Bill S-217 (Historical)

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

This enactment amends the Criminal Code to
(a) expand the grounds for the justification of detention in custody; and
(b) require that, in any proceeding under section 515, the prosecutor lead evidence to prove the fact that the accused has failed to appear in court when required to do so and the fact that the accused has previously been convicted of a criminal offence or has been charged with and is awaiting trial for another criminal offence.

[Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms]

Thank you, honourable members, for having me here today. I'll start by offering condolences to Constable Wynn's family, who lost a husband and a father through something that was entirely preventable, something at which Bill S-217 is indeed aimed at preventing from occurring again.

I am with the Justice Centre for Constitutional Freedoms. We are a not-for-profit, non-partisan, non-religious charity. I don't have a horse in this race. I've been watching the proceedings. I am interested in them because I am a former prosecutor. I worked in British Columbia as a prosecutor in Prince George, one of the most active places in which you can practise criminal law in our country.

I will say that as I have watched the proceedings, I have been dismayed and a little bit uncomfortable with some of the evidence that has been presented to this committee. I'm going to attempt to, from my perspective, correct some of it today.

I think that some of the witnesses who have spoken have no doubt had good intentions, but they have given at times contradictory, inaccurate, and, therefore, misleading and unhelpful evidence.

The legislation, from my perspective and in my respectful characterization, has been mis-characterized by some of the people who have given testimony here. I'm just going to cover some of the misstatements while I go through it.

Misstatement number one is that changing paragraph 518(1)(c) from “may” to “shall” negates the ability of the crown to introduce hearsay evidence. Mr. Woodburn on April 6, 2017 stated that somehow Bill S-217 removes the ability of the crown to introduce hearsay and that section 516 allows hearsay at bail hearings.

Both of those things are inaccurate and incorrect. It's not section 516 that allows the introduction of hearsay; it's paragraph 518(1)(e). It is paragraph 518(1)(e) that allows the introduction of hearsay evidence. I'm going to read you a quote from the Supreme Court of Canada, from the Toronto Star Newspapers Ltd. v. Canada case from 2010, which says that:

According to s. 518(1)(e)...[a crown prosecutor] may lead any evidence that is “credible or trustworthy”, which might include evidence of a confession that has not been tested for voluntariness...[and include] hearsay statements,...prior convictions, untried charges.... The justice has a broad discretion to “make such inquiries, on oath or otherwise,...”.

That's on page 8 of my brief, which was submitted to the committee, but I don't think is in front of you yet because it hasn't been translated.

My point is that some of the witnesses before this committee have placed too much emphasis on the prosecutor controlling the process and not enough emphasis on the judge controlling the process. A judge at a bail hearing is able to admit and rely on any evidence that is credible and trustworthy. There is no standard of “beyond a reasonable doubt” or a higher standard of proof at a bail hearing. That's the point of a bail hearing. It's meant to be something that's impromptu and that protects the rights of the accused while allowing the crown to introduce evidence that is relevant but credible and trustworthy. That's the standard.

When a crown stands up to run a bail hearing, a crown cannot just say, “Your Honour, the accused has a record.” The crown has to introduce evidence to prove that the accused has a record. Today, across the country, hundreds of times every single week, the crown proves that the accused has a record by introducing the CPIC, just the basic CPIC. That's what it means to prove the record of the accused.

All the change from “may” to “shall” does is to require the introduction of the evidence.

Some of the people who have testified here—in fact I heard it today—said that Bill S-217 changes “may” to “shall prove”. It doesn't change it from “may” to “shall prove”. It changes from “may” to ”shall lead evidence to prove”. There is a world of difference in the legal world between the former, which is not in the bill, and the latter, which is in the bill. So that's a difference as well.

Misstatement number two is that there is no problem. There is a problem. Despite the fact that the police are not running bail hearings anymore, prosecutors make mistakes. I'll direct you to page 5 of my brief and read you the following quote from a case called R. v. Brooks:

The court in that case said:

Unfortunately, [the] Crown...failed to file the document which she asserted contained a statement of the applicant's prior criminal record. Ordinarily, a CPIC printout or equivalent should be made an exhibit. What resulted was a meandering and muddled discussion in which the court and the prosecutor directed questions to the applicant through counsel as to his prior criminal record. This inquisitorial approach is to be deplored. An accused is free to acknowledge the tendered record or not.... The accused's right to silence and right against self-incrimination must be respected. Defence counsel herself, for whatever reason, failed to object and indeed participated in the exercise.

In that case, the failure of the crown to introduce the record resulted in a constitutional infringement of the accused's rights. From my perspective, it's incumbent on Parliament to pass legislation that requires the leading of the record to protect the rights of the accused, because what happened in the case of R. v. Brooks is that the accused ended up being cross-examined by the justice of the peace, the crown, and his own counsel, which violated his article 11(c), 11(e), and section 7 rights, and he was released on appeal, so there is a problem.

