Evidence of meeting #4 for Bill C-35 (39th Parliament, 1st Session) in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was onus.
A recording is available from Parliament.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Lomer, let me interrupt you, because my time is just about up. Is this legislation actually useless?
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Is it going to change any practice? In courtrooms across the country, is it going to change anything?
Treasurer, Criminal Lawyers' Association
No, it's going to justify a practice that to a large extent is probably already there.
Liberal
Conservative
Rick Dykstra Conservative St. Catharines, ON
Thank you, Mr. Chair. I just have a couple of questions.
You mentioned that the whole issue of gun crime was particularly problematic and not necessarily based on statistics, and also that from your perspective there's some value in pointing out that there is a concern. Could you expand on that a bit?
Treasurer, Criminal Lawyers' Association
As everybody here is aware, Toronto went through, in the words of the Queen, an annus horribilis. It was just a terrible year for gun crimes, culminating in Jane Creba's murder. It was shocking to the population in general, and I think it was particularly shocking because it was a complete and utter waste of lives--not only of the deceased, but also of the young men who are involved in these types of crimes.
I'm going to try to be as blunt as I can. The difficulty I see with legislation like this is that although it points in the general direction of what society's concerns are, it's a relatively cheap fix to a problem that really should be addressed elsewhere, and I'm not talking about the soft social services type of thing.
I can draw you a profile of the children who become the young adults who are doing this. It would be focused enough that you could actually aim particular programs, identify individuals, and deal in a much more focused way. There's a culture that you have to get out and dig out. It's unfortunate, when we see it, that the answer is more inclined towards legislating more penalties rather than seeing if there is something we can do to get at the culture that creates it. I know there are people in certain communities in Toronto who have identified it and actually are starting to speak out about it.
Conservative
Rick Dykstra Conservative St. Catharines, ON
We debated in the House yesterday on another bill, and one of the pushbacks we received on the legislation was that there weren't statistics necessarily to support the legislation. Obviously I'm drawn with great interest to your points about moving legislation forward that obviously has more than just statistics involved in terms of making it sometimes not great legislation and other times very good legislation.
I don't mean to put this out of your bounds or ask a difficult question, but at the same time, I think it may be helpful. When we are working towards this type of legislation, aside from whatever role statistics may play--and from your perspective, it isn't necessarily a major one--what other issues do you think we should put on the table when we talk about creating this type of legislation, in terms of making sure it's the right material to move forward?
Treasurer, Criminal Lawyers' Association
It's not an easy question to answer.
I suppose my previous answer indicates one of the areas I would go to. If you're talking about really getting after crime and dealing with the fallout of it, you're asking me to put myself out of business, but there is one area I would go to. We've seen it in Toronto. It's starting, and it's not necessarily that effective yet. It's treating drug crime and drug addiction with a medical model as opposed to a policing model. I've even heard whispers that the Canadian Association of Chiefs of Police is thinking that maybe that's not the worst way to go. It's quite a bit different from the model used in the United States, which is harshly punitive.
If you're looking at going after crime, then go after its roots and deal with heroin addiction on a medical model. Maybe you can move forward so that the addict is not perpetrating crime in order to deal with his habit. As I said, it's not in my self-interest to be advocating that sort of thing, but it's something that I think is worthy of consideration across the country. And this is not something new at all.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you. I have four questions, but three are quite related.
In this particular piece of legislation, we're moving the bar on bail. Bail is an explicit charter right. I would have thought that if you're moving the bar on an explicit charter right, we might have used a preamble to set the context to make sure there was no confusion, just in case the issue came up later. You've indicated that you don't see too much litigation spinning out of this, but I'd like you to comment on the usefulness, plus or minus, of a preamble.
Second, in the context of sentencing mathematics, I'd like you to explain how the bench in Toronto, if not across the country, applies pretrial custody when they're dealing with sentencing. We've heard it's two for one, three for one. Could you also explain whether or not the existence of pretrial custody impacts the propensity of an accused to plead guilty? Is there likely to be any impact on the possible increase in pretrial custodies here?
