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.

Concurrence in Vote 1—Privy Council Office

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am a very hopeful person, so I will hope that it can and it just has not yet. However, that remains to be seen. It is up to the government to make good on that hopeful remark. It is frustrating.

I will maybe just examine another angle of my frustration with the position of the government, and not just in respect to access to information, but I think it makes the point well. We hear often, when it is convenient for the government, that it appreciates the work of committees and it wants to send things to committee and it wants to have it studied, and that is a great virtue. The government did not feel that way about the infrastructure bank because it did not want to break that off and actually have a committee have more time to look at it. The government cherry-picks. It liked the work of the committee on Bill S-217, which we voted on earlier. It cherry-picks when it likes the work of a committee and when it does not.

Interestingly, the work that we have done on the access to information, privacy and ethics committee generated, and members can correct me if I am wrong, two unanimous reports. One report was on access to information reform. It was a commitment of the minister that he would bring forward legislation this spring, which he has subsequently changed and has not given a new date by which he will bring that legislation in. We also had a unanimous report on reform to the Privacy Act.

In no case has the government taken that work of the committee, unanimous work, which means six Liberals on the committee endorsed all of those recommendations, and picked one recommendation that it would put into law. Again, the government's word is not worth much.

Justice and Human Rights

[The Speaker, Liberal, Geoff Regan]

Pursuant to order made on Tuesday, May 30, the House will now proceed to the taking of the deferred recorded division on the motion to concur in the 11th report of the Standing Committee on Justice and Human Rights regarding the recommendation not to proceed further with Bill S-217.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Madam Speaker, I want to start off tonight by thanking the member for St. Albert—Edmonton for putting his heart in the cause.

I think a lot of us have heard the story about Constable Wynn and the family he left behind. His dear wife sits in this place tonight listening to our debate, which actually makes it a little more difficult to talk about, because sometimes this place is filled with a lot of words. However, tonight these are powerful words that have impacted somebody's life and will impact lives in the future.

Bill S-217 is asking for something very simple. However, I think the governing party is trying to mislead this place by making it something more complicated than it really is. For instance, “may” and “shall” refer to two different things. The term is “may...lead evidence”, which we would change to “shall...lead evidence” or shall present evidence. There is no aspect of this that would require proof. It talks about presenting evidence, to demand that evidence is put before the court in these kinds of cases.

I want to talk about an article in the National Post about the person who shot Constable Wynn, and I will go over some of the details.

...details a lengthy list of 57 convictions, starting in April 1999 when he was ordered jailed for two months for theft and break and enter.

In the years that followed, when Rehn wasn’t serving time, he was racking up convictions in Edmonton, Calgary and the smaller communities of Evansburg and Drumheller.

They were for assault, assault with a weapon, drug possession and possession of prohibited firearms. He obstructed a peace officer, escaped lawful custody and drove while disqualified.

He also was convicted for breaking and entering, theft and possession of stolen property.

Parole Board Of Canada documents show Rehn served two federal jail terms as an adult.

The first was a two-year sentence for possession of stolen property and driving while disqualified. The second was for three years on charges including escaping custody and possession of a loaded prohibited weapon.

Collectively, he was sentenced to serve more than 12 years in custody, but it’s not clear how much of that time he actually spent behind bars.

On the day he died, [the criminal]...was still facing 30 charges for four separate offences, including fraud, resisting a peace officer, escaping lawful custody, possessing a prohibited firearm, failing to appear in court, failing to stop for police, dangerous driving and multiple charges of breaching bail conditions.

Somebody mentioned that there were more than 50 convictions, but there were 57, and all the member for St. Albert—Edmonton is asking is that this evidence be put before the court when bail is being granted or discussed. To look elsewhere is absolutely a breach of justice for the Canadian public, to overlook those 57 convictions.

The opposition has the victims bill of rights on our side, which was one of the proudest moments of our government when I first arrived here in 2011. The victims bill of rights is something that recognizes victims and their meaningful place in these court cases in our justice system, because it is a system that often seems to overlook a victim. As soon as people are victims, as soon as they pass away or are gone, they are discarded and not even accounted for in terms of the case. It seems they do not matter. It feels as if they do not matter.

We have heard the other side say that they care about justice, that they care about Constable Wynn's family, and these kinds of issues. This is one of hundreds of issues across this country where these kinds of previous convictions are not taken into account in bail hearings, and they need to be. We absolutely need these cases and previous convictions brought before bail hearings so that these guys and ladies remain behind bars, where they should be.

Sometimes, unless it is happening next door or it is a personal issue, where a family member of ours is involved in a particular case, there is a distance there.

The government has supported this legislation before. I would challenge the government members to put themselves in that seat up there, where the wife of Constable Wynn is sitting. They should put themselves in that seat up there. Her husband is never coming home. I challenge the other side to do this very thing, to put themselves in the place of the family members who are left behind because somebody is out walking the streets with 57 convictions and multitudes of others.

I heard of one case where there are 150 previous convictions and yet this person is still walking the streets committing crimes in our country. How is that even possible? It is possible because there is a clause that says “may” instead of “shall”. If we put this clause into our justice system that says “shall...lead”, shall produce evidence or “shall...lead evidence” of previous convictions, I think we could greatly reduce the number of people walking the streets who really should not be, for our own safety, for the safety of the members on the government side, and for their kids' safety, as well.

Again, I am going to challenge the government side that was supportive of it. The members voted for it before and I challenge them to vote for it again, and support our justice system in Canada. We can make it a justice system again, not a legal system. There are too many stories of people getting hurt. They are not coming back. They disappear off the record. Victims often do. After the funeral and all things are said and done, the niceties that have been said and exchanged, people like the Wynns have to go back to living their lives without the patriarch of their family.

This simple wording change would help Constable Wynn and those like him who go out to do justice for us on a daily basis. They go out and have to deal with these types of individuals on the street. It would give them a better chance of coming home at night.

I see members on the other side shaking their heads. I see people smiling and having great conversations, but this is actually some serious legislation that we are discussing tonight. For me, I would appreciate a greater amount of respect for the issue at hand, considering the person who is sitting up in our gallery.

The member across the way heckles me. What I cannot understand, and maybe I will just go to my thoughts, is how this particular member and members with him on the government side, who supported this previously, and who say they are behind the intent of Bill S-217, all of a sudden are completely changed in what they think the intent of this bill is and what it can do and will not do. They are saying that it does not plug every hole, so they are not going to support it. It does not fix everything, including the kitchen sink, so the government members are not behind it now.

For once, maybe the government could put a word in the law that gives the RCMP members a better chance of coming home at night. Why would the government members not even give them a 1% or 2% better chance of coming home at night? The member across the way is shaking his head again. I do not understand it. Why would we not give our legal system a better shot at keeping these guys behind bars, as we should? We are all responsible in this place to do that.

I would call on the government side and other opposition members to seriously consider Wynn's law, as we have termed it, and the fine work that the member for St. Albert—Edmonton has done on this. I say this in all sincerity. We get partisan in this place, but this is absolutely not a partisan issue for us. This is about justice. This is about keeping dangerous people off the streets, so men like Constable Wynn can go home to their wives and children.

I would just challenge this place to do the right thing. Regardless of what our parties think of this, all members should vote and do the right thing in supporting Bill S-217.

[Colin Fraser, Liberal, West Nova, NS]

Madam Speaker, I am pleased to address this issue tonight, but it is not lost on me the passion many feel about this issue. It is a very important issue our House has considered and sent to committee. I want to say first that when I first learned of Bill S-217 and took my time to understand it, in a good faith effort, I knew there were some elements of the bill I did not agree with, but I thought the overall intention of the bill was noble and that the sponsor in the House was bringing it forward for the right reasons. I thank him for doing that.

In the same light of a good faith effort, it was passed at second reading to send to committee so we could study it further, hear from experts, and hear from those who every day deal with the bail system in Canada so we could understand better what impacts and consequences the bill may have that were not apparent, perhaps, at first reading of the bill. I hope that same courtesy will now be extended to those who listened to the testimony at committee and arrived at a different conclusion.

I voted in support of this at second reading, despite concerning elements in the bill, because I wanted to have the opportunity to study it in full. On the same night this was passed at second reading, we also voted on another bill, Bill S-201, the Genetic Non-Discrimination Act. That matter came before committee, and it was concluded by members of all parties to proceed with that bill, because it was good public policy.

The purpose of committee work is to go through a bill in a thoughtful, deliberative manner, listen to experts, have thoughtful discussions, ask good questions, and then come back to the House and make recommendations. That is what we are doing with the bill tonight.

I want to highlight that the essential element of the bill, as I saw it, was, in section 518 of the Criminal Code, changing the permissive “may” to the requirement “shall” lead evidence. That was the essential element. There were other provisions in the bill, however, that I totally disagreed with, because they were not the intention of the bill as I understood it. I appreciated the conversations we had across party lines to realize that the essential element of the bill was changing “may” to “shall”.

How did I approach this bill at committee? I looked at it as an opportunity to shine a light on our bail system in Canada, to understand the essential elements of the bill, and to then, based on the expert testimony, decide whether it was good public policy. One of the thoughts that came to mind throughout the testimony we were hearing was what applies to doctors: do no harm. I thought that was an important way to look at the bill. If we were changing our bail system and how it operates, we should do no harm.

I went in with an open mind and listened to witnesses with different perspectives on the justice system. The experts in the field dealing with bail hearings were the most important to listen to in deciding how we would go forward with this. I went in with an open mind, but I went in with the idea that we must do no harm.

The witnesses offered compelling testimony. I want to highlight, first and foremost, Shelly Wynn. Her testimony was heart wrenching, compelling, believable, and trustworthy, and I extend nothing but thanks to her for her courage in coming to our committee and for all the work she has done in highlighting the issue of bail in Canada.

We also heard from a number of experts. We heard from the Canadian Bar Association, the Ontario Provincial Police, Newfoundland police, Canadian Association of Chiefs of Police, Canadian Association of Crown Counsel, defence lawyers groups, and individuals who have expert opinion to give on our system of bail in Canada.

All of those individuals came to the same conclusion and gave evidence based on the same rationale that this bill would do harm, would actually make our streets less safe, not more safe. The intention of the bill is to, as I understand it, close a loophole in the law to ensure that we are not allowing people out on bail who should be behind bars. The unintended consequences of this bill, however, would have exactly the opposite effect. It would make our streets less safe. It would put people out on the street who should otherwise be behind bars. Do not take my word for it. This was the expert testimony that we heard from police groups, the Canadian Bar Association, the Canadian Association of Crown Counsel, defence lawyers, and individuals who deal with this stuff every day and do not always agree on issues every day.

I want to go now through some of the issues that were raised. The first one is the possibility that this bill, in changing “may” to “shall”, leaving aside all of the other problematic elements in the bill, could have the possibility of raising the burden on the crown. At committee, Rick Woodburn, the president of the Canadian Association of Crown Counsel, stated:

...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.

This is the person who represents Canadian crown prosecutors, who deals with these issues every day.

Superintendent David Truax, the detective superintendent of the Ontario Provincial Police, stated:

Some of the language in the bill obviously proves the fact that...could obviously require the prosecutor to call each and every individual officer to prove each and every individual fact. That obviously would cause strain on policing resources, requiring more...witnesses, more documentation, certified documentation, affidavits, and the like.

Nancy Irving, who was chairing the Alberta committee reviewing the bail system in that province, indicated that the crown burden of proof will be uncertain under years of litigation.

With regard to the issue of delay, I think this was most compelling for me and the most convincing as to why this would be problematic because, in the end, after hearing all of this expert testimony, it was pretty well incontrovertible that there would become mini-trials at bail hearings. This is not a matter of a couple of minutes to get a criminal record. That is not the issue. There are several steps that have to be gone through in a bail hearing, one being the circumstances of the offence being presented to the court. This would cause uncertainty in our bail system. This would cause added resources, added court time, and not a matter of minutes, but delays in bail. People would have to set over bail hearings, perhaps. What would happen in the meantime to those who are supposed to have timely access to bail hearings?

I want to now talk on the issue of delay. Rick Woodburn said the following:

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.

If this bill passes, bail hearings will double and triple in time, and it is not necessary.

My colleague across the way just referenced Dr. Cheryl Webster a moment ago in support of his conclusion. He should take her word then when she said the following:

...[it] stuck me...[that it is going to add to court delay with] the higher evidentiary burden.... Any additional time taken during the bail process puts cases even closer to being thrown out for violation of the constitutional right that an accused be tried within a reasonable amount of time.

Professor Anthony Doob stated:

The bill that you have before you will expand the bail process for everyone at a time when...everyone agrees that court delay is a problem.

The Canadian Bar Association echoed the same comments.

I think it is important for us, in a good faith effort in reflecting on this bill, to understand that bail review does need to happen. Our government is committed to doing that. We are committed to working with all sides of the House to make that happen. This bill would not achieve its intended aims.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Madam Speaker, normally I begin my remarks by, in some form or another, stating how grateful I am to stand in this place and make my voice heard on a certain topic. Tonight, however, given the justice committee's recommendation that Bill S-217 not proceed further, I will be honest and say that I am deeply disappointed with the decision.

The committee members heard witness after witness testify that there are flaws in the bail system in this country. It has not kept up with the times, and as a result, known criminals are walking Canadian streets, probably in every community, out on bail.

Perhaps Bill S-217 did not fix the entire bail system, but at least it was a first step, a step the justice department appears to be unwilling to take, which is really shameful.

For those not familiar with the situation that precipitated the drafting of the bill by Senator Runciman, l will give a little background. I do not want to go into the details, but it was on the night of January 17, 2015, that RCMP Constable David Wynn and Auxiliary Constable Derek Bond were on a routine inspection of licence plates outside a casino in St. Albert, Alberta. This could have happened anywhere. During that inspection, they discovered a licence plate that was connected to an individual for whom there was an arrest warrant. As a result, Constable Wynn and Auxiliary Constable Bond entered the casino to arrest the individual. Before they could arrest the individual, who turned out to be Shawn Rehn, shots were fired. Auxiliary Constable Bond was shot, and tragically, Constable David Wynn was shot and later died in hospital.

Any time an individual is murdered in this country, it is a tragedy, but when a police officer is murdered in the line of duty, it is not only a tragedy, it is an outrage in this country, from coast to coast to coast. What makes the murder of Constable Wynn that much worse is that it was completely preventable, not what the member for Mount Royal said earlier in this place. This murder could have been prevented. David Wynn could have been a husband tonight. He could have been a father to three children. He could still be a member of our valued RCMP.

It is not if this happens again but when it happens again.

Constable Wynn's killer was out on bail at the time. He was out on bail, notwithstanding the fact that he had more than 50 prior criminal convictions, including convictions for weapons offences and multiple violent offences. On top of the 50 prior criminal convictions, he had at least 38 outstanding charges, and to top it off, he had numerous failures to appear in court, yet there he was, out on the street in the community of St. Albert, unbeknownst to the public.

I should add, of the 130 members working at the casino, and everyone was distraught over this event, two members are still not back at work at the casino in St. Albert, Alberta.

Let me get back to the justice committee meetings for a moment. The members heard expert testimony on the subject of bail. Let me just give a snippet of what the members heard. Dr. Cheryl Webster, associate professor, University of Ottawa, testifying as an individual, said, “We're not short of evidence that bail in Canada is broken”. Bail in Canada is broken, not damaged, broken. We can improve broken bones and get them re-set. We can fix a broken car or even a broken window, but a broken bail system, not so much. It is too time consuming, too costly, we hear, and we can always explain away the odd mishap as human error.

