Evidence of meeting #50 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.
A video is available from Parliament.
Liberal
The Chair Liberal Anthony Housefather
It is a pleasure to call this meeting of the Standing Committee of Justice and Human Rights to order, as we commence our study based on the order of reference of Wednesday March 8, 2017, on Bill S-217, an act to amend the criminal code regarding detention in custody, otherwise known as Wynn's Law.
It gives me great pleasure to welcome our House sponsor of the bill, Mr. Michael Cooper, who is a member of our committee.
How proud we are to have you, Mr. Cooper. The floor is yours.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
Thank you, colleagues. It is a privilege to be before you to testify on Bill S-217, known as Wynn's Law, named in honour of Constable David Wynn.
Bill S-217 is a straightforward bill. It seeks amendments to the Criminal Code that while minor could have saved Constable Wynn's life had they been enacted at the time he was shot and killed.
Before I go into details on Bill S-217, let me at the outset provide some background as to what led to Bill S-217, Wynn's Law. During the early morning hours of January 17, 2015, Constable David Wynn and Auxiliary Constable Derek Bond were inspecting licence plates outside a casino in St. Albert, my home community, as part of their routine policing. In the course of inspecting licence plates, they came across one in the name of Shawn Rehn, for whom there was an arrest warrant. Consequently Constable Wynn and Auxiliary Constable Bond proceeded into the casino to arrest Mr. Rehn. As they approached Shawn Rehn, Rehn began to shoot and shot Constable Wynn and Auxiliary Constable Bond. Tragically, Constable David Wynn died four days later, on January 21, 2015.
Constable Bond survived, but having spoken with him, I can tell you that his life will never be the same. Indeed his life is in many ways a living hell as he seeks to deal with the impacts of being shot at close range, both from a physical and from a psychological standpoint.
Constable Wynn's killer, Rehn, was out on bail at the time, notwithstanding the fact that he had over 60 prior criminal convictions, 29 outstanding charges—I said 38 before, but it was 29—and multiple failures to appear. It prompted RCMP Commissioner Paulson to ask how it was that such an individual was walking amongst us. It turns out that such an individual was walking amongst us because this individual's criminal history was not presented at the bail hearing, in part because of a loophole in the Criminal Code found at paragraph 518(1)(c). That loophole, a fatal loophole, provides that the criminal history of a bail applicant may be presented—may—notwithstanding that the criminal history of a bail applicant is always relevant and material for a proper determination on the question of bail. The essence, the cornerstone, the underlying purpose, of Bill S-217 is to amend paragraph 518(1)(c) to replace “may” with “shall” so that in all circumstances the criminal history of a bail applicant is presented at a bail application hearing.
The purpose of Wynn's Law is to ensure that all relevant and material information is presented. That didn't happen in the bail hearing of Shawn Rehn with lethal consequences.
Wynn's Law would ensure that relevant and material information is presented, but it would not interfere in any way with the discretion of a judge or magistrate to make a determination on the question of bail. Indeed, Bill S-217 would ensure that the judge or magistrate had all the relevant information before them so they could properly exercise their discretion in determining whether someone should be kept behind bars or let out into the community. Moreover, Wynn's Law would not impose any undue burden on the crown, on prosecutors. This type of evidence is almost always presented at a bail application hearing. Bill S-217 would formalize in law what is almost always done, and what should always be done at a bail hearing so that what happened to Constable Wynn and Auxiliary Constable Bond never happens again.
In addition to amending paragraph 518(1)(c) of the Criminal Code, there is also a secondary component to Bill S-217 and that is to amend section 515(10)(c). Section 515(10) is the section in the Criminal Code that sets out the grounds on which bail may be denied. There are three grounds set out in section 515(10). The first is at section 515(10)(a), which is in the case of an individual being a flight risk. The second is at section 515(10)(b), which is where public safety is at play and then the third ground, and this is the ground that this bill would amend as well, is section 515(10)(c), which deals with denying bail where confidence in the administration of justice would be compromised.
