It's a fair question, Mr. Fraser. Thank you for that.
I would say that it's for a few reasons. First of all, the third ground had been characterized as a tertiary ground or a residual ground. In the Supreme Court St-Cloud decision, at paragraph 34, the court clarified that it's not a “residual” ground “but one that is separate and distinct”. The court said it's not one that's used “as a last resort” per se, as it had been interpreted oftentimes in some lower court decisions in terms of its application.
The Supreme Court, in the St-Cloud decision, made clear, as did the Supreme Court in the Hall decision, that the four factors expressly enumerated in the Criminal Code are the factors that must be considered. They're the primary factors that are to be considered on the question of confidence in the administration of justice, but they are not the only factors.
In that regard, at paragraph 71 of the St-Cloud decision, the Supreme Court said that among the factors that should be considered, or often should be considered, is a “criminal record”. In that regard, what this would do in some respects is codify what the Supreme Court has already said is relevant and material on the question of that third ground of public confidence in the administration of justice.
I would also add that the Supreme Court, in St-Cloud and other decisions, noted that the purpose of that ground is, of course, when public confidence in the administration of justice would be compromised, as it has stated, on its face. I would submit that there would not be an instance where public confidence in the administration of justice could be more badly compromised than seeing someone let out on bail when they have an extensive criminal record, outstanding charges, and failures to appear—exactly the record of someone like Rehn.
I would submit that in terms of that secondary ancillary component of Bill S-217 it is consistent with the pronouncement of the Supreme Court in St-Cloud and also consistent with the purpose of that ground as enunciated by the Supreme Court.