Mr. Jay Cameron, barrister and solicitor, Justice Centre for Constitution Freedoms, said:

I will 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.

Mr. Cameron's point is well taken by the official opposition party, my party, but unfortunately, not by the government. We understand the need to revisit the bail conditions in this country. Here we have it. The bail system is broken, and no one, certainly not the justice department, appears to be able or willing to fix it. Is that not shameful? Bill S-217 attempts to plug one gaping hole in the system, and all we hear is that it is going to take too much time for the bail hearings, that the Canadian Police Information Centre is not up to date, etc.

On June 6, just last week, I received a letter from the Saskatoon Police Association, from its president, Dean Pringle, and its secretary, Bill Bergeron. They were writing to express their strong support for Bill S-217. They pointed out that the oversight could be corrected with just two simple common-sense changes to the Criminal Code. Number one would be adding two new grounds under which an offender could be detained in custody, specifically, when the accused has failed to appear in court in the past and the accused has previously been convicted of a criminal offence or has been charged with and is awaiting trial for another criminal offence. Second and most important, and this is the key to this bill here tonight, would be replacing the word “may” with “shall” to require prosectors to introduce evidence of the accused's criminal record, or failure to obey court orders in the past, or other criminal charges for which an offender may be awaiting trial. Replace the word “may” with “shall” and think about what it would do for all our police officers in this country.

It is a similar position taken by the Canadian Police Association, the national voice for 60,000 police personnel who protect everyone in this country. Its president, Tom Stamatakis, has offered full support for this bill. He said, “Allowing prosecutors to introduce evidence of an accused's criminal history during a bail hearing is just common sense.” This legislation would not remove the discretion of judges when they are granting the bail. It just means that those judges would have all the relevant facts at hand when they make the important decisions.

This is a straightforward bill that would help keep Canadians safe and would provide prosecutors with more tools to detain high-risk individuals pending trial.

Some members would have us believe, as we heard here tonight from the government, that this bill would add more delays. That is not factual. What is factual is that it would save lives. As legislators, we must stand by our police in this country, who put themselves in harm's way each time they put on their badges.

Shelly Wynn is here, as she was in the past when Bill S-217 was debated. I want everyone to know that she is here, and I cannot help but feel her sorrow.

On March 8 this year, all the opposition parties in this place recognized the merits of this bill, Bill S-217. That was probably the most emotional night we have had in this House of Commons since we opened. I am going to give credit, because 28 members of the government caucus voted for the bill, against their party line. They were in favour of referring it to the justice and human rights committee. Obviously, the yeas had it that night, and Bill S-217 was referred to the committee. I wonder tonight if those same Liberal members will maintain the courage of their convictions and vote against the committee's recommendation or if they will simply toe the party line.

Finally, I would like to commend Shelly Wynn and her family for their commitment to seeing a better bail system in place for all Canadians; Senator Runciman for taking the lead in getting this legislation drafted and shepherding it through the Senate; and my friend and our colleague, the member for St. Albert—Edmonton, who has steadfastly moved this legislation through this place. They have all done a wonderful job, and they deserve to be recognized for their dedication to this worthy cause.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I am pleased to get up, as well, to talk to Senate Bill S-217, Wynn's law, which we all agree comes from a good place.

Shawn Rehn never should have been out on bail. His antecedence, his prior record should have been disclosed at the bail hearing. However, let us remember that the person acting as the prosecutor at that bail hearing was a police officer who was poorly trained. It was not a prosecutor exercising his discretion not to disclose the criminal record of the accused. I have heard, on multiple occasions, that Constable Wynn would still be with us if this law had been in effect and based on all the evidence we heard, that is not the case. Because that poorly trained—

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

Mr. Speaker, I rise today to speak once again on Bill S-217, known as Wynn's law. It is a simple bill. It is a straightforward bill to close a fatal loophole in the Criminal Code that cost Constable David Wynn his life when he was murdered by someone who was a career criminal and who was out on bail. One of the reasons he was out on bail was that his extensive criminal history had not been brought to the attention of the judge at the bail application hearing. One of the reasons why that information was not presented was that currently under the Criminal Code, leading such evidence of the criminal history of bail applicants is discretionary, even though it is always relevant and material to the question of bail.

It is with considerable disappointment that the Liberal-dominated justice committee voted to recommend that Wynn's law not proceed.

This is a common-sense bill, but as is so often said, common sense is not so common. If ever there was a better illustration of that truism, it is the Liberal opposition to passing this legislation.

Let us be clear about what the Liberals voted against in recommending that the House not proceed with Wynn's law. They voted against changing one word in the Criminal Code. The member for Mount Royal is shaking his head and he should not, because the fact of the matter is that the essence of Wynn's law has always been about changing “may” to “shall” in section 518 of the Criminal Code so that section 518 would read that a prosecutor shall lead evidence of the criminal history of a bail applicant rather than its current wording, which provides that a prosecutor may lead evidence of the criminal history of a bail applicant.

That has always been the essence of the bill. I was prepared to make all amendments necessary so that not only the essence of the bill would be that, but in fact that is all the bill would be. Notwithstanding that, the Liberals had absolutely no interest in accepting that amendment, so the Liberal record on the bill is very simple, it is very clear-cut, and it is in opposition to changing that one word.

I expect the member for Mount Royal, or whatever Liberal gets up to speak, will say it is a little more complicated than that, but I say it is not in the face of that fact. I would expect that the member for Mount Royal, or whatever other Liberal stands up in this place to defend what I would submit was an indefensible decision coming out of the justice committee, will hide behind certain groups that came out in opposition to the bill, while probably selectively ignoring other groups like the Canadian Police Association, which represents some 60,000 front-line police officers.

One can say this group supported Wynn's law and this group opposed Wynn's law, but that is not the issue. That is not what is relevant. What is relevant is the evidence, the evidence at committee on the specific question of changing one word from “may” to “shall”, and in that context, the question of leading criminal history of bail applicants at bail hearings. That is the question.

What was the evidence before the justice committee? The evidence was that witness after witness said that the criminal history of bail applicants is always relevant and material on the question of bail.

Indeed, the president of the Canadian Association of Crown Counsel testified before the committee that it was the bread and butter of what prosecutors do. He said it is the first thing that prosecutors learn to do when they learn how to handle a bail hearing. Not only that, not one witness provided a credible example of when a prosecutor should appropriately withhold evidence of the criminal history of a bail applicant.

In the face of bad evidence, it really does beg the question of how in the world any fair-minded and reasonable person could oppose changing “may” to “shall” in section 518 of the Criminal Code.

There were three main, at least semi-cogent, arguments that were put forward against changing that one word. One argument that was repeated a number of times was that Wynn's law would somehow interfere with prosecutorial discretion, even though not one witness was able to present one credible instance of when it would be appropriate for a prosecutor to exercise discretion in withholding evidence about the criminal history of a bail applicant. Wynn's law would not interfere with prosecutorial discretion because leading evidence about the criminal history of a bail applicant should not be a matter left to discretion.

Another rather bizarre argument that was put forward was the notion that Bill S-217 would somehow increase the evidentiary burden placed upon prosecutors, and that as a result of that increased evidentiary burden it would make it more difficult for prosecutors to keep dangerous criminals behind bars. The only problem with that argument is that Bill S-217, Wynn's law, has absolutely nothing to do with increasing the evidentiary burden. All Wynn's law would require is that prosecutors lead evidence of the criminal history of a bail applicant. The evidentiary standard is provided for in a totally different section of the Criminal Code, paragraph 518(1)(e), which provides that a judge may accept evidence that is credible and trustworthy. Wynn's law would not change that standard.

Then there was the argument of delay. It was asserted that somehow Wynn's law would cause a backlog in the courts and that it would make bail applications longer. It is frankly difficult to accept that argument in the face of the evidence that this is something that is almost always done. In terms of making something that is almost always done, always done, it is pretty difficult to imagine that, in that context, suddenly there is going to be a massive backlog in our courts. Then the question becomes, in the case where perhaps a bail hearing might take a little longer, what sort of bail applicants would see perhaps a few extra minutes to lead evidence?

It certainly would not be in the case of a bail applicant who had no criminal history, because in such a case, there would be no criminal history to lead evidence of. In the case of career criminals, someone like Shawn Rehn, who shot and killed Constable Wynn and shot Auxiliary Constable Derek Bond, with his more than 50 prior criminal convictions, yes, it might take a few minutes to lead evidence about that career criminal's history, and so it should. Extending it by a few minutes is a small price to pay.

In closing, let me say very quickly that Constable Wynn's killer's bail hearing was a very efficient bail hearing, but it had very fatal consequences.

Public Safety

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, on January 17, 2015, RCMP Constable David Wynn was fatally shot while on duty by a criminal with a lengthy record.

Bill S-217 would require criminal history to be considered during a bail hearing. The bill would address a glaring oversight with two simple common-sense changes to the Criminal Code.

There was all-party support in the House for the bill. However, exactly one month ago today, members of the House of Commons Standing Committees on Justice and Human Rights adopted a report recommending that Parliament not proceed further with the bill.

Police associations across the country, including mine in the city of Saskatoon, are asking all parliamentarians to work across party lines to pass this important legislation.

The bill, to be debated next week, is aimed at protecting our communities, a goal all Canadians share.

[Colin Fraser, Liberal, West Nova, NS]

Yes, there's just a minor thing. In the third paragraph, it says “Bill S-217” in the English version. I don't have the French one in front of me, but there is no hyphen between the S and the 217.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, I would like to bring the meeting to order.

Today we have a variety of things we just need to do, and a couple of them are housekeeping.

I'll just go through the agenda. Number one is to give the final approval to this letter that was previously approved. Now we have the French translation of the letter, related to Bill S-217. It's the letter that we are sending to the minister, which we carried on division.

Number two would be going through the three notices of motion that we received. Mr. Boissonnault is being replaced for the first part of the meeting and he'll be here after, so perhaps we could do the other two and then come back to his at the end when he is here, if that's okay. Number three, we will do our instructions to the analyst on the report on legal aid.

I just want to remind all members that for the proposed witnesses for our study on Bill C-46 could you please send those in to the clerk by tomorrow at five o'clock, or let him know that you can't get it to him by tomorrow at five but to expect it by a certain time. Could we do that so that we can talk about it on Tuesday and he can get everything circulated?

Is that good with everyone?

Justice

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, again, we are undertaking a comprehensive review of the criminal justice system, including bail reform. That is why, when I met with my colleagues in the provinces and territories, we talked about what we could do to increase confidence in the criminal justice system in protecting victims and increasing public safety. We are moving forward collaboratively.

When the Province of Alberta, after the unfortunate and tragic death of Constable Wynn, put together a report, the report did not, when it came back, provide recommendations that are contained within Bill C-217.

Justice and Human Rights

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I have the honour to present, in both official languages, the 11th report of the Standing Committee on Justice and Human Rights in relation to Bill S-217, an act to amend the Criminal Code (detention in custody).

The committee has studied the bill and recommends not to proceed further with this bill.

[Colin Fraser, Liberal, West Nova, NS]

I appreciate the comments from Mr. MacGregor.

I recognize that it's not a unanimous decision of the committee, but I do think we should outline the problems we heard from witnesses at our committee that caused members to vote against it in the majority. I think it's important to outline that in this letter. I don't agree with deleting that section on page one, ending on page two. I think that's an important part of the letter, to ensure that it's crystal clear why the majority of members of the committee did not support Bill S-217.

I will concede that we can remove the language thanking the ministers for their hard work. The point of this isn't to pat the ministers on the back, necessarily, but to acknowledge that there is work being done, and obviously to make some recommendations about how we would see things as a committee. I recognize, of course, that this will be on division.

I take your points, Mr. MacGregor, and I would support removing the acknowledgement of hard work and thanking the ministers.

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

Thank you, Mr. Chair.

I have to say that I take exception to a number of the points that are raised in this particular letter as it relates to Bill S-217. The letter states that there is concern that the burden of proof “that prosecutors would need to meet at bail hearings” would be increased. The fact is, to the degree that if there was any argument that the standard of proof would be increased as a result of Bill S-217, it was as a result of the additional words “to prove the fact”. There was an amendment here today to delete that language to remove any question and to remove any ambiguity that Bill S-217 would not change the standard of proof, but would merely require prosecutors to lead evidence, which, as Mr. Woodburn reminded everyone, was the bread and butter. Unfortunately, the government members opposite, the majority members of this committee, decided to instead vote for a motion to prevent any opportunity for there to be an amendment to remove that particular language.

Secondly, with respect to mini-trials, again, I have to say that no matter how many times the argument may have been made by certain witnesses, it really is unclear how Bill S-217 would create mini-trials. The fact of the matter is that whether you change the word from “may” to “shall”, a defendant, a bail applicant, already has the right to challenge the evidence and to cross-examine witnesses. That occurs all the time. Bill S-217 did nothing to change that fact. Instead, all it did was to require prosecutors to do something that they almost always do and make sure that they always do it. With respect to prolonging the bail process, again, it doesn't make sense that simply requiring prosecutors to do something that they almost always do would have any impact in significantly prolonging the bail process.

I for one would not support a letter that would congratulate the Minister of Justice for her work to improve the criminal justice system, based upon the comments that I've already made about, number one, her failure to do the easiest thing with respect to delay, and that is to fill judicial vacancies in a timely manner. I will not be supporting this motion.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much. I'm happy to play second fiddle to my colleague from West Nova.

You've mentioned that I'm not a regular member of this committee, although I've sat in for virtually every minute of this particular study, in part by coincidence in filling in for colleagues, but really, what motivated me to volunteer for those openings was the serious consideration I gave this bill during second reading and the attention that I thought it deserved. When it was first presented to me, I thought, as some of my colleagues have explained, that there was some merit to the ideas behind this bill.

I'd like to thank Mr. Cooper in particular, who took time to speak to me privately, even on a weekend, to sell some of the virtues of this bill. I enjoyed that level of engagement. His work as a parliamentarian has been exemplary.

Of course, after considering the evidence, I do find myself in a position of disagreement, despite having supported it at second reading and, of course, against the position of the government.

Some of my colleagues have mentioned the role of emotions, and emotions not being enough.... I find this an incredibly emotional experience. To hear Ms. MacInnis-Wynn's testimony was compelling, but I don't apply my emotions to the exclusion of reason and logic. My emotions have convinced me that we need to adopt a law that will not jeopardize the safety of Canadians in having more criminals on the street. Reason and logic have led me to a place where I believe that adopting Bill S-217 into law will have that countervailing effect.

I'll address some of the concerns, but before I jump into a few of the substantive issues that I see with this, let me say that I spent hours and hours toiling over this bill. If I had a friend who was a crown prosecutor or a police officer, I asked them what their thoughts were. I wanted to get feedback from those I know in my personal life who may deal with this issue. That helped inform my perspective, but I did find the evidence that came before this committee to be very compelling. I share Mr. Nicholson's point of view that what this is about is protecting victims, but more than just protecting victims, it's about reducing the number of victims we have in Canadian society.

With respect to the arguments about delay, Mr. Nicholson suggested that maybe it's 30 minutes. If this were a 30-minute delay or a matter of clicking “print” on a CPIC record, this would have my unequivocal support, but on the facts, the evidence hasn't borne out that suggestion. What we've heard is that this has the potential to turn bail hearings into mini-trials. They're already a source of significant delay.