My third point is on Mr. Woodburn's testimony about the idea that, again, that if Bill S-217 becomes law, the crown would be required to obtain certified CPIC records. That's not so. If you have a certified CPIC record and there's a data entry error in the original, it's going to be reproduced in the certified copy. The CPIC record is admissible because it is already produced by the Canadian Police Information Centre. You don't need a certified copy. With due respect, that's a misstatement as well.

On the idea that it interferes improperly with the crown's discretion, it does interfere with crown discretion. There's not a single reason why a crown prosecutor who has decided to oppose somebody's release should have the discretion not to introduce the record of an accused. There is not a single example of where that would be justifiable in a free and democratic society. Once the crown decides to oppose release, the crown has an obligation—should have an obligation—to tender that record so that the judge has all of the facts.

In fact, Mr. Woodburn said that it's “meat and potatoes”, and that for crowns, that's the “first thing” they're taught. Then he said that it interferes with “discretion”. If it's meat and potatoes and it's the first thing that a crown is taught to do, why would anybody object to the crown having a requirement to introduce the record?

I'll conclude by saying this. Some people say that this is only symbolic. It's not symbolic. There was a tragedy that occurred, and it was the result of a flaw in the legislation. Only a fool would say, “I'm emotional about the tragedy; therefore, I'm not going to fix the flaw.” The problem is that there is a flaw. Fix the flaw and you won't again have more tragedies that result from it. That's the point.

Those are my submissions. Thank you very much.

[Nancy Irving, Barrister and Solicitor, As an Individual]

Thank you, Mr. Chair.

I will say just a few words about the Alberta Bail Review before I begin with my submissions. As you know, it was established by the Government of Alberta in 2015, in the wake of the tragic killing earlier that year of Constable David Wynn and the wounding of Auxiliary Constable Derek Bond.

As members are well aware, the officers were shot by a person with a long criminal record, who had been released on bail pending a court appearance on outstanding charges. At that bail hearing, the crown was represented by a police officer, not a prosecutor. The release of the accused was not contested by the officer. The accused was released with conditions, with the officer's consent.

The mandate of the bail review, as set by the Government of Alberta, focused on the administration of the bail system in that province. I was not asked to conduct an inquiry into the specific circumstances leading to the death of Constable Wynn, nor was I tasked with reviewing and recommending changes to the bail provisions of the Criminal Code. Nevertheless, during the course of my review, I did become aware of Bill S-217, and although I did not refer to it in my report, I did consider its potential impact on the bail system in Alberta.

On the face of it, the bill might seem helpful to the administration of the bail system. One of the pillars of my report, as I'm sure you're aware, was that justice is best served when all participants have access to complete and accurate information. But I was troubled by some of the provisions and its potential impacts on the administration of justice, and I still have those concerns today.

I'm now going to focus on two aspects of the bill in particular.

The first is the proposed new wording of paragraph 518(1)(c) of the Criminal Code. I agree with earlier witnesses you've heard from in this committee who said this clause might be interpreted by the courts as imposing a higher standard of proof than prosecutors currently must meet. It's not just the change from “may” to “shall”, which I'll address in a moment; it's also the words “prove the fact” in each of the subparagraphs 518(1)(c)(i), 518(1)(c)(ii), and 518(1)(c)(iii). I'm not aware of that phrase being used in any other section of the Criminal Code, and I think it introduces some confusion and uncertainty into the bail provisions.

It's different from subparagraph 518(1)(c)(iv), “to show the circumstances”, so judges might find that it means something different from that. This could feed the argument that it requires a higher standard of proof in bail hearings, including consent bails.

It's also different, again, from the language used in paragraph 518(1)(e) as it currently reads. This is the section that allows Justices of the Peace and judges to receive and base their decisions on evidence considered credible and trustworthy in the circumstances of each case. That language permits judges to receive hearsay evidence, and it allows prosecutors to dispense with more formal matters of proof that would have to be met at trial, such as the calling of viva voce evidence.

I share the concern that this new language could turn bail hearings into mini-trials. That would certainly make bail hearings longer, and it would likely contribute to further delays in a system already struggling to cope with the volume of bail cases and the new time requirements set by the Supreme Court of Canada in R. v. Jordan, which were released last summer.

At a minimum, I think it's reasonable to anticipate that the meaning of this new language will be litigated, perhaps all the way up to the Supreme Court of Canada, before we receive judicial guidance. That could take years. In the meantime, the crown's standard of proof will be uncertain.

As I suggested a moment ago, my second concern relates specifically to clause 2, and the changing of the word “may” to “shall” in proposed new section 518, subsection (1), paragraph (c), subparagraph (i). What a mouthful. This language imposes a mandatory requirement on prosecutors to put into evidence an accused person's prior criminal convictions.

If that language means all prior criminal convictions, it will impose a practical impossibility on prosecutors. They simply won't be able to meet that requirement in many cases because of the problems with CPIC, which are widely recognized throughout the criminal justice system.

