Justice Committee on Oct. 29th, 2018

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Coming back to Mr. Rankin, do you want to clarify something?

[Murray Rankin, NDP, Victoria, BC]

My objective is simply to try to record her evidence in the legislative amendment.

The peace officer has to agree to release the arrested individual prior to the court appearance if the accused is not a real and substantial risk to the safety and security of the person, particularly any victims or witnesses of the offence, or if they are unlikely to repeat the offence.

I think we have evidence of the mass over-incarceration of certain categories of people, many of whom don't go on to be convicted.

It seemed to me that her evidence, with all of the analysis and empirical work behind it, shows that it does need.... I want an operational impact. That is, of course, what is intended here, so I would stand by the proposal.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

(Clause 215 agreed to)

(Clause 216 agreed to on division)

(On clause 217)

We have multiple amendments. In the amendments we have here, there are line conflicts between NDP-3, NDP-4 and PV-16.

Mr. Rankin, you may want to decide between NDP-3 and NDP-4, because you have line conflicts between them. Only one of them could be adopted, and if either of them is adopted, PV-16 cannot be. If NDP-3 and NDP-4 are defeated, we would then move to PV-16.

We'll then move to PV-18, PV-19, LIB-11 and NDP-5, which don't conflict with any lines of any of the others.

Mr. Rankin, the floor is yours to choose between NDP-3 and NDP-4, or to merge them in a way that doesn't....

[Murray Rankin, NDP, Victoria, BC]

I'm just going to need a moment to make that call.

[The Chair, Liberal, Anthony Housefather]

Of course.

Ms. Khalid.

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

I need a bathroom break.

[The Chair, Liberal, Anthony Housefather]

I can vote in your place to break ties while you're gone. Go ahead.

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

Thank you. I appreciate that.

[Murray Rankin, NDP, Victoria, BC]

Chair, sorry for the delay. I'd like to go with NDP-4, I think, on that basis.

[The Chair, Liberal, Anthony Housefather]

Perfect.

We'll move to NDP-4.

[Murray Rankin, NDP, Victoria, BC]

There's a line item, and the purpose of NDP-4 is to remove certain parts of Bill C-75, lines 27 to 29 on page 70, which deal with abstaining from going to any specific place or entering any geographic area, and replacing it with:

ing any geographic area, which condition must be:

(i) delimited reasonably, having regard to the circumstances of the accused, including if the accused is an Aboriginal person or belongs to a vulnerable population, and

(ii) reasonably necessary to ensure the safety and security of any person referred to in paragraph (d), except in accordance with any specified conditions;

This amendment, Chair, would ensure that the geographic limitations imposed on an individual, pertaining to an undertaking, are “delimited reasonably” and have ”regard to the circumstances of the the accused,” as I said, for aboriginal persons and vulnerable populations. It would ensure that the limitations are reasonably necessary to ensure the safety of the public, victims or witnesses.

I assume that members will remember the testimony she gave about how, in Montreal, these conditions were used in an absolutely ridiculous fashion. This would be to confine them more carefully. She said that the conditions are subject to considerable abuses and are widely used against marginalized individuals to banish them from inner cities' public spaces, where they have access to essential health and social services like food banks, shelters, and harm reduction services. In her judgment, the language needs to be stronger, to send a clear message to the police that they must restrict it to what is necessary to protect the safety of victims and witnesses.

I think the evidence she gave was overwhelming, to the effect that this has been abused to date. It results in ridiculous circumstances. This language would, I think, effectively correct those deficiencies.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

My understanding is that this would effectively add the element of proportionality by specifying that police must also consider the seriousness of the offence. That would be unnecessary, because the police already take those things into consideration.

I wonder if the officials could chime in regarding proportionality and how this would be going beyond what is already the case.

[Shannon Davis-Ermuth]

I noticed that proportionality was in NDP-3, but I'm not sure I see it in NDP-4. I just want to make sure I answer the right question.

[The Chair, Liberal, Anthony Housefather]

NDP-4 repeats the language of NDP-3 and adds to it. If you look at the beginning—Mr. Rankin addressed it—NDP-3 is echoed in NDP-4, with additional clauses also being amended that Mr. Rankin spoke to.

The replacement of the language in lines 10 and 11, and 14 and 15 is still there in NDP-4.

[Shannon Davis-Ermuth]

First, the reasonable and necessary aspects are in the chapeau of the proposed subsection 501(3). Those requirements apply to each of the paragraphs (a) through (k).

In terms of proportionality, that is already required and it is something that police consider. That is part of the reasonableness. It says in the chapeau, “reasonable in the circumstances of the offence”, so that would bring in a proportionality requirement.

The other thing to recall is that the principle of restraint in proposed sections 493.1 and 493.2 applies as well, so those safeguards would be there.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Colin Fraser, Liberal, West Nova, NS]

The term being inserted, “real and imminent”, is adding a threshold to public safety that would be inconsistent with the other principles of bail.

While well-intentioned, it would have consequences that are perhaps unintended. Therefore, I cannot support the amendment.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Is there any further discussion? If not I'll move to the vote on NDP-4.

(Amendment negatived [See Minutes of Proceedings])

Then we move to PV-16.

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

Thank you very much, Mr. Chair.

This deals with what's found as additional conditions on page 70 of clause 217.

My amendment attempts to restrict the kinds of conditions the police officer can impose on the accused in an undertaking, to ensure that the undertaking is one that is “reasonably practicable for the accused to comply with”.

It's a very straightforward amendment. It comes, as I referenced earlier, from a lot of testimony that would like to see the bill more consistent with the other changes being made in the Youth Criminal Justice Act, cognizant of the fact that a lot of people to whom these bail conditions apply are particularly marginalized and have a lot of difficulty meeting an onerous condition. If it's reasonably practicable for that accused to meet certain terms, that's something that should be considered, rather than setting them up for failure and violations.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any discussion? We will vote on PV-16.

(Amendment negatived [See Minutes of Proceedings])

Next is PV-17, still with Ms. May.

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

Thank you.

This is just the next line down from where my last one was, on the proposed subsection 501(3). This is again looking at increasing the threshold for a bail condition from any amount of risk to public safety to a substantial likelihood of endangering public safety.

Again, this is consistent with a Supreme Court decision. Although it was some time back, we still remember the case of Morales making the Criminal Code compliant with the charter for the accused's right to a reasonable bail. In that decision they said bail is denied “only for those who pose a ‘substantial likelihood’ of committing an offence”.

This brings this section of Bill C-75 into compliance with the Supreme Court of Canada's decision in R. v. Morales.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

We'll go to PV-18, which is also Ms. May.

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

As you can see, Mr. Chair, PV-16, PV-17 and PV-18 presented by the Green Party are all dealing with the same subsection around additional conditions for bail. This one would remove the peace officer's ability to set onerous conditions that would limit the accused's freedom, potentially violating their right to the presumption of innocence. This was again found in the evidence from the society that represents those lawyers who practise legal aid law, that a release on an undertaking occurs without the oversight of a justice of the peace or a judge and without the benefit of a defence lawyer at the side of the accused person. It leaves the vulnerable accused person at the whim of the officer writing the conditions of her release. Due to the power imbalance, accused persons will often agree to any condition, no matter how unreasonable or unlawful, simply because they are afraid of the prospect of being held for bail in a detention centre.

Again, I will foreshorten my presentation on this, but I hope everyone here remembers the evidence. The theme and the spirit of this bill are met by accepting this amendment.

Thank you.