Bill C-464 (Historical)

An Act to amend the Criminal Code (justification for detention in custody)

This enactment amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused’s minor children.

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 53 of the Standing Committee on Justice and Human Rights. Today is Wednesday, December 9, 2009.

You have before you the agenda for today. We'll be dealing with a number of issues. We'll begin by completing our review of Bill C-52.

We expect to go to clause-by-clause on this bill at our first meeting in the new year, on Tuesday, January 26. Committee members may want to take note of the fact that our meeting schedule in the new year has at least tentatively been changed to Tuesday and Thursday, not Monday and Wednesday, so our first meeting would be on January 26.

We have with us today a number of additional witnesses on Bill C-52. Then we'll move on, in our second half of the meeting, to hear Mr. Scott Andrews, who is the sponsor of Bill C-464, an act to amend the Criminal Code (justification for detention in custody).

At the end of our meeting, we'll undertake some committee business. It shouldn't take long. There are two items, and hopefully we'll get through those. I've asked the clerk to distribute a copy of the steering committee report, together with the budget for our travel to Winnipeg and Edmonton, so that you can review it ahead of time and so that we can deal with it in an expeditious manner at the end of this meeting.

Now we'll move to our review and consideration of Bill C-52. As listed on the agenda, we have a number of individuals as witnesses. We have Janet Watson, Mike Miles, Melanie Johannink, and Larry Elford. We also have, representing the Earl Jones Victims Organizing Committee, Joey Davis. We have, representing the Investor Recovery Pool Committee, Brenda MacMillan. We don't have someone from the Department of Justice yet. They may be coming.

In any event, we'll move forward with our witnesses. I think each of you has been told how much time you have to speak. Perhaps we'll start as listed on the agenda.

Ms. Watson, if you would, please start.

Criminal Code

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to speak to Bill C-464.

I must admit that this is a very touching story, one that I remember from the past. When I heard that this bill was coming up, I read the background and I wanted to be here today to support the member for Avalon in his efforts.

All too many times we have extremely good causes in the House and we get bogged down on parts of an issue and it does not allow us to get results. I am hopeful that all members in the House will support this bill. I understand Bloc members are in support of it. The NDP caucus supports this bill. I am not 100% sure about the government side. I note that the member for Kildonan—St. Paul asked a question at the beginning of the debate, and I think she is a good supporter of issues such as this one. The member for Avalon may be on the verge of getting unanimous support of the House, but I do not want to prejudge it. It certainly would be a good development if that were to happen.

In terms of the background of the bill, Bill C-464 is the result of the MP for Avalon taking the initiative in co-operation with Senator Tommy Banks. The member needed a senator to sponsor his bill in the other place. This bill is also the result of the determined efforts of Kate and David Bagby.

In 2001 Dr. Andrew Bagby was murdered in a Pennsylvania park. At that time police in the United States questioned Dr. Shirley Turner of Saint John's, Newfoundland about the murder. Soon afterward, Dr. Turner returned to Newfoundland and made known her pregnancy with the child of the late Dr. Bagby. Court proceedings followed. Dr. Turner fought to stay in Canada. Zachary was born. Grandparents Kate and David Bagby actually moved to Newfoundland to file for custody of Zachary. That was about the time that a lot of national coverage began on this story. During the court proceedings, Dr. Turner was granted bail and Zachary remained in her custody with the grandparents being given supervised visitations.

On August 18, 2003, Dr. Turner took her own life and the life of baby Zachary. While on bail, Dr. Turner jumped into the Atlantic Ocean at Conception Bay South, Newfoundland with Zachary and both died.

Since that time, Kate and David Bagby have been presenting their story and seeking reform of bail legislation. In addition, their friend and filmmaker has prepared a documentary entitled, Dear Zachary: a letter to a son about his father. This documentary has played throughout Canada and in the national media. The sponsor of the bill has indicated that he will be releasing copies of that film.

The MP for Avalon has pledged his support to the Bagbys. He has also committed to bringing about legislative reform within the Criminal Code that would hopefully strengthen bail requirements to achieve a common goal so that no one would have to witness and live through the devastation of losing loved ones through circumstances later determined as preventable. That is what this case was all about.

Dr. Peter Markesteyn is a friend of mine. I have known him for years. He conducted a review and investigation of the circumstances surrounding the death of Zachary in 2003. Dr. Markesteyn made two key conclusions, that Zachary Turner's death was preventable and that Zachary was in his mother's care when he should not have been.

