Submitted anonymously to North Shore Counter-Info.
This is the first in a two-part series. The second part is available here.
It’s the Colton Boushie bill and the #MeToo bill. It’s the bill that wants to speed trials up and change how people are impacted by bail while waiting. It’s a bill that frees the state’s hand to treat minor crimes more seriously or to use serious crimes more lightly. It’s a bill that talks about having fewer youth in the system but makes it easier to charge them as adults. It’s the bill that lets cops avoid cross-examination, sends you to court by video, and formally decriminalizes anal sex. It’s a 300 page omnibus bill from the party that spent years promising to never use omnibus bills.
Bill C-75 is currently in committee federally and it aims to make major changes to the justice system across Canada. For a bill of such sweeping scope though, it hasn’t been much discussed outside of political and legal spheres. However, the legal system, and the cops and prisons that come with it, are the backdrop of so many choices we make every day, structuring what we think possible in both big ways and small. It affects all of us. And if you’re like me and you sometimes find yourself getting dragged through the courts and maybe ending up in jail, there’s tons of stuff in here that is immediately and materially relevant to you.
This bill is too vast to properly discuss in a text short enough for people to actually read. I hope this text will be a starting point for more critical conversation about this bill, getting beyond the cherry-picked provisions held up by the Liberals to appeal to certain groups. The cynical garbage from the government (“It has more protections for victims of domestic violence! It’s a feminist bill!”) shouldn’t be where our analysis stops. And full disclosure, I’m an anarchist and don’t consider the justice system legitimate, no matter what laws they pass, and I think a judge is a disgraceful thing to be. But I also think a broad critique like that doesn’t exempt us from actually understanding changes like those in Bill C-75, forming an opinion on them, and preparing ourselves to resist them or to endure them.
Broadly, there are three categories of Bill C-75’s measures that I want to discuss. I’ll get into more detail on each below, trying to highlight distinct ideas with bold type so you can just skip to parts you care about if you want. I’m dividing the categories by what motivates these measures rather than by their content, since it’s interesting what government thinks its job is:
- Respond to supreme court rulings that restrict how long cases can take to get to trial and that seek to reform the bail system to reduce pretrial detention and the use of harsh bail conditions; these rulings are considered progressive by those who follow such things, but how specifically the House of Commons is taking them up raises big questions.
- Respond to social movements, notably those around the trial for Colton Boushie’s murder and those calling for an end to sexual violence; these parts of the bill are particularly shallow and pandering, limited to jury selection for the former and harsher treatment of the accused for the latter.
- Give the prosecution more flexibility in determining the seriousness of crimes, which gives them more power to secure deals, makes certain laws easier to apply, and allows them to punish minor crimes more severely.
First of all, Bill c-75 is responding to a couple of Supreme Court rulings, most importantly ones known as Jordan and Antic. The House of Commons has a responsibility to ensure that the criminal code and related legislation (Bill C-75 changes a whopping 12 acts) fit with rulings by Canada’s courts. However, the political nature of their response is important, since the Liberals try to present themselves as at once humane reformers and also close to the mainstream consensus on crime (that people accused of crimes deserve anything that happens to them).
The Jordan ruling deals with how long it takes for trials to happen. The Supreme Court ruled inadequate the existing provisions for deciding when delays in getting to trial had violated a defendant’s rights. The judges imposed a solid deadline where none existed before: 18 months for cases being tried in provincial court and 30 months if it went to superior court with a preliminary inquiry.
This led to a bunch of cases being thrown out across the country because of delays. Typically, it’s in the crown’s favour to drag things out as much as possible: because of how many people wait for trial in prison and because of the restrictive bails that are the default in most of Canada (more on that later), the process is the punishment. More time waiting for trial means more people plead guilty.
Addressing the challenge of Jordan appears to be the main goal of C-75, and much of the bill tries to eliminate steps and speed things up to meet the deadlines. I’m not going to list every way, but here are a few important ones and briefly why I care.
Bill C-75 will get rid of preliminary inquiries. Prelims are trials-before-the-trial, where the crown has to actually argue their case and deal with push-back for the first time. It’s also where the defense can feel out what arguments the crown will make in order to prepare for trial or decide if it’s worthwhile. Prelims make up about 3% of all trials.
Those opposed to prelims say that since 1991 the crown has been required to disclose their case before trial anyway; those in favour say the prelim allows courts to focus on the issues and leads to speedier trials. Brilliant time savings or false economy? Depends who you ask.
Land defenders and all who resist take note: the charges against the person accused in the Junex anti-fracking occupation in Quebec were dropped following a prelim because the inflated, political charges didn’t hold up. This saved the accused land defender another year and a half of uncertainty and life under shitty bail conditions. In the G20 Main Conspiracy case, the pressure the prelim put on the crown and the police made it possible for the defendants to strike a deal they could live with rather than spend additional years awaiting trial.
