Sweeping Criminal Code Amendments now in Force
The massive criminal law Bill C-75 came into force on September 19, 2019 and is now the law of the land. The bill has resulted in some sweeping changes and far reaching consequences for the Canadian justice system. Generally speaking, the intent of the new legislation is to help streamline the court process by creating various efficiencies. It remains to be seen whether all of these changes only benefit police and Crown counsel. We feel that there may be no benefit whatsoever to accused persons. Here are some of the changes:
Bill C-75 has changed 118 offences to hybrid offences where Crown may elect to proceed by indictment or by summary conviction. The default maximum penalty for summary offences has been increased from 6 months to 2 years jail. The limitation period by which a charge must be approved has increased from 6 months to 12 months for summary matters, meaning police now have up to a year to lay a summary charge. Though the intent of the legislation, apparently, is not to increase top end of the sentencing range , we feel that inevitably jail sentences will become lengthier for summary offence convictions.
Prior to the amendments, where the Crown proceeded by indictment, an accused could have a preliminary inquiry in Provincial Court prior to the trial. Much like an examination for discovery, defence counsel at a preliminary inquiry has an opportunity to test a complainant’s evidence through cross examination. Under the new legislation, a preliminary inquiry is now limited to the most serious offences – those where the accused is liable to a 14 year maximum period of imprisonment. For many serious offences where the maximum jail sentence is 10 years, (such as sexual assault) an accused is no longer able to test the evidence in a preliminary inquiry.
Traditionally the Crown and the Accused could use their discretion to exclude a potential juror without having to provide an explanation (pre-emptory challenge). This is no longer the case. Jury selection in Canada is now pretty much a random draw from the jury pool.
Intimate Partner Violence
The Criminal Code now incorporates a definition of domestic violence and clearly treats violence in the domestic context as an aggravating factor. The changes include higher maximum penalties for intimate partner violence and codifies the sentencing principles of denunciation and deterrence in these cases.
Remote Court Appearances
New changes to the Criminal Code now permit an accused person or a witness to make court appearances by telephone or videoconference so long as the court finds it appropriate to do so in the circumstances and if arrangements have been made in advance. Hopefully this provision will not be misused so as to take away a judge’s ability to pick on the nuances of a witness’s body language when assessing credibility.
There are many other changes that Bill c-75 has brought to the criminal law. Among them are changes to the Youth Criminal Justice Act, Judicial Case Management, and Administration of Justice Offences. As stated, these Criminal Code amendments were largely made with the goal of streaming and finding efficiencies in the criminal justice system. The intent of the changes is to promote fairness and to reduce court delay. It remains to be seen whether some of these changes will be challenged under the Charter of Rights and Freedoms. We will certainly be watching as these issues develop and may, indeed, be challenging aspects of these new provisions on our clients’ behalf.