This is a very important piece of information to lead us to make a determination that certainly in cases like this the child should not be in the care of the individual. My colleague from Newfoundland pointed out that child and family services should have played some sort of a role in this situation.

In 2001 a criminal case unfolded in Newfoundland and Labrador, Turner-Bagby, and provided sound rationalization for Bill C-464.

There are some other points that should be mentioned. The decision to deny bail to an accused may be appropriate for the intended protection of the rights and safety of minors in the custody of the accused. We can split hairs here and get into all sorts of arguments. Each case will obviously be judged on its merits. I can see arguments being made about one case being different from another, and how some people believe they should have custody when they are accused of a murder.

In addition, judicial decision makers must be attentive for the necessity of protecting minors who remain in the custody of individuals charged with serious offences. In this case the charge was murder. I cannot think of a more serious charge or serious circumstance where action should have been taken.

Hindsight is always perfect and it is easy for us to look back on a situation and say that if only we had done this or that, then the result that happened would not have happened. Unfortunately it is very difficult for this to occur. At a certain point we have to simply draw a line, make a decision and follow it.

In addition, the protection and safety of minors remaining in the custody of individuals charged with serious crimes has to be considered during the bail hearing procedures.

The enactment amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children. I am not certain at the end of the day whether that should be the end of it or whether or not it should include more than just the accused's children. There may be other people who may be at risk in this situation. That certainly is part of it.

I know that while Kate and David Bagby are supportive of the member's bill, as my colleague, the member for St. John's East pointed out, initially they did want more restrictive bail measures, but at the end of the day, they are happy with what is in this bill. Presumably when the bill gets to committee, we will hear from the Bagbys and we will get a better bearing of where we are.

I understand my time might be getting short, but I am not sure how short. Madam Speaker is indicating 25 seconds.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I am pleased today to have an opportunity to speak to Bill C-464 standing in the name of the member for Avalon. I want to thank the member for his work on this legislation and bringing it before the House.

I am here to speak in support of the bill. We support the changes to the Criminal Code provisions on what is known as judicial interim release or bail which are found in section 515 of the Criminal Code of Canada: “The detention of an accused in custody is justified only on one or more of the following grounds:”.

The grounds that we are dealing with here are set out in the bill:

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence,--

And the additional words are added as follows:

--or minor children of the accused, having regard to all the circumstances--

As the member from the Conservative Party has pointed out, the provision for bail is a charter protection, that someone charged with an offence has the right not to be denied bail without just cause and these are the provisions that set out what the just causes are, the protection of the public of course is one of those.

As the member for Avalon has pointed out, the bill came about as a result of the efforts of Kate and David Bagby, the grandparents of a young child, Zachary Turner, who was killed by the child's mother whose name was Dr. Shirley Turner, who in killing herself also took the young infant child into the waters of Conception Bay, drowning both of them.

This case was a most heart-wrenching case that I have heard of in terms of a young child. The circumstances were such that the only son of Kate and David Bagby was a medical student at Memorial University in St. John's, along with Dr. Shirley Turner. They both graduated. They had a relationship. Zachary Turner was a child of that relationship born after Dr. Andrew Bagby was shot and killed in a park in Pennsylvania. Shirley Turner was then charged with an offence and the United States government was seeking extradition. While that was ongoing, Dr. Turner applied for and received bail from the Newfoundland Supreme Court.

It was during the bail proceedings, while she was released from bail, that she in fact killed herself, drowned herself and the young child, Zachary Turner.

The case of course was most heart-wrenching. One could only admire and respect Mr. and Mrs. Bagby. It is most difficult to explain in words the feelings after watching this case. Mr. and Mrs. Bagby came to Newfoundland numerous times throughout these proceedings to try, even after their son had been murdered, to build a relationship with this baby infant Zachary for whom they spent all of their time and energy trying to save, nurture and develop a relationship, even knowing in their minds that the person who they were dealing with had murdered their son. This was never proven in court but the extradition proceedings were ongoing.

David Bagby wrote a book about the experience and about all of the efforts that they had made to seek changes to the bail law. As the member for Avalon knows, what they would like to see is that anyone charged with first degree murder not be given bail at all.

That is not what the bill says but what the bill does say, and I think it is important that the bill be passed and we will be supporting it, is that in considering whether someone should be released on bail, that the protection and safety of the minor children of an accused ought to be taken into account.

This case was perhaps a failing not only of the judicial interim release provisions but perhaps also of the child welfare authorities, which I think were criticized in the report that was done a couple of years later.

