Justice Committee on March 16th, 2010

[The Chair, Conservative, Ed Fast]

Thank you.

Members of the committee, I'm in your hands. I'm proposing that we do one more round of three minutes and then move to clause-by-clause consideration. Is that acceptable?

I hear no objections, so we'll move forward on that basis.

Ms. Mendes, you have three minutes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you very much, Mr. Chair.

First, Mr. and Mrs. Bagby, I offer our sincere sympathies for what you've lost. Losing a son and a grandson must have been something that one doesn't overcome ever, I think. Thank you for coming before us and presenting the story.

I would like to take the opportunity to ask Ms. Illingworth to advise us or to share with us recommendations on other measures that we could bring forth to give victims of violent crimes a sense of closure, if nothing else.

[Heidi Illingworth]

As you just said a couple of seconds ago, it's really difficult. The word “closure” is not something that we use often with the people we work with, because, as you said, in cases of homicide there really can be no closure.

The Bagbys are here trying to make a change for the better, to protect society, and that is something that a lot of the families that we have seen over the years have a strong need to do, to ensure that no one else is harmed in the way they have been harmed. We just commend them again for being here and sharing with us.

I think our paper highlights a lot of our concerns. With bail in this country, judges have to do a better job of looking at the risk to children, not just in the case of accused murderers but in cases of domestic violence. In our paper for you today we listed three examples of the serious problems that are going on in this country with spouses who are released on bail and go on to harass and harm their ex-husband or ex-wife and their children again and again. In the extreme cases we see familial homicides happening.

[Krista Gray-Donald]

I'd like to make a point about the extradition process as well.

Shirley Turner was accused of murder and had fled the country in which she was accused of murder. There is no way she should have been out on bail, ever. She was a flight risk, and that was not considered. She had a child while in Canada, and it's horrible that none of the protections that are theoretically put in place to take care of this child were even looked at, not the first of which is that the judge should have considered the child.

I'm actually saddened that we have to put this amendment into the Criminal Code, that minor children must be, that they have to be, considered. It should be a given that if an accused has children and has harmed a family member or has been accused of attempting to harm a family member, then the children automatically should be the primary concern, because they are truly the innocent and defenceless ones in this case.

As we said in our brief, there were a host of errors in which Zachary Turner was failed, but those are two of the very important ones, from our perspective.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Lemay or Monsieur Ménard, do you have any further questions?

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I do not think that your amendment adds a great deal to what already exists in the Criminal Code. I imagine that a judge who relies on the present provisions in the Criminal Code would come to the conclusion that you are hoping for, that is, in this particular case, that the person will remain in custody. In this case, I can accept the idea that “you cannot have too much of a good thing“ and I am ready to add this possibility to the act, which judges already take into consideration, in my view.

But I would like us to bear in mind that people are falsely accused of murder in Canada. I was fortunate to have a wonderful criminal law practice. I never got mixed up with criminal organizations. I was fortunate to have a reasonably good reputation with the result that lawyers who did not do criminal law would send me their criminal cases. I have obtained four acquittals in murder cases and I see no reason why those people would not have the right to bail.

These are things that you never hear about. Let me just mention one case. It involved a doorman at a club, a bouncer. He was at the door to keep order and make sure that people came to no harm. There was only one bartender, who asked him to look after the bar while he went to the bathroom. A patron, who had been drinking quite a lot, ordered a drink. The doorman told him that he was the bouncer and that he did not serve drinks. The patron became aggressive and threatened the doorman, who still refused to serve him. The patron punched him.The doorman grabbed him as he fell backwards and punched him back. The patron fell to the floor and died. The doorman was charged with murder. I do not have to tell you that he was acquitted. The Crown was hoping that we would plead guilty to manslaughter, but I had enough experience that I was not concerned when the charge was more serious than the one they wanted. Yes, he was granted bail and I do not see why anyone would think that someone like him should not be granted bail.

