Thank you very much.
In 1997 there were about 3,800 youths serving custodial sentences in Canada. By 2015 this was down to about 500. There are lessons to be learned from the changes in Canada's youth justice system that have relevance for the areas of Bill C-75 that you've asked us to speak about—namely, bail and the administration of justice charges.
In the mid-1990s, it was broadly accepted that we incarcerated too many youths, but it took us 20 years to get to where we are now. The goal in part was to screen minor cases out of the court system. It meant that the courts and youth corrections could deal more effectively with the more serious cases.
I suggest that one of the goals of the proposed changes in bail and administration of justice charges contained in the bill is to be more selective in the manner in which we deal with cases.
How did we do this with youths? First, there was a broad and growing consensus in this case about what the system should be all about. Second, the consensus was reinforced by legislative changes. Third, the legislative language in youth justice changed from what might be called “aspirational” provisions, where the intent was clear but the decision-maker was not required to change. It shifted toward what might be called “operational” directions, where more firm guidance was given. Fourth, governments reinforced the importance of changes in the legislation by instituting educational processes that ensured that people knew that a real change in approach was required—in other words, that the behaviour on the part of those in the criminal justice system had to change in order to comply with the intent of the change in law.
My concern regarding the proposals in Bill C-75 on bail and administration of justice offences is not that I don't agree with what I believe are its goals. It is that I don't think these goals will be achieved.
As you probably know, we have not been as successful in controlling the use of pretrial detention for youths as we have been with sentencing. The original restrictions in the Youth Criminal Justice Act on the use of pretrial detention were not as directive as the restrictions on the use of sentenced custody. Even though the legislation relating to pretrial detention for youths was improved in 2012, no apparent change in the decision-making process actually occurred. The law changed, but practice did not. In 2003 about 41% of the youths in custodial facilities were in pretrial detention. By 2015 this had increased to 56%.
Let's turn now to the proposed changes in the handling of administration of justice charges and bail. I read the proposed changes to section 16 of the Criminal Code with one question in mind: Will it be necessary for anyone to change what they're currently doing as a result of these changes?
Obviously, there are some sensible principles. It is useful to state clearly that primary consideration should be given to the release of the accused at the earliest reasonable opportunity and so on. But such a statement is not dramatically different from the current provisions. What in this legislation will force or at least strongly encourage police officers, Crowns or judicial officials to change the manner in which they determine what constitutes best practices?
I say this in the context that the police officer is encouraged to place conditions on an accused person that are reasonable to prevent the continuation or repetition of the offence or the commission of any other offence. This would seem to encourage extra conditions that are likely to lead to something discouraged in the legislation—namely, additional administration of justice charges when extra conditions are not followed. At the moment, the arrest and bail laws are complex and do not give clear direction.
My reading of the Supreme Court's decision in Antic was that the justices simply restated, in plain language, what the Criminal Code says. Plain language is good, but subsequent court decisions suggest that it may not be sufficient.
Proposed section 493.2 says that a judge or justice shall give attention to the circumstances of aboriginal accused and other vulnerable or overrepresented accused people. Later, in proposed changes to section 515, restraint is again mentioned. Clearly, the idea is that all people, especially indigenous and other disadvantaged accused, should be beneficiaries of restraint. Why not require that reasons be given for escalating the restrictiveness of release orders beyond a simple undertaking without conditions?
Similarly, if it is deemed necessary to impose conditions or a surety, why not require reasons? For indigenous and other disadvantaged people, why not require those suggesting or imposing the conditions to indicate why such conditions are both necessary and possible for the person to follow? In other words, if you want to focus the decision-maker's mind, say so. Require justifications for restrictions on freedom.
There's another problem, however. The Criminal Code, as amended in Bill C-75, would be giving directly contradictory messages. On the one hand, legislation would state that innocent people should not be imprisoned unless there is good reason to do so. However, at the same time, the list of the so-called “reverse onus” offences is being expanded in the bill.
When the current bail laws were put in place in the early 1970s, there were no reverse onus offences. The expansion of the list since the mid-1970s has been gradual, and I would suggest, without empirical evidence of the need for change. Most, if not all, of the reverse onus offences are ones that you would expect courts to take very seriously anyway. The problem in expanding the list, especially at this point, is that the message is clear. A decision to detain is the preferred and safest choice in the short run for those concerned about risk, notwithstanding sections such as the proposed statements concerning restraint.
These two areas of the Criminal Code—administration of justice charges and bail—clearly need attention. My most important worry about the current set of proposals is that they won't be effective in creating the intended changes.
I'll finish with some statistics that illustrate the importance of this issue.
In Ontario, in the year ending this past June, 46% of the 208,000 cases that were completed in Ontario's provincial courts started their court lives in bail court. As Professor Webster has just pointed out, bail cases are not necessarily all serious cases. In fact, only 31% of these bail cases involved crimes against the person.
Another indication that these cases are not necessarily serious is that 40,000 of these bail cases, or 42% of them, in the end had all charges withdrawn or stayed at or before trial. How serious could these cases have been if all charges are withdrawn or stayed?
I'm not confident the changes in Bill C-75 will make much of a dent in those numbers. I hope I'm wrong.