At present, there is no complete, up-to-date, Canada-wide database that includes all prior records of persons convicted of criminal offences. I refer you to pages 66 to 68 of my report in this regard. To ensure that all convictions are brought to the court's attention, it might be necessary, in many cases, for the prosecutor to check with every Canadian jurisdiction, just in case a conviction has yet to be entered into CPIC. That would have to be done for every bail hearing in the country involving an accused who might have crossed provincial borders. We know today that people are generally much more mobile than they were when the bill provisions were first introduced.

If we want to close a gap in the bill system, in my opinion, we must find a solution for the CPIC problem. We must create a more effective and timely system for the sharing of information between provincial jurisdictions. That includes improving national access to all extra-provincial outstanding charges and release orders. That would be an effective way to improve the operation of the bail system and enhance public safety, in my view.

I said in my report that convenience and efficiency must not be allowed to trump the integrity of the process, but I don't think these amendments would enhance the system's integrity in a meaningful way. I worked as a federal prosecutor for close to 30 years before I retired in 2014. Maybe I'm biased, but I have sufficient faith in the ability and judgment of my former colleagues to trust them with the discretion that they now enjoy. In fact, as stated by the Ontario Court of Appeal in R. v. Nur, “The exercise of Crown discretion throughout the criminal process...is a longstanding and essential component of the fair and efficient operation of the criminal justice system:”

I would like to conclude on a more personal note. I have the deepest sympathy for Constable Wynn's wife and family, as do all the members of this committee. I understand the desire to honour his legacy through meaningful change, and to do what's required to ensure that a similar tragedy doesn't devastate another family.

However, I think the meaningful change can be found in the actions being taken by the Government of Alberta in the wake of my report and other calls for reform. I think those improvements will be more profound and less uncertain in their effects than Bill S-217. I think they could be considered a fine tribute to the memory of Constable Wynn.

Thank you.

[Dr. Anthony Doob, Professor, University of Toronto, As an Individual]

We would agree that perhaps everyone who has expressed a view on this bill has said that the criminal record is relevant to the primary and secondary grounds for detaining a person. The question before you, however, is a simple one: was the error that everyone agrees was made in the case that led to this legislation an error that can be fixed with legislation, or was it a tragic error that can't be remedied by changing a few words in the Criminal Code?

The bill can be seen as having two parts. One changes the word “may” to “shall” in section 518. Most obviously, we would argue that one cannot legislate away human error. Even had there been an explicit obligation in the year 2015, it almost certainly would have had no impact. The bill also adds “the fact”, so we are going from “may” “prove that the accused has previously been convicted of a criminal offence” to “shall” “prove the fact that the accused has been convicted of a criminal offence”.

It has been suggested to you that it takes only seconds to print a criminal record. This may be true, but the problem, as it has been pointed out to you, is that proving that a specific accused person before the court has a criminal record takes substantially longer than the seconds it might take to print it out.

In addition, there are some provisions of this bill that would appear to be redundant but probably are not. The bill would require proving the criminal record, but it would also appear to require proving that the accused was guilty of offences that might not have been subject to a court finding. Proposed subparagraphs 518(1)(c)(iii) and (v) would appear to require proving facts. Since pretrial detention has been deemed to be a punishment, it's hard to read those sections without suggesting that the standard of proof will be rather high. Once again, considerably more time would be required. These changes are not cost-free.

The bill that you have before you will expand the bail process for everyone at a time when almost everyone agrees that court delay is a problem. Though we all agree that a mistake was almost certainly made in the case that led to this bill, maybe the problem is in the incoherence of the bail provisions that we are currently working under.

Let's look at a key section of the bail law, section 515. It describes the conditions under which a person can be detained. It is an important section. When it became law, as section 457 in January 1972, it had 701 words. It now has 2,482 words, more than three times as many.

Section 518 has grown, but not by as much. It’s only twice as long as it used to be. The problem is that we have modified, remodified, and expanded these provisions in the past 45 years. For example, section 515 alone has been changed on eight separate occasions since 2003, with seven of these sets of changes coming since 2008. Bill S-217 would only complicate an already complicated section.

Bail laws in Canada should not be seen as lenient. The rate of pretrial detention has increased considerably. Crime peaked in 1991, and has generally been drifting downwards since then. There are about half as many Criminal Code offences being reported now as in 1991. The remand population in 1991 was 18 per 100,000. Now it has more than doubled, to 38 per 100,000. We are detaining people at a very high rate.

What is needed is a rethinking and reworking of the bail laws generally. I would suggest that it would be useful for you to examine comprehensively the issue of Canada’s bail laws. I would urge you to address the very real problems of bail. The current bill before you adds incoherence, cost, and delay to a critical procedure.

It’s our understanding that the Province of Alberta has agreed that the error that was made in the case leading to this bill is best remedied by having bail hearings conducted by crown attorneys. We would suggest that you accept this conclusion, but take it as an opportunity to look seriously at this very important part of our criminal justice process. Rather than simply add new problems to the mix, this would be a valuable opportunity to make a real difference in attempting to fix Canada’s broken bail system.

[Dr. Cheryl Webster, Associate Professor, University of Ottawa, As an Individual]

Thank you.