One of the pieces of testimony that I found compelling, which was on behalf of prosecutors across the country, was that if the prosecutor were to show up seeking victory in a bail hearing and failed to produce the criminal record because of negligence—they simply forgot—the solution would not be readily available. What the evidence suggested is that a judge would likely say, “Well, I can't do this for you”, and the crown would have to adjourn, which would lead to the accused person being led out without having their bail hearing considered in the first place. I don't believe that this bill makes it more likely that the criminal record would be brought forward.

To your point, Mr. Falk, you've suggested that this was not a mistake, that it was permissible. I've heard that line of argument a few times, and I do appreciate the ingenuity behind the argument, but I disagree with the impact that it will actually have on the ground. We heard Mr. Michael Elliott, I believe it was, who appeared alongside Ms. MacInnis-Wynn, describe the introduction of criminal records at bail hearing as “protocol”. We've heard, on behalf of crown counsel, evidence suggesting that this is the first thing that a crown prosecutor learns, that it's a matter of routine.

From the evidence, the only instance that I can understand where this evidence would not be led is human error, and I don't believe changing the word “may” to “shall” or any sort of permissive to mandatory switch in the language would have the desired effect of making a criminal record appear on the record of evidence where it would not otherwise appear.

With respect to the government's intention, which Mr. Cooper alluded to, I can say with my right hand to God that this conclusion I have arrived at independently through consultation with those who have knowledge and through hearing the evidence.

This is not something that is being driven by the government in my experience, but instead by the response of the individual committee members to the evidence we've heard.

With respect to the argument that we haven't introduced any evidence from the front-line workers, the Canadian Association of Chiefs of Police was unequivocal in its opposition to this particular piece of legislation going through.

With respect to the issue of judicial appointments, I take some exception to having a finger pointed across the way at me with the saying, “these Liberals are responsible for this.” Judicial delay in appointments has been a problem for, I dare say, decades in Canada.

When I practised law in Mr. Cooper's province of Alberta, I remember leading a training session for the Legal Education Society of Alberta—prior to this government's coming into power—about the fact that the mandatory judicial dispute resolution provision in the Alberta Rules of Court could not be implemented at the direction of the chief justice because there were insufficient judges in Alberta then.

This is not a problem that magically appeared under the new minister, but it is a problem—delay in the justice system. Given my conversations, the questions I've seen in the House, and the responses, I do have faith that this is being taken seriously, and I will continue to push alongside members of every party to ensure that we fill those vacancies expeditiously.

To conclude, I do not see a route that Bill S-217 can have to become law that would improve safety because the central component of this bill is the source of my reticence. For that reason, I plan to support Mr. Bittle's motion.

Thank you.

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

Thank you, Mr. Chair.

First of all I want to thank Mr. Cooper for his passionate defence of this bill. I certainly appreciated his reaching out to me in a phone conversation to talk about some of the finer details of the bill. I too voted for this bill at second reading because I agreed with the principle. I don't think there's a person in this room who denies that what happened with Constable Wynn and Shawn Rehn wasn't a good thing. It was a problem. It's a failure in the way things currently operate.

I too have independently given my full and legitimate consideration to this bill and to all the witness testimony we've heard and the briefs that were submitted. I've also consulted with caucus colleagues who are expert lawyers and with people outside of the caucus in the legal community as well. Weighing what I have seen, witnessed, and read, the evidence in my considered opinion is stacked against this bill.

I do want to say, however, that what happened to Constable Wynn does not.... We can honour his memory. This does not have to be the end of the road for honouring his memory. I sincerely think that what happened in this particular issuance does not warrant a legislative solution. I think we've heard from many witnesses that there is plenty of room for administrative solutions, whether it's through more resources for our justice system, making sure police records are timely and up to date in every part of this country, or even giving more educational opportunities to crown counsel to learn from this opportunity. I don't think we should end the road at this particular issuance.

Now, the Minister of Justice has met just recently with her provincial colleagues. I'm glad to see that this meeting has finally occurred, that the Liberal cabinet has finally acknowledged the crisis that is in our justice system, because the Jordan decision was a long time ago. I think Mr. Cooper's criticisms of the justice minister are valid; I share many of them. There have been vacancies in our courts for far too long. The legislative agenda of this government, particularly with justice bills, seems to be in tatters. It has taken 18 months to get bills forward on marijuana legalization, on impaired driving laws, and the zombie provisions of the Criminal Code. I have to ask myself what the cabinet, particularly the Minister of Justice, has been doing all that time, because there are some very important bills sitting on the Order Paper that have not yet come to second reading debate.

If I may impart some advice to my Liberal colleagues, the next time you have the opportunity to speak to the cabinet, say that there are several very important justice initiatives that can wait no longer; that we need to see properly funded resources for our justice system, whether it's in legal aid, appointing members to the bench, or providing for more administrative services in courtrooms.

We also need, though, to see this legislative agenda put forward so that we can start debating it, because if you look at the remaining timeline we have in Parliament, June 23—the last possible day we have to sit until September—is fast approaching. I would say that it's time to roll up our sleeves and really get to work on some of these pressing issues.

While I will not be supporting Bill S-217, then, don't think for a minute that this is the end of pressuring this government to get to work on these outstanding justice issues.

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

Thank you, Mr. Chair.

It is with disappointment to learn of the government's intention to kill Bill S-217. It is not lost upon me that no mention was made of Shelly Wynn and her testimony. No mention was made of the former attorney general of Alberta. No mention was made of the evidence of John Muise, who has extensive experience as a Toronto police officer, and who served on the Parole Board. No mention was made of all of the associations that represent the front-line police officers who put their lives on the line every single day to keep our communities safe and who bear full support of this legislation.

What we did hear at the justice committee was a lot of MPs searching for every excuse to try to kill this bill. There were two arguments that were put forward, in essence, in opposition to this bill, both of which are equally flawed. One was the suggestion that it would increase the evidentiary burden. Mr. Woodburn tried to make that argument as a prosecutor. He tried to lead this committee into interpreting the bill to change the standard of proof by saying that the crown “shall prove”, as opposed to “may prove”. Of course, Mr. Woodburn conveniently ignored the fact that the legislation says no such thing, and members on that side ignored that fact, and continued to ignore that fact even when it was pointed out that the bill provides that prosecutors “shall lead evidence to prove”.

By contrast, the bill does nothing to change the standard of proof which is provided for at section 518(1)(e), which provides that a judge or justice of the peace may accept evidence that is deemed credible and trustworthy. Of course, the case law is very clear that evidence from a police agency or from a police department is credible and trustworthy evidence, and that would encompass the CPIC record. Frankly, that argument is baseless.

It comes down to this argument of delay by requiring the crown to lead evidence of the criminal history of someone seeking bail. We heard at committee from none other than Mr. Woodburn, who said that this was the bread and butter of prosecutors. It's what they do every day. It's the first thing they learn. Indeed, I challenge any member of the committee to cite any credible evidence put forward before the committee as to a scenario when the criminal history of a bail applicant should not be presented. There was no evidence. There was no credible evidence. There was no credible example provided for, and there was no credible example because such information is always relevant in material. Indeed, it is impossible for a judge or justice of the peace to exercise their discretion without such information. That's, in essence, all this bill does.

Yes, there were some aspects of the bill in terms of the language that arguably needed to be tightened up. Based upon the evidence, I was prepared to work in a co-operative fashion to bring forward amendments to clean up some areas of the bill that needed to be amended. However, on the key question of whether evidence shall be presented at a bail application hearing, the essence of the bill, that was not in question in terms of the evidence before the committee. I would reiterate the point that Mr. Nicholson very astutely made in terms of when we talk about delay. Who are we talking about? Which bail applications are we talking about?

If an individual has no criminal history and is charged and appears and there's a contested bail hearing, there is no delay because there is no criminal record, but when you have someone like Mr. Rehn, who had a criminal record longer than my arm, shoot and kill Constable Wynn, yes, there will be some delay. Yes, there will be a need for a thorough analysis, for due diligence, for a need to provide voluminous information on that criminal's history before a judge or justice of the peace so that judge or justice of the peace can properly exercise their discretion, including keeping the public safe.

Frankly I was disturbed by the attitude about efficiency on that side and perhaps on other sides. We heard this over and over again. I would submit it is precisely that lax attitude that contributed to Constable Wynn not being with us today. It was an example of a bail hearing that was rushed, unfortunately. Let's process the application without the evidence in front of us, and what were the consequences? They were fatal, Mr. Chair, and that is absolutely untenable.

It is unacceptable, and in terms of delay, the irony is not lost on me and it shouldn't be lost on Canadians. These Liberals would talk about delay in the context of the murder of Constable Wynn and trying to fix the bail system, when they have stood in silence as their Minister of Justice has failed to do her job, a Minister of Justice whose conduct has been nothing short of negligent in failing to fill one of her core responsibilities, and that is to fill judicial vacancies in a timely manner. We have a minister who gets up in the House of Commons and pats herself on the back as we have a near-historic number of judicial vacancies. We have judicial advisory committees that are almost half vacant and have been almost half vacant since October. We have murder cases, sexual assault cases, child abuse cases thrown out of court, and the minister says she's proud of her record. We have thousands of cases at risk, and the minister can't even appoint judges.

These Liberals talk about delay. The irony is not lost, and I can tell you that as the member of Parliament for St. Albert—Edmonton and as the deputy justice critic, we're going to keep fighting for this bill regardless of the outcome of the vote this day because the stakes are too high. What happened to Constable Wynn should never have happened, and this law, if it could be passed, would help prevent such an incident from happening again.

Thank you.

[Chris Bittle, Liberal, St. Catharines, ON]

Yes, please.

First, I'd like to commend Mr. Cooper on this bill. I was impressed with the intent and the passion and commitment he's put forward on this, so much so that I voted for this bill despite the government's opposition to it when it first came through the House on second reading. I know a number of my colleagues on the Liberal side of the House, including some members of our committee, did the same thing, because the intention of the bill is noble. There are issues with the bail system in this country, and an attempt to reform the bail system is a noble objective.

That being said, I came to committee with an open mind, to listen to the witnesses and to hear evidence on the effects and impacts of this bill. Going into it, I knew there would have to be some changes. I had hoped we could make some changes to make this bill palatable and to make this an effective piece of legislation. However, listening to the witnesses and hearing from them one after another, I was immediately left with the impression that this bill misses the mark unfortunately. It will have the opposite impact of making the bail system worse, and it will lead to significant delays.

I'd like to briefly go through what some individuals—the witnesses that we heard—discussed. The first one, Mr. Michael Elliott, who is president of the Alberta Federation of Police Associations, supported this bill. After examination, he asked himself whether it would slow down the system, and answered yes. That's a supporter of the bill.

Mr. Rick Woodburn is president of the Canadian Association of Crown Counsel. Crown counsels are individuals who want to see criminals in jail. They want to see the right people go to jail: that's their job.

He said of the tragedy that brought forward this bill, that it was “human error: [the constable dealing with the bail matter] failed to put the record before the court...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.”

He went on to say of his concerns about Bill S-217, that “bail hearings will double and triple in time. And it's not necessary.” He said that S-217 “will add nothing to bail hearings, but it will take away a lot,” and that if “bail hearings expand and take longer, other matters will fall like dominoes, and it will end up having the opposite effect.”

Rachel Huntsman, on behalf of the Canadian Association of Chiefs of Police, said that this bill “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.” She said of the bill that this amendment is not necessary.

Detective Superintendent Dave Truax from the Ontario Provincial Police added that this bill would cause a challenge for Canadian law enforcement agencies.

Dr. Cheryl Webster, an associate professor at the University of Ottawa, said that legislation can't change human error, which is what caused this tragedy. She said it seemed to her that “this bill will very likely only add volume to an already exploding problem.”

Ms. Nancy Irving, who has done some incredible work looking into this tragedy and how to improve the bail system in Alberta, said, “I share the concern that this new language could turn bail hearings into mini-trials.”

I tried during many of my questions to ask witnesses for amendments or potential amendments to make this bill an effective tool for law enforcement and for crown prosecutors. The response we received from witness after witness was that they couldn't propose anything, and that even minor changes—minor or major amendments to this bill—would have negative impacts on the justice system. My fear is that this bill will have the opposite effect and could in fact make Canadians less safe.

It could do this in terms of significant delays, which the Supreme Court has ruled on, especially in the Jordan case, which we've talked about. This may see more people out on the street who should be in jail, and that's not something I want to see. Despite the good intentions of the bill, I'm concerned that this bill may put Canadians at risk, and unfortunately, I can no longer support Bill S-217.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Now, ladies and gentlemen, we will turn our heads to S-217. I would like to welcome Laura Hodgson, who is the counsel for the criminal law policy section of the Department of Justice and is here to answer any questions we may have.

We'll now move to clause-by-clause consideration of the bill.

Mr. Bittle.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen.

Welcome to the Standing Committee on Justice and Human Rights.

Today, we move to clause-by-clause consideration of the Senate public Bill S-217, An Act to amend the Criminal Code (detention in custody).

Before we begin the clause-by-clause, though, the clerk has asked me for 30 seconds of our time to look at paying the witnesses who testified before us, so I'm going to turn it over to the clerk to ask for approval of the budget, basically.

Do you want me to just read it out? Basically, it's a budget of $12,200 for witnesses and $1,500 for miscellaneous, so it's a total budget to approve of $13,700 for our study of S-217.

Does everybody have a copy?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Look, the government has been very clear on this issue, and I'll answer any questions the Ethics Commissioner has.

More seriously, Mr. Chair, thank you for giving me the floor. It's an honour to be back. I have to apologize to members of the committee for having to depart almost mid-sentence last time. There were many points that I had only started to make, and I know people were looking forward to my wrapping up those points the last time. I think I only talked for about 10 hours at that time, so now I have occasion to bring some of those points to a conclusion. The only reason I could not continue the next day was that I had an event I had committed to long in advance, an event at Queen's Park in Toronto. That's why I wasn't here. Since then, I've been trying to get back on the speakers list, but my colleagues have been hogging all the glory here, to quote Ajax from Troy. So now that I have the floor, they're not getting it back, whether they like it or not.

I think it's important to recognize that we have the opposition House leader here, and I really appreciate that. It shows the level of engagement that our caucus has with this issue in general. This is something that we are very much committed to in our party, namely, strengthening the role of individual members of Parliament. That's what this is about. It's not just about the balance that exists between parties. It's also about the role of individual members of Parliament.

I have to say, looking across the floor at some of the Liberals we have here at the committee, that we have some new members who are already very strong in their understanding of the importance of members of Parliament expressing some degree of individuality. I want to recognize Mr. May's excellent private member's bill. It was a private member's bill that he proposed, that all Conservatives voted for, and that passed as a result of the support of the opposition. I think New Democrats supported it as well. The cabinet did not support it, but he proposed it. Many members of the government supported it, and it went through to committee.

That's just an example of the importance of members of Parliament. We're engaged in this conversation around ensuring that there's unanimity of the parties in the study, which will proceed in order to ensure that we actually could protect the role of members of Parliament.

We need to understand that this is not just a fight for a particular party, not just a fight for the opposition. It's actually a fight that should matter to individual members of Parliament on the government side, members of Parliament who have good proposals that may not reflect what the government has in mind.

