Evidence of meeting #2 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was bagby.
A recording is available from Parliament.
11:50 a.m.
As an Individual
The murder took place on November 5, 2001. She fled on November 12, 2001, and she was formally charged about two weeks after that. So there was no arrest warrant for her until November 29, 2001, I think.
11:55 a.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Right.
Let me explain, so that things are clear.
As a criminal lawyer, I have defended people like those whom you described in no uncertain terms a little earlier. I understand your pain and I respect it, but the law in Canada has changed. In fact, a person who has committed a murder cannot be granted bail unless he shows that he is worthy of release. So it is the accused who has to show that, under section 515 of the Criminal Code.
In murder cases in Canada, people are certainly released on bail. I could send you statistics about that. There are repeat offences, but, for murder, these are few. Those cases are unacceptable. Courts have to take appropriate steps so that there are no repeat offences. If there is the slightest doubt, a court keeps the person in custody. That part has fundamentally changed.
That is why I asked myself these questions. I have looked carefully at the amendment to the Criminal Code you are proposing. That is why we are going to vote for it. Henceforth, when children are involved, there will be questions for the accused. Now, the proposed amendment deals with minor children.
Would you go as far as to protect unborn children? That is a problem. We are going to protect minor children, but what do we do about unborn children? I do not know if you have views about that, but, if you do, I would like to hear them.
11:55 a.m.
As an Individual
I'm not sure I'm the one who should try to answer that. Mr. Andrews has proposed a bill that addresses the protection of children, but I propose to protect the entire population of innocent people. Shirley Turner could have just as easily killed Kate, me, or anyone else who angered her. So perhaps I'm the wrong person to ask that question of, because I would expand it to include everybody. But if you're going to stick to children, unborn children should be covered by this too.
In fact, way back at the beginning of this we made contact with the district attorney in Pennsylvania and asked, “If the extradition happens quickly and she's pregnant, what will happen?” He said that women deliver babies in jail all the time. It doesn't happen every day, but it's not rare, and there is perfectly good delivery care in jail. So if you're pointing on that line, I would include unborn children.
You said that people accused of murder now aren't released. How far back are you going? Ray Newman in Newfoundland was released on bail several weeks ago, and he's accused of murdering his wife. I'm not sure what you mean.
Noon
Conservative
The Chair Conservative Ed Fast
We're at the end of Mr. Lemay's time, so we're going to move on to Mr. Comartin right now.
March 16th, 2010 / noon
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Are the justice people going to be available to answer some questions? I have a concern similar to Mr. Lemay's in terms of the applicability.
Mr. and Mrs. Bagby, I think everybody sitting around this table, and I think all Canadians, can have only some sense of the pain that you've been put through. As you heard from Mr. Murphy, there's unanimous support for this bill, so it will go through. I understand from Senator Banks that a similar result will occur in the Senate, so it will go through.
Mr. Andrews, I have a question for you with regard to the second amendment that's being proposed, which is that after royal assent it not come into effect for 90 days. There are times when that's appropriate, when our judicial system and prosecutorial system and police, the criminal justice system generally, have to be prepared. I can't see that here. Have they given you any explanation as to why they want to wait 90 days as opposed to it coming into effect immediately?
Noon
Liberal
Scott Andrews Liberal Avalon, NL
No. After introducing the bill, I consulted with the minister, and they made two points. One was on the definition of minor children, which is addressed in the amendment, and the other was that this is a normal practice in the legal community. I'm no lawyer, so I would lean on your advice on that particular point that normally they give 90 days so the courts and everybody can adjust to the change in the legislation. That's as much as I know. That was the response I got.
Noon
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Is it appropriate for us to ask questions of justice officials now or do you want us to wait until the...?
Noon
Conservative
The Chair Conservative Ed Fast
Thank you.
We'll move on to Mr. Dechert.
Are you splitting your time with Mr. Norlock?
Noon
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
First of all, Mr. and Mrs. Bagby, I'd just like to say how sorry I am that this tragedy happened to your family. On my behalf and that of my colleagues and everyone here, I'd like to express our deepest condolences and sympathies to you for your loss.
Mr. Andrews, I'd like to commend you and thank you for bringing this bill before Parliament. Far too often, in the partisan nature of this place, we lose focus of the jobs we are sent here to do. It's my view that one of the paramount jobs we're sent here to do is to enact legislation that protects our communities, our families, and especially our minor children. I think this amendment to our Criminal Code is long overdue. I want to thank you for bringing this forward. I think this is a perfect example of the sort of thing that can happen when all parties work together for the benefit of all the people we represent.
As you know, our government has worked very hard to revise our criminal justice legislation to ensure that our families and our communities are protected, as evidenced by the announcement by the Minister of Justice earlier today of some proposed amendments to the Youth Criminal Justice Act, which I hope will also be seen by all parties in the same light.
I'd like to ask you to describe for us, if you can, how you believe this change to the Criminal Code of Canada will ensure the protection of our youth.
