Ottawa police and prosecutors were given a new power to unclog the court system. They’ve barely used it

June 17, 2021

Earlier this month, the Ottawa police disclosed they have used a law designed to unclog the court system and encourage racial equality in the justice system just four times in the two years the law has existed.

It turns out giving prosecutors and police greater discretionary powers is a bad way to fix a broken legal system, especially when these powers are never used.

In 2018, as part of a bill that promised to modernize and transform the Canadian justice system, the Trudeau government introduced judicial referral hearings to divert people accused of minor administration of justice offences, like bail breaches, from the traditional court process. These hearings allow the police or a prosecutor to bring the person’s file before a judge to review the individual’s bail conditions instead of charging the accused with a new offence.

Despite violent crime generally decreasing throughout Canada, the number of individuals charged with minor administration of justice charges has increased. Judicial referral hearings were proposed to limit the prosecution of these offences which overburden our criminal courts.

Accused people are often released on overly restrictive bail with house arrest or curfew conditions, prohibitions on drinking, and limits on where they can go or who they can contact. Many times, accused persons are unable to abide by these conditions, but agree to them to avoid pre-trial detention. Sometimes these rules make sense, but too often they are imposed unnecessarily. Innocent people, including a disproportionate number of poor, racialized and marginalized people become trapped in a revolving door of criminalization.

A curfew for an accused who does not have stable housing is a recipe for a bail breach. A condition prohibiting the consumption of alcohol sets an alcoholic up for failure. A requirement to open your door for the police can be a scary thought for a young Black man who lives in an overpoliced neighbourhood.

This is the problem the government was seeking to address through its new judicial referral diversion process.

When introducing the new diversion power, then-minister of justice and attorney general Jody Wilson-Raybould said judicial referral hearings would “substantially increase court efficiencies.” Liberal MP Arif Virani said the law would “address a specific problem in the system, which is the overrepresentation of marginalized communities within the criminal justice system.”

Of course, none of these objectives will be achieved if police and prosecutors choose to never use their new power.

Unfortunately, this was an outcome foreshadowed from the day the justice bill was proposed. Experts and front-line workers tried pushing the government to decriminalize minor bail breaches or at least make judicial hearings mandatory.

However, the government maintained its tough-on-crime mentality. Judicial hearings would be available, but not mandatory, and used at the discretion of the police or prosecutor.

Granting more discretionary powers to police and prosecutors — the same individuals routinely imposing overly strict bail conditions on accused persons and over-prosecuting minor level offences — was never going to be a solution to Canada’s bail problem. Criminalization does not protect communities — it destroys them.

Given the Ottawa police’s apparent reluctance to use discretion to divert minor bail breaches, it is even more alarming the federal government has doubled down on discretion as a solution to serious problems.

In answer to the growing cries for drug policy reform and in the midst of a deadly opioid crisis, the government’s preferred solution is not decriminalization, as suggested by the experts, but granting the police discretionary diversion power for drug offences.

If police and prosecutors are not using discretion to divert bail breaches, why would they use it to divert drug offences?

The real solution is not to give police more power, but to take it back.

Diversion for minor bail breaches should be mandatory. There are too many innocent people in jail, our court resources are stretched thin and our justice system continues to disproportionately criminalize Black and Indigenous people. Tinkering around the edges of the legal system is not enough.

The fact the Ottawa police have only used judicial referral hearings four times is a damning revelation that harms the administration of justice and our community.

This opinion first appeared in the Ottawa Citizen