It was strongly argued particularly by Dr. Nicole Myers and others who appeared before this committee that by directing the mind of the justice to satisfy himself or herself on the balance of probabilities, that maybe the test that's being used...but by strengthening it.... De facto perhaps is that the test is being used, but we don't know because it's not explicit, so if you say explicitly, “satisfied, on the balance of probabilities,” that this condition is necessary....
There is no place on Vancouver Island for women to be held awaiting trial so women from indigenous communities are not just held in detention, they are held in detention a substantial distance from their families, and they can be held in detention for a very long time. What kinds of conditions do you need to put on people to ensure that they are able to stay in their community, that there's not a surety that's overly onerous, that's very restrictive?
I think injecting the test on the balance of probabilities in these circumstances directs the mind of the decision-maker to all the factors and to the notion of whether it is actually necessary.