Justice Committee on Sept. 19th, 2018

[Tony Paisana]

We support the hybridization of offences because it offers greater discretion to Crown counsel, and also widens the scope of particular sentences that may be available with certain offences.

The conditional sentence order, in particular, is an important example of that. Conditional sentences are often unavailable for an offence where there has been bodily harm and a 10-year maximum, for example, or where the maximum penalty is 14 years. When you reduce the maximum sentence by way of summary conviction to two years, the CSO becomes available. That could be a very important negotiating tool when speaking to the Crown.

Also, I have heard in my personal experience of Crown counsel not wanting to go the summary route because they feel six months is too low and they don't think it appropriately reflects the seriousness of the offence. We support the hybridization because it provides that flexibility. However, we have recognized the inflationary ceiling problem that might exist and we have recommended a “for greater certainty” clause to make sure that does not happen.

[The Chair, Liberal, Anthony Housefather]

I saw Ms. Khalid put up her hand.

Mr. Rankin, we didn't get into your questioning this round. Are you okay?

[Murray Rankin, NDP, Victoria, BC]

I'm fine.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid, you have time for one short question.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you so much, Chair. It is a very short question.

You mentioned also in your brief the vagueness around the term “dating partner” in the context of the definition of “intimate partner”. I haven't been able to see if you've provided recommended wording for the definition.

If that's possible, could you please send us some wording?

[Kathryn Pentz]

You're quite correct. We didn't recommend any wording. Our concern with it is, what is a dating relationship? If you went out on one date with someone, does that constitute a relationship? If you dated someone 10 years ago, is that a dating relationship?

Our concern was that it doesn't necessarily establish the trust relationship that we feel is integral to a spouse or a common-law. We did not consider alternate wording, but it is certainly something we can discuss.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you kindly.

[The Chair, Liberal, Anthony Housefather]

For clarity, my understanding of your brief is that you propose that we strike the words “dating partner”—

[Kathryn Pentz]

Yes.

[The Chair, Liberal, Anthony Housefather]

—from the definition. Got it.

Thank you so much for your testimony today. It was very helpful and incredibly appreciated.

I'm going to call a very short recess and ask the members of our next panel to please come up. We're going to want to start, because we have a vote right after.

[The Chair, Liberal, Anthony Housefather]

We will bring this meeting back into session.

We are joined by our second panel. By agreement of the witnesses, they're going to go in the following order. We will start with Cheryl Webster, who is a professor from the University of Ottawa. We will then go to Tony Doob, who is professor emeritus at the centre for criminology and socio-legal studies at the University of Toronto. We will finish with Jane Sprott, who is a professor at Ryerson University. Then we'll have questions. Welcome, everyone.

Ms. Webster, the floor is yours.

[Dr. Cheryl Webster, Professor, University of Ottawa, As an Individual]

Thank you, Chair.

Over the last decade there have been multiple studies conducted on the bail process and pretrial detention. Their conclusions have virtually all been in one direction, that bail is in urgent need of attention. As such, the government should be applauded for proposing legislative reform. Indeed, any attempts to fix our broken bail system are a good thing, and the current legislative proposal targets several of the key concerns. My worry is simply that they address the symptoms rather than the underlying causes of the problem. As such, they are unlikely to fix what might reasonably be seen as a genuine crisis.

In my eyes, here is what I think has happened. Our current state of bail is the product of the adoption over the last 20 or 30 years of a risk-averse mentality, which has slowly permeated the entire bail system, ultimately redefining the very notion of what it is that we are trying to accomplish.

In 1971, bail was envisioned as a summary procedure to expeditiously determine the liberty of the accused until trial and ensure, above all, his or her attendance in court. Within our current risk society we have for all intents and purposes abandoned this primary grounds of detention and elevated the secondary grounds as the principal focus in determining whether an accused should be released. The principal role of the bail process has become one of limiting to the greatest extent possible any risk to public safety that accused persons might represent.

However, given that we have yet to perfect a means of distinguishing with complete reliability those who will in fact offend once released on bail, our heightened concern with risk management has translated in practice into a strong reluctance on the part of all criminal justice players to exercise discretion to release.

Release decisions are now conceptualized in terms of being either right, the accused doesn't commit a criminal offence while on release, or wrong, the accused commits a crime while in the community, rather than simply the best decision made at the time with the information available. Decisions about release are now seen as a product of a particular individual who, in the case of a tragic incident, will be personally held responsible.