Our chair had an excellent private member's bill on FASD that I was very pleased to support. Actually, we had people on the front bench who opposed that bill, from both the government and the official opposition. Yet it almost passed because of the support of individual members of Parliament who were talking to each other, saying this was a good initiative, a good bill. Maybe there were some details that could be worked out at committee, but fundamentally it was a good bill.

One of the concerns I have with the government making unilateral changes to the Standing Orders...and by the way, if they don't like the direction that members of this committee want to take with respect to the study, they can pull you right off this committee and put somebody else on. That's something that permanent members of PROC know or should know. It's actually not up to you. The way our system works right now, who sits on this committee is entirely within the control of your whip. Even if individual members sitting here on the Liberal side think they could be reasonable and listen to what the opposition is saying, unless we pass this amendment, which deals with unanimity, unless we have this clarified in the language going forward, it's really only up to the government whip to decide the outcome. Any time the whip doesn't like the proposals or opinions from government members with respect to the Standing Orders, that's it. You can't actually express your individuality on the committee in the same way because of that constant threat. This is something that on the opposition side we're very aware of—the risks and problems.

I recognized Mr. May on his excellent private member's bill. I know Mr. Bittle voted in favour of Wynn's law, which was a great private member's bill that was brought to the House by Mr. Cooper. It was initially put forward in the Senate, but it was sponsored in the House by Mr. Cooper. There was a lot of advocacy that went on around that. The entire opposition supported that bill, and it was able to pass to the next stage because of a number of members of the government who realized it was a good bill and stood up to support it.

I can mention the genetic discrimination bill, on which I think almost the entire government backbench voted against certain government amendments that would have gutted the bill, and then in favour of the bill.

These are important moments in the life of this Parliament, when some individuals in particular, and especially on the genetic discrimination bill almost the entire government backbench, stood up. Sometimes it doesn't seem like the government backbench does, but in certain moments we do see this, an actual appreciation that, yes, good ideas do come from the opposition and also that as members of Parliament you have a critical role to represent your constituents, to advocate on behalf of your own considered judgment with respect to issues, and not to simply go along with the direction that you've been given from on high.

Changes to the Standing Orders that don't reflect the judgment of the entire House, that don't reflect the wisdom of all parties, put in jeopardy the position not just of the opposition, not just of the Conservative Party, but the position of individual members of the government. When we have these conversations as an opposition party, of course we're cognizant of the fact that, hopefully, we'll be in government one day soon. It's looking more and more like it will be after the next election, in light of some of the things that are happening. But whether that's after the next election or the one after that, the rights that we protect in this process will also protect those members of the government caucus, let's say, who are not, in the formal sense, part of the government.

These are important points that need to be made, and I hope that members of the government, even if they can't necessarily, for political reasons, come out and say in this committee, “All right, we agree with you; let's pass this amendment and move on”, hopefully they'll at least take this back to the government House leader, to their caucus, to their Prime Minister, and say, “We have an important role, too, in this place. This isn't just about being a backdrop for the Prime Minister. This is about representing our constituents in a constructive and meaningful way.”

This is a critical part of what we're engaged in. I invite government members to really reflect on that, to consider supporting this amendment as individuals, and to make the case back to their party. Not only would approving this amendment allow us to proceed in a constructive direction, but it would also be a way of actually preserving those rights that members of Parliament from all parties are supposed to have.

There's one thing I want to read into the record as we explore this question. This is from Discover Canada, which is the study guide for people who are looking to become citizens of Canada. It talks about the rights and responsibilities of citizenship. I think it's a great document. It talks about parliamentary democracy and what the principles that need to animate parliamentary democracy are.

I don't think this debate is about a possible end of democracy in Canada. I don't, but I do think that this debate is about the strength of our parliamentary institutions, and really, the ability of the government to move us away from our traditions of responsible parliamentary democracy towards a sort of reimagined quasi-presidential system in which we do have elections every four years, but effectively, in between elections all of the power is with one person, the prime minister. That's not what our system is supposed to have. Of course, presidential democracies around the world do have other kinds of checks and balances, but especially in a parliamentary democracy, where you don't have the same kinds of external checks and balances to that centre of power, it is important that you not allow that centre of power—the prime minister, the prime minister's office, and perhaps, by extension, the whip—to suck all the power in. You need to make sure that Parliament maintains its strength.

I'm not going to read the whole thing, but this is from page 28 of the citizenship guide where it talks about parliamentary democracy:

In Canada's parliamentary democracy, the people elect members to the House of Commons in Ottawa and to the provincial and territorial legislatures. These representatives are responsible for passing laws, approving and monitoring expenditures, and keeping the government accountable.

Right off the bat, we don't see discussion in this guide.... I think it's quite right in saying that members of the opposition are responsible for approving and monitoring expenditures, and keeping the government accountable. It actually says, “these representatives”, all members of Parliament, us as well as members on the other side of the table. We are responsible for doing all of these things, for passing laws, approving and monitoring expenditures, and keeping the government accountable.

Cabinet ministers are responsible to the elected representatives—

Hey, that's a thought.

Cabinet ministers are responsible to the elected representatives, which means they must retain the “confidence of the House” and have to resign if they are defeated in a non-confidence vote.

Maybe we need to have a footnote here that says this is how we want it to work. It goes on to say:

Parliament has three parts: the Sovereign (Queen or King), the Senate and the House of Commons. Provincial legislatures comprise the Lieutenant Governor and the elected Assembly. In the federal government, the Prime Minister selects the Cabinet ministers and is responsible for the operations and policy of the government.

The buck is supposed to stop there on decisions of the government. I'm ad libbing; that's not what it says. It doesn't use language that informal.

The House of Commons is the representative chamber, made up of members of Parliament elected by the people, traditionally every four years. Senators are appointed by the Governor General on the advice of the Prime Minister and serve until age 75. Both the House of Commons and the Senate consider and review bills (proposals for new laws). No bill can become law in Canada until it has been passed by both chambers and has received royal assent, granted by the Governor General on behalf of the Sovereign.

Living in a democracy, Canadian citizens have the right and the responsibility to participate in making decisions that affect them. It is important for Canadians aged 18 or more to participate in their democracy by voting in federal, provincial or territorial and municipal elections.

This is a pretty simple and straightforward but positive description of what a parliamentary democracy is.

Sometimes we need to pinch ourselves and remind ourselves of the kind of basic civics grounding on which we are supposed to be standing. It is one in which members of Parliament are elected by their constituents directly. In fact, it was only relatively recently that party names appeared on ballots at all. Before, yes, people had affiliations with political parties. Those political parties were very important in terms of support, but you still had to rise or fall within your own constituency purely on the basis of your own name. If people wanted to vote for the candidate of a particular political party, they had to at least know the name of that candidate in advance. This is the structure of our system, one in which members of Parliament have the—yes, I say relatively recently; it was before I was born. Lots of things happened before that.

[Jay Cameron]

I think that, first of all, I will refer to Alberta and what Alberta has done. My understanding is that they've implemented a pilot project, so that you have dedicated crowns who run the bail hearings. They are run between certain hours of the day and it's a lengthy time period, something like 12, 14, or 16 hours of a day.

All that crown counsel does is consider the release of accused persons. Sometimes they release and sometimes they oppose release, in which case there's a bail hearing.

It really cuts down when you have a dedicated justice of the peace or you have a dedicated judge and then you have dedicated crowns to run bail hearings like that. That really gets rid of backlogs.

Perhaps I can address what you said about the number of people who oppose Bill S-217. It's a classic fallacy, and no disrespect in using that word. I just mean it in the sense of logic, to say that there is a lot of people who oppose something and therefore they must be correct.

I pointed out in my brief—and I urge you to go through it—that some of the people have misstated some material aspects of the legislation, and they're not small misstatements. I'm sure they're inadvertent, but yet they're there. Just because lots of people say one thing doesn't mean they're correct.

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

Thank you, Mr. Chair.

Mr. Cameron, I didn't get a chance to ask you any questions during the first round.

I appreciated your strong and vigorous defence of the bill, but I think you have to admit, from the committee hearings we've had, that the number of people and organizations asking us to vote against this bill is starting to mount. We now have noted academics, the chiefs of police, people representing crown counsel, and so on....

I will go through your testimony, because I want to review the evidence you cited and make sure that when we come to clause-by-clause consideration of this bill that I have all the facts at my disposal.

As some sort of a peace offering, if you will—and I don't want to prejudge this committee's outcome—if we arrive at a situation where Bill S-217 is going to proceed no further, can you at least put into the record some of your suggestions on how we tackle some of the systemic issues that are causing these kinds of things in our bail hearings? Leaving aside what Bill S-217 is, I want to give you a chance to offer your suggestions for what we in the federal Parliament can do to make the operation of our justice system more efficient, aside from a legislative solution.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Before we conclude and I give you a question you might want to answer in further testimony, it's reasonable to assume that, as is, S-217 could end up causing more harm than good.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I'll move on to my second question, to something that you alluded to. I thank you for raising the “prove the fact” notion. It's the first time we've heard that it may be a higher standard of evidence. I understand your argument with regard to “may” and “shall”.

In very simple terms, the intent of Bill S-217 is to prevent criminals from being on the streets to reoffend and commit violent offences against people, including our first responders. As is, if we're not able to figure out any changes to Bill S-217, in your opinion would this cause delays in the bail hearing process, which would then have ramifications in the trial process, such that with Jordan, now being a time limit the criminal justice system has to respect, we'd actually see more criminal proceedings stayed, and thus have more criminals on the streets without having their cases heard?

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

And that's what Bill S-217 would fix. It would ensure that it wouldn't occur.

[Jay Cameron]

First of all, I'll agree with her that CPIC is way behind being updated, which is really unfortunate and why prosecutors currently supplement the CPIC record with the provincial record, but no, there's no reason to go and call viva voce evidence at a bail hearing just because of Bill S-217, because the CPIC is already “credible and trustworthy”, and that's what the case law says.

[Jay Cameron]

Bill S-217 just changes the “may” to “shall”, as in “shall...lead evidence.”

It's not “shall prove”, as everybody keeps saying. It's “shall...lead evidence to prove”.

Now I think, and I'll tell you candidly, that the introduction of “the fact” in the legislation is unfortunate. I don't think it belongs in there, to be perfectly honest. So I think that it could be amended because I think that's partly the reason there's confusion on this point, but ultimately speaking, from my perspective, it doesn't change the evidentiary burden because it's something that the crown is doing on a daily basis. It just says “shall...lead evidence” as opposed to “may...lead evidence”. Right? We just want them to lead evidence.

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

So tell me how Bill S-217 changes that evidentiary burden. Does it?

[Jay Cameron]

Typically, there is not viva voce evidence. What happens is that the police generate a police report. The crown has that in a file, as well as the CPIC, and then the crown reads in the information that has been compiled by the police. That information is hearsay, but it is admissible because of paragraph 518(1)(e), just like the CPIC is. Typically, the CPIC is admitted because the accused knows what his record says or what it doesn't say and the hearing proceeds.

I will say this. I have personally seen situations where the record was not in front of the court. It's not just in the case law; I've seen it personally. What happens is that you have a crown who is busy. They have a hundred different files, they take a file apart, and part of it goes here and part of it goes there. They put it back together, they run down to court, and they leave the record upstairs.

Bill S-217 is required because it requires the crown to go upstairs, get the record, come back to the courtroom, and introduce the record. In the case of R. v. Brooks, that didn't happen.

[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.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair,

Mr. Cooper, thank you very much for your work on this important consideration of our Criminal Code, and I appreciate your taking the time today to speak to us about Bill S-217.

I have some questions and some concerns about the proposed legislation, and I'm hoping you can shed some light on those concerns. I think it's important to note that there isn't a single parliamentarian who doesn't acknowledge the tragic circumstances that led to the thinking behind the loops that may be closed by S-217.

My concern is three-fold, so I have three questions. One is related to the delays that will invariably be introduced in the system should this legislation become the law of the land, including in non-contested hearings. If this passes, it would have to be considered in a non-contested hearing, and if that only added five minutes, doing 30 to 50 bail hearings a day, the system of justice would slow down. You are on record as well as having said we need to do better to speed up the wheels of justice. Our government has done its part, in part, by having 12 judges nominated in Alberta. I see a dichotomy here between, on the one hand, wanting to speed up the wheels of justice, and on the other hand, introducing potentially serious consequences at bail hearings if S-217 should pass. That's one concern.

The second concern I have is that I think this tries to legislate human error. As much as I think there's legislation we'd like to see in the Criminal Code that could legislate human error, I'm not sure how that's possible and how we could have that come out of the system.

Third, the Alberta bail review conducted by former federal prosecutor Nancy Irving raises serious concerns and strong objections to the practice of some 3,000 police officers being able to represent the crown at bail hearings. I know that's under consideration in Alberta right now. If we had crown prosecutors at bail hearings instead of police officers, crown prosecutors who are better trained and understand the nuances of this, wouldn't that obviate the need for S-217?

I think it's important to note for the record that it was the Conservative government in 2015 in their budget that cut CPIC by 10%. I also think it's important to note that the last AG's report said very clearly that the delay in getting information from conviction into CPIC is 14 months in English Canada and 36 months in French Canada. I believe this compounds the issue we already have, and that's why I have grave concerns.

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

Right. Well, Mr. Bittle, I would submit that the duty of a prosecutor in the context of a bail hearing is clear, and that is to present the best and most attainable evidence about the criminal history of an accused seeking bail. That's precisely what Bill S-217 would do.

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

Okay.

We know that poor people and marginalized people, people of colour and the mentally ill, are more likely to come into conflict with the law. That's a statistic that is very much known. Do you think Bill S-217 might have some changes in terms of the makeup of the remand population in provincial correctional facilities across the country? Do you think specific minorities might fall into the trap of being disproportionately affected by this particular legislation?

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

It's a fair question, Mr. Fraser. Thank you for that.

I would say that it's for a few reasons. First of all, the third ground had been characterized as a tertiary ground or a residual ground. In the Supreme Court St-Cloud decision, at paragraph 34, the court clarified that it's not a “residual” ground “but one that is separate and distinct”. The court said it's not one that's used “as a last resort” per se, as it had been interpreted oftentimes in some lower court decisions in terms of its application.

The Supreme Court, in the St-Cloud decision, made clear, as did the Supreme Court in the Hall decision, that the four factors expressly enumerated in the Criminal Code are the factors that must be considered. They're the primary factors that are to be considered on the question of confidence in the administration of justice, but they are not the only factors.

In that regard, at paragraph 71 of the St-Cloud decision, the Supreme Court said that among the factors that should be considered, or often should be considered, is a “criminal record”. In that regard, what this would do in some respects is codify what the Supreme Court has already said is relevant and material on the question of that third ground of public confidence in the administration of justice.

I would also add that the Supreme Court, in St-Cloud and other decisions, noted that the purpose of that ground is, of course, when public confidence in the administration of justice would be compromised, as it has stated, on its face. I would submit that there would not be an instance where public confidence in the administration of justice could be more badly compromised than seeing someone let out on bail when they have an extensive criminal record, outstanding charges, and failures to appear—exactly the record of someone like Rehn.

I would submit that in terms of that secondary ancillary component of Bill S-217 it is consistent with the pronouncement of the Supreme Court in St-Cloud and also consistent with the purpose of that ground as enunciated by the Supreme Court.

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

Thank you, Mr. Chair.

