Canada is using online outrage to make dangerous changes to the criminal code

Almost a year ago, Prime Minister Trudeau and his Minister of Justice took to Twitter to undermine the Canadian public’s faith in our own legal system.

Justin Trudeau and Jody Wilson-Raybould exploited an unpopular acquittal in a murder trial to whip up the outrage required to change the criminal code. And now those changes are being implemented.

While the public can be emotionally and politically rallied to support changes to the criminal code when they are convinced a specific verdict was wrong, it is the job of lawyers and journalists to help the public understand what those changes will mean.

In a time when public distrust towards lawyers and the legal system is palpable, the allure of hashtag activism gives people a sense of participation in our justice system without concern for research or consequences.

Most citizens don’t worry about the resulting legal changes from the ensuing outrage because most people don’t expect to find themselves facing criminal charges in a court of law. Especially if they are innocent.

Indeed, by the time the legal changes are made most people have forgotten the original cause or source of outrage.

In the wake of the acquittal of Gerald Stanley at the beginning of 2018, the Canadian public was told, by our own Justice Minister, that peremptory jury challenges resulted in racism against indigenous people.

We were told Stanley was wrongfully acquitted because the jury was all white. As a result, most Canadians support a new bill that will prevent an accused from reshaping a randomly selected jury.

But the public is being misled.

Wilson-Raybould later tempered her Twitter pronouncement by saying she wasn’t talking about any specific case, but the message was clear: she would “fix” the law so future Gerald Stanleys would be convicted.

The solution was Bill C-75, which has now passed third reading in parliament.

Joseph Neuberger, a Canadian criminal lawyer and legal expert warns that “this was a knee jerk reaction to one high profile case that makes for very bad law and can lead to increased time for jury trials and harms fairness for accused individuals.”

As Wilson-Raybould has made clear in her effort to transform the justice system, there is a growing concern towards the disproportionate incarceration of indigenous people in Canada.

However, peremptory challenges are more likely to help indigenous people who may be the accused person trying to obtain a jury that is more representative. Ironically, and perhaps tragically, rushing to change a law in search of “social justice” could end up making the system unintentionally worse for those we seek to help.

But, this is not the only controversial change that is being swept under the carpet by careless reporting and reckless tweets.

Neuberger has identified a combination of three changes that will basically railroad convictions for those who are wrongfully accused: Eliminating peremptory jury challenges, eliminating preliminary hearings, and new rules of evidence enacted by Bill C-51 that now impede defence evidence in charges of sexual assault.

Neuberger says:

Further aggravating is the ridiculous move by the Federal government to restrict preliminary hearings to charges that carry life imprisonment. Again, all of us who work in the Criminal Justice system will agree that when used efficiently, preliminary hearings are vital to ensuring a fair process to accused persons and often weed out cases that should never proceed to trial.

This change is a reaction to what is called the “Jordan Ruling,” which sets time limits on prosecutions. Numerous serious charges have been dismissed since the Jordan Ruling because the cases have taken too long to get to trial.

The problem addressed by the Jordan Ruling is real. An accused person has the right to face trial in an expedient manner and our justice system is torturously slow. The agony of delayed trials affects both the accused and the complainants.

But the solution to this problem is not to eliminate protections against wrongful convictions. It is not a solution to simply railroad the accused by eliminating the parts that make their trials fair.

While many people, even the accused, may wonder if preliminary hearings are useful, Neuberger explains:

I have effectively used preliminary hearings throughout my 26 year career to undermine prosecution evidence to such an extent that after the preliminary hearing, the Crown took a fair and balanced review of the evidence and withdrew as there was no reasonable prospect of conviction.

To some, especially those who learn about the criminal justice system via Twitter, this could sound like preliminary hearings are used to help people get out of standing trial. The reality is that no one should face a criminal trial unless the evidence against them is sufficient to warrant the charges.

The core principles of our modern justice system have been developed over thousands of years and at great human cost. Lessons, like the importance of a burden of proof, need to be kept alive and meaningful in our justice system—no matter how much compassion we have for the victims of crime.

There has been a concerted effort over the last decade to address the complex and difficult crime of sexual assault. Due to increased online activism and attention from reporters, the public has been encouraged to start from a position of presumed guilt when someone is accused of sexual misconduct or assault.

The position of belief has escalated to the point that even stating that someone accused of a sexual crime may be innocent is now denounced as a “rape myth.”

So how does this public debate translate into fair trials? How can the public support the “burden of proof” standard with a crime that rarely has witnesses and yet still believe in the concept of justice?

These questions will not and should not be resolved on Twitter.

The solution needs to respect the hard won rights of an accused to ensure the powers of the state don’t overwhelm the ability for an accused person to receive a fair trial.

While speed may sound efficient, Neuberger says that “removing preliminary hearings for cases such as sexual assault cases is a direct attack on the right to make full answer and defence. It panders to interest groups and does nothing to advance the truth finding purpose of criminal proceedings.”

The combination of eliminating peremptory jury challenges, preliminary hearings and the recent new rules obstructing defence evidence following the passing of Bill C-51 have likely created a railroad for wrongful convictions.

While everyone benefits from a more expeditious trial process, quality is more important than quantity. These current changes to Canada’s legal system have focused on speed and numbers not on the process of discovering facts.

While everyone can and should feel sympathy for the family of Coulten Boushie, who lost their loved one, we should not let politicians use that tragedy to undermine our legal system. The public deserves more than a tweet to explain why our criminal code is being rewritten.

We need to make rational decisions, not emotional ones.

The Canadian public deserves a legal system that remembers not all people accused of a crime are guilty and that every one of us deserves a fair trial. No one who is innocent expects to be accused of a crime. But we know it happens.

These legal changes may be popular and fuelled by online outrage but as Neuberger says, “It has the potential to lead to wrongful convictions. Shame on the government for more knee jerk legislation that is highly detrimental to what has been a justice system that was a beacon of fairness in the world.”