I'm grateful for the invitation to share my views on Bill S-217 with this committee today. Although Tony Doob and I may appear to you as two people, we're actually functioning as one witness today. As such, we've divided the eight minutes between us.

Let me begin by publicly presenting, as have others before us, our heartfelt condolences to Ms. MacInnis-Wynn and her family for the tragic origin of this bill. It's our genuine wish that Parliament continues its search for effective solutions to the growing crisis in the Canadian bail process. Indeed, over the last decade in which Tony and I have been examining pretrial detention, a new expression has taken shape whereby a growing number of academic, professional, and media reports have claimed that bail is broken.

I applaud this committee for considering a bill that proposes changes to the Canadian bail law. We differ simply in the approach. I have no doubt that we share the same objective—in this specific case, of trying to avoid the terrible tragedy that occurred in early 2015. We're simply concerned that the current bill will not meet this objective. Specifically, it seems to us to miss the mark.

We would argue that it's likely no coincidence that the proposed legislative changes were not part of the numerous recommendations made by the two Alberta reviews examining potential deficiencies in the administration of the bail system in that province. Nor could we find any similar recommendations in the numerous other governmental, non-governmental, and academic studies of bail in Canada. The problems, we would submit, are unlikely to be rooted in any purposeful or intentional failure to bring forward an accused's criminal record, outstanding charges, or failures to appear in court, which an explicit legislative obligation would now solve. Rather, the problems are multiple in nature, complex as well as intertwined, and largely systemic, embedded in the very culture of bail court.

More simply, it seems we have lost sight of what bail was originally intended to be, a summary procedure that determines whether an accused person is to be detained or released until trial while ensuring a balance between individual rights and public safety concerns. Here lies the fundamental problem that the current bill doesn't address and, perhaps ironically, may well end up contributing to.

In fact, we respectfully submit that it would be misguided to suggest that there are any easy, quick fixes on the legislative front. Strategies of intervention will likely need to be conceptualized as part of a multi-faceted, long-term solution that recognizes that isolated changes will have little effect without altering the mentality of the court more broadly. Indeed, a pervasive risk-averse mentality has been progressively adopted over the past several decades, which has set in motion a plethora of changes in the legislative framework, the court culture, and ultimately the policies and practices of the day-to-day operations of the Canadian bail court.

We're not short of evidence that bail in Canada is broken. The proportion of remand admissions who are indigenous continues to rise in most provinces and territories. In Ontario over 4,500 cases were in remand in 2013 and 2014, only to have all charges ultimately stayed, withdrawn, or dismissed. Or there's the fact that 41% of cases in this province began their criminal court lives in bail court during this same year. Of these cases, 54% had no violence.

Further, despite being conceptualized as a summary procedure, the bail process is taking longer than it did when these laws were originally introduced. In 2013-14, 37% of Ontario cases took three or more appearances to resolve the question of bail. In a study of 11 large Ontario bail courts, most cases were adjourned on any given day. Show-cause hearings have not only become more frequent but they also often resemble mini-trials.

My guess is that of those knowledgeable about our current bail laws, few have confidence that they are currently serving us well. More importantly, for our current purposes, Bill S-217 does not address, much less resolve, any of these issues. In fact, it may exacerbate them.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen, and welcome to this meeting of the Standing Committee on Justice and Human Rights as we resume our study of Bill S-217, an act to amend the Criminal Code (detention in custody), otherwise known as Wynn's law.

First of all, I want to apologize to our witnesses. As you know we had votes, which caused us to be late. We very much want to hear from you and want to give you as much time as we can. I apologize profusely for that, and hopefully we'll be able to get through today's meeting without more votes that will interrupt. At least, we can always hope.

I'd like to welcome Cheryl Webster, an associate professor at the University of Ottawa. She is accompanied by Tony Doob, a professor at the University of Toronto. We are welcoming Nancy Irving, a barrister and solicitor, and Jay Cameron, who is also a barrister and solicitor, representing the Justice Centre for Constitutional Freedoms.

I very much appreciate the witnesses being here. To give you as much time as possible, I'd like to move straight over to you. We're going to start with Ms. Webster and Mr. Doob. The floor is yours.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Woodburn, from the position you have held and all of the experience you bring to the testimony today, do you think, when we look at Bill S-217—and it's not a very long read—there are any ways we could amend it to make it better, or are you suggesting that we just not proceed with it altogether?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

And there is nothing under Bill S-217 that would prevent a prosecutor from making that recommendation, is there?

[Supt David Truax, Detective Superintendent, Ontario Provincial Police and Member of the Law Amendments Committee, Canadian Association of Chiefs of Police]

Let me continue.

The administration of criminal records is a shared responsibility involving all police services in Canada. However, they're not legally required to provide criminal record information for adults to the RCMP for inclusion in the National Repository of Criminal Records, accessible by the entire police community via the Canadian Police Information Centre, known as the CPIC system.

