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  • Olive Kofison (law student)

The Flaws of the Criminal Justice System—A Law Student Perspective as a Hopeful Aspiring Criminal La

This blawg entry is written by a second year Law Student at Robson Hall—reflecting on the inherent issues surrounding the Criminal Justice System, as well as contemplating what does soon graduating from law school look like for individuals who are interested in Criminal Law?

The purpose of addressing such problems is to reflect on some reoccurring themes I have struggled with throughout my education and feel that will continue to be ongoing issues as students soon become lawyers. First, I will address the much needed remodeling that is necessary of the Criminal Justice System. This is discussed to question whether the option of diverting matters to alternative measures is the correct method to affect change. Second I will discuss, the current issue of trial delays relating to section 11(b) of the Charter. Third, I will discuss the embedded and permeating problem of Indigenous individuals overrepresentation in incarceration in the Criminal Justice System.

The Criminal Justice System is undergoing a much needed overhaul in relation to delays in criminal trials, as well as attempting to implement more programming that essentially would divert more criminal charges.i The proposed solution of diverting more charges at first blush seems like an excellent decision, especially when framed as “this is about creating safer communities, it’s about creating better access to justice”. ii Access to justice has been a hot button phrase in Canadian legal circles. When the news centers their focus around creating better access, the view to Canadians is that a solution is on the horizon.

In reality, regarding matters that are diverted, one can question whether the individual should have been charged in the first place.

One avenue to question in this regard is Zero Tolerance Policies for domestic violence assaults. Zero Tolerance policies can result in both the abuser and the victim being charged when police are called about domestic violence. This in essence leads to a re-victimization of the victim, who now may have to go through criminal proceedings. Although the view of diverting matters to programming causes both society and law students alike to question “well who would not benefit from a bit of counselling”iii, should the individuals have been charged in the first place? If the Crown allows the matter to be diverted, if the client agrees to programming or if they can afford to pay for some expensive programming and complete said programming, the result is that the charge is dropped. A common occurence is when Diversion Letters are out while a matter is in Pre Trial Court, without the client even having an understanding of the process nor having the financial funds to pay for the program. Law students , nonetheless, also cite diversion as “the best possible outcome for individuals because with sending a matter to trial there is no guaranteed result”.iv

Principally, I will agree that diversion programming offers an opportunity to clients that provides good results, if completed. What I again question, is whether charges should have been laid in the first place. Another issue, not discussed in the media, is what is the cost of aforementioned programming?

What also needs to be discussed is the difficulty of obtaining employment, even with a stayed charge. Employers often ask potential employees the question “have you ever been convicted of a crime” as well as “have you ever been charged of a crime”. In situations where domestic violence charges have been diverted, individuals are left with the choice of lying on employment applications, or with the probability of being rejected for employment opportunities. The Manitoba Prosecutions for the Provincial Crown does have a Specialized Unit that processes domestic violence claims. But is that enough? Some Canadian cities have specialized domestic courts.v In areas which have specialized courts for domestic violence, these courts recognize that without such an integrated mechanism families are left with some of their matters in the criminal justice system, while their other matters are in the family justice Without an amalgamated system, families are left with significant financial strain from two different types of court proceedings, and there often exists duplicated decisions vii. As a law student, I echo fellow students who suggest diversion as the best possible outcome, but I also question what that means for clients. Clients who are not equipped with legal assistance to help them with their family law matters and clients who are not sure about their future employment in such a situation will be affected.

Critics such as Martin Friedland while reflecting on Criminal Justice Reform in Canada historically find the system to be just as “ineffective, inequitable, and inconsistent” when compared with the past 50 years of progress.viii Friedland mentions numerous causes for such problems as: large numbers of individuals being held in custody pending their trial; police opting out of their ability to allow for release; while justices of the peace’s require strict guidelines such as sureties.ix The last critique Friedland lists is being that of the rising number of reverse-onus provisions that the Criminal Code now places on individuals in regards to release.x At the end of the day, the Criminal Justice System changes at a glacial pace, leaving those charged often in limbo. As a form of electoral campaigning politicians suggest new solutions to change the system, meanwhile it is debatable whether the newest diversion focused lens is the answer.

Clearly, the Criminal Justice System in Canada is flawed. What is more troubling is the recent decision of R v Jordan. There is no real debate to be had, section 11(b) of the Charter outlines that “any person charged with an offence has the right to be tried within a reasonable time”. The heart of the issue becomes the arbitrary “presumptive ceiling” created from Jordan in which there is a pre-determined length of time for a criminal court matter to take. As somewhat of an activist, I stand behind the Charter along with the decisions set out in both Jordan and Cody.xiii There should be a maximum fictitious limit that criminal matters are heard within, again with reference to section 11(b) of the Charter.

The issue I take with the presumptive ceiling is the effect that it is having on the justice system as a whole. There is a saying, maybe, that any change is good change. Truthfully, the cases of Jordan and Cody are the the state responding to delays by implementing ideas such as more diversion, without mention of where the financial assistance is coming from to run such programs. Our system requires more. The Criminal Code of Canada is modified continuously, but there has been no true restructuring of the Code in a long time.