I could tell you about other cases, domestic situations, but they will never make the front pages. The front pages are for the heinous crimes. In daily practice, we see that we have a country and a justice system where the presumption of innocence is important, thank God. It should apply right from the start, in my opinion, even though, in a murder case, the onus would be on the accused to show that it would not be dangerous to release him.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, we'll leave that as a statement.

Please make a very quick response.

[Scott Andrews, Liberal, Avalon, NL]

Unfortunately, as Ms. Gray-Donald pointed out, you'd think that a judge would take it into consideration. We shouldn't really be putting that in the Criminal Code, but we have to strengthen it.

When I did my research on this bill, the problem with granting bail is trying to balance that with the Charter of Rights and Freedoms. You're innocent until proven guilty. We looked at the most serious crimes and not being able to grant bail in those cases. Unfortunately, as you just pointed out, one shoe does not fit all. If you have to pigeonhole stuff, there is no real way to put it in and be in compliance with the Charter of Rights and Freedoms as far as being innocent until proven guilty.

It is hard to try to make a blanket law or statement that for murders in certain cases you'll be denied bail. I found that very difficult to come to grips with in learning the process and the law.

[The Chair, Conservative, Ed Fast]

Mr. Bagby.

[David Bagby]

The point you raise, sir, I think is the crux of the bail issue, and I guess there are two basic facts I'd like to....

A court cannot get it right every time. It can't be done. There's never enough information for a court to be perfectly right every time. There will be errors. It's unavoidable. So I suggest designing the system, which is what a court is, in such a way that when there is an error, the maximum damage is minimal.

For the case you're talking about...actually there's a case in Newfoundland in Saturday's paper. A guy spent 27 months in jail based on DNA evidence that has now been demonstrated to be almost certainly wrong. I think he's out now and I think they've dropped the charges--but it's analogous to the bouncer case.

He was wrongfully accused. I've had a lot of time to think about this. I've been lying in wait for you, sir, and I'm sorry if it's going to come out this way, but I propose a debate. I want your bouncer who spends 27 months or whatever in jail and then is freed to debate a bail-released murder victim. I want him to come in here and tell you how much he suffered, and then I want Zachary to come in here and tell you how much he suffered, and let's see who got hurt the most.

[The Chair, Conservative, Ed Fast]

Thank you.

Are there any further questions from the government side?

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, and thank you to all of the witnesses.

My congratulations to Mr. Andrews. I think this is a well-intentioned bill, and certainly it has my support and the support of all the members. I congratulate you on that.

I have one question following up on Mr. Ménard's question regarding application. I accept your answer, Mr. Andrews, that you're trying to add specificity so that the judge, when considering judicial interim release, has something else to think about, and that's the protection and safety of the children of the accused.

But a test still has to be met. Perhaps this is a question for Ms. Illingworth. What is substantially going to change in your mind regarding what goes through the bail hearing justice's mind? It's always been the case that if there's a reasonable likelihood that the accused will commit a Criminal Code offence, the person ought to be detained. So by adding this, what extra protection is instilled for the children of the accused?

[Heidi Illingworth]

I don't know that there is an extra protection on it, but to have it in there is an important measure for families who have gone through what the Bagbys have gone through to know that. I realize the Criminal Code judges are already supposed to consider the safety of victims before releasing an accused on bail, but it doesn't happen enough. It's not happening enough. We see it all the time with the victims that we help on a daily basis, with the women and children who are victims of domestic violence. It's important that it goes in there as a statement so that perhaps the crown can argue, there is a real risk here and you need to consider the safety of these children.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Petit, a short question.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Good afternoon to all the witnesses.

First, my congratulations, Mr.Andrews. Introducing a private member's bill is not easy. You and I both know that it takes time and that it often comes to nought. You have my complete support.

I would mostly like to speak to Mr. David Bagby.

I would like to talk to you a little about what our government is doing. We have introduced bills on human trafficking and child pornography. My party sponsored them. Children are important to me. I have four children and four grandchildren. You can see already where I am coming from.