Accurate criminal record information has a direct impact on the proper administration of justice. This information is critical to the decisions made daily by police, prosecutors, judges, and correctional officers on matters such as release and bail, charge screening, plea negotiations, sentencing, and offender management. Public safety can be put at risk in the absence of complete and accurate criminal records. The need for quick access to accurate records is perhaps the most important in the arrest, release, and bail stages.

It is important to note that delays exist between the time a conviction is rendered in court and the time details are submitted by the local police service to the National Repository of Criminal Records, accessible via CPIC. Additional information relating to outstanding charges in cases in which the individual is awaiting trial may be available through other law enforcement data banks in provinces and territories, the Police Information Portal, local police records management systems, or local court records.

Notwithstanding these issues and the noted gaps concerning adult criminal record information, the RCMP has been working with police services across Canada since 2014 to automate criminal record updates by March of 2018. This initiative, referred to as the criminal justice information modernization project, has enabled many police services to date to enter criminal charge and conviction information into the national repository, which would then be accessible through CPIC in near-real time, in turn making the information immediately available to police officers and criminal justice officials. The criminal justice information modernization platform is the solution that will eliminate any backlog, moving forward, for criminal records supported by fingerprints.

In the interim, we understand that the RCMP is working with its policing and criminal justice partners to mitigate risks with respect to criminal records by including priority updates concerning high-risk offenders, and in support of court purposes such as sentencing decisions. For additional details on these matters, it would obviously be more appropriate to have the RCMP speak directly.

It is important to note that criminal record information obtained through CPIC is directly based on an offender's fingerprints. Timely fingerprinting is essential to updating criminal convictions. Failure of an accused to attend for fingerprinting often results in police inability to enter conviction details. Fingerprinting upon arrest is a procedure that would ensure that timely and accurate information is added to the national repository and become accessible through the CPIC system.

The Identification of Criminals Act would need to be amended to permit fingerprinting upon arrest. As a result of the constraints we have previously discussed and the objectives of Bill S-217, we agree that the most complete and accurate information concerning the accused's criminal record and pending criminal charges is required.

Secondly, concerns have been raised regarding amending paragraph (c) of subsection 515(10) to include the criminal record of the accused and the bill's proposed language regarding the term “prove the fact” and remove prosecutorial discretion. Further consideration of these issues is warranted.

Thirdly, criminal record information is based on the submission of the offender's fingerprints. If any gap exists in obtaining the individual's fingerprints, important information may not be available through CPIC. As such, consideration should be given to amending the Identification of Criminals Act to permit fingerprinting upon arrest. With this amendment, police would be able to access the accused's full criminal record and outstanding charges through CPIC.

Sincere thanks are extended to this committee for allowing the Canadian Association of Chiefs of Police the opportunity to offer our comments and suggestions on this bill. Merci.

[Rachel Huntsman, Q.C., Legal Counsel, Royal Newfoundland Constabulary and Member of the Law Amendments Committee, Canadian Association of Chiefs of Police]

Distinguished members of this committee, my name is Rachel Huntsman, and I am legal counsel with the Royal Newfoundland Constabulary. I am here today with Detective Superintendent Dave Truax, who is with the Ontario Provincial Police, and Lara Malashenko, legal counsel to the Ottawa Police Service.

We appear as representatives of the law amendments committee of the Canadian Association of Chiefs of Police. We are speaking to you today on behalf of President Mario Harel and fellow CACP members. We will address the important issues relating to Bill S-217. We express our sincere appreciation for your inviting us here today.

The mandate of the CACP is safety and security for all Canadians through innovative police leadership. Ensuring the safety of our citizens and our communities is central to the mission of police services. Police officers discharge their obligations with professionalism and dedication in often dangerous situations, as demonstrated by the senseless and tragic death of Constable David Wynn in St. Albert on January 17, 2015. On this date, Constable David Wynn's family suffered an unimaginable loss that has forever changed their lives.

We know that people who commit crimes repeatedly or who do not comply with conditions of their release pose a significant risk to the safety of the public and to the police. The decision to hold or to release has been described as an exercise in risk assessment. Those of us who are duty-bound to protect the public must predict whether an offender will attend court, reoffend, and abide by release conditions.

In order to make the right decision on an offender's detention or release, the various stakeholders of the criminal justice system must have relevant information when making these critical decisions. Bill S-217 proposes to strengthen the bail provisions of the Criminal Code to ensure that offenders who should be detained are detained.

Although we support the spirit of Bill S-217, our presentation will address concerns we have with respect to the particulars of these two amendments and the impact they will have on police operations and resources. Following careful consideration and analysis of this bill, we believe that the amendments, in particular the amendment to paragraph 518(1)(c), may cause confusion, create added delay, and impose challenges upon a bail system that is already operating at full capacity. Instead of strengthening the bail provisions, we fear that these amendments may create a result counterproductive to what the bill is hoping to achieve.

Bill S-217 proposes two amendments to the bail provisions of the Criminal Code. The amendment to paragraph 515(10)(c) sets out the grounds that will determine whether an offender will be released or detained prior to trial. There are three clearly articulated grounds for detention under subsection 515(10) of the Criminal Code, commonly referred to as the primary, secondary, and tertiary grounds. The application of any one of these grounds may result in the detention of the accused person.