Not surprisingly, the principal decision-makers in the bail process have chosen to play it safe by either opposing bail, passing along the decision to someone else, or eventually releasing the accused, albeit with multiple constraints.

At the front line, police are laying a greater number of charges despite declining overall and violent crime rates. Further, they are detaining a greater number of cases for a bail hearing. Once in court, the bail process is taking longer, with a greater number of adjournments, a greater degree of case processing, and ultimately requiring a greater number of days spent in remand awaiting a determination of bail.

Of those eventually granted bail, more onerous forms of release are being preferred and a greater number of conditions are being imposed, often with the need of a surety. Not surprisingly, a greater number of accused persons are violating bail conditions, predominantly committing acts that would ordinarily constitute non-criminal behaviour rather than new substantive offences, and the police are laying a greater number of administration of justice charges in response.

With reverse onus provisions for accused persons who have violated a court order while on bail, the likelihood of being granted bail a second time is significantly reduced. Even in those rarer cases in which the accused is re-released on bail, additional and even more onerous conditions are often imposed, further enhancing the likelihood of another return to bail court on a breach. With the accumulation of an even lengthier criminal record, the likelihood of being granted bail for a future offence, even for a minor crime, is further reduced. We've effectively enhanced the proverbial revolving door of the criminal justice system, this time with individuals who began the process still presumed innocent.

Don't misunderstand my position. I'm not suggesting that no one should be detained until trial. On the contrary, detention is in many cases the appropriate response in order to ensure that an accused will appear in court or provide public or individual safety.

My point is that we're presently defaulting to detention, or at least delayed release, rather than ensuring that we're putting the right people in prison while quickly releasing those for whom we simply worry about reinvolvement without any substantial basis, or those whose risk will not substantially affect public safety. In brief, we've lost the correct balance between the rights of still-innocent people and the rights of the community at large. The cost of our current risk-averse practices are not trivial. Fiscally, the enormous financial costs of operating an increasing number of bail courts rival only those of housing all of these accused in pretrial detention for longer periods of time.

Institutionally, the effective management of this population has become a serious challenge for remand centres, particularly with regard to prison overcrowding and the corresponding risk of prison disturbances. Administratively, their increasing numbers and lengthy processing times have significantly contributed to widespread court delay issues. For the individuals accused, even short periods in remand have devastating effects, limiting their ability to defend themselves, maintain employment, provide for family dependents, etc. Morally, a greater number of people being held in custody before rather than after being found guilty is clearly problematic.

Even in terms of public safety it's—ironically—difficult to argue that we're better protected. Violent crime has been declining since the early 1990s. A non-trivial proportion of accused sent to bail court have committed minor, non-violent offences or have simply breached a bail condition for non-criminal behaviour. Further, most research shows that federal offenders on conditional release are very unlikely to commit new offences, much less violent offences. There is no reason to believe that those released on bail would be any different.

In terms of remedies, solutions will need to be transformational. Our current bail system is a result of a particular mentality, driven largely by a climate of risk aversion and risk management. The problems are both endemic and systemic in nature. In fact, they are feeding off of each other in what amounts to a vicious circle. What is needed is an approach that will break this feedback model by challenging the underlying mentality. Here lie my concerns about the proposed legislation. In my mind, they can be loosely characterized as tinkering with the current bail system, and are synonymous with other recent and even large-scale efforts to reduce the remand population.

These initiatives have shown some success, but the magnitude of improvement has been small and, in some cases, short-lived. To bring about systemic change, a different mindset is needed that will force all key players to reconceptualize bail as it was originally intended.

Let me use the legislative proposal to expand police discretion as an example. I applaud that attempt to reduce the number of cases detained by police. In Ontario, almost half of all criminal cases start in bail court. Notably, only 30% of them have any violent charges. This is a serious problem, and any reduction in the strain on bail court would be positive. The challenge is to change the culture of police decision-making. My concerns are twofold.

First, I'm not convinced that police will regularly use this expanded discretion, given that there continues to be no real attempts to reduce individual or institutional risk if the case goes south. I see little that will encourage, if not force, police to behave differently from the past.

Second, even if police decide to release, I worry that they will impose multiple conditions to minimize their own risk. Given that the conditions at their disposal are very broad and most accused will accept anything to avoid prison, and particularly with no lawyer present to counsel them at this point, I also worry that the latter approach will not always be reflected. With many, potentially very onerous conditions, breaches will still be the norm and the vicious circle continues.

