Good evening.
Thank you for your invitation. My remarks will be exclusively concerned with interim release.
Allow me to begin by telling you the story of Martine.
At the time when our research team met her in 2014, Martine was a homeless young woman in her mid-thirties. She was undergoing treatment to curtail her addiction to opioids, and living with HIV.
In April 2008, Martine was arrested for the first time for having communicated with people for the purposes of prostitution, an offence under paragraph 213(1)(c) of the Criminal Code, the functional equivalent of current paragraph 213(1.1) of the Criminal Code which criminalizes sex work.
Because of her priors, Martine was detained by a police officer and appeared in court the next day. The Crown opposed her release and Martine was remanded until her judicial release hearing, held three days later.
Martine spent four days in a pretrial detention centre. That is a typical scenario in Quebec. In Ontario, the period is longer. This centre is overcrowded and people are detained there who often have not been convicted of any crime. Moreover, Martine had not consumed any drugs for four days. She was suffering greatly as a consequence and experiencing several withdrawal symptoms.
It was under these conditions, and attempting to merely survive, that she accepted the release conditions imposed by the prosecutor and approved by the judge. Those conditions included not consuming alcohol or drugs and not being in a area covering all of the Centre-Sud district of Montreal and Hochelaga-Maisonneuve, an area of about 12 square kilometres. That is equivalent to the distance between Parliament Hill and the Rideau River, or from Bronson Avenue to Elgin Street.
Martine was not in a position to challenge the conditions of her release, among other reasons because it is impossible for her to stop taking drugs from one day to the next; she often resides in a motel on Saint-Hubert Street and goes to get groceries at the Fondation d'aide directe-SIDA Montréal, and also goes to Méta d'Âme, an organization that helps people who are addicted to opioids, where she receives treatment for HIV and accesses social services. All of these places were located in the perimeter she could no longer be found in.
She agreed to anything because she wanted to get out of there as fast as possible.
Her trial was scheduled for the month of July. Since she does not keep an agenda on the street, Martine did not appear in court. She was accused of failing to appear and a warrant was issued.
A few months later, she was arrested and immediately detained. After having spent 48 hours in a detention centre, she appeared and pleaded guilty to the communication offence, to breaching her release conditions and to failure to appear. She was sentenced to 30 days of imprisonment, which was followed by a probation period of one year with the same conditions.
Two months later, Martine was caught in her prohibited perimeter in a state of intoxication and in the process of communicating with someone. This was a new offence and she was once again accused of breaching her release conditions. This time, Martine was excluded from the entire Island of Montreal. She was forced to take therapy in a suburb, a condition she will not respect, once again.
From one instance of non-compliance to another, from failure to appear to failure to appear, Martine over two years accumulated seven administration of justice offences for two predicate offences. During all of that period, she felt constantly watched. She experienced a lot of stress. She played a game of cat and mouse with the police. She consumed more drugs than before. She lost her apartment. In the suburbs, she told us, she was starving to death.
During the period she was banished from Montreal, she could no longer receive her HIV treatments, which were not available outside the city. Finally, she was allowed to go to her medical appointments on condition she find a means of transportation that would deliver her to the door of the medical centre. Asked to comment on her situation, Martine was very direct: “They are about to ask me to walk on my hands”, she said.
Martine's case is not exceptional in our justice system. I told you her story to illustrate the following facts.
First of all, our prisons are full of people like Martine who are detained pretrial for extremely minor offences—shoplifting, obstructing the work of police officers, misdemeanours, drug possession, common assault, and countless instances of failure to respect conditions. These people are detained longer before their court appearance than they would have been if they had been sentenced immediately. Moreover, the reversal of the burden of proof when charged with failure to respect conditions only increases their likelihood of being detained.
Although people sometimes think that the justice system really deals with serious crimes, we see that in reality administration of justice offences make up more than 25% of all cases heard by the courts every year. Forty per cent of the cases heard contain at least one of those offences.
These figures are even higher among indigenous persons, and more indigenous persons are in prison.
Our justice system produces repeat offenders, but they are not criminals. They are people who are unable to comply with unrealistic and arbitrary conditions.
The most common offence against the administration of justice is non-compliance with release conditions, or breach of release conditions. When people are released, judges impose conditions in 95 to 100% of cases. The conditions that are most often violated are those related to abstinence or not being at a certain place.
Bill C-75 is a step in the right direction, especially the planned addition to sections 493.1 and 492.2 of the Criminal Code. The bill does not go far enough in addressing these problems, however, to make sure that our prisons and courts are not primarily places that manage misery and poverty, to make our justice system address what is essential, and to uphold the rights of marginalized persons, especially women and often indigenous persons.
I propose a series of amendments, most of which are in my brief.
First, the term “vulnerable populations“ in the new clause 493.2 must be defined. Otherwise it would be incumbent on the person appearing to prove that they are disadvantaged.
Further, police officers must be required to issue unconditional notices to appear for persons who do not pose a real and imminent threat to the safety of victims and witnesses.
The new subclause 501(3), which pertains to the reasons for which police officers can impose conditions, must be amended to require them to consider the seriousness of the alleged offence, in particular as to the need to ensure attendance in court.
The grounds for detention set out in subclause 515(10) must absolutely be amended to prevent justices of the peace from detaining a person and imposing conditions on them to ensure their attendance in court when required by the seriousness of the offence and when the person presents a real, serious, and imminent threat to the safety of a witness or victim.
A provision must also be added to prevent the detention of a person if it is unlikely that they will be sentenced to prison.
All reversals of the burden of proof must also be eliminated, specifically as provided in paragraph 515(6)c) in the event of breach of conditions.
Additional precautions must also be taken for two types of conditions: those pertaining to abstinence and geographic conditions. For conditions pertaining to alcohol and drugs, the police officer and judge must consider the person's degree of dependence to see whether the condition imposed is realistic under the circumstances. Further, a harm reduction approach must be taken in all cases. On October 17, cannabis will be decriminalized in Canada, but there is a risk that it could be criminalized again by the back door if it is included in release conditions.
The power of police officers to impose geographic conditions must also be eliminated unless the safety of a person or victim is at risk.
Finally, the parallel procedure in clause 523 pertaining to minor breaches must be eliminated; in my view, it is not a good idea. People will continue to appear before judges and overload the courts. That is already the case in provinces such as British Columbia, where defendants appear before judges, are given a warning, leave, but keep appearing before the courts again. The way the procedure is structured could increase the number of individuals who previously had no charges against them. Finally, activities related to drugs, and not just cannabis, and sex work, must be decriminalized so that the life and safety of persons is not endangered.
This is the first time in 50 years that Parliament has had the opportunity to amend statutory provisions regarding release. Every effort must be made to reduce the pretrial detention of persons who are not dangerous and eliminate the pointless conditions that discriminate against marginalized persons. In its present form, Bill C-75 does not go far enough.
