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Death of Due Process and Limits to Full Answer and Defence

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Joseph Neuberger, Neuberger & Partners LLP

Criminal Defence Lawyers


Effective September 19, 2019, the Liberal government struck a blow to due process in the name of political correctness.  Recent amendments to the Criminal Code as amended by Bill C-75 have eliminated preliminary hearings for any offence with a maximum penalty under 14 years of imprisonment.  The government professed that this was to modernize the criminal justice system and to speed up cases due the Supreme Court of Canada’s decision in Regina v. Jordan.  However, continued reading of the debates clearly show that the main impetus was to spare “victims” of sexual assaults from having to testify more than once. In fact, the language used is “re-victimization of victims”.

This language presupposes guilt.  A victim is only a “victim” once a court has decided guilt of the accused beyond a reasonable doubt. It seems the federal government believes that any complaint is true, and the person charged is guilty prior to trial.  This is very dangerous language in a democratic society.  According to this government, any person accused of sexual assault or domestic assault is guilty.  Shame on the government for throwing away due process and enacting amendments that can and will lead to wrongful convictions.

A preliminary hearing is to protect the accused from needless expenses and exposure, where the evidence justifying the criminal charges is not present. In addition, when used efficiently an accused has the right to call witnesses at a preliminary hearing especially when the investigation by police has been wanting.  This is a very powerful mechanism to shed light on the truth and to protect persons from being convicted where the evidence of guilt is absent.

Many if not all criminal defence lawyers have used preliminary hearings effectively in sexual and domestic assault cases. I have called witnesses when police failed to take proper statements and these witnesses exposed that the complainant intentionally fabricated the charges.

Now, an accused must go directly to trial and have no preliminary hearing that would have significantly benefited the truth-seeking principle in the criminal justice process.

In addition, Bill C-75 has expanded the jurisdiction of the provincial courts to offences punishable up to two years less a day. We can be sure that in many instances when a case would previously proceed by Indictment and an accused could be tried by a judge and jury,  Crowns Attorney’s will elect summary conviction and an accused in serious criminal cases will no longer have the right to a trial before a jury of his or her peers.

It seems that political correctness has given way to the slashing of rights in this country and anyone accused of offences punishable under 14 years of jail must now be very vigilant to ensure that their rights are protected as much as possible because the loss of the preliminary hearing is not only a sad day for due process but a blow to ensuring that people are not unfairly subjected to trials on criminal allegations that have no merit.

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