Both police responses strike me as completely understandable within our current risk culture as no one wants to be caught holding the proverbial hot potato. Until we address the cause rather than the symptoms of our broken bail, current legislative changes, at least as they are presently crafted, may simply not be enough.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Doob.

[Dr. Anthony Doob, Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you. That was perfect.

You finished on such a note that I wasn't sure if you were going on to another page or not.

[Dr. Anthony Doob]

Do you mean that I hope I'm wrong?

[The Chair, Liberal, Anthony Housefather]

I thought you were going to say something about hoping to be right.

Professor Sprott.

[Dr. Jane Sprott, Professor, Ryerson University, As an Individual]

Thank you.

I've been asked here to comment on Bill C-75 and the amendments related to bail and administration of justice offences, or failing to comply. Much of my research over the past decade has been around the Youth Criminal Justice Act and issues around bail and bail release conditions.

With respect to the amendments focused on the YCJA and bail within Bill C-75, the focus appears to be both on conditions placed on youths and on responses when a youth fails to comply with such conditions. Similar to my colleagues here, I think both issues desperately need to be addressed, and I applaud any efforts to try to address these problems.

The research tends to find that there are numerous broad-ranging conditions placed on youths, and many times those conditions appear to be crafted with broad social welfare aims that go far beyond the purpose of release conditions. Girls may be especially likely to be subject to such conditions.

The use of these broad welfare or treatment-based conditions is problematic for a variety of reasons, one of which is that the accused is legally innocent at this stage and very little is known about him or her, so however well intended these broad therapeutically focused conditions are, they're unlikely to achieve their desired goals and can actually do more harm in a variety of ways, one of which is setting the youth up for failing to comply. Not surprisingly, the more conditions placed on a youth and the longer the youth is subject to them, the more likely failing to comply charges will occur.

The thrust of the amendments within the YCJA is in the right direction. Bill C-75 aims to prohibit the imposition of bail conditions as a substitute for mental health or other social welfare measures. Bill C-75 also attempts to remind justices that bail conditions can be imposed only if it's necessary to ensure court attendance or for public safety, or if the condition is reasonable having regard for the circumstances of offending behaviour, or if the young person will reasonably be able to comply with such a condition. Bill C-75 also attempts to address responses to failing to comply with conditions, such that various alternatives to charging have been presented within proposed section 4.1.

This is all in the right direction, but again, similar to what both Professors Webster and Doob have said, I fear this may not achieve much change in practice. Learning from the successes of the YCJA, we see that for change to occur, as Professor Doob has mentioned, there needs to be education and training around the changes, and the changes need to be operational or directive, rather than somewhat vague aspirational goals. For local on-the-ground practices to change, people need to know about the changes and understand the intent of them.

Part of the reason why the YCJA has been so successful in selectively using court and custody was undoubtedly due in part to the fact that it was an entirely new piece of legislation. A new act signalled new practices. In effect, it forced a new mindset. In addition, there was considerable education with considerable training for those administering the law years before the act came into force. This was likely indispensable not only in ensuring broad buy-in for the act. It also likely helped ensure operational support from those on the ground administering the law. The same needs to be done here, or nothing is likely to change.

Moreover, although it's all in the right direction, the amendments are still somewhat vague, with little directive guidance. Again, learning from the success of the YCJA, the greatest successes have been linked to the sections that have the clearest operational directives, rather than aspirational goals. Assuming, for example, that police and Crowns already believe they're engaging in best practices and pursuing charges for failing to comply only when necessary, it's not clear if the proposed alternatives to charging within proposed section 4.1 will be enough to change those current practices, especially if there's little by way of education or training about the changes and the intent of them.

Similar issues arise with respect to the imposition of conditions. It's not clear if the proposed amendments related to the imposition of release conditions will lead to greater restraint. There's actually very little guidance or direction.

In this case the entry point for much of what has been happening with respect to release conditions is through the Criminal Code and the ability to add on any other reasonable conditions as the justice considers desirable. It's not entirely clear how the proposed YCJA amendment—with yet another statement that conditions be reasonable, having regard for offending behaviour—will reduce the number or range of conditions placed on young people. If there is a desire to restrain the imposition of conditions placed on youths, then Bill C-75 should probably directly address that.