Thank you, colleagues. It is a privilege to be before you to testify on Bill S-217, known as Wynn's Law, named in honour of Constable David Wynn.

Bill S-217 is a straightforward bill. It seeks amendments to the Criminal Code that while minor could have saved Constable Wynn's life had they been enacted at the time he was shot and killed.

Before I go into details on Bill S-217, let me at the outset provide some background as to what led to Bill S-217, Wynn's Law. During the early morning hours of January 17, 2015, Constable David Wynn and Auxiliary Constable Derek Bond were inspecting licence plates outside a casino in St. Albert, my home community, as part of their routine policing. In the course of inspecting licence plates, they came across one in the name of Shawn Rehn, for whom there was an arrest warrant. Consequently Constable Wynn and Auxiliary Constable Bond proceeded into the casino to arrest Mr. Rehn. As they approached Shawn Rehn, Rehn began to shoot and shot Constable Wynn and Auxiliary Constable Bond. Tragically, Constable David Wynn died four days later, on January 21, 2015.

Constable Bond survived, but having spoken with him, I can tell you that his life will never be the same. Indeed his life is in many ways a living hell as he seeks to deal with the impacts of being shot at close range, both from a physical and from a psychological standpoint.

Constable Wynn's killer, Rehn, was out on bail at the time, notwithstanding the fact that he had over 60 prior criminal convictions, 29 outstanding charges—I said 38 before, but it was 29—and multiple failures to appear. It prompted RCMP Commissioner Paulson to ask how it was that such an individual was walking amongst us. It turns out that such an individual was walking amongst us because this individual's criminal history was not presented at the bail hearing, in part because of a loophole in the Criminal Code found at paragraph 518(1)(c). That loophole, a fatal loophole, provides that the criminal history of a bail applicant may be presented—may—notwithstanding that the criminal history of a bail applicant is always relevant and material for a proper determination on the question of bail. The essence, the cornerstone, the underlying purpose, of Bill S-217 is to amend paragraph 518(1)(c) to replace “may” with “shall” so that in all circumstances the criminal history of a bail applicant is presented at a bail application hearing.

The purpose of Wynn's Law is to ensure that all relevant and material information is presented. That didn't happen in the bail hearing of Shawn Rehn with lethal consequences.

Wynn's Law would ensure that relevant and material information is presented, but it would not interfere in any way with the discretion of a judge or magistrate to make a determination on the question of bail. Indeed, Bill S-217 would ensure that the judge or magistrate had all the relevant information before them so they could properly exercise their discretion in determining whether someone should be kept behind bars or let out into the community. Moreover, Wynn's Law would not impose any undue burden on the crown, on prosecutors. This type of evidence is almost always presented at a bail application hearing. Bill S-217 would formalize in law what is almost always done, and what should always be done at a bail hearing so that what happened to Constable Wynn and Auxiliary Constable Bond never happens again.

In addition to amending paragraph 518(1)(c) of the Criminal Code, there is also a secondary component to Bill S-217 and that is to amend section 515(10)(c). Section 515(10) is the section in the Criminal Code that sets out the grounds on which bail may be denied. There are three grounds set out in section 515(10). The first is at section 515(10)(a), which is in the case of an individual being a flight risk. The second is at section 515(10)(b), which is where public safety is at play and then the third ground, and this is the ground that this bill would amend as well, is section 515(10)(c), which deals with denying bail where confidence in the administration of justice would be compromised.

There are four sub-grounds that must be considered under that question of the administration of justice being compromised. What this bill would do is make minor amendments by adding three grounds in addition to the four that are already there, namely, past convictions, outstanding charges, and failures to appear. Again, the overriding purpose, the overriding objective, is the change to section 518(1)(c), which is to change “may” to “shall” so that the criminal history of a bail applicant is always presented at a bail application hearing.

In closing, Mr. Chair and colleagues, what happened to Constable Wynn and Auxiliary Constable Bond should never have happened. Unfortunately, we cannot turn back the clock, but as parliamentarians, I believe we have an obligation to close a fatal loophole so that this never happens again. We owe it to Constable Bond, to Constable Wynn. We owe it to Canadians.

Thank you.

[The Chair, Liberal, Anthony Housefather]

It is a pleasure to call this meeting of the Standing Committee of Justice and Human Rights to order, as we commence our study based on the order of reference of Wednesday March 8, 2017, on Bill S-217, an act to amend the criminal code regarding detention in custody, otherwise known as Wynn's Law.

It gives me great pleasure to welcome our House sponsor of the bill, Mr. Michael Cooper, who is a member of our committee.

How proud we are to have you, Mr. Cooper. The floor is yours.

Criminal Code

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Mr. Speaker, I am rising on a point of order. There was a bit of confusion when it all started. The votes came zipping by and I missed my opportunity to vote for Bill S-217. I would like my vote to be registered in favour of Bill S-217.

[The Speaker, Liberal, Geoff Regan]

The House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill S-217.

Before the Clerk announced the results of the vote:

The House resumed from February 22 consideration of the motion that Bill S-217, An Act to amend the Criminal Code (detention in custody), be read the second time and referred to a committee.

[Len Webber, Conservative, Calgary Confederation, AB]

Mr. Speaker, later today, Bill S-217, Wynn's law, will come to a decisive vote. Members of the House will decide if the death of RCMP Constable David Wynn was in vain or if his death was the catalyst for meaningful change. Members will vote. They will decide if we are willing to lose another life, or lives, or if we will take responsible steps to protect Canadians. Members will cast a vote to keep a flawed justice system or a vote to improve our justice system.

We have the opportunity to honour the legacy of Constable David Wynn. We have the opportunity to make our streets safer. We have the opportunity to fix a loophole in our justice system. We have the opportunity to make a positive difference.

I encourage all colleagues to seize that opportunity and support Bill S-217.

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

Mr. Speaker, let me just say at the outset that I want to acknowledge the hard work of Senator Bob Runciman in championing this bill in the Senate, as well as my predecessor, Brent Rathgeber, who introduced a similar bill in the last Parliament.

The essence of Bill S-217, known as Wynn's law, is about changing one word in the Criminal Code, one word, to change a loophole that cost Constable David Wynn his life when he was murdered, a loophole that imposed a life sentence on Auxiliary Constable Derek Bond, who forever will have to live with the consequences of being shot at close range.

Constable David Wynn should be with us today, but he is not, and Auxiliary Constable Bond should not be living a life sentence of hell, but he is. The change of one word in the Criminal Code could have made all the difference, and that one word change is to change “may” to “shall” in section 518 of the Criminal Code to make it mandatory for prosecutors to lead evidence of the criminal history of bail applicants.

The criminal history of bail applicants is always relevant and material to determine the question of bail. It is always relevant and material because without such information, it is not possible for judges or magistrates to properly exercise their discretion as to whether someone should be kept behind bars or let out on to the street, and yet, section 518 of the Criminal Code provides that it is discretionary whether this information is brought forward. It simply does not make sense, and Wynn's law would fix that.

There have been some who have said that Wynn's law is unnecessary because the criminal history of bail applicants is almost always put forward. I say to those critics that simply is not good enough. It is not good enough for Constable Wynn, who is no longer with us. It is not good enough for Constable Wynn's family, who lost a husband, a father, and a brother. It is not good enough for my community of St. Albert, which lost a brave constable who ultimately gave his life to keep my community safe. It is not good enough for Auxiliary Constable Bond and his family, whose lives have forever been changed.

It simply is not good enough that the criminal history of bail applicants is almost always put forward. The criminal history of bail applicants must always be put forward so that what happened to Constable Wynn and Auxiliary Constable Bond never happens again.

Some critics of Wynn's law say that it would cause delay in our justice system. I say how could that be, given that such information is a keystroke away and, at most, a phone call away?

In closing, let me say that we must never forget Constable Wynn and Auxiliary Constable Bond. We have a responsibility as parliamentarians to close this fatal loophole in the Criminal Code. We owe it to Constable Wynn, and we owe it to Auxiliary Constable Bond, and we owe it to Canadians.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, it is my privilege to rise to speak to Wynn's law as well. I would like to thank the member for St. Albert—Edmonton for bringing the bill forward. He has been a tireless champion on it, and has worked with me in my riding as well to raise awareness of the issue. I would like to thank him for all his efforts.

This issue hit us pretty close to home in northern Alberta. I will start by backing up a bit. We all remember the events that took place in 2005 in Mayerthorpe, where four police officers were gunned down. That was right near my riding. That was something that rocked the nation at the time, so the day that David Wynn was killed brought back all those memories.

I know my own communities were reeling with those memories. We all thought those days were behind us, that we were not going to see another police officer fall in the line of duty in northern Alberta again. However, there we were a few short years later, and another fallen officer. I remember the day well when we heard on the radio that a police officer had been checking licence plates in the parking lot at the casino, and that had led to him being gunned down.

For me, that was an introspective point in my life. I thought about my time as an automotive mechanic. I was working in Barrhead. I thought that guy probably went to work today thinking it was just another day of work, the same as I did. I am sure he kissed his wife goodbye, and said goodbye to his sons, but never thought he would not see them again in the evening, or whenever he got off his shift. That is a powerful feeling. He was of a similar age to what I am now, and I know the feelings I have every evening when I come home and see my kids. David Wynn is a real story of humanity. The fact that he chose the career as a police officer to protect his community is profound.

I would like to thank all those who stand in the line of duty, protecting our communities and working hard every day. Some of my colleagues with whom I sit here have done that as well. I take my hat off to them. Through the process of the bill progressing, I have had an opportunity to chat with the member for Yellowhead, who is a former police officer. He worked in the RCMP for over 25 years. He has some great stories about protecting communities and things like that. He also says there are some more ugly sides to it. The bill we have before us today, termed Wynn's law, elicits those feelings of the times when we really see where our police force members put their lives on the line, quite literally.

I remember just sitting in my vehicle that day. I heard it over the radio on my drive to work in the morning. I remember thinking, what are we going to do next? How do we solve a problem like this? For me, at the time it seemed beyond my grasp to see how we would solve an issue like this. There are people out there for whom there seems to be no solution.

Today, we cannot reverse the actions of this individual. We cannot reverse the life taken, but we can, in honour of his memory, stand up in this place. That is one of the huge privileges we all have as we stand or sit in this place. We have the ability to see wrongs of the past, and issues that have places and areas in law where we can actually make a big difference. I know this is one of the things I continually say whenever anyone asks me why I pursued becoming a member of Parliament, it is to make a difference, to do something good in the world.

Bill S-217, in light of the situation around it, entitled “Wynn's law” is, to me, the whole reason why we are here today. It is to solve some of these problems we see in the world, to make the world a better place, and work to close a loophole.

I am sometimes frustrated by lawyers. The very first time I met the member for St. Albert—Edmonton, I asked him what he did, and he told me he was a lawyer. I said that we need more rule of law and less rule of lawyers. However, there are times when having a keen legal mind on some of these things, and seeing how we can, through the rule of law, solve some of these problems in the world, is much appreciated.

I typically see things from 30,000 feet, in broad strokes. With this particular bill, just a change of the word “may” to “shall” could make all the difference. It could make the difference between someone being out on the street and later killing someone and someone being kept incarcerated so that he or she is not out on the street gunning down police officers. That, to me, is profound.

I take my hat off to the member for St. Albert—Edmonton for even knowing about this in the first place, although I will say that if members need to know anything, the member for St. Albert—Edmonton is a walking encyclopedia. There is no doubt about that, particularly when it comes to this place. If members want to know the name of the riding a member represents and how many votes that person won by, they should ask the member for St. Albert—Edmonton. He will tell them lickety-split. There is no doubt about that. It is no wonder he would come up with such a profound bill in this place. He knows the workings of this place well. He has been at it a long time. I take my hat off to him.

I am fairly emotionally attached to this whole issue, but I was at a bit of a loss as to how to deal with it. At the time, I was not even considering being elected, but now that I am here, I am very happy to be standing in this place and arguing in defence of Wynn's law. It is a concrete action that could be taken to do two things: to recognize the sacrifice of Mr. Wynn and to make sure that it does not happen again.

We know that after the fallen four in Mayerthorpe happened, we all said, “Never again”, and we honoured their memory. There is now a national memorial in the town of Mayerthorpe that I drive by often. However, the passing of David Wynn struck just too close to home.

I plead for everyone to support the bill. I think it is a bill that is long overdue. It is a monument to the hard work of the member for St. Albert—Edmonton but would also be a monument to David Wynn, who lost his life on that fateful day.

[Kerry Diotte, Conservative, Edmonton Griesbach, AB]

Mr. Speaker, I appreciate the opportunity to rise today to speak to Bill S-217, known as Wynn's law.

I would like to start by offering my sincere condolences and sympathies to Constable David Wynn's widow Shelly MacInnes-Wynn, and her entire family.

I would also like to thank the member for St. Albert—Edmonton for his tireless work on Wynn's law. He has done an incredible job.

When Constable Wynn was shot and killed in the line of duty, it pointed to a dangerous loophole in the Canadian justice system. His killer Shawn Rehn was a career criminal who was out on bail. His killer was granted bail despite the fact that he had more than 50 prior criminal convictions, 38 outstanding charges, as well as arrest warrants for failing to appear in court. That is incredible. It seems unreal that an accused with this type of criminal record would be granted bail. However, we now know that his extensive criminal history was not brought to the attention of the person presiding over his bail hearing, which is shameful. While it is common practice that the prosecutor provide a judge or justice of the peace with the bail applicant's criminal history, it is not legally required. It is difficult to imagine that Shawn Rehn would have been granted bail had his full criminal history been disclosed.

It is an absolute tragedy that Constable Wynn had to die. His death could have been prevented. This tragedy points to a serious loophole in our Criminal Code that must be addressed. The safety and security of Canadians should be the priority for any government. We cannot go back and prevent the death of Constable Wynn, but we can respond in the present by closing the loophole that led to his death. I believe that Wynn's law is the logical response to this tragic event. Wynn's law would require prosecutors to disclose a bail applicant's criminal history at a bail hearing. It is very simple. It would also mandate that failures to appear in court must be disclosed. This legislation introduces a simple measure that has the potential to save lives and increase public safety.

My constituents in the neighbouring riding of Edmonton Griesbach have been very vocal in their support of this bill. At community events, many have told me that they strongly support passing this legislation. I have also received written feedback from hundreds of constituents with respect to Wynn's law. I would like to share some of the feedback that I have received from my constituents on Wynn's law.

Doris wrote, “It's only common sense that previous charges be included in bail hearings, especially in cases where [there is] a long record of breaking laws and ignoring court dates.”

Stanley wrote, “It will help stop innocent lives [from] being taken by dangerous criminals. Plus a lot of lives could have been saved if this law had been in effect long ago.”

Jeanne wrote, “I find it 'criminal' not to pass this law. Shame on the Liberals! Do the right thing!”

Cathy wrote, “Wynn's law is a must!!!”

Susan wrote, “Judges can't make proper decisions without full disclosure of a criminal's history. Get this law put through. Police and public safety should always come before a dangerous criminal.”

I cannot stress enough to the House that these are real people with real feedback. I am speaking for them.

Bob wrote me to say, “This [Constable Wynn] could be any one of us. The judge definitely needs to be aware of a criminal's past history in order to bring about a fair judgment”.

Wendy wrote me to say, “Judges need full disclosure of the criminal's past in order to make a decision that is best for society, not for the criminal”.