Clause 1 of Bill S-217 seeks to amend the tertiary ground by adding the accused's criminal record and outstanding charges to the circumstances that a justice may consider when deciding whether the detention of the accused is necessary to maintain confidence in the administration of justice.

It is our position that this amendment is not necessary, because the criminal record and outstanding charges of the accused are already relied upon under all three grounds for detention. Under the primary and secondary ground, the accused's criminal record and compliance with previous court orders are considered when assessing whether detention is necessary to ensure the accused's attendance in court and assessing the risk of further offences being committed by the accused if he or she is released.

The Supreme Court of Canada in the case of R. v. St-Cloud (2015) held that the accused's criminal record may also be considered by the justice under the tertiary ground.

Clause 2 of the bill proposes to remove crown discretion from paragraph section 518(1)(c) by requiring that the crown shall lead evidence to prove the fact of a prior record, outstanding charges, previous convictions against the administration of justice, that the accused has failed to appear in court, and to show the circumstances of the offence.

The CACP sees a number of concerns arising from this amendment. First, what does “to prove the fact” mean, and why is the current evidentiary burden “to prove” being changed to “prove the fact”? Does proving the fact place a higher evidentiary burden or onus on the crown? To prove a fact is not a legal term, and it is not defined. We suggest that this is problematic.

The current threshold for admission of evidence at a bail hearing is evidence that is “credible and trustworthy”. The crown is not placed to the burden of proof that exists for the admission of evidence at trial. Will the crown now be required to call evidence through the investigating officer? Will hearsay evidence be permitted? Will affidavit evidence now be required?

The crown should continue to exercise its discretion as to how to lead evidence.

If this amendment contemplates the crown leading evidence and proving facts, it will place added pressures upon police and create “mini trials” through the calling of multiple police witnesses, thereby causing further adjournments and delays in a system that is already strained and operating at full capacity. While this is not the intended purpose behind this bill, it may be an inevitable consequence. Presumably these requirements will apply in consent situations as well, but this remains unclear and needs to be considered by the committee.

We ask this committee also to consider that delays at the bail stage of the prosecution work to the accused's advantage, allowing for a Jordan application for a stay of proceedings. We do not want to see charges against high-risk offenders stayed because of delays during the bail process.

[Jonathan Denis, As an Individual]

Thank you very much, Mr. Chair and members of the committee, for inviting me here today. Of course, we're here to discuss Bill S-217, an act to amend the Criminal Code (detention in custody). This of course would:

(a) expand the grounds for the justification of detention in custody; and (b) require that, in any proceedings under section 515, the prosecutor lead evidence to prove the fact that the accused has failed to appear in court when required to do so and the fact that the accused has previously been convicted of a criminal offence or has been charged with and is awaiting trial for another criminal offence.

By way of background, Mr. Chair, as you mentioned, I had the privilege of serving as an Alberta MLA from 2008 to 2015, as well as minister of justice, solicitor general, and attorney general from 2012 to 2015.

During my time as attorney general, I developed an appreciation for the work that the crown, defence, and all police do to ensure there are proper checks and balances in our justice system. All actors are necessary in order to keep our justice system operational and our streets safe, and to protect both the innocent and the guilty. None of my comments should be interpreted as a slight towards any of these groups, all of whom I hold in high regard.

I want to take you to the day of January 17, 2015. Even though the day began rather nondescript for me, like any other, this is a day that I will unfortunately never forget. I got a call from my chief of staff at the time, indicating that there had been a shooting in St. Albert, just northwest of Edmonton, involving one of the RCMP officers there. You're all aware of the chain of events and what happened.

Constable Wynn and his partner attended the Apex Casino in St. Albert, responding to a call on a stolen vehicle. As Constable Wynn and his partner entered the casino to search for the suspect, they found him and he shot Constable Wynn in the head, ultimately resulting in Constable Wynn's death and serious injuries to his partner, Auxiliary Constable Bond, who, fortunately, ultimately survived.

The next day, I attended the RCMP's K Division office in Edmonton, and Deputy Commissioner Marianne Ryan showed me the video of Constable Wynn's demise, which I watched twice. The sight of this video still haunts me to this day.

Equally disturbing to me was when I discovered the shocking circumstances of how the assailant, Shawn Rehn, happened to be at large, and how the death of Constable Wynn and injuries to Auxiliary Constable Bond were both 100% preventable. That's right, they need not have happened, and we need not be here today.

Shawn Rehn unfortunately had a lengthy criminal history. He had more than 100 offences dating back to 1994. Many of these charges involved confrontations with police officers, as well as firearms offences. Since 2010, he had been sentenced to a total of 10 years in jail offences, including possessions of a prohibited firearm, breaking and entering, and theft, and yet he walked as a free person.

I want to take you back to 2014. In September 2014, after being arrested on several charges, including possession of a prohibited weapon and an outstanding arrest warrant for failing to appear in court, Rehn was released on $4,500 bail.