Moreover, I share the same concerns as my colleagues with respect to the expanded police discretion. It's a question mark if they use it, but if they do, it may well lead to an increase in the use of conditions, the very thing that at another level there's an attempt to restrain.

I suppose my points are then threefold. First, if there's any hope of changing release conditions there has to be education and training. Do not think that if you pass law everything will necessarily change to fall in line with what Parliament intends. Second, if the desire is for restraint in the number and range of conditions placed on youths, then that should be directly addressed, rather than additional aspirations to be reasonable. If expanded police powers to impose conditions are provided for, they may actually be used. Building in more procedures around responding to “failing to comply” offences seems to me to be focusing a little more on the symptom of the problem rather than the problem itself, and that's the use of conditions.

Finally, as Professor Doob has mentioned, the limits put on bail conditions are much more specific for youths than that for adults. If putting on broad-ranging sometimes intrusive therapeutically based conditions is seen as inappropriate with respect to youths, I question why that's not also the same for adults. If it's important for justices to consider whether a youth can actually comply with a condition that's going to be imposed, why is that not also relevant for adults?

Similar issues exist in the adult system, but the problems are profoundly more difficult since the Criminal Code legislation is far less directive than the YCJA and, indeed, more ambivalent and at times, as Professor Doob has pointed out, contradictory with respect to bail.

There are very valid arguments that, again, following the YCJA example, it may be time to completely rewrite adult bail laws. That may necessitate the change in mindset and practice more so than the continued tinkering with amendments. Perhaps it's time to rethink what we want to accomplish with the use of conditions and engage with the evidence to date on the impact and collateral consequences of these conditions, but more generally you might want to learn from the success of the YCJA, which suggests if you really want to see change you need to be directive and you need to educate those administering the law about the change.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you to the witnesses.

I'll begin with Professor Doob. Perhaps I didn't hear you correctly. I sort of half heard you. Perhaps I could just get your clarification at the outset on your submission that perhaps written reasons should be provided with respect to the imposition of conditions.

[Dr. Anthony Doob]

If conditions are being put on—we're in the bail process generally—one of the concerns is that conditions lead to administration of justice charges. When we're putting restrictions on people's freedom of action when they are legally innocent people, I think we should be able to justify them.

Reasons need to be given. I think that this shouldn't be seen as too onerous a requirement on the justice who's doing it because, presumably, the law should require them to know why they're doing it.

My concern, from having sat in on many bail cases, is that it seems as if any good-sounding, therapeutically sensible condition that people can think of is put on the person. Why not have this? Why not have that? They're all good-sounding things. There's the standard, almost stereotypic requirement of saying, “He was charged with an offence at the time that he apparently was drunk, so why don't we put an alcohol prohibition?” We know that's not likely to be very useful. Why doesn't he seek treatment? Why doesn't he do various other kinds of things? I think we need to say restrictions should be minimal. They should be put there for a good reason. If we don't have a good reason, we won't be able to provide it. If we do have a good reason, it's not very onerous for the justice.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Do you not see that with the backlog we already have in our courts, it's going to result in even more of a backlog from a practical standpoint? You cited a large volume of cases that go through bail courts. How is that practical?

[Dr. Anthony Doob]

It's practical for two reasons. You'll have a witness in the next section who has probably sat in bail courts and done systematic observation of bail courts more than anybody else in this country, but I think that when you do sit in on bail courts, you realize that bail courts are not well run.

I did some work on bail courts a very long time ago, in the 1970s. What was interesting about the bail courts in the 1970s compared to now is that the bail provision was really a summary process. The person would go in. The Crown would indicate why conditions needed to be put on somebody. Those conditions would typically be agreed to. It was typically a single appearance. What we know now is that it is relatively rare for it to be a single appearance.

What we see in the bail process is an elongated process that wasn't contemplated and didn't exist in the 1970s when, essentially, the present bail laws came in. I understand your point, but I think that the problem of congested bail courts is more complicated than just saying that it will be necessary for the justice to justify the reasons.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Speaking more broadly on the issue of administration of justice offences arising from orders issued by bail courts, do any of you have any data as to how much court time is actually consumed by administration of justice offences? This is not necessarily directed to Professor Doob but to anyone on the panel who wishes to answer it and shed some light on it.

[Dr. Anthony Doob]

I don't think of any of us have data on the actual time.