Interestingly enough, the Federal Government of Canada recently tabled new legislation that is thought to address the issues of delays. The bill recently introduced proposed to amend the Criminal Code in the following ways:

“(1) get rid of peremptory challenges of jurors and change the way juries are selected; (2) increase the maximum sentences for repeat domestic abusers;

(3) restrict the use of preliminary inquires to serious offences;

(4) change the way to handle offences such as failing to appear or breaching release conditions; and

(5) remove parts of the Code that have been found unconstitutional.”xiv

Carissima Mathen, a University of Ottawa law professor commented that “the bill could tackle the issue of judicial delays…but the federal government doesn’t have control over the criminal justice system since it’s administered by the provinces”.xv Bill C-75 sounds promising, but the inherent issue of division of powers, and true implementation of such drastic changes are yet to be known. Undoubtedly, Jordan is having an effect on the Federal Government, not just individual provinces. CTV’s article on Bill C-75 later highlights cases in which unreasonable delays have let off individuals charged of first-degree murder or child abusers. What is left unstated in the media remains the Charter rights of those individuals accused of crimes, nor is there any mention of the presumption of innocence or how such delays impacted the individuals charged.

What else is left unsaid in the media, by lawyers, or individuals accused of crimes? Two things come to mind, first is Indigenous Overrepresentation in the justice system. R v Gladue xvi was decided in 1999 while R v Ipeelee xvii is more recently decided in 2012. Yet, statistics show that Indigenous Overrepresentation continues to rise, instead of decrease. Carolina Repila quoted statistics from the Public Safety Canada Portfolio Corrections Statistics Committed that “offenders who are Canadian Aboriginals, as opposed to non-Aboriginal Canadians, tend to get into the legal system at a younger age, stay in prison longer, and are placed in medium or high security jails”.xviii In the Criminal Code section 718.2(e) specifically states that Aboriginal offenders should be given all other reasonable sentences, instead of incarceration.xix Again, promising legislation, or government action taken to appear as though change occurred. Yet Indigenous overrepresentation in incarceration continues to be a ubiquitous Canadian problem.

Second, tied into the problem of Indigenous overrepresentation is the utilization of guilty pleas. Carolina Repila mentions that Indigenous individuals are also more likely to plead guilty to crimes, whether they committed them or not.xx Repila referenced the Report of the Aboriginal Justice Inquiry of Manitoba,xxi which recognized reasons such as the inability to afford bail, the risk of losing their jobs, homes and children’s custody as explanations why Indigenous individuals often take the early plea deal. Are Indigenous individuals taking early plea deals because legal aid funding is so scarce that they are not even eligible to be funded? The financial maximum for qualifying for a criminal matter in Manitoba in a family unit of one size is $23,000.xxii The maximum slowly increases with family size, but ultimately only exists for individuals in extreme poverty.

Criminal law and justice has transformed over the years with substantial societal perspectives being at the forefront of change. But there still exists deep-seeded perceptions of individuals interested in Criminal Law. As a law student, I try to learn as much as I can, but I know there is still a lot to learn. I enjoy having discussions surrounding the law as well as hearing other people’s divergent perspectives. What troubles me about to be criminal lawyer/law students perceptions is the ideals that people become so invested in one position. They do not take the time to learn both perspectives, even though as a law student we are encouraged to put ourselves in the other persons shoes, thinking of an ‘in the alternative answer’.

One example that comes to mind is individuals who are interested in Criminal Law but only want to work for the Crown Prosecutors. I tend to air on the side of caution of thinking so definitively, but their reasoning often rests upon not wanting to represent ‘criminals’. To this day I still fear for those people, especially since some of them will likely become Crown Prosecutors. This fear is not unfounded, when people go into a profession with these negative connotations about the ‘accused’, I think the idea of justice goes out the window. The ingrained issues with the justice system will undoubtedly be missed or ignored when people do not turn their minds to other standpoints. Thus, the fear I have rests upon the fact that those individuals will not seek change, they will not advocate for the public interest but embody something different.

One further illustration rests upon a contentious article written by Bruce Pardy. I am not taking a position on his article or writing style as a whole but only suggest the reality of one statement “inside today’s law schools, expressing dissent on politically correct initiatives can earn you scorn and contempt”.xxiv I reference Pardy only to highlight the point that we as law students should be able to hold opposing views to engage in a dialogue of varying perspective without such scorn and contempt.

To end on a positive note, I wanted to reflect on the multitude of inherent problems with the justice system as a law student interested in criminal law, because I think it is important to recognize the flaws. While at the same time, not losing sight of what has to change within our system. Often individuals enter law school with the perception that they will change things, but the reality of student loans, life responsibilities and the substance of finding articling or job prospects afterwards changes people. Those who initially wanted to advocate for injustices often become jaded by criminal law, and the ability for people to actually affect change. Individuals in the justice system often rely on legal aid certificates or minimal means. Who has the time or money to see justice go to the Courts of Appeal, never mind the Supreme Court?

I briefly cited fundamental issues of the justice system, because I do not want to be one of those individual’s that loses sight of the bigger picture. Law reform although promised to Canadians, is not likely to happen any time soon. The truth of the matter is that the solutions offered both by the Federal and Provincial governments often are band-aid solutions that do not resonate or stick.

In the real world though, with a specific focus on the Canadian’s justice system, something has got to give. More change than suggested, is required. As a student interested in Criminal Law, I cannot lose sight of the advocate I want to become.


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