However, the passion, the concern, the devotion, and the commitment of Kate and David Bagby, I think, was astounding and memorable. I have had several conversations with this couple in my capacity as a member of the House of Assembly of Newfoundland and Labrador and assisted in advocating for some of the reports that were done.

The change here would require a justice to take into consideration, in looking at the bail provisions, the necessity for detention in relation to the protection or safety of the public, including the minor children of the accused. So, where there are minor children involved in a situation, the situation of those minor children, the safety of those minor children, the possibility that some harm might come to them has to be, and can be, taken into consideration by a court in denying bail.

If this change can serve to save the life of a minor child in the future, this would be a very positive step. We support this legislation and seek to have it brought to committee.

I have no doubt that the committee will likely hear from Kate and David Bagby, who have devoted a lot of their efforts and time in a most painful process, but one that they feel very strongly about, in terms of trying to bring about changes to the bail laws in Canada. They are American citizens, but they have seen this as a cause that they have taken on.

I am pleased that the member for Avalon has brought this bill forward. We will be supporting it at second reading, and we hope that the committee will consider it favourably when it is sent there.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Madam Speaker, I am pleased to rise today to speak to Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), a bill introduced by the hon. member for Avalon.

I would like to begin by saying that I will be voting in favour of the principle of the bill, which amends the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children.

As we have already heard, this bill is meant as a legislative response to the tragic events of the Bagby-Turner case. A woman, who was charged with the murder of her spouse in the United States and was out on bail in Canada, killed her son in a murder-suicide after she realized she was going to be extradited.

Everyone agrees that this tragedy could have been avoided. Zachary Turner could have been saved. His paternal grandparents, Kate and David Bagby, believe strongly that there are gaps in the legislation regarding bail and that the law must be reformed.

Between the time when a suspect is charged and the beginning of the trial, section 515 and subsequent sections allow a judge to determine whether the accused person should be held in custody or released.

Generally speaking, the accused is released on certain conditions. However, in some cases, if the person is charged with murder for example, they are generally detained until the verdict is delivered.

In the Bagby-Turner case, which was the impetus for this bill, we do not really know why Dr. Turner was released so easily and that is troubling.

We believe that a person charged with murder should not be released if she is considered a threat to the safety of her community and more specifically to her child. That is why we think that the addition to the Criminal Code proposed in Bill C-464 will help draw the attention of the judges and prosecutors to people who are clearly the primary victims of the criminals, namely, their children.

This bill will likely also be useful in cases of spousal abuse, which are more frequent than cases as sordid as the one that resulted in the current bill.

In closing, I want to reiterate that the Bloc Québécois is especially sensitive to the fate of children, who are among the most vulnerable in our society. We make it our duty to defend them.

It appears that, with this bill, the hon. member for Avalon is giving us a way to increase the safety of children and that is why we support the bill in principle.

We hope that it will be passed at second reading. During its review in committee, we will study it carefully to ensure that the proposed legislative amendment is well drafted and inserted into the Criminal Code at the right spot, and that it will be effective.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Madam Speaker, I am pleased to speak to Bill C-464 introduced by the member for Avalon.

The bill raises the important issue of the safety and protection of children from dangerous accused who are awaiting trial. More specifically, Bill C-464 proposes to amend paragraph 515.10(b) of the Criminal Code to remind courts to consider the safety and protection of minor children of the accused when determining whether pretrial detention is necessary.

After an offence is committed, the burden usually falls on the prosecutor to establish certain grounds for the judge or the justice to order the detention of the accused prior to trial. Under the primary ground for detention, bail can be denied to ensure the accused does not flee the jurisdiction. Under the secondary ground, bail can be denied when it is necessary for the protection or safety of the public. Last, bail can be denied under the tertiary ground when considered necessary to maintain confidence in the administration of justice.

Bill C-464 proposes to amend the secondary ground. I would like to indicate the government's support for the bill's laudable goal of protecting children from dangerous accused during the bail process. The purpose of the bill is consistent with this government's commitment to ensuring that the justice system operates in an effective manner to protect children, victims, witnesses and all Canadians.

In the last session of Parliament, Bill C-2, the Tackling Violent Crime Act, received royal assent. That legislation includes a number of Criminal Code amendments aimed at making Canadian communities safer. Among other things, it tackles serious gun crime by imposing higher minimum sentences of imprisonment. It places stricter conditions on dangerous and high risk offenders, and it creates a more effective sentencing regime. That same bill protects children from sexual predators by increasing the age of consent for sexual activity.

In the area of bail reform, Bill C-2 strengthens the bail regime by better protecting the public from offenders accused of committing serious firearm offences. Now there is an onus on those who allegedly commit such offences to demonstrate to the courts why they should be granted bail while awaiting their trial.