Noon
Liberal
Scott Andrews Liberal Avalon, NL
Thank you, sir.
One of the things that got me in this job, being a new person and on the job for less than 16 months, is that we're flooded with so much information. So many things come across our desks.
In particular, we all look at things in our own home province. I had the opportunity to see this documentary. I knew the story and I knew what the Bagbys had gone through, but when I went out and took in the documentary--and we get asked to view many things and hear many stories--it did have a profound impact on me as to how we could change things. By working together, by making sure we gather all-party support on things, and by compromising, we can move forward.
I thank you for those comments. I just wanted to add that. That's why I brought this forward.
With respect to protecting children, we need to give the courts and the justice system the ability and the tools they need to deny bail in order to protect children. We need to have that ability. The courts need to do it. We cannot do it alone as parliamentarians. We have to rely on our judicial system, our public prosecution, and our lawyers. They need the tools to do the job. In this particular case, I just saw this as one opportunity to change the law to give them the tools they need to do their job in denying bail.
12:05 p.m.
As an Individual
When we were in Newfoundland, Judge Hall, who was letting out another person on bail for murder, said he knew there were people in the audience who didn't approve of this action but that they'd have to go to Parliament, that it was Parliament's fault that judges make these decisions. So that's why we came.
12:05 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
We'll move on to Mr. Norlock for three and a half minutes.
12:05 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you.
Thank you very much, witnesses, for being here—in particular, of course, Mr. Andrews, and more specifically, Mr. and Mrs. Bagby.
I have only three minutes and there are many things I would like to explore with you. The first one is that, quite frankly, I agree with your five points, and in particular, the point that murder is not just another crime. Actually, you have to live with the people who have experienced murder and/or any crime in their residence--sometimes it's just a break and enter into a person's residence. As a police officer, I saw time and time again where people could not live, or found it difficult to live, in their home because someone had broken into their home. They never felt secure after that. Their children cried at night.
The court system, I have to say, is moving towards listening more to victims, but I believe it needs to move a little bit further on caring about the victims, and in particular the victims of murder, because people live with it.
I have to apologize in a way, but I guess I don't in another way. I have mixed feelings about your coming here today, because you have to relive and keep reliving this. But I think when you go to bed at night, you know that it's part of your closure, that you're doing something about a tragic thing that happened in your family.
In terms of our justice system, although it has many warts and blemishes, I believe it to be one of the best in the world. As police officers, we were constantly reminded by crown attorneys and other lawyers that our system is based on the fact that better ten guilty people go free than one innocent person be convicted. I think we need to begin to look at that in terms of different crimes. There should be a different weight put to that thought.
Lastly, when I look at this committee, when I look at a Canadian looking at our committee, listening to us, finding out where our heads are at when we try to change the law, or if I were reading the results of this hearing or reading the testimony...I'd like to know as a Canadian why the justice gave the person bail.
Can you recall the reasons given for the person being released on bail?
12:05 p.m.
As an Individual
You mentioned the famous quote about “Better ten...”, right? There was a great counter I came across while researching my book. Some theoreticians or jurists or whoever said essentially--I can't remember the exact quote and I will paraphrase--that any way you turn it, it's still ten times the number of errors. Wrong is wrong. If a decision is wrong, either way, it's still a wrong decision.
Why was Turner released on bail? In a nutshell, Judge Gale Welsh, in her written decision, stated--and Kate paraphrased it a while ago too--that her crime, while violent, was specific in nature. That's a quote--“specific in nature”. It meant that if she did the crime, she's already killed the person she meant to kill: Andrew Bagby. He's the one who really angered her. That does not imply that she's a threat to anyone else. That was her fundamental logic, as I interpret that phrase “specific in nature”. She also stressed that presumption of innocence applies.
My counter to both of those is that presumption of innocence is a very important principle in criminal law, in my opinion and apparently in the opinion of almost anybody who thinks about it, at least in the western world, but it has been stretched to ludicrous extremes. There ought to be some middle ground where precautions can be taken if someone is probably a killer but has not yet been determined to be a killer beyond a reasonable doubt.
Of course, I propose a blanket rule, but it could be somewhere in the middle, such as a halfway house. If you're accused of a violent crime, you go live in a halfway house where you have a lot of freedom and your friends can come see you, but you can't walk out of there and do it again. If you do walk out of there, then you go to a real jail.
I don't know; I'm making this up half on the fly. The point is that there ought to be a way to protect the truly innocent against the probably guilty until you get to the stage at which it is beyond a reasonable doubt at the trial.
12:10 p.m.
As an Individual
I would like to add that we were amazed when we first heard that Turner had been arrested under warrant and within hours was released. The crown prosecutor and her lawyer went into that courtroom with an agreement already made. It had $100,000, which they could not raise, so that was crossed out, and $75,000 was put there. The crown prosecutor didn't even say it. He just said that she could have bail.