Last, also connected to that, does the existence of a mandatory minimum penalty, as is being legislated in other legislation here, preclude the application of pretrial custody credits? In other words, if you spend a year waiting for your trial and then you're facing a five-year minimum sentence, what's the impact of pretrial custody on that sentence? If there is or is not an impact, does it create the possibility of a challenge in court because we've altered the existing arrangements for the application of pretrial custody credits?
Treasurer, Criminal Lawyers' Association
All right. I think I have them all.
The charter preamble is often helpful. In this case, I think the writing's on the wall and it's probably unnecessary. There's a clear rationale between the legislation and historical events. I don't think the courts need a road map in that regard.
Regarding the sentencing math with respect to pretrial custody, ordinarily as a rule of thumb, but not law, you get two for one because you're not eligible for parole or any programs. Often the conditions are much harsher. It has moved to three for one, because the Ontario government has neglected its jails for so long that it has triple-bunked. It has provided virtually nothing in the way of any type of recreation, so they're locked up, three to a cell. You have the choice of your feet to the toilet or your head to the toilet. So the courts are already saying, aren't you going to do that? They're going to start giving credit for that type of pretrial, “pre-finding you've been guilty” penalty.
Does it lead to a propensity to plead guilty? I think, inevitably. Before the Bail Reform Act, there were studies indicating just that. There was a statistical relationship between the likelihood of pleading guilty and pretrial incarceration. It was very significant, but I don't have the studies.
With respect to the mandatory minimums, they've already been challenged on the basis that they don't take pretrial into account . In our court of appeal, Justice Rosenberg rendered a decision saying that the constitutionality of mandatory minimums will be upheld, but only because he could read in a provision taking into account pretrial custody; otherwise they would not have. In that case, it still stands as good law.
I think those are your questions.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Perhaps I could clarify that even with a mandatory minimum penalty, the courts can give credit for pretrial custody.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
So if an accused was facing a three-year minimum and a year of pretrial custody, I wonder if he would be more likely to say, what the hell, I'll just stay here. I'm not going to challenge the reverse onus. I'll stay at pretrial, I'll get three years credit, and I'll be convicted if I'm unlucky, and I'm out.
Treasurer, Criminal Lawyers' Association
First, our courts don't give three for one as a general rule. This requires a fairly significant evidentiary basis. You don't see it on every occasion.
For example, Milton had a serious problem with lockdowns, a lot of lockdowns. That was the genesis of the three for one.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Two for ones. Two for ones still get you out at two-thirds. It gets you out of mandatory release—
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
—in my scenario, but that logic is a bit too complex for your average rounder.
Treasurer, Criminal Lawyers' Association
I don't see that as the logic they would necessarily use. The logic they use would be more along the lines that it's going to take a year to go to trial, and regrettably, it often does take that long. What they're going to say is, well, if I plead guilty after serving three or four months, I get that knocked off the sentence; then I'm going to go either to the penitentiary, depending on the sentence, or the upper reformatory. I want to get out of the Don—you want to get out of whichever jail you're in—because there's nothing there for me.
There are a number of benefits to being moved into either federal or provincial institutions, not the least of which is family contact.
Liberal
Liberal
Larry Bagnell Liberal Yukon, YT
Does it happen often that people try not to get bail, so they get two for one or three for one?
Treasurer, Criminal Lawyers' Association
I have heard of it. I just don't think that makes any rational sense. Usually when you see three for one coming up, it is purely serendipitous, if I can put it that way. For example, things happen in the jail that cause immeasurable difficulties when a person is awaiting trial that were unknown at the time the trial date was set.
As a practical matter, I really don't see, if I'm looking at a three-year minimum or four years on a gun charge, that I'm going to stay in for two years. Quite frankly, if you go to a federal institution as a young first offender on a four-year sentence, you will be moved into a halfway house in all likelihood by the end of the first third of your sentence. You will have much less restriction than in the Don.
