Thank you very much for the opportunity to appear before you today. This is a lengthy bill, so in the interest of time I will dispense with the intros to my organization and myself.
We support the goals of Bill C-75 and applaud the government for taking steps to address many issues in the justice system that are crying out for reform. We particularly welcome the attention to the deluge of administration of justice offences that are appearing before our criminal courts; to our bail system, which is overly risk-averse, detaining and releasing too many people on too many restrictive conditions; as well as to racial discrimination in the jury system and the deep unfairness of the mandatory victim surcharge. In our view, reform in many of these areas, as well as in others, is overdue.
My submissions today will focus on the bail and administration of justice offences, just because I think this is an area where you may not hear as much from various witnesses. We do support the goal of these amendments, but we think they don't go far enough. A lot of the amendments' proposed changes codify existing law. Lawyers and judges and justices of the peace should know what the existing law is. It's useful to write that down in statute, but really, to make serious changes to our bail system and how that's operating, we think more fundamental reforms are necessary. I'll go over a number of those in my proposed submissions.
Before getting there, though, I do want to outline three areas of this bill that we have deep concerns about: the treatment of police evidence, the proposed new maximum sentences for summary offences, and the restrictions on the availability of preliminary inquiries. I'll be very brief, but I'm happy to take questions on these.
First, clauses 278 and 294, which streamline the admission of police testimony, are, in our opinion, at best superfluous. There are already provisions in the Criminal Code that allow for agreed statements of facts to be put before the court. At worst, they are a serious affront to the presumption of innocence and the right to a fair trial. They should be removed in their entirety.
Second, with regard to increasing maximum sentences for summary offences from six months to two years less a day, I do not believe the government intended to increase the severity of penalties available in the Criminal Code. We're very concerned that the collateral impacts of this sentencing change will do just that. There are serious immigration consequences that come with increasing maximum sentences. Due to the definition of “serious criminality” in the Immigration and Refugee Protection Act, this would drastically increase the legal jeopardy for people charged with summary conviction offences. It also means that a whole new class of individuals may be inadmissible to the United States based only on the maximum sentence. We do not think these sentencing changes should go forward without complementary adjustments to at least the Immigration and Refugee Protection Act.
Finally, we've looked at the evidence in favour of eliminating preliminary inquiries, and in our view it's mixed. There are some who say it will have an impact. The most recent published academic study said there would be no impact to efficiency in the criminal justice system by eliminating preliminary inquiries. We've listened to our experts in the defence bar. We've listened to the submissions of the Criminal Lawyers' Association. We are concerned about the impacts on wrongful convictions and failed trial processes for eliminating this particular portion of the justice system. It operates differently in different provinces, so the impact will be different depending on where people are practising. We just don't believe that the evidence of the benefit is worth the risk to the trial process.
Having said that, I'll use the rest of my time for the bail and administration of justice offences. I have eight specific amendments, some of which I'll deal with only briefly, that we think will have a larger impact on bringing back fairness, presumption of innocence, and reasonable bail in Canada.
First, we'd urge a greater systemization of the language in this bill. The law is quite clear that restrictive forms of release and conditions may only be imposed when they are necessary to address the statutory grounds of detention. But if we look, for example, at the police provisions on when conditions may be applied by police in this bill, we see that police can apply conditions “to prevent the continuation or repetition of the offence or the commission of another offence”. That is much, much broader than the existing statutory grounds for detention. I would hope it was not the intent to broaden when police can impose conditions when releasing an accused. That is a very, very broad power to impose restrictive conditions.
There are other instances in this bill where it says conditions may be imposed when it is desirable. That type of language needs to be systematically brought into line with charter jurisprudence and the Supreme Court of Canada's holdings on when conditions are legal, in light of the charter right to reasonable bail.
We also think that significant enhancements can be made by addressing the procedure of bail hearings. In Ontario, for example, it is routine for there to be an assumption that a surety is required, and when defence counsel go into a contested bail hearing, they frequently feel the need to call a potential surety before they know what the appropriate form of release is, even when it's a Crown onus, because if they don't call a surety and the assumption is that a surety is required, then their client will be detained.
There was a decision from February, the Tunney decision, that put the Supreme Court's decision in Antic into practice and said that a bifurcated bail procedure is necessary in our courts in order to maintain the latter principle on bail. This means that before defence is required to call a surety, the justice must rule on what form of release is required. In Crown-onus situations, the Crown actually has to come and prove that it does need a surety for this person to be released, and only then is the accused required to bring, or it is suggested that the accused bring, evidence about what surety is appropriate.
This is a big change for Ontario bail courts. The change is slowly making its way across the province, but change is difficult, especially in the bail arena. This committee has an incredible opportunity to significantly strengthen that practice and make real changes, particularly for Ontario, in terms of how bail is adjudicated.
Third, I would urge this committee to address circumstances in which individuals are likely to be held in pretrial detention for longer than they would be convicted if they were sentenced. It is not uncommon for a person in pretrial detention to face a choice. They can sit there. They can wait for their trial. They can wait for a contested bail hearing, or they can plead guilty and they can be released sooner. That's a situation that nobody should have to face. Our pretrial process should not be more punitive than our sentencing structure. Right now there are no provisions in the Criminal Code to address this situation. There are submissions from Professor Marie-Eve Sylvestre, who suggests that we need to add a provision saying that if a person is likely to be sentenced to a certain amount of time, they shouldn't spend more time in pretrial detention than they would receive on a sentence.
We have two suggested amendments—and I do have a written brief, which I'll circulate after—that we think would really address the situation and increase the fairness for those individuals.
Fourth are the secondary grounds of detention. These are the grounds of detention most frequently associated with public safety. In Morales, the Supreme Court looked at the right to reasonable bail and said that secondary grounds of detention have to be interpreted narrowly in order for charter rights to be upheld. It's not any risk to public safety. It's not any risk that a person will commit a criminal offence that will justify keeping somebody in detention or imposing restrictive conditions. It has to be a substantial risk that a person will commit another offence, and a substantial risk that this will impact public safety or the safety of an individual.
The secondary grounds, however, are interpreted quite liberally when in bail court, so there is a temptation—and I think we see this, actually, in the text of this bill, in the police release conditions— to say that any risk that someone will go out and commit another offence is a justification for the imposition of restrictive releases or restrictive conditions. We think that language can be tightened in the Criminal Code to more accurately reflect the charter as well as the Supreme Court's holdings on this matter, and we have some suggested language for that.
I'll go through the rest briefly. We think expanded scope for bail reviews would be extremely helpful. Right now there's a relatively restricted scope for defence to challenge bail decisions. With regard to the reverse onuses in the Criminal Code, many have suggested that those reverse onuses should be repealed. This bill does not do that. It introduces a new one that is quite problematic from our perspective. We'd like to see increased flexibility to where an accused can be remanded after the first appearance. It would just give the provinces more flexibility when dealing with people from remote communities.
We'd like to ensure that a previous conviction is not an elevated factor in the consideration of bail by removing proposed paragraph 515(3)(b), which enumerates specifically that a previous conviction must be considered upon a bail application as one of only two factors that are singled out.
I'll leave my submissions there. We'll circulate my written brief; I realize these were detailed.
I'd also be happy to answer questions on the administration of justice parallel procedure, which I didn't get to but we have some significant concerns about.
