Thank you for having me here. I'm Rick Woodburn. I'm the president of the Canadian Association of Crown Counsel.
The interesting part about this is that we're meeting here in Ottawa right now—I left my meeting to come here. I hijacked the agenda this morning to specifically put this issue on. We represent more than 7,500 crown counsels across the country. At the table this morning were the presidents of each of the associations and of the federal crown, for which Marco Mendicino used to be the president.
We had an open discussion with respect to this subject. Our views, which I collated this morning, along with what I've read online.... I haven't been following the political side of this, but what I have looked at is the background of Bill C-217.
It's a heartfelt situation. Somebody losing their life in the line of duty is of course a terrible and tragic loss to all of us. That being said, however, we can't always follow our hearts when it comes to the law. That's the motivation behind this. It's laudable; however, the recourse or what's going to happen in the end may not be what the bill envisions right now.
I can tell you, I've run hundreds of bail hearings; I do everything from shoplifting to homicides, and the case is similar for those around my table this morning. I was in bail court two weeks ago. I've run several bail hearings. Everybody was kept.
We have a vision and we have an understanding of the law when running bail hearings. When a crown attorney fully understands that the release of an individual can mean that the person in question can go back and kill their spouse, start another crime spree, or whatever could be worse.... When we're running a bail hearing, we understand the ramifications.
Ask any person who has done bail what their biggest fear is when they go home after doing bail court. It's that somebody they released or somebody who was released by a justice goes out and commits another crime. It's something we think about every day.
The interesting part was that Jonathan mentioned the prosecutor. I spoke to the Alberta crowns' president with respect to this case. It was unfortunate that there wasn't a prosecutor available. That's important to note. It was a police officer who did the bail hearing. It was human error: he failed to put the record before the court.
That's what it was. It was human error. It is not something we normally do. We put the record before the court. It's important. That's meat and potatoes; it's the first thing we're trained to do.
Now, Alberta has been remedied, according to my understanding, in terms of the way they report. Now police officers no longer do bail hearings. There is release by police officers in charge, and that's fine, but that's not what we're dealing with here. Now the situation has been remedied by making sure that crowns in every jurisdiction do bail hearings.
What's the effect of this particular bill?
This is important. The legislation itself really remains unchanged, in the sense that paragraph 518(1)(c) of the Criminal Code says that along with any other relevant evidence, the prosecutor “may” prove the record, “may” prove that there are outstanding breaches, “may” prove the offence before the court, “may” prove that they're outstanding on another matter—“may”.
The big problem we're having is that “may” has changed to “shall”. That is very important legally for us and for lawyers and for crown attorneys when we're running these matters. To change a word from “may” to “shall” and, putting those two words together, “shall prove”, means that it's up to crown attorneys to prove that record.
John is quite right. Is it a press of a button that normally gets your record? It is. But when you say “shall prove” a criminal record, it's not the press of a button anymore. It's going to the courthouses and getting certified copies in each jurisdiction in which the subject was arrested and charged and convicted. That's what it means to “prove” under the Criminal Code. If, then, a defence lawyer puts us to the test and says that this is what it means to prove a criminal record and you “shall” do it, that's what we have to do.
That is extremely onerous. I'm telling you, when we're in trial and an offender says, “I don't believe my record; you have to prove it”, it takes us days to properly prove somebody's record.
That's part of the problem we're having when we talk about proving—we “shall” prove—whether or not they're on another offence or the breach itself that they're on.
This committee, in the past, has studied victims' rights. When you “shall” prove something, does that mean that you can just hand up the synopsis? Is that what proof is? In criminal law, that's not what proof is. Proof is that we're going to have to call a witness. If it's unclear what the police officer saw or heard, does that mean we're going to have to put the victim on the stand? That's what “shall prove” means. If we have to prove the outstanding offence, do we have to call those individuals in? You have to think about that. When it says “shall prove”, that's a big problem for us.
You might say, “Gee, it says 'may prove'. What's the difference?” Under section 516, we are allowed to use reliable hearsay, and that's because we “shall” not have to prove anything, as it stands right now. We use reliable hearsay—that's the press of the button, the synopsis—and our bail hearings are done.
Bail hearings don't take five minutes. They take somewhere between half an hour and two hours, on average. That's for a bail hearing where you just pass information up, hear from a surety, and hear some evidence—about two hours. That expands if there are more sureties—half a day. When you're calling evidence at a bail hearing for more serious matters—sexual assaults, aggravated sexual assaults, homicides—those take up to two days. That's when we do call evidence. This is not something that is just out there and might happen. This is what will happen if it passes. I can tell you, in no uncertain terms, that when we are put to the test by defence, bail hearings will double and triple in time. And it's not necessary.
Across the country—and I've felt the temperature across the country—we have trained crown attorneys. Bail is 101. That is the first thing we teach them. We teach them how to read the CPIC, how to read all the bail reports, how to do the synopsis, and what they have to do for a proof for bail. That's the first thing we learn. There is no difference now between ordering us to do it and our naturally doing it, because we are trained to do so. This will add nothing to bail hearings, but it will take away a lot.
We talk about delay, and that's a big issue that we have here. Will we have more fulsome bail hearings if we have to prove everything? Yes, I guess we will. If we have to call evidence, yes, we'll have more fulsome bail hearings. But what is the cost? We're living in a world where half a day of bail hearing will take away half a day from a trial. Where does that trial move to? Where is the time? Where does it go? It's simple. In the end, we'll see more cases stayed because of Jordan, because they're running past 18 months. This is something that will happen. It's not just kind of out there. If bail hearings expand and take longer, other matters will fall like dominoes, and it will end up having the opposite effect.
Lastly, on “shall prove”, what happens if we don't prove? What happens if I can't get that record? What happens if I can't get that person in? What's the remedy for that? Think about that when you're passing this bill. What's going to happen if we don't get that information in? We lose the bail hearing or, worse, they're let go without anything; they're just let go. If we don't prove it, what's the remedy? They're probably going to be let go. So, by making us prove these certain things, what changes? We're already doing it. But if you make us prove it, our onus goes up; it doesn't go down. Keeping the individuals you want to keep off the street is harder, not easier.
The last part, of course, is about crown discretion. I'm not sure if I am going over my time—