Justice Committee on Sept. 19th, 2018

[Murray Rankin, NDP, Victoria, BC]

I understand.

[Stephanie Heyens]

It literally forces you on the stand. You have no other way to defend yourself.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Rankin.

Mr. McKinnon is next.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

Thank you to all the witnesses.

I'll start with you, Mr. Zehr, following up on Mr. Rankin's questions. You say that there should be no charges on administrative offences except where they cause harm. Wouldn't an action that causes harm be something that qualifies as an offence in its own right?

[Garrett Zehr]

I'm not quite sure I understand.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Let's say someone has breached a condition and they've caused harm.

[Garrett Zehr]

Right.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Wouldn't whatever they did to cause harm be something they could reasonably be charged with as an offence in its own right, rather than as a charge of breach of conditions?

[Garrett Zehr]

That's a good point, but at the same time, there perhaps could be, for example, a contact breach. If someone is charged and one of the conditions is that they are not to have any contact with someone, their very contact could be argued to have caused harm even if it's not in itself going to rise to the level that it in itself would be a criminal act. Perhaps they're attending at an address they're not allowed to attend at, and that causes emotional or psychological harm. They're not uttering another threat, they're not committing any assault, but their very presence there I guess could be a breach that we could perhaps say is causing harm without their committing an additional offence.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

But such a breach wouldn't be amenable to a charge in its own right. Is it really appropriate to have a criminal charge for an administrative breach applied to it? Is there some other recourse that could be taken?

[Garrett Zehr]

That's a good question. If the behaviour itself wouldn't amount to criminal activity, then perhaps yes. Perhaps all of those charges should then be referred to this judicial referral hearing. Ultimately, the further release will be determined at that point.

I take your point, and I think I agree with it, that if further contact isn't itself criminal behaviour, why is that behaviour being criminalized?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I'd like to follow up on this a little further. Irrespective of whether it's criminal behaviour or whether or not it causes harm, what should be the appropriate consequence for someone who breaches conditions? If there are conditions and there is no consequence whatsoever, I mean, why follow up, right?

[Garrett Zehr]

There will be a consequence for that person. Again, the police obviously have the discretion to do nothing. The police can give a warning, as we know they do now. Sometimes police just give a warning, such as “You're breaching your condition. Don't do it again or you're going to get charged.”

The other option, which the proposed legislation provides, is to refer it to this judicial referral hearing. There will be consequences there, because that judicial officer then has the decision on whether to release that person again, whether to impose further conditions, or whether to detain the person. Ultimately, there are consequences that would follow from any of these breaches.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Those consequences would typically be to end the bail situation and to put them back in custody, perhaps.

[Garrett Zehr]

That could ultimately be the case, or it could be that maybe they require being moved up of the ladder, for example, or additional conditions. It's kind of like another bail hearing. It may be required to move up the ladder or the conditions, as appropriate.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

I'm going to move on to Ms. Yamagishi.

You said that the conditions that a judge can set vary, in addition to whatever the judge feels is desirable. That basically makes the whole thing wide open.

What if that were changed from what the judge considered desirable to what the judge considered necessary? Would that address your concerns?

[Kendall Yamagishi]

It would, partially.

I'll note that case law such as Antic goes further than just what the judge considers necessary. It also goes into noting, as other speakers have alluded to, that the conditions should not punish the accused and should not be there to modify the person's behaviour. They also need to be not only what they feel is necessary, but also relevant. That would be part of the way there.

Again, in our written submission, we outline a number of proposed amendments to the language specifically.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would you say that the conditions that should be applicable would be only those that go to protect public safety or those that will ensure the accused shows up in court?

[Kendall Yamagishi]

Yes.

Again, this is a clarification of the law as it already stands. One troublesome thing we're seeing.... We have a case like Morales from 1992—it's been around for a very long time—that says public safety is paramount. However, we see all these other conditions that don't necessarily have to do with public safety, or even primary grounds, as discussed in Pearson, another 1992 Supreme Court of Canada case.

I think this may go to what Mr. Rankin said, which is that when we make these legislative changes, we don't see the results. Clearly stating these things in statute gives, as Ms. Myers said, something for us to grab onto, something I can appeal, something I can make an argument about in court.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you. I think that's my time.

[The Chair, Liberal, Anthony Housefather]

Yes, you were at 5:54. Very good.

I'd like to thank this panel of witnesses. You've been extremely helpful, and it is much appreciated, and I think you're on time for your flight.

I'd like to take a brief recess and ask the next panellists to come forward, please.

[The Chair, Liberal, Anthony Housefather]

I am going to reconvene the committee now.

We will be doing our last panel of the day, which is a combination of panels four and five, given the fact that we're running an hour behind.

It's a great pleasure to be joined by Ms. Sarah Leamon, criminal defence lawyer from Leamon Roudette Law Group. Welcome back.

[Sarah Leamon, Criminal Defence Lawyer, Leamon Roudette Law Group, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We also have Ms. Sayeh Hassan from Walter Fox & Associates. Welcome.