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New Year’s resolutions for criminal justice in Canada | Kyla Lee

Thursday, January 02, 2020 @ 10:45 AM | By Kyla Lee

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Kyla Lee %>
Kyla Lee
With mandate letters going out to ministers in mid-December, it got me thinking about what 2020 would bring for our criminal justice system. If a mandate is like a direction to ministers, could it be considered like a New Year’s resolution?

Now, I don’t have the privilege of telling the minister of Justice what to do. But I do have the privilege of this platform. And so I feel it appropriate to make some New Year’s resolutions for our criminal justice system. While they may, like most resolutions, be broken, I hope that some of these come true in 2020.

Our first resolution for 2020 should be to remember the Charter and what it stands for. At a time when Charter protections seem to be increasingly under attack, this is such an important goal for the new year. From Bill C-51’s significant changes to sexual assault law, to changes to impaired driving law that eliminated procedural protections in criminal trials and all but eliminated disclosure requirements, somehow we lost our way.

It’s true. The sexual assault reforms have been largely struck down as unconstitutional. Then, there are changes to how jury trials take place, currently being considered by the Ontario Court of Appeal. The year 2020 should bring us the reminder that an accused in a criminal trial must have the same, if not more, protections than a party to a civil trial has.

But maybe abiding by and remembering the Constitution is a little much to ask. After all, we are supposed to keep our resolutions attainable. So maybe we should start a little smaller.

Smaller changes to the criminal justice system that should be easily achievable goals for 2020 include ensuring that there is a properly funded legal aid system in place, across the country. After all, in 2019, B.C. lawyers had to strike just to get the first pay raise in over a decade. What’s happening in Ontario is shameful, but Alberta is doing no better. And all of this is quickly fixed by one simple solution: more funding to legal aid.

If only my personal New Year’s resolutions were as easy to keep as to pay for them. So this one should be a gimme for the government.

And since checking off the fully funded legal aid box on the resolution list should build sufficient momentum as to inspire government to take action on the third resolution, I suggest this. Resolve to ensure that reasonable positions are taken on bail and sentencing.

I know, that seems like it’s asking a lot. But it’s really not. It’s really just bringing to life what the Supreme Court of Canada coyly suggested in Jordan, way back in 2016. After all, eliminating delay starts by ensuring that matters that do not need to run do not run. Tying up judges with bail hearings and 90-day reviews prevents trials from moving forward. Similarly, running trials on matters that could resolve if reasonable positions were taken by Crown frees up court time for the more serious cases.

We’re moving into four years post-Jordan, and while delay and the courtroom chatter about whose fault any delay after an appearance is may have increased, the other shoe still has not dropped.

So it’s time to put that into action.

Three resolutions. One easy, one medium and one difficult. But all of them important and all of them resolutions that will bring us to the end of 2020 with a much more effective, efficient and fair justice system. And isn’t that what we all want, after all?

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.

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