During the bail hearing, there was no mention of Rehn's lengthy criminal past. There was no mention that in 2009, he attacked an ex-girlfriend, choked her, ripped her hair, and broke her collarbone. There was no mention that he had a lifetime firearms ban, posed a flight risk, or had past disregard for court orders.

Now, speaking for myself, as a lawyer of 15 years, this does not seem right to me, but I can find no fault whatsoever in the actors in the judicial system that day. Why? Because the prosecutor was following the law as it stands right now. The current law only states that a prosecutor “may” lead evidence of the criminal history of the applicant, and is a law, I would submit to you, that must change. In the law, by changing literally one word, you may literally save lives, because I believe it is reasonably foreseeable that an event like this will happen again if this law is not amended.

Our justice system needs to be continually improved; indeed, this work is never fully complete, but it can be improved from time to time.

One such improvement I support is this law. It is important to note that this law does not presume anyone to be guilty. Rather, it simply provides that the court oversee full information—the whole picture—of an accused's past, and let the judge or justice of the peace make a decision based on the full quotient of information before him or her in his or her courtroom.

The more information available, I submit to you, the more likely the court is to be able to make the appropriate decision.

Our justice system should never be viewed through a partisan lens, and I want to commend each one of you who voted for this bill regardless of your party affiliation. Indeed, this bill will not pass without support from more than one party. We have an opportunity here to make an improvement now, before this tragedy strikes again. I suggest, as I mentioned, that it is reasonably foreseeable that a situation like this will in fact happen again if the law stands as is.

You have an opportunity here to pass Wynn's law through committee and through third reading. To quote Shelly MacInnis-Wynn, “This is not about choosing sides. It's about saving lives and making our country a safer place to live.”

I look forward to the other comments from the panellists here, but also to your questions.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. Welcome to this meeting of the Standing Committee on Justice and Human Rights. We resume our study into Bill S-217, an Act to Amend the Criminal Code (detention in custody).

I want to extend to all of our witnesses a very big apology, since due to the vote we're starting late. We really appreciate your forbearance in terms of sitting as one panel. We'll hear from each one of you and then we will move to questions.

We welcome this afternoon, as an individual, Mr. Jonathan Denis, who is here from Alberta. He is a former solicitor general and attorney general of Alberta. We have, from the Canadian Centre for Abuse Awareness, Mr. John Muise, who is the director of public safety. From the Canadian Association of Crown Counsel, we have Mr. Rick Woodburn, who is the president.

Finally, from the Canadian Association of Chiefs of Police, we have Mr. David Truax, who is detective superintendent, Ontario Provincial Police, and member of the law amendments committee. We have Rachel Huntsman, Q.C., who is the legal counsel for the Royal Newfoundland Constabulary and member of the law amendments committee. We have Ms. Lara Malashenko who is the legal counsel for the Ottawa Police Service.

It's a pleasure to have you all.

As agreed, we're going to start with Mr. Dennis. The floor is yours, sir.

[Michael Elliott]

There's no doubt in my mind that we need to continue to study and look at our judicial system. It's very fluid and ongoing. We're here today looking at Bill S-217. CPIC is just one system that we have across the country that, in my opinion, continues to be updated and be as accurate as possible. There's no doubt in my mind that there are other systems across this country that we need to continue to expand, adapt, and learn from so that we can help all jurisdictions work together, whether RCMP or municipal police forces. To me, this bill in the judicial system is one small step in trying to increase the amount of information available to all of our colleagues and to be more proficient.

[Michael Elliott, President, Alberta Federation of Police Associations]

Thank you.

Good afternoon. My name is Michael Elliott. I have been a police officer for 12 years. I'm currently the president of the Alberta Federation of Police Associations. We represent approximately 4,500 municipal police officers across the province of Alberta.

I wish to thank the committee for the opportunity to speak in regard to BillS-217, an act to amend the Criminal Code (detention in custody).

Before I begin, I would like to provide a brief synopsis of the terrible event that has brought the attention to bail hearings.

On January 17, 2015, RCMP officer Constable David Wynn was serving his community and his country. Constable Wynn encountered a stolen vehicle parked at a casino in St. Albert, Alberta. Constable Wynn identified a suspect, Shawn Rehn. Upon making contact, the suspect proceeded to shoot Constable Derek Bond in the arm, and then shot Constable David Wynn in his face. Constable David Wynn succumbed to his injuries a few days later in hospital.

Who was Shawn Rehn? Shawn Rehn was a career criminal with at least 100 offences over a period of two decades. Between 2010 and 2015, Shawn Rehn was sentenced to a total of 10 years in jail. His charges included a variety of offences, such as break and enter, theft, dangerous operation of a motor vehicle, possession of property under $5,000, house break-in and the commission of theft, obstructing a police officer, failing to attend court, assault with a weapon, and possession of property obtained by a crime over $5,000. The list goes on.

You may have an attachment in front of you that provides a list of the charges he was subject to, what he was convicted of, what he was released on, and the charges that were before him, unfortunately, during the event that unfolded.