Daryl wrote me to say, “Not passing this law is irresponsible and an insult to law-abiding citizens”.

Herb wrote me to say, “Wynn's law should be passed immediately”. I hear Herb.

Glen wrote me to say, “[Wynn's law] should have been done years ago”.

Al wrote me to say, “[Wynn's law], it's a no-brainer bill”.

Perhaps that last comment summarizes it the best. Wynn's law is common-sense legislation. Our judges and justices of the peace cannot be expected to make a fair ruling at a bail hearing without all of the relevant facts.

Again, Wynn's law is a no-brainer. My constituents get it. Canadians across the country get it. Why do the Liberals not get it?

It is time the Liberal government put the safety and security of law-abiding Canadians ahead of criminals.

[Shannon Stubbs, Conservative, Lakeland, AB]

Mr. Speaker, I am honoured to speak in support of Bill S-217, also known as Wynn's law. I want to congratulate and commend all of the hard work of my colleague the member for St. Albert—Edmonton in advancing this bill, as well as the comprehensive case that the member for Medicine Hat—Cardston—Warner made earlier based on his long experience as the chief of city police. Our advocacy speaks volumes to both the family of Constable Wynn and the thousands of other families who have lost loved ones to previously convicted criminals.

For most Canadians, Saturday, January 17, 2015, was just a normal day. We were doing errands, visiting with family and friends, or going to work, but for the Wynn family, it was a day that changed their lives forever. It was the day Constable David Wynn was stolen from them. As we all know by now, in the early morning hours that day, Constable David Wynn and Auxiliary Constable Derek Bond were patrolling in St. Albert, Alberta, checking licence plates outside of a casino. After finding one flagged as connected to an outstanding arrest warrant, they went into the casino to arrest Shawn Rehn.

A career criminal with a dangerous past, Rehn had several warrants out for his arrest, one having only been issued a few days earlier. He had at least 100 offences dating back to 1994 and many of those charges included confrontations with police officers. Since 2010, Rehn had been sentenced to a total of 10 years in jail for offences that varied from possession of a prohibited firearm, to breaking and entering, and theft, yet he was not serving time in prison. He was walking the streets. He turned from career criminal to murderer in four seconds, all because of a loophole, a loophole that we, as legislators, can fix before this happens again.

We can and we must do more than express sadness, as our Liberal colleagues said earlier. We must act so we can stop this from happening again, because there is no question that Constable Wynn's murder was preventable. Rehn should never have been given bail, but in September 2014, after an arrest on several charges, which included possession of a prohibited weapon and an outstanding arrest warrant for failing to appear in court, he had been released on $4,500 bail.

During the hearing, there was no mention, no consideration of Rehn's lengthy criminal past, no mention of how, in 2009, Rehn attacked an ex-girlfriend. He choked her, ripped out her hair, and broke her collar bone. He forced that girlfriend and her infant daughter to sleep in a room with him while he held a loaded gun, because he was feeling paranoid. Was this recounted during his bail hearing? No. Neither was the fact that he was subject to a lifetime firearms ban, that he posed a flight risk, and that he had demonstrated over and over again complete and utter disregard for previous court orders.

This bill makes sense. It seeks to amend section 518 of the Criminal Code, which says that a prosecutor “may” lead evidence of a bail applicant's criminal history. This bill would change the word “may” to “shall”, making it mandatory for prosecutors to lead with any evidence relevant to accused criminals' pasts.

The bill would further amend the same section to include previous convictions, outstanding charges, and failures to appear as criteria that may be considered to deny an accused bail. Wynn's law would protect everyday Canadians. It would protect all of us and law enforcement officers from those who should not be out on the streets, like Rehn, by ensuring informed decisions can be made, enabled by knowledge of the criminal record of an accused. It is common sense and it is just.

This bill has received overwhelming support from communities all over Canada. The Mounted Police Professional Association of Canada, the Canadian Centre for Abuse Awareness, and the former minister of justice and attorney general of Alberta, Jonathan Denis, who was in cabinet at the time of Wynn's murder, all support this bill. It easily passed the Senate legal and constitutional affairs committee unanimously. Then the Senate passed the bill by an overwhelming majority. Rank and file law enforcement officers have given their support to this legislation, but incredibly, inexplicably, the Liberals do not agree and vowed to vote against this life-saving bill.

In November, the member for Charlottetown, when he was parliamentary secretary to the minister of justice, said Wynn's law would “unnecessarily complicate and lengthen the bail process” and remove discretion from the crown. The Minister of Justice has also said, “The measures that are articulated in this bill are measures that are in place at this time”, but they are not. This just is not the case.

Of course, many prosecutors do present criminal history at a bail hearing, but some do not, and that is the problem. That is the problem we can fix.

Bill S-217 would not impose any undue burden or complications on the crown or on law enforcement. It would not infringe on the discretion of a judge or justice of the peace at a bail hearing to make a determination on the question of bail. Decisions would still be made based on the specific facts and circumstances of the individual case, with a complete picture of the accused and the risk to Canadians.

This is not about politics. It is about a life that could have been saved and many others that could be saved as a result. I urge my colleagues opposite to do the right thing and support this bill so that another mother does not have to explain to her kids that a loophole helped kill their dad, that a preventable measure could have saved a life.

RCMP officers and all levels of law enforcement and first responders serve Canadians selflessly 365 days of the year. My mother-in-law, Dianne Saskiw, worked in the Two Hills RCMP detachment centre for almost 40 years. She has seen first hand the officers' brave and compassionate dedication and sacrifice and the important role of RCMP officers in Alberta's rural communities. Here in the House of Commons, it is incumbent on us to ensure that there are safeguards in place to protect those who choose a life of service and risk to themselves for all Canadians.

Constable Wynn's widow, Shelly MacInnis-Wynn, has been a tireless champion of this bill. On behalf of all Canadians, this strong woman is advocating for the successful passage of Wynn's law. Her determination and her courage are unwavering. Last summer, Ms. MacInnis-Wynn gave powerful and emotional testimony at the Senate legal and constitutional affairs committee. She asked those present to close their eyes for four seconds. She said:

In those four seconds, a constable was taken away from his community, a husband was taken away from his wife, a father was taken away from his three sons, and a son and a brother was taken away from his mother and sisters—in four seconds.

Every day I wake up wishing that I could take those four seconds back, but I can't. There is nothing I can do to change that.

Every day I have to live my life alone, not have Dave by my side enjoying the moments we were supposed to have together as a family and as husband and wife.

Every day his children have to experience new things and new milestones without their dad.... They don't have any more chances to make new memories.

Changing this one simple word could save a lifetime of happiness for somebody else, and that somebody else could have easily been you. Dave was the unfortunate one that happened to be there that night, but it could easily have been anybody else.

Four seconds represents the time when Ms. MacInnis-Wynn went from being a wife to a widow. In four seconds, her world was shattered. In four seconds, a sister lost a brother, parents lost their son, a wife lost a loving husband, and three young sons lost their hero. All of their lives changed forever.

It will take less than four seconds to stand up and vote yes for Wynn's law, less than four seconds to vote for a law that would prevent future senseless murders and that would protect innocent Canadians everywhere. On behalf of the people of Lakeland, I urge my colleagues to do so.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am very pleased to rise to speak to Bill S-217, which was introduced by a senator and is now being debated here in the House, as we continue our study and consider passing this bill to amend the Criminal Code. We became quite accustomed to changes to the Criminal Code under the previous government. I want to thank my NDP colleagues who worked so hard examining this issue.

First of all, I want to offer my condolences, as most members have done, to Mr. Wynn's family. Constable Wynn was regrettably killed by someone who had been released on bail while awaiting trial. It is in this context that we are debating Bill S-217; we are trying to correct the flaw that made it possible for the accused in question, who had committed very serious crimes, to be released pending trial, at which point he sadly committed the acts we are all well aware of now. I therefore want to offer my condolences to the family.

I would also like to say that the NDP will be supporting Bill S-217 at second reading so that it is studied in committee. It is our role as legislators to thoroughly study issues, not just in the House when we give our speeches, but mainly in committees, where we study proposed legislation in depth.

In this case, we will focus mainly on the effects of this bill on our judicial system. It is important that this be studied by a committee; as such, we will support this bill at second reading so we can consider the wealth of evidence related to the issue.

Many people are concerned about the proposed legislation. Naturally, police forces are very concerned and expressed their concerns when the bill was before the Senate. The legal community is also very concerned by this issue because the bill would add a step prior to the release of an accused person awaiting trial.

Many people are concerned about this, which is why it is important to have an in-depth study in committee to determine the repercussions of this proposal. For example, some experts say that this could slow down the process. We certainly do not want that, especially when the justice system is already so slow when it comes to hearing crown prosecutors and defendants. There is already a backlog in processing court cases across Canada. It is important to address this issue because it could affect the length of proceedings.

This could have repercussions on the work of police, who are extremely important people in our communities. Crown attorneys could also be affected. I am therefore in favour of Bill S-217 and I think we will have the opportunity to look at its impact.

There are other issues that I wanted to raise and that could help inform the committee members. It will be important to ask the experts to address the issue of presumption of innocence, which is the foundation of our current system.

That is why accused persons are released in many cases. Of course, they will appear before a judge at some point, and that is when the crown and the defendant will present their arguments. In the end, it is up to the judge to determine whether the person is guilty or not.

It is important to consider the fact that, in our system, everyone is presumed innocent until a judge determines otherwise. This issue must be discussed because there is no need to keep people in custody until they have been found guilty of a crime. Since there are hundreds of crimes set out in the Criminal Code, it would not make any sense to keep everyone who has been accused of a crime in custody awaiting trial.

There are mechanisms in place to allow accused persons to go free because not all of them are a danger to the public. As I said, there are hundreds of crimes. There are economic crimes, fraud. The judge analyzes each situation and makes a decision on a case-by-case basis. Allowing accused persons to go free while they await trial does not always present a danger to the public.

We need to look closely at this situation, so as not to put too much of a burden on our justice system and our prisons. Keeping more accused persons in custody for longer periods will not be without consequences. In this debate, it is important to keep in mind that every accused person is presumed innocent until proven guilty. However, we need to give judges the discretion to decide whether the accused constitutes a danger to the public and the community.

In the case before us, the situation is profoundly sad, because the individual released had been charged with several serious crimes and then went on to reoffend by committing an even more serious crime.

Mechanisms exist that give judges the discretion to say that an accused person constitutes a danger to society and must remain in custody awaiting trial. Judges should have that discretion.

If our policies and our laws are too restrictive, we will be removing the judges' discretion to make that decision. Judges are in the best position, because they are the ones who speak directly to the accused and take all the facts presented to them into account.

There certainly is a need for an ideal mechanism, as laid out in Bill S-217, to take into account the accused's criminal record, including previous convictions and failures to appear in court. That can help the judge determine whether the accused is at risk of failing to appear again. If the accused does not appear in court when required to do so, an arrest warrant must be issued. There are consequences for that.

As we debate this bill, it is extremely important to keep in mind that judges must have as much discretion as possible to make informed decisions based on the facts of a given case. They are the judges. There is a reason we call them judges. They are the ones who judge whether accused individuals should be detained in custody or whether they can be released while awaiting trial.

In this debate, I want all of us to think about giving judges as much discretion as possible because they, not we in the House of Commons, are in the best position to evaluate each case based on the facts before them and to decide whether to release the accused or detain them in custody.

My time is up, but I hope to see the next installment of this debate in committee very soon.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Mr. Speaker, I rise today to speak to Bill S-217, An Act to amend the Criminal Code (detention in custody). It has also become known as Wynn's law.

I would remind the House that this bill was named in honour of Constable David Wynn, who was shot and killed in the line of duty in Alberta, another senseless loss of a police officer that in this specific case was absolutely preventable.

I want to thank my hon. colleague, the member for St. Albert—Edmonton for introducing the bill, and for what he has contributed to the debate.

I personally attended the funeral of Constable Wynn. He died in the line of duty while I was a serving member of the Medicine Hat Police Service. I remember that we in the policing community, along with most of this nation, were shocked and outraged by, yet again, another failure of our justice system to protect our communities.

The amendments proposed in Bill S-217, as passed in the Senate, are intended to mitigate similar situations from happening in the future. The man Constable Wynn was attempting to arrest was out on bail, despite having over 30 outstanding charges before the courts, and a lengthy criminal record of over 50 convictions.

What is significant in this case, however, is that none of these previous convictions and outstanding charges had been mentioned during his latest bail hearing, allowing him to be released from custody yet again.

Bill S-217 amends section 515 of the Criminal Code to expand the grounds for detention and custody to include the fact that the accused has previously been convicted of criminal offences or is awaiting trial on other charges.

It also amends section 518 of the Criminal Code to require the crown to lead evidence of the accused's criminal record and outstanding charges at a bail hearing. Currently, across most jurisdictions in Canada, criminal records are routinely introduced at bail hearings. At issue, however, is the fact that the introduction of these records is not mandated or required by law. By simply changing the wording of section 518 of the Criminal Code from may to shall, Bill S-217 ensures that justices will have the information they need to make an informed decision on bail hearings.

During previous debate on Bill S-217, and heard earlier in my colleague's previous comments, the Liberal government has expressed some concerns. In its view, ensuring that decision-makers in the bail process had relevant information is not a simple task.

The Liberals say it is difficult because it requires up-to-date information management systems and fully trained prosecutors, police, and justices. They were concerned that the bill would create policy and legal implications that could result in a bail system that would not function properly for anyone. They also believe that the proposed changes would ultimately impart delay and confusion, and would likely have unintended legal and operational consequences for the bail process.

In an effort to alleviate and address these concerns, I rely on my 35 years of recent policing experience in order to bring operational real life knowledge to this debate.

It is important for members of the House and the Canadian public to understand the basics about the release of an accused person from custody pending trial, commonly known as bail. The present philosophy of the release provisions in the Criminal Code is that accused persons should not be held in custody except in unusual circumstances.

In simple terms, the release pending trial of an accused person is generally affected in two separate and distinct ways. First, depending on the offence and circumstances, an accused may be released prior to his appearance in court by the police, unless police officers have yet to establish the identity of the person, need to secure or preserve evidence of or relating to the offence, or they must prevent the continuation or repetition of that offence or the commission of another offence, or they believe on reasonable grounds that the person being released from custody will fail to attend court.

If the officer is content that the above have been satisfied, depending on the seriousness of the offences committed, the officer has various release avenues available to compel the accused's attendance in court.

On the other hand, there are basically four instances where police officers cannot release an accused, and it would be wrong to suggest they do so using their own release powers. These include where an officer believes it is necessary in the public interest not to release, and where the accused does not fall into certain categories of offences such as serious criminal offences punishable by imprisonment for more than five years. The other two circumstances relate to warrants without a release endorsement and warrants for serious offences committed in other provinces.

In these circumstances, an accused may be released as a result of a judicial interim release having been held by a justice or a judge as defined in the Criminal Code. The term judicial interim release simply means that a justice gives judicial consideration based on the facts and law to allowing the right of the accused not to be detained in custody prior to his trial. This is one of the most important areas where a justice must exercise judicial discretion. In all matters involving judicial discretion, a judge is independent of the crown and the defence.

For most accused persons held in custody by the police, this is their first appearance before a justice and it is the key stage in determining their status respecting release or detention. The justice will consider all facts presented by the crown and the defence and render a decision. During a bail hearing the justice currently may take into consideration any other charges that the accused is already facing.

