Evidence of meeting #106 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was conditions.
A recording is available from Parliament.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
A lot of these are really tag-alongs, in terms of how they are dealt with.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
That's right. I think that's an important thing.
As Professor Webster said, in terms of bringing somebody back who has been released on bail with an administration of justice charge, I think that there is often a substantive charge, so the administration of justice charge is an add-on and probably isn't going to add that much to the process.
I think that the problem is more those cases where the only new offence that's coming in late is an administration of justice charge. I don't know offhand. We did some work on that for the Ontario government, but I just don't remember offhand what the number of those was. It was non-trivial, but I think that you're right to say that most of them would be associated with a substantive charge.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thank you very much.
Mr. Doob, thank you for making the law accessible to somebody who didn't go through law school. I really appreciate your briefing, and I wish I could have audited one of your classes, audited some of your work. I really appreciate your comments.
When it comes to LGBTQ people who are overrepresented in the justice system, or indigenous people, or racialized people, in terms of your recommendation of requesting that the bail provisions be both necessary and possible for the person to follow, and your other recommendation of requiring that the reasons be given for any escalation, how would that work practically?
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
I would go back to the presumption of innocence and that it's the responsibility of the Crown to demonstrate why conditions should be necessary. It's relatively easy to see, for example, that somebody should not contact the person who they apparently victimized. It's easy to say we have a victim and it's important for us to protect that person and, therefore, you have this restriction.
I think the problem happens when those restrictions become very broad. I remember a case in Toronto, this is years ago, where a person was apprehended by the police and their concern was that he was basically a predator against young children. One of the pieces of evidence they had was that he had a map with locations of various schoolyards and playgrounds. The problem was that the restrictions that he had on him was that he shouldn't be within a certain number of metres of the playground or schoolyard. If you look at that and start looking at a city that has a fair number of schools and playgrounds, you see how restrictive those kinds of things are. I think that a justice who addressed him or herself to a condition like that might see the problem.
The other anecdote I'll tell you about is that I've sometimes seen, especially in small town courts, somebody get up and really question the need for particular kinds of conditions on somebody, a member of the family or somebody for whom they were going to be a surety, because they knew that it was going to be very difficult for that person to comply with them.
We have mechanisms to question things, informal mechanisms. Those informal mechanisms don't work in court. I think that the responsibility is that if we're putting conditions on people, we should know why we're doing it. Remember that there is a presumption, it seems to me, as a non-lawyer, that people should be released without conditions.
The starting point in the ladder that the Supreme Court described in Antic is that a person should be released without conditions. Probably most of the time when that happens, that's sufficient. The problem is that we load up the person with conditions and set them up for failure.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
I think Mr. McKinnon and I feel in esteemed company with you as the non-lawyers on this side of the bench.
Is your issue with the reverse onus provision or the fact that the list is now becoming larger?
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
It seems to me that the list becomes longer as a concern about a particular problem becomes more salient. If I were aware of data—and I am not aware of any such data—that suggested that it was necessary to be more restrictive on people of a particular kind who are charged with particular kinds of offences because they're less likely to show up for court or they're more likely to commit other kinds of serious offences and so on, I would be more sympathetic.
The list as it has developed is sometimes because of individual cases and sometimes because of a simply broad concern about this being a serious thing, so one of the things we're going to do is we're going to show how serious it is by making a reverse onus offence. It seems to me that we do have to go back to first principles. The bail laws as they came in in the early 1970s were there to change a very serious problem that we had then. There are people who were studying the bail laws before 1971 like Professor Friedland, who has gone back into court and looked at things and said that we need to start again.
I think the three of us can start taking positions that are consistent with that. We've made it complicated. We've given the message that any time a person commits an offence while on bail, it necessarily means that the wrong decision was made. It's easy to say that after the fact, but if you said that in medicine, there would never be an operation carried out on an individual person because sometimes there are terrible consequences that are unforeseen.
What we want to do is correct wrong decisions. We want to address the decision-making process. The outcomes, we have less control of.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
I have a quick question.
Ms. Sprott, you said we should be looking at training and looking at education. Are you suggesting we legislate that or is it a clear message to us that the funding...and a clear message from Justice has to be that this will be undertaken?
September 19th, 2018 / 5:10 p.m.
Professor, Ryerson University, As an Individual
Yes, I would think that it's a message that the funding...and that it has to be undertaken by Justice, very similar to what happened with the Youth Criminal Justice Act. It just seems spectacularly successful in that.
NDP
Murray Rankin NDP Victoria, BC
This is a really eminent panel. I'm really grateful to all of you for being here. I'm well aware particularly, Dr. Doob, of your eminent career in criminology.
