Mr. Speaker, I rise to speak to Bill S-217. As we have heard, this bill, which proposes changes to certain bail provisions under the Criminal Code, was introduced in reaction to the senseless shooting of a police officer in St. Albert, Alberta.
Words fail to express the sadness felt by all Canadians when a police officer is killed in the line of duty.
Constable David Wynn's family suffered an unimaginable loss, and I want to offer my sincere condolences to Shelly MacInnis-Wynn, her three boys, and the entire RCMP community.
As a former member of the Standing Committee on Public Safety and National Security, I have studied the many challenges facing first responders in the line of duty. We must ensure that all Canadians are protected by our criminal justice system.
While I support the bill's laudable objectives, I am unable to support Bill S-217, as I believe it would interfere with the proper functioning of our bail system by eroding at the independence of the crown and adding further delays in our courts.
Constable David Wynn tragically died and Auxiliary Constable Derek Bond was seriously injured after being shot by Shawn Rehn. Rehn, who killed himself after the shooting, had a lengthy criminal record, including crimes of violence and failure to comply with court orders. Months before the shooting, Rehn was arrested. He was not, however, detained in custody at that time. There was no crown counsel present at the bail hearing and the court was not made aware of Rehn's criminal record.
Clearly, it is important that those who preside over bail hearings have all of the relevant information before determining who should be detained in custody prior to trial.
As we know, in response to Constable Wynn's murder, the Alberta government did a comprehensive review of the entire bail process in that province.
Last April, the Alberta government released a report entitled “Alberta Bail Review: Endorsing a Call for Change”. This report, produced after consultation with key stakeholders, makes over 30 recommendations. The recommendations range from operational changes to resource allocation. Notably, the Alberta report does not call for the legislative changes proposed in Bill S-217. The report recognizes the complexity of both the problem and the solutions and the importance of engagement with stakeholders in the criminal justice system.
Here in this House members will recall that the Prime Minister has asked the Minister of Justice to conduct a comprehensive review of the criminal justice system, including the bail system. Specifically, the minister has been asked to strengthen bail conditions in cases of domestic assault, with the goal of keeping victims and children safe. The minister has been working diligently on these important priorities for over a year now and is continuing to work on their implementation, in collaboration with our federal, provincial, and territorial partners and criminal justice stakeholders.
As part of this strategy, the minister has completed a series of round tables in nine provinces and territories where reforming bail procedures is a subject of concern for many stakeholders. While public safety of course remains a top priority, major concerns have also been raised about the efficiency of our courts.
I understand that similar concerns have been raised before the Standing Senate Committee on Legal and Constitutional Affairs, which is also studying delays, and I look forward to reading the final report.
Let me turn to the bill itself. Bill S-217 proposes two changes to the Criminal Code bail regime.
First, under clause 1, it proposes to modify the grounds for detention under subsection 515(10) of the code by adding specific consideration of the accused's record to the third ground for detention. Under this ground, detention is justified when it is necessary to maintain confidence in the administration of justice. It is not clear why this consideration would be specified under the third ground, which provides a discrete basis for denying bail. The accused's record is already considered under each ground for detention and at multiple junctures in the bail process, both under the primary and secondary grounds. This amendment would therefore cause duplication and unnecessary confusion in the already established bail provisions, and it would benefit no one.
Second, clause 2 of Bill S-217, the one that has garnered the most attention, proposes an amendment that would mandate prosecutors to lead specific evidence, evidence of the accused's personal record, outstanding charges and breaches. Prosecutors would be required to lead evidence to “prove the fact” of a prior record, prior offences against the administration of justice, or outstanding charges.
This a higher evidentiary burden than is currently required. In other words, the bill could make it more difficult to detain an accused person in custody rather than under the existing provisions of the Criminal Code.
For instance, formalizing the evidentiary process could result in prosecutors having to call additional witnesses or lead additional affidavit evidence at every bail hearing. We know that the bail system simply cannot operate effectively in this way.
The bill process strives for accuracy in decision-making, but because of the volume of cases currently before the courts, the process also places a premium on efficiency, expediency, and flexible rules of evidence.
We must trust that crown attorneys will call the relevant evidence that they determine is needed and relevant and in the manner that they choose. The Criminal Code does not dictate what evidence a crown attorney should call. To do so raises the issue of crown discretion and independence, an essential feature and constitutional principle within our criminal justice system. Mandating crown attorneys to lead specific evidence would arguably encroach on this discretion. They must act independently in carrying out their responsibilities as officers of the court, as quasi-judicial officers of the court.
Of equal concern is the potential for these amendments to make it harder for prosecutors to quickly and efficiently prove past criminal activity. It is unclear how clause 2 would be interpreted. It could result in the presiding justice at a bail hearing scrutinizing the prosecutor's decision as to whether to introduce certain evidence and how it is introduced. This could potentially compromise trial fairness and the effectiveness of the bail hearing. At the very least, an amendment of this nature would require consultation and engagement with prosecutors who exercise their discretion ethically and professionally every day in bail courts across this country and who benefit from the current flexibility in the rules of evidence to ensure the best case is presented.
It is essential that our police and the public are kept safe from accused persons who belong in custody prior to trial. This requires that the courts, police, and crown attorneys have the relevant information about the accused, the victim, and the circumstances of the offence in a timely way. This cannot however, be accomplished with piecemeal legislation such as the one currently before the House. It requires a comprehensive strategy for bail reform and consultation with stakeholders who work with these provisions every day.
To summarize, the impact on the effectiveness of the criminal justice system has to be considered when any amendment to the Criminal Code is proposed.
The Supreme Court of Canada has emphasized the importance of bail hearings being held expeditiously and the rights of individuals to reasonable bail. This flexibility is an important factor to keep in mind when considering the amendments proposed in the bill. It allows the prosecutor in a bail hearing to lead evidence that is credible and trustworthy, but that might not otherwise be admissible according to the usual rules of evidence at trial. This includes evidence of prior criminal activity, outstanding charges, and administration of justice offences.
The Supreme Court has also repeatedly emphasized the independence of prosecutorial discretion, itself a fundamental principle under our Constitution. By removing that discretion of the crown to determine which evidence it will lead at the bail hearing, the bill arguably undermines that principle.
As a former federal prosecutor, I know that my fellow prosecutors benefit from the flexibility in the rules of evidence at bail hearings to ensure that the correct evidence is put before the justice quickly and efficiently. Victims of crime also benefit from the timely disposition of cases.
While I cannot support the bill, I do want to thank the sponsors of it for all of the work that they have done. Reform of the criminal justice system benefits from the input and involvement of as many Canadians as possible.