Justice Committee on Oct. 29th, 2018

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion on that?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thanks.

Again, while well-intentioned, I think there are certain concerns with this proposed amendment. First, it removes the discretion of the police officers to release more accused persons. The proposal also raises a number of concerns in particular that would likely result in more people being held, which I know is not the intent of the amendment, but if they're not able to impose these conditions to ensure, for example, the accused's appearance at trial by not imposing certain conditions regarding same, then it would actually end up resulting in more people being held.

For those reasons, I would argue that it runs counter to the purpose of the bill. Therefore, I won't be supporting the amendment.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any further discussion?

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

With all due respect, I appreciate the comment that you don't agree with the amendment, but I can't follow your logic. How would this result in more people being held when the point of it is to ensure that the release on the undertaking doesn't set conditions that are...? You can certainly set conditions, but the intent is to ensure that the conditions are not so onerous that you actually deprive people of their presumption of innocence.

I know we don't want to get into protracted debates on every section, but I didn't follow your logic.

[Colin Fraser, Liberal, West Nova, NS]

My understanding is that the amendment would actually remove seven conditions that police would be able to impose on an accused person under proposed subsection 501(3), and therefore, by not having those conditions available on which to release somebody, it would increase the likelihood, for example, that somebody may not be able to meet the threshold of appearing for their trial or in court, and lead to more bail hearings and more grounds to hold the person. That runs counter to, I think, with great respect, even the suggestion you're making that the idea here is to make it less onerous and for fewer people to be held.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

We'll have to agree to disagree, but I think it's not just the intent. I think the way the law actually operates, given the advice from the legal aid lawyers, is that the release on undertaking occurs without the oversight of a justice of the peace or a judge or without the benefit of a legal aid lawyer there, and we're trying to avoid that happening as something that would inevitably disproportionately negatively affect people who are marginalized.

(Amendment negatived [See Minutes of Proceedings)

[The Chair, Liberal, Anthony Housefather]

LIB-11 is removing a comma. Is that an administrative one, or is it one that requires a...?

[Colin Fraser, Liberal, West Nova, NS]

LIB-11 is a technical amendment, removing a comma that's in the bill. Removing it will add clarity.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Liberal, Anthony Housefather]

Then we move to NDP-5.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks, Chair.

We're still back with the peace officer during the undertaking period, and the objective here is adding proposed subsection 501(3.1) as an additional condition. There already are others. This one would deal with the issue of an accused's level of dependence on a substance or alcohol, and it would say that, if the undertaking contains a condition about consuming alcohol or drugs, the consideration must be given to the level of dependency on the substance, and priority given to harm reduction measures rather than abstinence, to the extent that it is possible to do so without compromising the safety and security of a victim, a witness or the public.

It takes into account the very compelling testimony, again, that we heard about how people who are addicted to alcohol or drugs are reacting when these undertakings restrict their consumption but there's just no way they're going to ever be able to meet them.

There's a case in Alberta that has been referred to called R. v Omeasoo, a 2013 Alberta case where the judge said:

It is trite to say that conditions in an undertaking which the accused cannot or almost certainly will not comply with cannot be reasonable. Requiring the accused to perform the impossible is simply another means of denying judicial interim release.

The objective of NDP-5 is to address that reality.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

(Clause 217 as amended agreed to)

(Clause 218 agreed to on division)

(On clause 219)

On clause 219, we have Green Party-19, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you very much, Mr. Chair.

This deals with the sections that relate to the threshold for bail conditions and release orders. This amendment would increase that threshold for bail conditions and release order from what the judge or justice considers to be “desirable” to what they consider “necessary”.

Again, this is to bring this section of Bill C-75 more closely aligned with the Supreme Court of Canada's decision in R. v. Antic, in which the Supreme Court has said that they should impose terms of release only “to the extent that they are necessary”.