You started, Professor Doob, talking about your experience with the youth justice legislation, and moving it from aspirational to operational. You then said that you agree with the goals of Bill C-75, but you're not sure that it's actually going to change the behaviour. You said that we have to change the behaviour if we're going to make any difference, and then you said in some cases the bill simply restates what the case law is, for example Antic.
How do we do that in a meaningful way? You gave one example of how we could do that when you said that we could require reasons to be given if we're going to use more sureties, more conditions, or more onerous conditions. Isn't it, however, likely that will just amount to a judge checking a form or there will be some standard rote language, like what we have with jury charges and so forth? You check a box, you feel good, but nothing really changes.
I'm just giving you an example of one of your suggestions, and I'd love you to elaborate.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
I said when I finished my comments that I hoped I was wrong.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
I think the reasons are a good start. It may be an inadequate start, but we're talking about the legislation that's before us now rather than talking about education, large education processes or starting anew. My preferred solution to this would actually be to start over with bail. We've been modifying the bail system since a couple of years after the amendments came in in 1971. One of the advantages of being old is that I can remember that. We started changing that, and I was impressed with the success that we had with the Youth Criminal Justice Act.
The Young Offenders Act before that act had been changed a number of times, most notably in the mid-1990s, to say all the sorts of things that everybody seemed to agree upon. The Conservative, NDP and Liberal members all together seemed to agree on the general principles of what it should be doing. That was changed a number of times before that, most recently in the mid-1990s, and things didn't change very much. I remember when the government announced that it was going to bring in the Youth Criminal Justice Act. My first feeling—and, again, here I was wrong—was that it was not really necessary because what the government wanted to accomplish could be accomplished under the Young Offenders Act. The government of the day went forward with a new act and everybody realized that this was a new game and it was a new set of rules. There was the education that went along with it.
Going back to really answering your question, I think that if we really want to change what is occurring with bail, we would start from scratch. Not today, because we're not going to do it today, but we'd start with a process—and it wouldn't have to be a big royal commission-type process—through which we'd say, “What do we do with these sections of the Criminal Code and how do we accomplish what we want to accomplish?”, which would be to detain people who are risky people and to release the rest of them. Let's start from there with the general principles, and let's think about how to do it and come up with something new, and then do a good job of making sure that those in the criminal justice system know about it.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
Professor Webster, I'm hoping you don't mind my doing this, because we have the benefit of having you here, but your name was taken in vain yesterday by the Criminal Lawyers' Association—
NDP
Murray Rankin NDP Victoria, BC
—regarding some research that you did on preliminary inquiries. In their brief, they referenced it. I'm going to read two sentences that you allegedly wrote and see if you still agree with them.
NDP
Murray Rankin NDP Victoria, BC
They said this, quoting you:
Within this context, it is notable that our data—while somewhat dated—suggest that the preliminary inquiry appears to change the “trajectory” of cases in ways that help to reduce the use of expensive court resources.
Then you go on:
...preliminary inquiries do not appear to account for a large portion of the courts' business and, as such, are unlikely to contribute substantially to the problem of court delay.
Are those your words, and do you agree with them still?
Professor, University of Ottawa, As an Individual
They are my words. I'll skirt the question in this sense: Do I still believe it? Those words were written based on a study that Professor Doob and I did.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
In the early 2000s....
Professor, University of Ottawa, As an Individual
Yes.
It was 15 years ago, if not more. In terms of the data we had at the time, keep in mind that it was a national dataset. It was very complete, with 2.2 million cases and so on, so it did give us some confidence. Our analyses did suggest exactly as you've described. I was just thinking about the first one, about changing the trajectory of cases. We saw, for example, that in nine of the 11 jurisdictions for which we had data, cases with a preliminary inquiry were resolved in provincial court, avoiding that need to proceed to superior court, which we know to be more costly, more resource-intensive, etc. They were being rerouted through either a discharge, a guilty plea, or a re-election back to provincial court.
We also found that in two of the four jurisdictions for which we had data, there was a non-trivial number of cases resulting in at least one of the charges in the case being dismissed following a preliminary inquiry, again suggesting that it still has a weeding-out process, weeding out the weak cases.
In terms of the second statement, which was about cost, obviously the preliminary inquiry has some cost in terms of time and court appearances. The prior speaker indicated that very few cases take advantage of the preliminary inquiry. It is used very rarely. It's hard to imagine how it would be very costly in terms of appearances—
NDP
Murray Rankin NDP Victoria, BC
It's designed to deal with the Jordan principle and court delay. Your conclusion was that it's unlikely to contribute substantially to the problem of court delay.
