Evidence of meeting #107 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 inquiries.
A recording is available from Parliament.
8:35 p.m.
NDP
Murray Rankin NDP Victoria, BC
Thanks to all the witnesses.
Dr. Sylvestre, I will focus on you, if I may. I want to say to you that I thought your submission was first-rate. I really appreciated the empirical work that led to it and all of your research. I thought the specific recommendations were exactly what we needed, so bravo. You gave us an amazingly helpful brief.
I simply want to give you the opportunity to elaborate on some of the points you made. There are so many of them that I'm afraid we won't do justice to them in the amount of time we have. For example, you suggest that we define the term “vulnerable populations”, as it's too vague. Interestingly, the chiefs of police witness made the same suggestion earlier today.
What I really want you to elaborate is on page 2 of the English version of your submission, where you talk about the requirement that “conditions imposed by peace officers be reasonable and proportionate considering the nature and seriousness of the alleged offence”.
First, isn't that exactly what the courts have said is to happen—the Antic ladder principles, and so forth?
Second, are you just not importing charter language in “reasonable and proportionate”? Will the whole thing essentially be one big charter argument if we adopt your amendment?
8:35 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
I want to make sure I understand exactly your point.
8:35 p.m.
NDP
Murray Rankin NDP Victoria, BC
According to you, the conditions that are to be imposed by peace officers have to be “reasonable and proportionate considering...seriousness”. That sounds a lot like what we already have in place—
8:35 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Right.
8:35 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
For sure, the conditions have to be reasonable. That's the charter test right now, subsection 11(e), and the Supreme Court of Canada has mentioned it, but proportionate to the gravity of the offence is not something that we find in those decisions. I think it should be part of it.
The two main grounds for detention and for the imposition of conditions are to make sure the person will show up in court and to make sure the person won't be committing another criminal offence, right? In terms of showing up in court, what we found in our study is that often homeless people and street-level or street-involved individuals such as drug had committed very minor offences, but they were released on bail with very strict conditions because they had no address to report to, no guarantee to provide the court they would come back. It seems to me we have to make sure the conditions imposed are proportionate to the gravity of the offence. When the offence is so minor, we have to relax the conditions that we're imposing because we're just setting people up for failure.
8:40 p.m.
NDP
Murray Rankin NDP Victoria, BC
You make a similar point on the next page about “the accused's level of dependence on alcohol or drugs”. You made that point during your presentation. I think you're talking about the futility of these conditions when people come back and forth because they're addicted, and so on, and they never are going to be able to meet those conditions. You've made some helpful recommendations about that, including drug paraphernalia definitions and so on.
On page 3 of your brief there are two other things that I'm not sure, frankly, are in the mandate of this committee. I wish they were. The chair may have a different view.
The first is “Eliminate all mandatory minimum sentences”. Many witnesses have referred to that as the elephant in the room of our study, and you recognize the importance of that. Second is the repeal of certain sections that criminalize sex work. Again, I'm not sure we can do that—I'm looking forward to the chair's ruling on that—but I agree that would hang together very well in terms of the principles that you've articulated.
I want to drill down a little bit more. On page 6 of your submission, you talk about the “Generalized imposition of unreasonable conditions leading to repeated breaches of conditions”. You talk about the very high rates of conditions on release: seven conditions on average in British Columbia, and eight in Alberta. How do we avoid the ridiculous situation of people continually breaching these provisions and finding themselves incarcerated for things that, as you point out, are geographic or have to do with their addictions? What's the solution? What's your grand design here for this committee?
8:40 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
First of all, we release them unconditionally in many cases. That's what the law is telling us. That's what the principle of restraint that this bill has introduced tells us to do. It seems to me that so far we're thinking the options are either we're holding someone in custody or we're releasing them on condition, whereas the option should be we're releasing people unconditionally, especially given that most offences are very minor, or we're releasing them on conditions. However, when we're releasing them on conditions, we have to be very strict and the conditions have to be realistic and reasonable. I think releasing them unconditionally is a serious alternative that we ought to consider, as well as making inquiries into whether the conditions imposed are realistic, given the life circumstances of the individual.
8:40 p.m.
NDP
Murray Rankin NDP Victoria, BC
You're thinking of addictions and so forth. The geographic restrictions might make sense for domestic violence, but they certainly don't make any sense for drug charges. I think you've made that point very clearly.
8:40 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Exactly.
8:40 p.m.
Liberal
8:40 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much, Mr. Chair.
I will share my speaking time with Mr. Fragiskatos.
Professor Sylvestre, I have two questions for you. First, you called for the term “vulnerable populations“ to be defined. Would you like to suggest a definition to the committee?
8:40 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Certainly.
Thank you for the question. I list the specific groups in my brief. They are homeless persons, drug users, sex workers, and persons with mental health problems and addictions. These groups are overrepresented. Further, there are minorities and racialized minorities. There is a specific provision for indigenous persons, but none for racialized minorities. Research has shown that these groups are overrepresented in the justice system. They should not have to prove to the court every time that they belong to these groups or to present empirical evidence of that overrepresentation.
8:40 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
I'd like to change to English but still stick with you, Professor.
We heard earlier today some thoughts that the intimate partner reverse-onus condition in Bill C-75 doesn't go far enough and that in fact it should be changed to allow for a reverse onus if somebody, for example, is charged with two offences of intimate partner violence but doesn't have any previous convictions. Can you tell this committee what you would think of that kind of change?
8:45 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Generally speaking, I oppose reverse onuses. I tend to agree with the brief that was submitted by Aboriginal Legal Services before this committee, which says that this could also apply against women, and it actually does apply against women. I think Mr. Rankin referred to that earlier.
I think release should be a decision that is made based on evidence of a serious threat that individuals are posing to victims and witnesses and that there shouldn't be any reverse onus, because whenever we're putting any restrictive provisions in the Criminal Code, they always fall back on over-incarcerated and overrepresented groups, including indigenous people, racialized minorities, and in some cases women.
8:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
You're saying that in a situation where somebody is charged, if they don't have a criminal record but they pose a threat—for example, to a witness or to the person alleged to have been assaulted—that's already considered with regard to bail. Is that right?
8:45 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Exactly.
8:45 p.m.
Liberal
8:45 p.m.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
Thank you, Mr. Chair.
I will ask a question about preliminary inquiries. I'm not a full member of this committee. I'm simply filling in for a colleague, but I'm following along with great interest when it comes it to this and other issues related to the bill.
We have heard today that preliminary inquiries hold a potential of retraumatizing victims. I'd like to ask Ms. Walker and Professor Sylvestre whether they agree with that perspective that's been offered to the committee and if there is a way to avoid the potential of retraumatizing victims of violence through preliminary inquiries, if indeed that is the view.
8:45 p.m.
Executive Director, London Abused Women's Centre
I can't comment on that. I am not a lawyer, and it's not my area of specialty.
8:45 p.m.
Full Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
What I am hearing from defence lawyers and Crown prosecutors alike is that in many cases, preliminary inquiries allow the courts to deal with many matters and to better organize the trial that's coming. I don't hear that it's a useless procedure.
In terms of cases of domestic violence in particular, very few of them get to the criminal justice system. I think that speaks to the fact that criminalization is often not the answer we should be getting at in terms of dealing with domestic violence and that we should think about other means.
Other people have talked about prevention. I would also add to the discussion restorative justice. I've been conducting research with indigenous women in an indigenous community in Quebec. They want to deal with domestic violence through their indigenous legal traditions. They want to introduce more restorative justice procedures. I'm not sure that the criminal justice system is responding to their needs right now. I understand and I have been going in another direction, but I think it's important to put that on the table as well.