Bill C-75 seeks to save time by allowing police to avoid cross-examination by giving their evidence in writing instead of appearing in court. This means it will no longer be assumed that the defense will question police on their evidence, so if a cop is saying some shit about you, your lawyer doesn’t automatically have the chance to challenge what was said. You’re going to have to ask the judge to order the cop to appear and the whole thing will get put over to a different day, probably weeks away. If you’re in custody, showing up to court means missing meals, multiple violating “searches”, and spending the day in leg shackles, in addition to how each delay keeps you in prison longer; and since the court always believes cops anyway, it’s that much easier to just say why bother.
Though it’s not yet clear exactly how, Bill C-75 will expand the use of video court for people in jail, possibly by making it mandatory in some situation. When I’m in for pretrial, I always try to go to my court dates in person, even though it’s a horrible experience. Being able to actually provide direction to your lawyer or intervene directly if you have to is a key piece of not getting railroaded by the system, even though the experience of attending court as a prisoner is so awful.
Lots of other pieces of this bill are also being sold as helping to deal with Jordan and delays, but these are three measures geared entirely towards that and they will make a big difference to those going through the system.
The second supreme court case, Antic, deals with a problem that is obvious to anyone who has seen themselves or anyone close to them charged with a crime: the way the bail system works. The second you are charged with an offense in Canada, you risk immediately going to jail for months or years, and if you are lucky enough to get out while waiting for trial, it will be with very strict conditions that are often hard to follow, and that trap people in the system.
At any given time, about 60% of everyone locked up in Canada is waiting for trial (the figure in provincial jails is much higher). There is a lot worth saying about this and how it happens: like how bail is decided by Justices of the Peace (JP) who have no accountability and don’t need to know the laws in question; how appealing a bail decision costs thousands of dollars and takes months; how most harm caused by incarceration happens in the first few days, as you lose your job and housing and experience trauma in prison. But I’ll swallow how angry bail court makes me and focus on the bill.
Bill C-75 aims at encoding in the criminal code some of the principles from Antic that would in theory restrain the ability of JPs to fill all the jail cells that they do. These are the ladder principle and the principle of restraint. To quote Bill Blair, a sadistic former police chief turned politician: “The principle of restraint’s starting point is that accused persons will be released at the earliest reasonable opportunity on the least onerous conditions appropriate in the circumstances.” If anything, it’s shocking that wasn’t already the case. The ladder principle provides a tool for meeting the principle of restraint: If the crown is asking for a more restrictive condition (for instance, house arrest), they must demonstrate why less restrictive conditions (a curfew or ‘reside at’ condition) wouldn’t meet the purpose of bail, namely ensuring that the accused shows up for trial and guaranteeing public safety.
A further element is to instruct JPs and judges overseeing bails to consider whether the defendant is from a marginalized group and specifically extends Gladue hearings for indigenous people to the bail stage. This is in recognition of the fact that indigenous people are 4% of the total population but make up a quarter of people in jail, and that other groups are similarly disproportionately locked up.
The most common reason for people being denied bail is that they don’t have a surety. Sureties are like co-signers for a loan but who agree to supervise you and who pledge a significant portion of their savings to the court should you breach your conditions. Generations of oppression manifest themselves today (among other ways) as indigenous and black people being significantly poorer than other groups, especially white people. Add in how the long-term criminalization of those communities means more people have records, routinely insisting on suretiesfor almost everyone is one big way that the over-incarceration of these groups happen.
Something like 1/5th at least of all court cases are dealing with breaches of conditions. C-75, in the interest of clearing cases out of the court, invents a judicial review process as an alternative to criminal charges should a person be caught breaching a court-ordered condition. Breaches are a whole separate criminal charge that stay even if you’re found innocent of the original charge, and since JPs can assign whatever they want as a conditions, breaching is very common. This traps people in cycles of re-offense and nominally Bill C-75 wants to make that a bit less common by reducing criminal convictions for them.
Generally, anything that results in fewer people in jail is a good thing in my eyes. Not because I don’t think we need ways of dealing with unacceptable behaviour, but because locking people up solves nothing. That said, with these reforms the power stays in the hands of JPs who, in Ontario, have so far mostly ignored the Antic ruling and continue to hand out among the harshest bails in the country. Anyone who has ever watched one of those robe-wearing assholes pass judgement on someone they love without even pausing to reflect can’t have much faith that new rules will make much difference. Further, cops love bail conditions, they love having that additional power over people beyond what the law usually provides: sure, they may use their new found discretion not to charge in some cases, but the power is still theirs.
So far we’ve seen the broad strokes of what bill C-75 intends to accomplish and dug in more detail into how it will deal with two major legislative challenges, addressing the Supreme Court rulings in Jordan and Antic. In both these situations, the state is less concerned with limiting harm done to people charged with crimes than with keeping things moving as quickly as possible and protecting the legitimacy of the system. In part 2, we’ll look at how the Liberals are moving to appear responsive to the demands of feminist and anti-racist social movements without meaningfully changing anything at all and how what some call being “soft on crime” may actually lead to more people being convicted and given longer sentences.