My question is simple. It seems that you have done a lot of research, which is very commendable on your part, and focused your argument very well. You are here with your member of Parliament, Mr. Andrews, and it is clear that there is good chemistry between you. You provide each other with support.

Do you believe, in your heart of hearts, that the amendment you are proposing to section 515 of the Criminal Code, simple though it is, is really going to put an end to this kind of crime?

[David Bagby]

I think the proposed modification to the bail law has value as it's written. I think of it like this. The crown prosecutor has a set of tools that he can use to try to get bail denied for an accused, and the Criminal Code lays them out. This gives him one more tool, one more screwdriver that might fit. In some cases, I can envision this being of value.

Another way to look at it is this. If this had been the law in Newfoundland in 2001 and up, would Zachary still be alive? I don't think so. My impression, from the legal arguments...well, there was no legal argument in the first bail hearing in December 2001. But Judge Welsh's legal decision, written on January 10, 2003, stressed that Dr. Turner was to be presumed innocent and therefore the crime she was accused of was not relevant to bail, and that she had obeyed the court order to come back many times, so she was not a flight risk. If, at that time, Mr. Madden, the crown prosecutor, had stood up and argued that she had a minor child in her custody and that child might be in danger, the judge would have simply said, “Show me a threat. When did she threaten the baby?” She never threatened the baby. To our knowledge, she never said a word about threatening the baby, or anyone. She was too smart, too careful.

I'm sorry, I don't mean to undermine what Mr. Andrews has proposed here. I simply mean to push the logic of this as far as I can see it going. I don't see any way a manipulative murderer can be kept in jail or in other custody unless it's a blanket rule, because some of them are just too smart.

Shirley Turner had us convinced, mostly convinced, that she was getting ready to go back to Pennsylvania and face trial. She never gave us a hint that she was going to turn wacko and do this. She was consulting a psychiatrist. That psychiatrist declared, after the murder-suicide, that he saw no indication of danger to herself or others.

So my point is, number three, repeat killings are unpredictable. Shirley Turner's a great example of it.

Gary Weddell is an even better example. The court ordered him to undergo psychiatric evaluation. The psychiatrist came back and said he was not a threat to himself or others, and he went right out and killed himself and another.

[The Chair, Conservative, Ed Fast]

Thank you.

I want to thank each one of the witnesses: Mr. Andrews, for bringing the bill forward; Mr. and Mrs. Bagby, for having the courage to appear before us today; and also Ms. Illingworth and Ms. Gray-Donald, for adding their input to our proceedings here.

We're now going to move to clause-by-clause. I'm going to ask the two justice officials to take their places at the table. Our witnesses can take a seat in the gallery. We'll recess for two minutes.

[The Chair, Conservative, Ed Fast]

We will reconvene the meeting. We're moving now to clause-by-clause consideration of Bill C-464.

(On clause 1)

I understand there have been discussions between Mr. Andrews and the government side on two government amendments.

Mr. Dechert, perhaps you could present amendment G-1.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Correct. Thank you, Mr. Chair.

The government would like to propose an amendment in clause 1, replacing line 9 on page 1 with the following:

any person under the age of 18 years, having regard

[The Chair, Conservative, Ed Fast]

You've heard the amendment. Is there any discussion? Are there any questions?

Yes, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I'd like to ask this. I did have a discussion with Mr. Dechert, who explained it to me, but I would like to have the Department of Justice officials explain. Why the change? Some of this deals with the collision, realistically, between provincial laws protecting the best interests of the child--and in some provinces that is displayed by different ages--and the Criminal Code, which sets out 18 in a number of locations as a milestone.

What is the reason for the change?

[Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Department of Justice]

This amendment has been proposed precisely in order to make the wording of the bill similar to the Criminal Code. So, if you look at sections 171 and 172 of the Criminal Code, you find the idea of a person under the age of eighteen years. So this was to make the wording correspond better to what is found in the Criminal Code.

[The Chair, Conservative, Ed Fast]

Does that answer your question?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes.