Yes.
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.
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.
5:15 p.m.
NDP
Murray Rankin NDP Victoria, BC
I acknowledge that it was earlier. That's why I wanted to take the opportunity to check it out with you today.
5:15 p.m.
Liberal
5:15 p.m.
Voices
Oh, oh!
5:15 p.m.
Liberal
The Chair Liberal Anthony Housefather
I interrupted you with a little joke only because you're at seven minutes and I have to go to the next questioner.
Ms. Khalid.
5:15 p.m.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
Thank you to the witnesses. I don't have a lot of legal experience, but I'm finding this study to be very fascinating.
We've heard again and again over the past three years I've been on this committee that our bail system needs reform. As it's outlined right now in Bill C-75, do you think it will address at least some of the challenges faced by our bail system? Will it reduce delays? Will it unclog the system in any way?
Mr. Doob.
5:15 p.m.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
No, I really don't think so. You know, raising consciousness about the presumption of release is a good idea. This process does that and so on.
The problem is this. Most of those people who are making decisions in the criminal justice system are making them in good faith, I assume, according to what they think is the best thing to do. I don't think these are people who are doing things for bad reasons or who have any kind of bad motive. They have difficult jobs, and they're looking to do the best thing.
I agree with Professor Webster about the risk problem. If I were a young police officer, I think I would tend to push things up and let other people make difficult decisions as well, but I don't see anything that's going to change all of that. People are trying to do the best possible. I mean, obviously they have their own personal concerns in terms of releasing somebody who might commit a serious offence, so why not let somebody further along do it? That's my worry. I think it's very optimistic to think that this will make much of a change.
I go back to the change that was made by the previous government to the Youth Criminal Justice Act bail provisions. I happen to agree with a number of other people that the changes made in 2012 by the previous government to the youth bail laws were an improvement. If I took those two things and said, “Which would I choose?”, I would take the ones with the changes put in by the previous government in 2012. Did those make a difference? The answer is no. I mean, that's fairly clear. The data are fairly clear on that. Could they have made a difference if they had been sold in a different way, if people had been educated, if the importance of them had been told? Probably—or maybe—but they didn't.
I'm afraid that these provisions, as part of a huge bill, will get lost in the shuffle. These are not things that people really have to learn. They can continue doing exactly what they did before.
5:20 p.m.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
In what way, then, would we enforce a bail system that would bring all the players onto one page and say, “We all need to get with the program here”? How do you do it?
5:20 p.m.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
I don't think you can do it solely by making minor modifications to legislation. If we want to change something, we should take the whole section and say this is what we want to do.
I don't want to make your work more difficult, but there are a number of areas of the criminal justice system that are like this, where we had some pretty good ideas in the beginning and then they either haven't worked out the way we wanted them to or we have changed things in a way that we need to start from scratch. This would be one of them. I would look at this one.
Another one would be conditional release from penitentiaries. I don't think anybody is happy with the way in which conditional release from penitentiaries works. There are lots of problems in that.
You start and look at it; you study it. Again, it doesn't have to be a big process. It can be a focused process on those things.
The three of us have looked at various sorts of things historically. We used to be able to do that. We used to be able to take a problem, study it, come in with a new set of provisions, and with serious agreement across all parties, change things. That would be what we'd want to do in these areas.
5:20 p.m.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
I'll turn a little to the reverse onus provisions and intimate partner violence. We have heard testimony over the past number of days that this would lead to under-reporting of violence by partners who are being abused. Do you agree with that?
Any one of you can comment.
5:20 p.m.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
To be honest, I don't think most people involved as victims or as offenders in most offences, maybe even particularly intimate partner violence, know whether something is a reverse onus or not. I don't think it is going to make much difference at the point of reporting or the processing of the case. I also am not confident that it would actually lead to what I presume is the intent of this, which is to detain more people, because Crown attorneys and judicial officials are very aware of the concerns about intimate partner violence. This one seems to me to be a gratuitous change that gives the wrong message.
Maybe it again goes back to the fact that I'm not a lawyer, but I think if I talked to people and said, “Who is the onus on, on release of somebody who is charged with a violent offence against an intimate partner?”, people wouldn't have a clue what I was talking about. Then if I explained it, they wouldn't have a clue as to what the answer was.
I have lots of worries. That's not one of them.
5:25 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We're going to have bells ringing in about three minutes, so we'll have a very short question.
Mr. Nicholson.
5:25 p.m.
Niagara Falls, CPC
What do you mean? I can't understand why you say it sends the wrong message. The message of the reverse onus is to try to protect the victim. I think that's the message of the legislation we're sending out, that we want to better protect this victim of domestic violence.
You say it sends the wrong message out. What is that?
5:25 p.m.
Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual
It sends the message that, first of all, we've been lenient in the past on these cases. It suggests that the courts have not taken them seriously. However, more generally, the reverse onus provisions undermine or challenge the presumption of innocence. I'm worried that the belief is that these are people who should be detained simply because they have been charged with an offence involving an intimate partner.
My concern in general with that list is that I don't see it as coming from a careful analysis of the changes to the Criminal Code that are necessary. That's all.
5:25 p.m.
Liberal
The Chair Liberal Anthony Housefather
Are there any other short questions?
If not, I want to thank this panel very much. As always, you've been incredibly helpful.
Now we're going to recess, I guess, until right after the vote. If everyone could come back after the vote, that would be amazing.
6:33 p.m.
Liberal
The Chair Liberal Anthony Housefather
We are reconvening with our third panel of the day.
It gives me great pleasure to welcome to this panel Ms. Nicole Myers, who is a doctor in the Department of Sociology, Queen's University. Welcome.
We also have Ms. Rebecca Bromwich, director, conflict resolution program, Department of Law and Legal Studies at Carleton. Welcome.
From the Society of United Professionals, we have Mr. Garrett Zehr, external relations committee member, and Ms. Kendall Yamagishi, external relations committee member. Welcome to you both.
We also have the pleasure of moving Stephanie Heyens, senior criminal litigator, York Region, Legal Aid Ontario, into this panel from the fourth panel because she has a flight she needs to catch.
We'll hear from all four, we'll do a round of questions, then we'll get to our next panel.
I am sorry that we are late. It couldn't be helped unfortunately, with votes, but we're pleased to finally begin.
Ms. Myers, you're first.
6:33 p.m.
Professor Nicole Myers Department of Sociology, Queen's University, As an Individual
Thank you, Mr. Chair and fellow committee members, for inviting me to speak to you today about the bail provisions as well as about shifting the process for administration of justice offences.
As we've heard from other people before, but I will reiterate, since 2005 in this country, we have had more people in pretrial detention than in sentenced custody in our provincial and territorial institutions. The rate at which we've held people in pretrial detention has more than tripled in the past 30 years. If we look at the overall proportion of those who are in custody across Canada federally and provincially, 37% of that population is in remand. However, looking only at those in provincial institutions, you'll see that this climbs to almost 59%. That means 59% of people in our provincial jails tonight have not been convicted of a criminal offence.
In an effort to understand this problem, I have been studying the bail system in Canada since 2005. I have spent hundreds of days observing bail court, watching thousands of bail appearances happen. I've done this mostly in Ontario; however, I have collected data across the country. I've also examined completed case files and conducted interviews with people who have gone through the bail process as accused persons, as well as people who have acted as sureties. I've also interviewed members of the defence bar, Crown attorneys, Justices of the Peace, judges, and representatives of community agencies that are involved in the bail process. It's from this position that I offer my comments today on the proposed changes.
I'd like to start by saying that I do agree with the comments that were made by my colleagues in the previous session, Professor Doob, Professor Webster, and Professor Sprott. Today I'm going to focus my comments on three different parts. One is around codifying the principle of restraint and the use of sureties, restraint and imposition of conditions of release, and creating a new process dealing with charges against the administration of justice.
Before I lead into those comments, a bit of background is required. It's important that we recognize that most accused people are ultimately released on bail. Most of the accused people who are released are released with the consent of the Crown attorney, meaning this is not the result of a contested show cause hearing. The Crown is consenting to the accused's release. However, that release is rarely unconditional. In Ontario, 76% of people released on bail require a surety in order to be released. This practice is not consistent across the country. Indeed, Ontario is a bit of an anomaly in the frequency with which it is relied on as a form of release.
Surety requirements can lead to a variety of delays in the bail process as it can take some time to find somebody who is deemed appropriate and is also willing to come to court and to take on this particular role. A surety requirement may be especially problematic for marginalized folks who may not have someone who can come forward in this role. The surety requirement may also delay the bail decision. It takes more appearances and more nights in remand, and may ultimately result in an individual being detained if they have been unable to find an appropriate individual.