This will provide a clearer directive, with the principle of imposing the least onerous conditions of bail to achieving the purposes of justice.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

(Clause 219 agreed to)

(Clauses 220 to 226 inclusive agreed to on division)

(On clause 227)

We have many amendments to clause 227, starting with Green Party-20.

I will advise you if and when we get to an amendment where there's a line conflict with another amendment.

On Green Party-20, we have Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

As noted, there are a lot of amendments to this section. This one deals with the issue of the threshold that a prosecutor must meet in order to satisfy a justice that a release order with conditions is justified for the accused. It moves from “shows cause” to “establishes to the satisfaction of the” court.

Again, this is an amendment that flows from the testimony of the Canadian Civil Liberties Association. It again attempts to ensure that this bill is in line with the Supreme Court decision in R. v. Morales.

All of my amendments in this section are for a similar purpose, but of course, I'll speak to each one separately. I hope that the committee will seriously consider accepting this one.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Is there any discussion on PV-20?

[Colin Fraser, Liberal, West Nova, NS]

Can I ask the officials for their understanding of this, and their thoughts?

[Shannon Davis-Ermuth]

The concept of a prosecutor showing cause is a concept that is repeated throughout the bail provisions. It's not just in this one subsection. It's highlighted in the bill a bit, because this is a new provision that has been moved in the bill.

However, if you look in the Criminal Code at section 515, as well as other sections, this is the language of the bill provisions. Changing one instance of it would establish a new test or a different test, or different wording, possibly meaning the same thing and possibly causing some confusion.

Where the standard has been established in cases like Morales, that will apply to what's in the code, and the justices will know that. The department's concern would be with changing just one instance of it.

[Colin Fraser, Liberal, West Nova, NS]

I suppose with changing terminology that's known to the law and to judges, it would likely end up being litigated and causing even further court delays.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I appreciate that Colin is adding thoughts to what the analysts provided, but it was deliberate that I only amended “shows cause” in this one place. It's deliberate, to ensure that the normal course of showing cause is the way it will go through most of the bill.

I don't think that the notion of establishing to the satisfaction of the court is a foreign concept, nor.... It just creates an additional burden to specifically consider in the circumstance. If we've met the test that had been essentially set down by the Supreme Court in Morales, I don't think it would be unworkable.

Any section of this bill, even the ones that have been supported by a government side, will lead to litigation. I think this is good drafting and I hope you'll consider it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any further discussion?

(Amendment negatived [See Minutes of Proceedings])

We have Green Party-21.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

This is again making a change to proposed subsection 515(2.021) to ensure that:

Before making an order requiring that the accused have a surety, the justice shall cause notice to be given to the accused and be satisfied that the condition to have a surety is necessary.

This two-step process must be determined by a justice before the accused is required to secure one. It was strongly recommended by the Canadian Civil Liberties Association that by bifurcating the bail hearing it would better implement the latter principle in bail courts. In some jurisdictions, defence counsel is often required to call for a potential surety before the Crown even establishes that one is necessary. The effect of this is to disproportionately impact accused from remote communities, particularly indigenous accused.

I hope you will consider having this two-step process to ensure it's really necessary.

(Amendment negatived)

[The Chair, Liberal, Anthony Housefather]

We have Green Party-22.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

In similar spirt, this amendment proposes to increase the threshold for a justice to impose a surety condition from the threshold test of “shall be satisfied” to “satisfied, on a balance of probabilities” that the condition is necessary.

Certainly assessments on the balance of probabilities is a well-known concept in law, and it injects into the decision-making a real analysis of whether this is an appropriate decision related to this particular accused, and particularly considering the disproportionate impact that setting these bail conditions have for people from remote communities.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'm shortening my defence of this. I'm acclimatizing myself to the ritual slaughter of my amendments, and I do recognize that you want to proceed apace, and there are reasons. We have a lot of amendments to get through.

Honestly, these are amendments that are in the spirit of what the government wants to do and in the spirt of R. v. Morales.

Thank you.