Some of the considerations that are relevant for a justice in determining the issues of release have to do with the accused's record. The fact that the accused has a record does not necessarily in itself order detention. It is only relevant if it relates to the charge before the justice. Other issues include whatever charges the accused might be facing. Does the individual have previous offences for failing to appear or violating bail release conditions? Is the individual already detained in custody in respect of another matter? What is the gravity and nature and danger of the charges the individual is currently facing?

There are two basic grounds for a justice to consider for detention. The primary ground is: is it necessary to ensure the accused's attendance in court? It is only after after the justice rules on the primary ground that he may go on to consider secondary grounds. The secondary grounds are: is it necessary in the public interest or for the protection and safety of the public, which includes the probability that the accused will commit another offence or interfere with the investigation?

Public interest involves many considerations, not the least of which is the public image of the criminal justice system; the apprehension and conviction of criminals; the attempts at deterrence of crime; and, ultimately, the protection of Canadians who are socially conscious and law-abiding. This cannot be overemphasized too strongly. Much has been written about the attitude of citizens concerning accused persons being released and subsequently arrested on allegations of committing further offences.

It is important to note that as a matter of good practice, the police agency will always provide the justice with all relevant information, as indicated above, which should be considered at a bail hearing. In my experience, these records are readily available to police through various national, provincial, and local information management systems. Apparently unknown by the Liberal government, these systems that the justice system and law enforcement agencies rely upon are current and up-to-date, as lives depend on them. Anything otherwise would be irresponsible.

Further, the suggestion that changing the wording as proposed in Bill S-217 is not a simple task as it would require fully trained prosecutors, police, and justices diminishes the already proven proficiencies with which these professionals currently perform these tasks now on a daily basis.

I am of the belief that Bill S-217 would strengthen the criminal justice system and protect the lives of law enforcement and Canadians through the requirement of ensuring justices have all relevant accused record information to make informed decisions on public safety. I fully support this excellent bill and encourage all members of the House to do the same.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

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.

The House resumed from November 29, 2016, consideration of the motion that Bill S-217, an act a amend the Criminal Code (detention in custody), be read the second time and referred to a committee.

Public Safety

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, Bill S-217, Wynn's law, sponsored by the member for St. Albert—Edmonton will soon be up for final debate in this House.

Tragically, in January 2015, RCMP Constable David Wynn was killed and Auxiliary Constable Derek Bond was severely wounded by a career criminal who had been let out on bail because the prosecution did not disclose his criminal history to the judge. Bill S-217 would ensure that judges have the relevant facts about the accused before granting bail.

As members of Parliament, we have a moral duty to our men and women in uniform and to the communities we serve to make sure our Criminal Code adequately ensures justice is served. I urge all members of this House to join together in passing this much-needed legislation.

[Len Webber, Conservative, Calgary Confederation, AB]

Mr. Speaker, what took place in the House the other night made me sick. Bill S-217 aimed to toughen our bail laws after the tragic murder of RCMP Constable David Wynn. The Liberal government will not support this common-sense change.

The killer in this case had hundreds of charges against him, dozens of convictions, several jail terms, routinely did not show up for court, and he still had 29 outstanding charges against him, including weapons and drug bans, at the time he killed Constable Wynn. Had the judge known about his history, he would have not been on the streets.

My blood boils. Without improving the system, learning from our mistakes, we are destined to repeat history. I have no hesitation in saying that the next time this tragedy happens, the Liberal government will have blood on its hands.

Criminal Code

[Len Webber, Conservative, Calgary Confederation, AB]

Madam Speaker, I am pleased to rise today to contribute to the debate on Bill S-217. I know my colleague from St. Albert—Edmonton has done very good work on this Senate bill, and I thank him for that. I was happy to second this legislation.

His efforts are reflective of the expectations of his community. They have seen how the justice system can fail, and they have witnessed the deadly consequences.

This proposed legislation aims to correct a hole in our criminal justice system. In fact, most Canadians are completely astonished that the bill even needs to be brought forward.

The bill was drafted in response to the January 15, 2015, murder of RCMP Constable David Wynn and the wounding of Auxiliary Constable Derek Bond in Edmonton. By any reasonable assessment, the killer in this case should not have been free on the street at the time of the killing. His rap sheet was unbelievable, yet he freely roamed the streets.

The killer had faced hundreds of charges as an adult, and his criminal record had dozens of convictions. He had been convicted for violent offences. He routinely failed to attend court when required. He had served a number of jail terms, including two stints in a federal penitentiary. That is not all. At the time of Constable Wynn's death, the killer was facing 29 charges and was under two firearms and weapons bans. How the hell was this man on the street? The killer was arrested—

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I am pleased to join the debate on Bill S-217, an act to amend the Criminal Code, detention in custody. I will be supporting it.

We are talking about an incident that happened in St. Albert, Alberta. This news story was talked about in my constituency. It was talked about in Calgary. From one city to another, we never want to see police officers die in the line of duty when they are serving their community. To me it is common sense. This amendment would have saved David Wynn's life. It would have indeed also avoided the injury to the other officer, the auxiliary constable involved. The rap sheet of Mr. Rehn, who was the assailant in this situation, should have been cause enough for him to have been denied bail. It should be much harder for habitual criminals to make bail.

Again, like Senator Runciman and my colleague from St. Albert—Edmonton have said, the key of this bill is in clause 2, in which it states the “prosecutor shall” instead of “may”. This will make a huge difference during bail hearings and ensure that we avoid a repeat of what Constable Wynn's family had to go through. No family should ever have to go through that.

On this, I have a Yiddish proverb I would like to use, “When scholars vie, wisdom mounts”. I do not feel this debate has risen to that level of scholarship yet, after hearing the contributions made by the Parliamentary Secretary to the Minister of Justice and the reasons why the government would not be supporting the bill.

This is a case where a constable was shot and killed in the line of duty. Auxiliary Constable Derek Bond was shot and injured. Let us not forget these were two people who were serving their community, where one was killed and one who was injured and had to go through much hospital care in order to return to work.

Shawn Rehn was the individual involved in this. I went through the reports that were written on this by the Alberta government. In his charge history between 1994 and 2014, he had been charged with 206 offences. The charges that topped the list were 103 property offences, 13 violent offices, 24 weapons offences, 46 compliance and breach offences, six driving offences, seven drug offences, and seven offences against administration of justice. His conviction history again is pretty spectacular for a career criminal: 66 offences where he was found guilty, including three offences against administration of justice, 41 property offences, and the list goes on. He had 27 outstanding offences that he was charged on when he made bail, set at $4,500 bail at the time. That basically should have made it impossible for him to be out in the community. He was wanted on outstanding warrants for his arrest as well, and he still made bail.

The amendments proposed in Bill S-217, as have been considered and passed by the Senate and brought to the House, would indeed avoid this situation in the future.

The shooting also prompted many questions about provincial bail procedures because the hearing was conducted without a Crown lawyer representing the prosecution, which is quite common in the province of Alberta. It is a standard practice there.

We heard mention of certain Alberta studies and recommendations made by different provinces. I look specifically to Alberta and what we do, because this bill would have a major effect on how Alberta would carry out the administration of justice.

The report on Shawn Rehn is called “A review of the involvement of the Alberta Crown Prosecution Service” by Kimberly Armstrong, deputy attorney general and acting deputy minister, Alberta justice, and solicitor general for the province. That report did not deal with federal matters because that was not the focus area. The focus was on what the province could control. Therefore, they strictly dealt with recommendations for provincial administration of the judicial system.

We set the Criminal Code in the chamber. It is passed by the Senate and approved by the Governor General. We set Criminal Code provisions and the provinces administer justice.

Page 14 of that same report deals with the recommendations and they are all provincial in nature. The report itself states on page one, “This review is limited to the involvement” the Alberta Crown Prosecution Service “had with [Mr.] Rehn, and does not consider his involvement with any other agency or party within the criminal justice system”. This should be painfully obvious to the government that this was a report. It cannot refer to this report and say that it did not recommend changes to section 515 or section 518 of the Criminal Code. The author of the report was not looking at that. The report was not looking to offer Criminal Code provision amendments to the federal government or to any of the political parties. What it was focusing on was strictly speaking to what could actually be done to prevent this type of incident, this tragedy, from ever happening again.

I want to thank the member for St. Albert—Edmonton for what he has contributed to the debate and for introducing this in the House.

I do not want to go over the same points that the member did and the points that he brought up about what Senator Runciman has said.

Clause 2 of the bill is the key. This is what will change “may” to “shall”. That single change would have saved Constable Wynn's life. It would have avoided the injuries to Auxiliary Constable Derek Bond. The whole incident could have been avoided and Mr. Wren would have been right where he belonged, in jail. He did not belong in the community. He did not belong in St. Albert. He did not belong in a casino parking lot. He belonged in jail.

Bill S-217 would ensure that it is not an option any more whether or not to tell the justice about the accused's criminal record during a bail hearing. I have heard members talk about their concerns with respect to the administration of justice and how there might be complications with doing this, that it might slow down the bail hearing process.

I am not a member of the bar. I am not a lawyer, and I say that proudly and thankfully. I do know the administration of technological systems for a professional association. I was the registrar for the human resources profession in the province of Alberta, which had 6,000 members. We would conduct disciplinary hearings and investigations at times. These are not done by lawyers by any stretch of the imagination. They are hearings and investigations done by HR professionals into the actions of our members. At the time it was a CHRP designation.

Like the member for St. Albert—Edmonton said, whatever concern may exist about the delays on bail hearings ignores the fact that this information is readily available in information systems. My colleague from Medicine Hat—Cardston—Warner, a former police officer, mentioned how easy it is to gain access to this information with a keystroke. The issue is not whether the information is accessible so much as whether they have the means to do it and whether they can do it and how fast they can get to it. Having a computer available in the courtroom makes it pretty simple. The issue is technology. Access is not an issue under criminal law. It is just an issue of technology.

I do not really like the argument being made by the government that this might slow things down, that it might complicate things, so therefore we should not do it. I would say we update our systems and update the way we administer the judicial system to ensure that we can fulfill the requirements of the Criminal Code. If we are going to change the Criminal Code to ensure that these types of incidents do not happen again and that individuals like Constable Wynn do not lose their life in the line of duty because a person who should not have been out in the community and should not have been granted bail is out, then why not invest in more technology?

The Alberta government has admitted it would cost more money. There is a cost associated with this. A few million dollars, it said, would have to be spent for the remand centres to ensure that they can update their systems. Is that not money well spent though to avoid losing a police officer in the line of duty and the heartache caused to the family? I believe so. With the amount of money that this place spends on a weekly basis, with the $30 billion of spending that we are doing here, and the $10-billion deficit spending the Alberta provincial government is doing, a few million dollars spent to ensure the remand centres have the technological systems, have the computer systems updated and available for bail hearings, seems to me like a small price to pay.

Another report I want to mention is the “Alberta Bail Review: Endorsing a Call for Change”, February 29, 2016 by Nancy Irving. It is quite a thick report, nearly half an inch thick, that provides an in-depth overview of the bail system in Alberta. It goes from A to Z and covers a lot of ground. Thirty-one recommendations are made in the report that touch upon solely provincial areas of responsibility. To my New Democratic colleague who mentioned that statistics and numbers would be really helpful here, they are provided in this report. An overview is done for 2014-15 on the number of bail hearings in the province and how they were actually done.

That same report said the vast majority of first appearances at the bail stage are conducted by justices of the peace at two centralized hearing offices with police representing the crown. It goes on to state that their focus was section 524 of the Criminal Code, which governs the revocation of bail for people who are alleged to have violated the terms of their release. It was not looking at sections 515 and 518, which is the focus of the Senate bill, Bill S-217. They were strictly looking at how they were going to administer the Criminal Code provisions that exist as they are.

We have an opportunity here to change those provisions, to indicate to the provinces that they need to change how they administer their judicial systems in order to ensure that we can avoid an incident like Constable Wynn's, that we do not lose more officers in the line of duty.

Wren's final court appearance raised questions about the completeness and accuracy of the information available to those who preside and present at bail hearings in Alberta. The 31 recommendations in the report deal with just that and the Alberta government is working on implementing them.

I will be supporting the bill. It is an excellent bill. I invite all members to do the same.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, it is my honour to rise in the House to speak to Bill S-217, an act to amend the Criminal Code (detention in custody). The bill would make it mandatory for prosecutors to provide all of the facts concerning previous criminal convictions, current charges, and failures to appear in court. Under existing legislation, prosecutors are not compelled to divulge such evidence.

Members heard the story of my colleague about the concerns that arose when 42-year-old RCMP Constable David Wynn was murdered by a career criminal in St. Albert, Alberta, in January 2015. Constable Wynn struggled to survive for four days before succumbing to death in an Edmonton hospital, leaving behind his wife and three sons to try and make sense of the senseless.

The criminal's career history spanned two decades, with over 100 offences dating back to 1994. It should be noted that the criminal had failed to appear in court after three separate warrants were issued for his arrest in 2014. How is it that a man who has been convicted of everything from breaking and entering, theft, evading police, dangerous arrest, assault, escape from custody to holding a homeowner at gun point while forcing him to empty out his bank account is not in custody?

The bill would serve to prevent high-risk offenders from committing further criminal acts while awaiting trial. It would require prosecutors to show that the accused had been previously convicted of a criminal offence or had already been charged and was awaiting trial for another criminal offence.

In addition, the Crown would also be required to provide evidence that an accused had failed on one or more occasions to appear in court when required to do so, as well as show the circumstances of the alleged offence or offences. This would fall under a statutory requirement to advance the evidence, obligating the Crown to do so. The principle of detention pre-trial would already be established so a habeas corpus concern would be unlikely. The bill would focus on detaining high-risk offenders while pending trial.

The Conservatives have always put Canadians and their safety first, while upholding the rights of victims and their families. Bill S-217 would ensure the safeguarding of those rights.

In 2014, the former Conservative government made history and enacted the Canadian Victims Bill of Rights, which for the first time ever saw the rights of victims established into law at the federal level. This bill is a complement to the Canadians Victims Bill of Rights.

I would like to touch on a case that shook the community of Fort Erie in my riding of Niagara Falls, Niagara-on-the-Lake and Fort Erie. It is the story of an 81-year old retired businessman and friend of mine, Blake Nicholls, who was murdered by a career criminal with 50 prior convictions, including arson, armed robbery and theft. In fact, this individual was wanted in another jurisdiction for allegedly attacking his then girlfriend with a hammer.

The man attacked my friend Mr. Nicholls with a hammer out of misdirected revenge. He became enraged after he discovered that Blake Nicholls had warned a neighbour woman to steer clear of him. He then attacked Nicholls with a hammer, striking him 16 times. The criminal then ransacked the home of Mr. Nicholls as he lay dead on the living room floor. He showed no remorse. Nor did he demonstrate even a modicum of repentance. Blake Nicholls had merely attempted to be a good and caring neighbour, as he had been during his entire life. His three children and six grandchildren are left not only mourning his loss but must also live with the lifelong trauma in knowing that their loved one's life was cut short in such a brutal and inhumane way.

Had this bill been law, perhaps Constable Wynn and Blake Nicholls would still be with us today. As parliamentarians, we have a solemn duty to make and enact laws that will protect Canadians. The justification for detention in custody was evident in both these cases, yet these career criminals, who shared 150 convictions between them, were not incarcerated but were free to continue their respective business of criminality.