Bail reform is an ongoing priority for our government. Currently we are working together with the provinces and territories to develop comprehensive reforms to the bail regime at both the legislative and operational levels. The government is committed to finding ways to prevent the tragic loss of young, innocent lives, such as that of Zachary Turner, and ensuring that the bail regime adequately protects public safety.

If the bill is referred to committee, members would have a very important role to play in examining whether Bill C-464 is effective in ensuring the protection of children from accused persons and whether the bill can be improved. Among other things, committee members may want to examine the fact that the proposed amendment is specifically limited to children of the accused and whether the bill could be strengthened by removing this restriction. This would serve to remind courts to consider the safety and protection of all children and not just the children of the accused.

I look forward to hearing the committee's views on this and other issues involved in strengthening the protection of children at the bail stage.

It should be noted that Bill C-464 would build on the current bail regime which already affords protection to children. Under paragraph 515.10(b) the court considers “the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances” and is bound to consider the likelihood of the accused committing any offence pending trial. In addition, other sections of the Criminal Code outline specific orders that a judge or a justice must consider before releasing an accused charged with an offence involving violence against a person.

Thus, the proposed bill does not substantially change the grounds for detention. It does, however, expressly remind the courts to consider the safety of children when considering if an accused should be detained prior to trial.

The courts' task of accurately assessing the dangerousness or flight risk of an accused and ensuring public confidence in the administration of justice is not without challenges. The presumption of innocence and the right to not be denied bail without just cause are rights enshrined in our Constitution. Clearly, the courts must balance these rights, but must also be vigilant in their assessment of the risks associated with the release of accused persons. This bill appropriately signals the need for courts to assess the safety of children affected by the release of an accused prior to his or her trial.

The protection of children, be it from a dangerous accused or an abusive parent, requires all levels of government to work together. This government is committed to ensuring that appropriate consideration is given to the safety and protection of children during the bail process. More generally, we will continue to work with our provincial and territorial counterparts to improve the operation of the criminal justice system.

This bill complements other government initiatives that strive toward preventing harm by accused persons who threaten the safety of Canadian citizens. The government supports the purpose of this bill and suggests that it be referred to committee to allow for its full consideration as well as for potential amendments to make it even better.

[Scott Andrews, Liberal, Avalon, NL]

moved that Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), be read the second time and referred to a committee.

Madam Speaker, it is a pleasure to rise in this House today and speak to my first ever private member's bill.

The proposed amendments will be to the Criminal Code in respect of bail. If enacted, this will amend the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children. The protection and safety of minors remaining in the custody of individuals charged with serious crimes may be considered during bail hearing proceedings.

We need to give the judicial system another tool to do its job. We must make it attentive to the necessity of protecting minor children while they are in the custody of individuals charged with serious offences. A decision to deny bail to the accused may be appropriate for the intended protection of the rights and safety of children who are in the custody of the accused.

Members may ask how did I get to this private member's bill. In the first year members are in Ottawa, they are lobbied on many different things and many causes that come to their attention. In late March, I received an invitation to attend a special screening of the documentary Dear Zachary for senators and members of Parliament. I was joined by Senator Banks and former member Mr. Bill Casey at that screening. I had an opportunity to meet the producer, Kurt Kuenne, for the first time. Listening to the documentary and to personal stories that I had been familiar with had a profound impact on me as an individual.

I also met Kate and David Bagby. They are two amazing people who have used their strength and determination to attract the attention of decision makers to the need to bring important change to the current bail legislation in Canada.

It was shortly after that documentary that I decided that my first ever private member's bill would try to advance the efforts of bail reform.

Members need to hear the story of where and how this came about. Most of us in Newfoundland and Labrador, and many across Canada, have heard the terrible story of the tragic deaths of David and Kate's son, Dr. Andrew Bagby, in 2001.

Dr. Bagby and his girlfriend, Dr. Shirley Turner, of Newfoundland were in a relationship. They had their troubles and the relationship broke off. Dr. Turner travelled back to her home, leaving David in Pennsylvania. She then drove back across the country, over 800 miles, and killed Dr. Andrew Bagby in a Pennsylvania park. She then went back to her home on the west coast of the United States, and prior to being charged for the murder, she was advised by her lawyer to spend time with her family in Canada. She went to Canada and ended up in her home province of Newfoundland.