Mr. Rehn also had a history of firearms-related offences. He had been prohibited from possessing firearms for life. He was on conditions prohibiting him from possessing ammunition and firearms. Shawn Rehn had a total of 29 Criminal Code outstanding charges before the courts while he was on bail.

This brings us to bail hearings. Many questions were raised about why Shawn Rehn was released on bail via a justice of the peace. We can sit here today and discuss what or what wasn't provided. The bottom line is that not all of the information was produced.

You may ask what is required at a bail hearing. As a police officer in Alberta, I provide the just cause for detention. When a person is arrested, I have to provide a bail package. This information is provided in three levels to a justice of the peace to determine if the accused is granted bail or remanded.

The first level in the bail package is what we refer to as the “primary grounds”. I provide information to ensure that the accused will or will not appear in court to face his or her charges. The criteria include the nature of the offence, the strength of the evidence, the accused's criminal record, previous court orders against the accused, and his or her behaviour when arrested.

The second level of the bail package is what we call “secondary grounds”. This is for the protection and safety of the public. The criteria include the accused's criminal record and compliance with previous court orders, whether the accused is already on bail or probation, the nature of the offence, and the stability of the accused.

The third level of the bail package is what we refer to as “tertiary grounds”. This information is to maintain confidence in the administration of justice. The criteria include the strength of the case against the accused; the severity of the offence, such as whether a firearm was used; the criminal record of the accused; and finally, the potential sentencing of the accused if convicted.

The judicial system relies on all the evidence and information to make an educated and well-informed decision. When matters are before the court, disclosure and evidence are paramount to a fair and equitable outcome. The problem is that not all of the information is provided at bail hearings, as the Criminal Code states that information “may” be presented.

After Constable Wynn's death, a review of the bail system in Alberta was conducted. The following is an excerpt from the study:

The bail system can also suffer from a perception that bail hearings are less weighty and perhaps less consequential than other steps in the judicial process. The rules of evidence are more relaxed, the burden of proof is less onerous, and bail hearings do not generally involve the testimony of witnesses and experts. Most who work in the bail system, however, would be more likely to agree with the prosecutor who told this Review “a proper show cause hearing needs to have the same sense of importance and urgency as a murder prosecution.” The stakes for the accused and the public can be that high.

A study by Ms. Nancy Irving recommended the following, and provided strong evidence of the importance of implementing Bill S-217. It would make a small but significant change to section 518 of the Criminal Code. The recommendations are as follows.

Before a bail hearing, a police officer should provide the crown counsel with the following information, at a minimum: a copy of the information setting out the criminal charges, an accurate synopsis of the allegations and circumstances of the offences, an up-to-date criminal record including both a CPIC printout and JOIN sheet, information on outstanding charges, and copies of forms of release of those charges, and, finally, details of the accused's personal circumstances such as residence, employment, and ties to the community.

Changing the wording in section 518 of the Criminal Code from “shall” to “may” by implementing Bill S-217 is the correct way to proceed for the judicial system and the Criminal Code. Bill S-217 would not overburden the system, in my opinion. Bill S-217 would not create any financial hardships on any level of the government.

The requested information, in my opinion, is already available via the police to provide to the crown at a bail hearing. I have personally acquired the aforementioned information via available programs police agencies use.

In life, we make decisions. When making those decisions, we research, educate ourselves, and learn what is best before we forge ahead with our plans. It is no different with our judicial system. We want to make an educated and well-informed decision during bail hearings. This bill is not about being tough on crime. This bill is about being fair, honest, and open with the public about crime. In the end, we want to ensure that the public has faith in our criminal judicial system and that we can look at every citizen in Canada, including those accused of crimes, and tell them that we made the decision with all the information that was available. Our citizens deserve the truth. Bail hearings are no different.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, welcome to this meeting of the Standing Committee on Justice and Human Rights. We are resuming our study of Bill S-217, an act to amend the Criminal Code (detention in custody).

Today we have three witnesses before us. We will hear them as a panel before we ask questions. We have Ms. Shelly MacInnis-Wynn, as an individual; the Alberta Federation of Police Associations, represented by Mr. Michael Elliott, president; and the Canadian Council of Criminal Defence Lawyers, represented by Mr. William Trudell, the chair.

Ms. MacInnis-Wynn, on behalf of all members of the committee, all parties, and on a non-partisan basis, we want to express our deepest condolences to you for loss of your husband. I'm sure you've heard it over and over again, but just know that we say this with meaning as all members of Parliament from all parties.

We look forward to hearing your testimony today. Please, the floor is yours.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I appreciate that. I just think it's really important to note in this discussion that it's a practice that across the country is strongly opposed by those in the justice system. I know it would cost more money if we had crown prosecutors instead of police officers doing it. It could be a more just approach to follow Crown Prosecutor Irving's recommendations. However, I would like you to address my particular question around this slowing down the wheels of justice.

There are only so many hours in the day, Mr. Cooper, and I do not yet understand how passing S-217 is going to make the justice system faster and more efficient in the course of meting out justice.