If previous convictions are disclosed at bail hearings, it would give judges and justices of the peace the tools they need to help keep our streets and neighbourhoods safe. It should also be noted that the legislation would not make huge changes to the Criminal Code. It would assist the judiciary in our country to make sound decisions based on complete evidence and would in no way infringe upon judicial discretion to grant bail.

The legislation puts victims first. The Conservative Party has always put victims first and has the full support of Constable Wynn's widow, Shelley Wynn. In fact, it was Mrs. Wynn who helped initiate the legislation. The bill is consistent with the previous government's passing of the Canadian Bill of Rights.

Canadians expect that we will fulfill our duty as legislators to ensure the laws of our country fully protect citizens. The Wynn family and the Nicholls family are counting on it. It is the obligation of the House to support this legislation.

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I appreciate the opportunity to rise to speak at second reading debate on Bill S-217, an act to amend the Criminal Code, detention in custody.

The Senate public bill was introduced in response to the tragic events in Alberta in 2015. I want to again express my deepest sympathies to the family of Constable Wynn and to expressly thank Shelly Wynn, David Wynn's wife, for her testimony before the Senate committee. The pain to the officer's family, RCMP colleagues, and the St. Albert community and beyond is immeasurable.

I also want to indicate at the outset that I support the objective of the proposed bill. Decision-makers in the bail process need all relevant information to make timely and appropriate decisions as to who should be released on bail. Ensuring this is not a simple task. It requires up-to-date information management systems and fully trained prosecutors, police, and justices.

Unfortunately, I am not of the view that the bill before us today meets its objective. I am concerned that the Senate public bill would create policy and legal implications that could result in a bail system that would not function properly for anyone.

The Criminal Code provides the framework for determining whether an accused is released or detained prior to trial. After an arrest, police may decide to release the accused with or without conditions. If not released by police, the accused is brought before a justice for a bail hearing. In some cases, the crown will consent to the release of the accused on certain conditions. However, in other cases, the justice will decide to detain the accused or release him or her, often after imposing conditions, such as a curfew or an obligation to report to police. These important decisions about pre-trial release are made daily in countless courtrooms across Canada.

When making any amendment to the bail provisions, it is important to note that the bail process varies widely from jurisdiction to jurisdiction. Some jurisdictions, such as New Brunswick, use only judges to make release decisions. Other jurisdictions, such as Ontario, heavily rely on justices of the peace in their bail courts.

There are also significant differences in who attends the bail hearing. Alberta, for example, where this tragedy occurred, is the only jurisdiction in which police officers assume the role of prosecutor at most first-appearance bail hearings. I understand that this practice occurs to a much lesser degree in parts of Saskatchewan and British Columbia. It was, in fact, a police officer who consented to the release of Mr. Rehn, the offender who ultimately killed Constable Wynn.

In response to this tragedy, the Alberta government has conducted a full review and continues to examine the role of police officers in bail hearings. The amendments proposed in Bill S-217 were not recommended in the Alberta report, nor have they been raised by the provinces and territories, which have been extensively reviewing the bail process.

The bill before us, Bill S-217, proposes two amendments to the Criminal Code bail provisions.

Clause 1 proposes expanding the grounds on which the courts rely to determine who should be detained prior to trial. Currently, under the Criminal Code, there are three general grounds under which bail can be denied: first, if the accused is a flight risk, meaning the accused may not show up for court; second, for public safety reasons; and third, to maintain confidence in the administration of justice.

Bill S-217 would expand the third ground to specifically include consideration of an accused's criminal record and outstanding charges.

If we ask anyone working on the front lines in our criminal courts, they will tell you that the criminal record and outstanding charges are key considerations in almost every case and at almost every stage of the bail process. From the moment someone is stopped by police, right up to considerations on bail pending appeal, the record of the accused is assessed. These factors are automatic considerations under the first ground for detention, that detention is necessary to ensure that the accused attends court, and also under the second ground, that detention is necessary to ensure that the public is protected.

Injecting consideration of the accused's record specifically into the third ground for detention, as suggested in Bill S-217, creates uncertainty for the multiple other bail provisions that do not specifically reference the criminal record.

The Supreme Court of Canada, in the 2015 case of the Queen v. St-Cloud, has recently considered and clarified the constitutionality of these grounds of detention.

This bill would open the provision to new judicial scrutiny and interpretation after the Supreme Court has just settled it. Clause 2 of the bill proposes to remove crown discretion from section 518 and require crowns to lead evidence to prove the fact of prior convictions, outstanding charges, failures to appear, or offences against the administration of justice at bail hearings.

Currently, under section 518(1)(c), the crown is given broad discretion as to what evidence can be led at bail hearings, as well as how evidence is presented to the court. Bail proceedings that are high volume and conducted on short notice require this flexibility.

By mandating crowns to provide specific evidence and raising the evidentiary burden with the words “to prove the fact”, Bill S-217 may unnecessarily complicate and lengthen the bail process; crowns may require adjournments to formalize evidence; and hearings could take longer. No one in the criminal justice system, including victims, would benefit from excessive delay and the staying of criminal charges.

Similar concerns about the proposed amendments creating delay and resource issues were raised by the Canadian Association of Chiefs of Police when they testified before the Senate committee on this bill. These concerns would most likely also be echoed by prosecutors and defence counsel, the front-line workers in our justice system.

Legislative changes, such as those suggested, require fulsome consideration of these important perspectives. As part of her mandate to review the criminal justice system and, more specifically, the bail process, the Minister of Justice is working with stakeholders, including her provincial and territorial counterparts, to make this critical component work effectively so that all Canadians, including our first responders, are appropriately protected.

Our government is also working to enhance the efficiency of the bail system. No one wants to see serious criminal charges stayed because of unreasonable delay, which is what can happen if bail decisions are not made in an effective, timely way.

It is a complex issue that has no one single answer and involves all actors in the criminal justice system.

While I think that the Senate public bill's proposed amendments are well-intentioned, they are not the solution to this complicated issue. Rather, they would import delay and confusion and would likely have unintended legal and operational consequences for the bail process.

I want to be clear. Bail is a critical stage in the criminal justice process. As this tragedy in St. Albert demonstrates, decisions made at bail can have far-reaching, devastating consequences.

While I appreciate its objective, the government does not support the bill. Effecting meaningful change would require a comprehensive response that considers stakeholders' perspectives and fully assesses the legal and policy implications for the bail process.

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

moved that Bill S-217, An Act to amend the Criminal Code (detention in custody), be read the second time and referred to a committee.

Mr. Speaker, it is a privilege to rise this evening to sponsor Bill S-217, known as Wynn's law, named in honour of the late Constable David Wynn, who was shot and killed in the line of duty.

On January 17, 2015, in the early morning hours, Constable Wynn and Auxiliary Constable Derek Bond were undertaking a routine inspection of licence plates outside a casino in St. Albert. In the course of undertaking that inspection of licence plates, they discovered a licence plate that was connected to an individual for whom there was an arrest warrant. As a result, Constable Wynn and Auxiliary Constable Bond proceeded into the casino to arrest the individual. Upon entering the casino to apprehend the individual, shots were fired at Auxiliary Constable Bond, who was shot, and tragically, Constable David Wynn was shot and killed.

Any time a police officer is murdered in the line of duty, it is not only a tragedy; it is an outrage. However, what makes the murder of Constable Wynn that much worse is that it was completely preventable. Constable Wynn's killer was out on bail at the time. He was out on bail notwithstanding the fact that he had more than 50 prior criminal convictions, including convictions for weapons offences and multiple violent offences. On top of 50 prior criminal convictions, he had at least 38 outstanding charges, and to top it off, he had numerous failures to appear in court. Yet, there he was, out on the streets in our community of St. Albert unbeknownst to the public.

The murder of Constable Wynn prompted the RCMP commissioner to ask how it was that someone with the criminal history of Constable Wynn's killer could walk among us. The reason someone like Constable Wynn's killer could walk among us, and was walking among us, was that the criminal history that he had was not disclosed at the bail application hearing; not the 50 prior criminal convictions, not the at least 38 outstanding charges, not the multiple failures to appear, not anything. One of the reasons why the criminal history of Constable Wynn's killer was not disclosed is that section 518 of the Criminal Code provides that it is discretionary for a prosecutor to disclose the criminal history of someone seeking bail. Bill S-217 seeks to close this glaring loophole in the Criminal Code by requiring prosecutors to lead evidence of the criminal history of an accused, including prior convictions, outstanding charges, and failures to appear.

There is no doubt in my mind, and there is no doubt in the mind of Shelly MacInnis-Wynn, the widow of the late Constable David Wynn, that had Wynn's law been the law at the time that Constable Wynn was murdered, Constable Wynn's killer would have been kept behind bars where he belonged and Constable Wynn would be alive today.

At this time I would like to talk a bit about what Bill S-217 would do and what it would not do.

Bill S-217 would not impose any new undue burden on prosecutors. It would not impose any new undue burden on law enforcement. It would not in any way take away or interfere with the discretion of a magistrate or a judge to determine the question of bail based upon all of the facts and circumstances in each individual case. Bill S-217 would ensure that all information that is relevant and material at a bail application hearing would be brought forward to the attention of the judge or justice of the peace, so that the judge or justice of the peace could make a proper determination on the question of bail, something that clearly did not happen in the case of Constable Wynn's killer.

It is absolutely inconceivable that a bail application could be determined without having information on an accused's criminal history, without having information about the fact that the accused seeking bail has numerous outstanding charges and numerous failures to appear. Yet that is precisely the situation we face today with it being discretionary to lead such evidence under the Criminal Code. That is precisely what Bill S-217 seeks to fix.

I would like to acknowledge a few individuals. First of all, I want to acknowledge Senator Bob Runciman for his hard work and leadership in drafting Bill S-217 and for shepherding it through the Senate with the unanimous support of the Senate legal and constitutional affairs committee and the overwhelming support of the Senate.

I would also like to acknowledge my predecessor, Brent Rathgeber, for his leadership in introducing a similar bill in the last Parliament following the murder of Constable David Wynn.

Most importantly, I would like to acknowledge and thank Shelley MacInnis-Wynn for her determination and her courage in lending support to Bill S-217, including appearing before the Senate legal and constitutional affairs committee, where she gave very powerful evidence.

This is, to put it simply, a common sense piece of legislation. It should be a no-brainer. That is why Bill S-217 passed the Senate legal and constitutional affairs committee unanimously. It is why the Senate passed the bill by an overwhelming majority. It is why the bill has received the endorsement of key stakeholders, including the Mounted Police Professional Association of Canada and the Canadian Centre for Abuse Awareness. It is why rank and file law enforcement officers have given their support to this legislation, dozens of whom have written to me to lend their support. The former minister of justice and attorney general for the Province of Alberta, who was the minister of justice at the time that Constable Wynn was murdered, has indicated to me that he supports this legislation.

Bill S-217 is important legislation. It is much-needed legislation. It would close a glaring loophole in the Criminal Code, a loophole that resulted in the death of Constable Wynn, a loophole that resulted in Shelly MacInnis-Wynn becoming a widow, a loophole that has caused Constable Wynn's three boys, Nathan, Matthew, and Alexander, to grow up without their father, a loophole that has taken away a tremendous RCMP officer and a dedicated volunteer in the St. Albert community.

As I close, I would like to read into the record some of the very powerful testimony of Shelly MacInnis-Wynn as she testified before the Senate Committee on Legal and Constitutional Affairs, testimony that Senator Runciman said, after more than 35 years of holding public office, was perhaps the most powerful testimony he had ever heard. Ms. MacInnis-Wynn stated:

In those four seconds, a constable was taken away from his community, a husband was taken away from his wife, a father was taken away from his three sons, and a son and a brother was taken away from his mother and sisters—in four seconds. Every day I wake up wishing that I could take those four seconds back, but I can’t. There is nothing I can do to change that. Every day I have to live my life alone, not have Dave by my side enjoying the moments we were supposed to have together as a family and as a husband and wife. Every day his children have to experience new things and new milestones without their dad.... They don’t have any more chances to make new memories.... Changing this one simple word could save a lifetime of happiness for somebody else, and that somebody else could have easily been you. Dave was the unfortunate one that happened to be there that night, but it could easily have been anybody else.

What happened to Constable Wynn should not have happened, but we cannot roll back time. What we can do, what we must do, and I would submit what we are duty bound to do as members of Parliament, is do our very best to ensure that what happened to Constable Wynn and the pain that Constable Wynn's family will endure forever are never experienced by another Canadian and never experienced by another Canadian family ever again.

The best way to help make that a reality is to pass Bill S-217, Wynn's law. In the name of and in honour of Constable David Wynn, I implore members of the House to join the Senate, to do what is right, and to pass Bill S-217. Let us get it done.

Justice

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

Mr. Speaker, last month, the Senate passed Bill S-217 by a wide margin with the support of Liberal and Conservative senators alike.

The criminal history of an accused seeking bail is relevant and material to the proper determination of a bail application hearing, yet under the Criminal Code, it is discretionary whether the crown leads such evidence. This loophole proved fatal to Constable David Wynn, who was shot and killed in the line of duty by someone who was out on bail, notwithstanding the fact he had an extensive criminal history. None of that information was brought forward to the attention of the judge.

Bill S-217 is common sense legislation that seeks to enhance public safety by ensuring that what happened to Constable Wynn never happens again. I urge the government to join its Liberal colleagues in the Senate and support Bill S-217.

[The Chair, Liberal, Ginette Petitpas Taylor]

We'll get our short meeting started.

We're here today to consider two items, Bill S-211, an act respecting national sickle cell awareness day, and Bill S-217, an act to amend the Criminal Code (detention in custody). We're not going to be considering Bill S-225 today. That will be done at our next meeting.

Criminal Code

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

moved that Bill S-217, An Act to amend the Criminal Code (detention in custody), be read the first time.

Mr. Speaker, I am very pleased to rise in this House to introduce Bill S-217, An Act to amend the Criminal Code (detention in custody), also known as Wynn's law, which last week passed the Senate by a very wide margin.

In December 2015, Constable David Wynn was shot and killed in St. Albert by an individual who was out on bail, notwithstanding that the individual had more than 50 prior criminal convictions, multiple outstanding charges, and numerous failures to appear, yet none of that information was brought to the attention of the justice of the peace at the bail application hearing.

Bill S-217 seeks to close this glaring loophole in the bail application process by requiring the crown to read evidence of past criminal convictions, outstanding charges, and failures to appear. There is no doubt in my mind that had Wynn's law been the law, Constable Wynn's killer would have remained behind bars where he belonged, and Constable Wynn would be alive today.

I urge this House to join the Senate in the speedy passage of this important legislation.

(Motion agreed to and bill read the first time)

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

Mr. Speaker, in January 2015, Constable David Wynn was shot and killed outside of a St. Albert casino in the line of duty. This incident was completely preventable. His killer was out on bail at the time, notwithstanding that he had 50 prior criminal convictions, 38 outstanding charges, and several failures to appear. Yet none of that was brought to the attention of the judge at the bail application hearing.

With that in mind, that is why I am pleased to join Senator Bob Runciman in sponsoring Bill S-217, which would require the crown to lead evidence of prior criminal convictions, outstanding charges, and failures to appear at bail application hearings. While Constable Wynn can never be returned, together we can honour his legacy by passing this much-needed legislation.