Sureties are also generally required to be physically present in court. This is so they can hear the allegations. They may be called up to the stand to give evidence at a bail hearing, but they may also be questioned during a consent release.
I encourage and support the codification of restraint and the ladder principle and encourage a restrained use of sureties. That said, I do have some concerns, not only with the continued use of sureties but also with the lack of structuring around that discretion about making this kind of decision, as well as with other kinds of conditions of release. I'll come back to that in a moment.
With regard to other kinds of conditions of release—not supervision in terms of sureties—we don't really know how well these conditions of release attenuate risk. Some likely do, but we do know that there are some problems with the number of conditions that are routinely imposed. Some of them may be problematic on their face; some may be difficult to comply with, especially for extended periods of time; and some conditions may be setting the accused up to fail.
Each condition of release creates a new criminal offence, increasing the risk that this accused person might be brought back into the bail process. On average in my work, I have seen 7.8 conditions of release imposed on accused people, and that has ranged from as low as one. I have never seen anyone released unconditionally. I've also seen an individual who had 34 separate conditions imposed on their release order. That means 34 new criminal offences for that particular individual.
The most frequently imposed conditions are to be amenable to the rules and discipline of the home, not to possess weapons, to reside with your surety, not to contact the victim or witness, to observe boundaries or no-go zones, to attend treatment or counselling, to abstain from the consumption of drugs or alcohol, and to abide by curfew or house arrest. Not all of these conditions are problematic. Some, however, are.
Even if the conditions are not problematic as an individual, they may be as a collective. We may be packaging a group of conditions that are incredibly onerous, restrictive, and difficult to comply with for an extended period.
In my work, I've seen that a great deal of conditions have no clear or logical connection to the allegations or the grounds on which the accused may otherwise be detained.
We also know that the more conditions that are imposed and the longer an accused is subject to them, the more likely it is that the accused will be charged with failing to comply. An average time of case completion is around four months. This is a long period of time to be subject to a variety of conditions.
I again here support the codification of restraint in the imposition of conditions, but I would suggest that more needs to be done about structuring discretion on how conditions are going to be imposed.
I would suggest that there should be a clear and rational connection between the condition and the allegations or grounds for detention. We should also be thinking about people's reasonable ability to comply with those conditions for the duration that they're subject to them.
To this end, in terms of the use of sureties as well as conditions, I think more needs to be done to guide the discretion of the decision-makers: of the police in deciding to hold someone for a bail hearing; of the Crown and the judicial officer in deciding to release, consent-release, or after a show cause; and about the kinds of conditions that are going to be imposed.
If we're really interested in shifting bail practice, we have to start with the police as the gatekeepers to the court process. More needs to be done to figure out how we can encourage police to exercise their powers of release and also to ensure that any conditions police are imposing are also reasonable.
I'd also suggest that some thresholds should be established that might help guide the decision to release or to impose conditions. For example, we might want to think about this: if it's unlikely that an individual would be sentenced to a term of custody, perhaps that individual should not be detained at the front end of the process.
With regard to the release decision, if possible, we should be making this decision faster, with fewer restrictions placed on the accused.
Again, most people are ultimately released. The faster we make that decision, the less time people will spend in pretrial detention with the negative consequences that come from that. We can also improve the efficiency of the court by not having the same people coming back over and over again before a bail decision is made. I would encourage you to consider structuring the discretion more closely to the proposed amendments to the YCJA and how conditions for youth are going to be considered.
I'll shift lastly to responding to the administration of justice offences. As you've already heard, despite overall declining crime rates and declining violent crime rates, charges against the administration of justice have been steadily increasing over time. Our criminal justice system expends considerable resources in policing, in incarcerating, and in processing these kinds of charges in court.
We have to remember that bail conditions largely criminalize behaviour that outside of the bail order is not a crime. By this I mean, for example, talking to a particular individual, coming home after a certain time, or consuming alcohol.
Sometimes conditions that are imposed are clearly and closely related to concerns around public safety. However, this is not always the case. Restraint in the imposition of conditions is the starting place; it is what is most important if we want to see significant change.
My concern is that what we're doing with the judicial referral hearing is suddenly a parallel process that may end up reproducing the very challenges and problems that we are currently seeing.
