Canada’s new crime bill could spell trouble for people of color

In a move that will further magnify the country’s racial divide, the Canadian government has proposed changes to its criminal justice system, which defense lawyers say will result in more wrongful convictions and penalize more people of color.

Tracy E. Hopkins

Apr 6, 2018

Canada's Annamaria Enenajor practices criminal defense and constitutional law at Ruby Shiller & Enenajor, Barristers. She pointed out that this new bill it will negatively impact low-income and racialized people

The idea that Canada is one big, happy melting pot without racial prejudice is nothing more than a melting pot of lies.

In 2016, Colten Boushie, a member of the Red Pheasant First Nation, was shot and killed by Saskatchewan farmer Gerald Stanley. In February, an all-white jury found Stanley not guilty of second-degree murder.

Sound familiar?

Following the verdict, Jade Tootoosis, Boushie’s cousin, told the Saskatoon Star Phoenix her family would fight for an appeal.

“We had hoped for justice for Colten. However, we did not get it. We did not feel it throughout this entire process.” she said.

“We will fight for an appeal. We will fight for an appeal and answers to all of the racism that my family has experienced from the day that Colten was shot until the jury delivered the verdict of not guilty. We will not stop our pursuit for justice.”

Alvin Baptiste, Boushie’s uncle, said the verdict was not right.

“I’m just pretty shocked by the verdict and that my nephew has been denied justice. And how First Nations are treated in the justice system is not right,” Baptiste told reporters outside the courthouse.

According to VICE, Justice Minister Jody Wilson-Raybould announced Bill C-75 this week, touting it as a means to reduce court delays “while ensuring that Canadians have a well-functioning criminal justice system that respects their rights and maintains public safety.”

Reportedly, many believe the bill was in part a response to the Stanley trial. As part of the bill, the government wants to remove the right of Crown and defense lawyers to exclude jurors through a peremptory challenge. However, experts who spoke to VICE raised a number of major concerns with the bill and said it will most likely negatively impact racialized people, who are already overrepresented in Canadian prisons.

As outlined by VICE, the Bill C-75 raises the following prejudicial concerns:

Eliminating preliminary hearings in all but the most serious offences(i.e. murder) as a way to “ensure criminal cases can proceed more efficiently to trial.”
Police won’t automatically have to be cross-examined. The bill will also allow police officers’ evidence to be submitted in signed, written form, without requiring them to be present at trial and cross-examined. Defense lawyers who want to cross-examine cops will need to make a special request to the court.
Abolishing peremptory challenges by allowing the Crown and defense to eliminate potential jurors without having to give a reason. In Stanley’s case, it meant no Indigenous people were on the jury hearing his trial. Toronto lawyer Dan Stein told VICE the Stanley trial was an outlier—usually the accused is a person of color and the defense uses peremptory challenges to get a more diverse jury. “In most cases, you’d be happy to have a person of color on the jury,” he explained.
Raising maximum penalties. Bill C-75 is also raising the maximum punishments for summary offences to two years in jail, which is quadruple what the current maximum is for some crimes.

This could result in people getting punished more severely. But Annamaria Enenajor, a partner at Ruby, Shiller, and Enenajor, noted it will also negatively impact low-income and racialized people because paralegals, and articling law students aren’t able to run trials where the punishment is more than six months of jail time. Only licensed lawyers are able to run those trials.

“It amplifies the presumption of credibility of police evidence,” Enenajor said, noting often times it’s just the evidence of the accused versus the cops.

This is the worst piece of legislation the @liberal_party has tabled to date in terms of Charter compliance & adopting an evidence-based approach to #CdnJusReform.

When procedural fairness is sacrificed for efficiency the most in vulnerable always suffer @Puglaas https://t.co/3TSJ1wen3Z

— Annamaria Enenajor (@AEnenajor) March 29, 2018

For example, the Toronto police recently pepper-sprayed a man who was already handcuffed and lied about it under oath.

Enenajor said in all likelihood, defense lawyers will default to requesting the right to cross-examine police, but the extra step in having to make such a request will result in more court delays.

No reform on mandatory minimums. Notably, the bill didn’t touch on Stephen Harper-era mandatory minimum jail sentences, some of which have already been struck down as unconstitutional.
The bill, however, will likely be challenged. Enenajor said she’s shocked at the “colossal” scope of the bill, which suggests scrapping centuries-old procedures in some cases. “It really has blindsided the criminal law and defence community,” she said. “It was just astonishing that the government decided to table this before a long weekend without prior consultation.”

Even if the government passes Bill C-75 into law, Stein said it will likely be challenged across the country.

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