overhaul, in the dying days of March 2018, and on the eve of a long weekend, Justice Minister Jody Wilson-Raybould unveiled her self-described “bold” criminal justice reforms. The legislation, Bill C-75, was advertised as a silver bullet to unclog our courts and bring about a “cultural shift” that would result in a fairer justice system.

Bill C-75 promised to speed up court cases by eliminating preliminary hearings for all but the most serious matters. It promised to make jury trials fairer by limiting an accused’s ability to select a jury of his peers. Also, quietly slipped into the bill was a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify.

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by criminal defence lawyers who called the bill an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”

Last week, Bill C-75 passed through the justice committee with few changes and is now one step closer to becoming law.

Over the last decade, I have appeared dozens of times before various parliamentary committees to testify on new legislation. Last month, I appeared before the justice committee and offered expert evidence on Bill C-75.

I have seen how the parliamentary committees operated under the control of both Harper’s Conservatives and Trudeau’s Liberals. Sadly, there is little difference.

Under Harper, the committees ignored expert evidence and refused reasonable amendments that would improve the legislation and avoid laws of dubious constitutionality.

The same is true under the Trudeau government. The only difference is that the Liberals promised to do better.

Despite hearing from 95 expert witnesses, the committee studying Bill C-75 recommended few changes. Even when there was a concurrence of opinion from these witnesses on various parts of the bill, there still were no changes. The Liberals, you see, voted as a block to keep the legislation mostly as originally proposed. It is almost like they made up their minds before the whole process started.

Sure, there were a few small changes to the bill. The universally criticized provisions of the bill that would allow police officers to file written evidence and avoid cross-examination was removed. And the government bowed to Conservative outrage over the hybridization of some offences. 

But most amendments based on the evidence presented at committee were rejected by the Liberal block.

Take Bill C-75’s elimination of preliminary inquiries for all but the most serious offences. The government said this would speed up trials. But the expert evidence — from defence counsel, prosecutors, academics and civil rights groups — was unanimous that preliminary hearings actually save court time and are an important procedural safeguard to avoid wrongful convictions.

There was no explanation for why proposed amendments to preserve preliminary inquiries, in accord with the expert evidence, were rejected by every Liberal on the committee.

And so, with Bill C-75, the liberals have broken three promises: They ignored the facts, they turned their backs on a constructive and evidence-based committee process and they have done little to make the justice system fairer.

The last betrayal may come as a shock.

The Liberals have not only done almost nothing to reverse the damage inflicted by the Harper government, but they seem strangely proud to advance legislation that erodes procedural protections designed to prevent wrongful convictions.

Harper made no secret about his justice agenda. And he, like Trudeau, may have ignored evidence when it conflicted with that agenda — but at least Harper was a man of his word.