She was then charged with the crime of murdering Andrew and faced extradition hearings. While going through the process of extradition, she found out that she was pregnant with their child. During the extradition process, she gave birth to this child and was granted bail while she was in custody of the child. During the court proceedings, Zachary, the child, remained in the custody of Dr. Turner, and the grandparents, David and Kate, were granted supervision.

This went on for almost 13 months after Zachary was born, as extradition is a very long and onerous process, but that is another issue for another time. However, near the end of the extradition process, when it looked like Dr. Turner was going to be extradited back to the United States, Dr. Turner took her own life and that of her son, Zachary. On the morning of August 18, 2003, she walked into the waters of Conception Bay and both were drowned.

It had an impact on many Newfoundlanders and Labradorians. There was a public inquiry called to find out why this would happen to a young child, and Dr. Peter Markesteyn conducted a review and investigation. His report made a number of recommendations for provincial child welfare, and the province is working through those recommendations.

There was one aspect of the recommendations in this case that pertained to federal law, and that was bail reform. That is why my private member's bill is dealing with bail reform.

At the conclusion of the investigation, Dr. Markesteyn reached two key conclusions: Zachary Turner's death was preventable, and Zachary was in his mother's care when he should not have been.

That gets me to bail reform and to a conclusion. From this tragic ending, we bring a new beginning to bail reform so that no other family will go through the devastation that Kate and David Bagby have gone through.

Obviously, I had to come quickly up to speed on private members' business, this being my first time in Parliament. I looked at the options for amending the Criminal Code provisions pertaining to bail. We had to balance the Canadian Charter of Rights and Freedoms with the need to have our court system reflect a requirement to protect the safety of minor children in the custody of their parents.

After consulting with David and Kate Bagby and discussing my intentions with many colleagues and the legal community, we came to what we have here today, a bill entitled, An Act to amend the Criminal Code (justification for detention in custody).

In summary, the bill, when enacted, will amend the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of minor children of the accused.

I am also pleased to have the support of Senator Tommy Banks. He has pledged to be my sponsor in the Senate for this bill. I thank Senator Banks for that.

Bill C-464 is not about me; it is about the protection of children. MPs create private members' bills for two reasons: one, to make a political statement, knowing it will not go anywhere; or two, if an MP wants to make a difference and have success. Bill C-464 is an accomplishment that reflects the strength and determination of the parents and grandparents of the late Andrew and Zachary. It is in their memory that we move forward with the bill, and we will do everything in our power to prevent this from happening to another family.

I would be remiss if I did not acknowledge the efforts of Kurt Kuenne. Kurt is the producer of the documentary, Dear Zachary. I can assure hon. members that this is near and dear to Kurt's heart and that he has used his talents to have the story told and to promote legislative reform.

I will be sending copies of the documentary to all members as we move forward. It is worth the 93 minutes to have the opportunity to see how this story unfolded. Kurt was doing a documentary on Dr. Andrew Bagby to give to Zachary. It told the story of Andrew as a person and individual. As this was unfolding, so was Zachary's young life. Zachary's life, as we know, came to a tragic end. Kurt told the whole story in the documentary. It was recently aired on the CTV program W5.

After my announcement that I would introduce this private member's legislation, I had many calls from across Canada supporting this initiative, from B.C. to St. John's. If we can do one thing as legislators to protect the lives of children, then we should pass this bill, so this tragic act never happens again.

I thank hon. members for their support and encouragement as we move forward. I thank Kate and David for their vision and for being strong grandparents. It has been very tough on them. They came to Newfoundland last week and joined me, along with many of their friends and family, and we told them that we were moving forward. They have gone through a wide range of emotions over the last five years. It is a story that touched my heart and touched the hearts of many Newfoundlanders and Labradoreans. If we can move forward with bail reform and change the bail law by putting in five simple words to allow our lawmakers the ability to deny bail for the protection of children, it would be a great step forward.

Madam Speaker, I thank you for the opportunity to bring this forward today. I look forward to discussing it with members from all parties, and I hope I can gather the support of the House.

[Scott Andrews, Liberal, Avalon, NL]

moved for leave to introduce Bill C-464, An Act to amend the Criminal Code (justification for detention in custody).

Mr. Speaker, it is a pleasure to rise here today to introduce my first private member's bill for the protection of minor children of persons who are accused of a serious crime. This has been an issue in my area for a long time. There was an inquiry on this on Zachary Bagby Turner. This Sunday, there will be a documentary on CBC at 10 p.m. eastern time that will outline the story and the history behind this bill.

It is a pleasure to introduce this bill, and I look forward to having it debated here in the House of Commons.

(Motions deemed adopted, bill read the first time and printed)