As it stands, it's unclear how and when the police are to make the decision to charge somebody versus send that person forward for a hearing, and the circumstances in which a judicial referral hearing cannot be used are so broad as to impact the meaningfulness of this new process.
Here again, I would invite you to look at what's being proposed for youth for those who are then found not guilty or have the charges withdrawn around failing to comply, and look back at what that has meant in terms of their case processing.
The way bail is currently operating is an important problem that must be addressed. What is being proposed is a cautious start, and in some ways it does little more than codify what was there in R. v. Antic. I would say that those are important things—this codification—and I've made a number of recommendations in my brief for areas that I think should be considered to avoid creating the very difficulties that this bill is trying to address.
I think we need to step back, think very carefully about what we are trying to achieve in the bail process, and work towards shifting practices. The problems with bail are not new, and over time a culture has developed in the bail court. This culture is risk-averse; it is a nervousness or reluctance to be the one to make the release decision. Providing additional structure or guidance on how these discretionary decisions are to be made may inspire a shift in current practices and help promote consistency in decision-making. However, clear guidance and education will be required if we're going to shift the way that bail has been being decided in the last number of years.
Thank you.
September 19th, 2018 / 6:40 p.m.
Dr. Rebecca Bromwich Director, Conflict Resolution Program, Department of Law and Legal Studies, Carleton University, As an Individual
Thank you, Mr. Chair.
Honourable members of this committee, I want to begin not with numbers, but by reading an excerpt from a letter to the editor published in the Moncton Times & Transcript on November 2 of the year 2005. It reads:
Dear Editor: I’m writing this letter because I believe the community should know. I’m currently at the New Brunswick Youth Centre serving a rather long sentence for petty crimes. When the judge sentenced me, the community went way to go! One less troublemaker on the streets. Do they not realize this place makes youth worse not better? Since I have been here, I’ve become a more angry person. I have learned way more about how to commit crimes and not get caught…
That letter was written by Ashley Smith, who less than two years later died at Grand Valley Prison by self-strangulation in a death that was later ruled a homicide by the inquest verdict in 2013.
I start with her voice because she can't bring it to you. She was in custody as a youth for primarily administration of justice offences. That's what kept her in prison. That's what kept her in youth facilities, and that's what led, on her 18th birthday, to the transfer application being made to bring her into adult corrections custody, at which time she entered as maximum security.
As you may recall, the index offence that brought her into custody was throwing apples at a postal worker, but through the journey of the correctional process in the youth system, she got over 800 disciplinary infractions that would not necessarily have constituted crimes had she not been in custody. One example is failing to return a hairbrush in a timely fashion. As a result of these 800 disciplinary infractions, she ended up with over 150 convictions for administration of justice-related offences.
I'm here to support in principle provisions that simplify processes in order to prevent the continuation of these kinds of administration of justice offences being disproportionately levied, particularly against marginalized, vulnerable girls, as Professors Doob's and Sprott's 2009 book, Justice for Girls?, has articulated statistically.
The case of Ashley Smith has been brought to national attention because it has become associated with issues of mental health in custody and with issues of solitary confinement. In my own Ph.D. research, I contend that the missing piece of what the public has failed to appreciate in that case and failed to understand is that the foundation of the bridge between throwing apples at a postal worker and dying in adult prison is laid by these administration of justice offences.
Accordingly, the idea of codifying the principle of restraint for release and bail decisions, proposed section 493.1, which is in the legislation for your consideration, is something I would support. I support the idea of requiring special consideration for indigenous people, and I note also that “vulnerable groups” is worded expansively there, and I like that. Ashley Smith was not an indigenous person, but she was vulnerable. She was a child in care. She was in social services custody and rendered vulnerable as a result.
I support the alternate process for dealing with some alleged breaches of bail, and I'm particularly interested in and support the creation of the proposed section 4.1 of the Youth Criminal Justice Act that allows, where there's a failure to comply, to deem extrajudicial measures to be adequate.
This legislative proposal that you're considering, I agree, is not perfect. I agree that it is tinkering; however, I don't think that's a reason to not do it. I think this is today's step right now, and I think broader and greater systemic change is necessary, but in the spirit of making bail and making administration of justice offences fairer and simpler, this is exactly one of the things that needs to happen as a result of the death of Ashley Smith.
Thank you.
6:45 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Now we will move on to the Society of United Professionals. I'm not sure who's going first, but please go ahead.