Senior criminal defence lawyers are raising the alarm over Supreme Court of Canada Chief Justice Richard Wagner’s suggestion of amendments to the Criminal Code — an action they warn could put him in a conflict.
Senior criminal defence lawyers are raising the alarm over Supreme Court of Canada Chief Justice Richard Wagner’s suggestions for amendments to the Criminal Code — an action they warn could put him in a conflict.
Justice Wagner co-chairs a COVID-19 court response committee with Attorney General and Justice Minister David Lametti.
The committee is getting ready to release national guidelines to allow courts to resume full operations after restricting their operations due to physical distancing measures brought on by the pandemic.
“The Chief Justice being the most senior judge at the apex of the Canadian criminal justice system weighing in at this juncture and providing his imprimatur, as it were, on proposed changes is unusual to say the least,” said Adam Boni, a Toronto-based senior criminal defence lawyer.
“These very legislative changes, if they occur, could very well be subjected to challenge under the Canadian Charter of Rights and Freedoms, and the Supreme Court of Canada could very well be called upon down the road to adjudicate on the issue of their constitutionality and whether they can continue and should continue, and whether they should have been enacted in the form they were at the time.”
While each province and territory governs how its individual courts run, Wagner told CBC News in an interview last week the Criminal Code is the main avenue for the federal government to make changes because it regulates how in-court jury trials are conducted — how juries are selected, the number of jurors and the rules of conduct.
Wagner said amendments to the Code could allow judges to hear cases in different regional jurisdictions and permit the introduction of evidence through video conferencing.
Wagner also said it has been suggested that his committee consider recommending a reduction in the size of juries — cutting them from twelve members to six, for example.
“Those are more serious amendments that would need to be considered properly with proper discussions and consultations,” Wagner said.
“But there are various types of amendments that could facilitate the holding of trials in the future.”
John Struthers, president of the Criminal Lawyers’ Association, said a chief justice calling for politically charged legislative changes, which could contravene the Charter, is highly problematic.
Smaller juries controversial
Struthers and other criminal defence lawyers said they are open to changes to improve the way the j