There are four sub-grounds that must be considered under that question of the administration of justice being compromised. What this bill would do is make minor amendments by adding three grounds in addition to the four that are already there, namely, past convictions, outstanding charges, and failures to appear. Again, the overriding purpose, the overriding objective, is the change to section 518(1)(c), which is to change “may” to “shall” so that the criminal history of a bail applicant is always presented at a bail application hearing.
In closing, Mr. Chair and colleagues, what happened to Constable Wynn and Auxiliary Constable Bond should never have happened. Unfortunately, we cannot turn back the clock, but as parliamentarians, I believe we have an obligation to close a fatal loophole so that this never happens again. We owe it to Constable Bond, to Constable Wynn. We owe it to Canadians.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your very compelling testimony, Mr. Cooper.
We're going to our first round of questions.
We will start with Mr. Nicholson.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you very much.
Congratulations to you, Mr. Cooper, for sponsoring this bill. I think this is a very important bill as it closes a gap that exists within our criminal justice system.
I'm sure you've read the comments on this bill. Some say that maybe we shouldn't support this because it would cause delays in the system. All of us want to make sure that our criminal justice system acts in an expedited way at every stage.
What is your response to those who are afraid that this may cause delays in seeing justice done?
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Indeed, that has been one of the criticisms of the bill, that somehow this would cause a delay. I say in response to that, with the greatest respect to those who make that argument, that it simply doesn't hold water because this information is almost always presented. It's almost always presented because it's always relevant and material.
As something that's almost always presented, how could it reasonably suddenly cause endless delay? It's just not so, Mr. Nicholson and Mr. Chair, and so I reject—
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Mr. Cooper, the times have also changed. I remember starting to practice law myself and there were no computerization. I used to literally have to dig out the records of these guys here out of the files. Sometimes it was very difficult to get the information on people.
Wouldn't you agree that in this day and age, with computers, this should be very easily accessible in a very timely manner?
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Yes, indeed.
Literally, this information is keystrokes away. This information can be pulled from CPIC. It takes literally a matter of minutes. If it's not available by computer, then it's certainly available by virtue of a phone call away from someone who can log on and access the system.
It is true that a long time ago, decades ago, sometimes getting this information would just not have been possible. That's not so today in 2017.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
You mentioned in your opening comments that you heard some criticism with respect to this. Have you heard from others who are supportive, or other groups that are interested in this bill that you have before us?
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
There has been very strong support for this bill. This bill has been supported by a number of law enforcement members and organizations, including the Canadian Police Association. It has received the support of victims rights groups. It has received the support of the former minister of justice in the province of Alberta, who oversaw the provincial response following the murder of Constable Wynn. It received the unanimous support of Liberal and Conservative senators when it passed the Senate. At second reading, it received overwhelming support, including the unanimous support of the Conservative Party, the New Democratic Party, the Bloc Québécois, the Green Party, and 27 Liberal MPs.
This is not a partisan issue. This is something people right across the spectrum can agree upon, because it's the right thing to do. It's the common-sense thing to do, and it's the needed thing to do.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much, Mr. Chair.
Mr. Cooper, thank you very much for being here today and for your work in bringing this forward on the House side and getting it to committee.
I can tell you that the passion with which you speak of Constable Wynn and his loss, and of Constable Bond, is something that's not lost on this committee and not lost on me personally. I want to thank you for bringing it forward.
I think it's important for us to bear in mind, of course, what the bail provisions are all about, which is to ensure public safety is kept front of mind when determining judicial interim release and also to have an orderly justice system. Of course, at the foundation of that, though, is that individuals who are accused of criminal offences are presumed innocent until proven guilty. Therefore, the obligation is normally on the crown to prove that the person should be detained. It's important to bear that in mind when reviewing these provisions.
I'd like to start first with a provision in section 515, which you say is ancillary, I guess, to the main purpose of this: changing the wording from “may” to “shall” in section 518.
In paragraph 515(10)(a) is the first ground, I guess, that a person could be detained on. It's if they are a flight risk or if they're not going to appear in court. Paragraph 515(10)(b) is the ground that the crown can rely on to show the person should be detained because they are a risk to the public. It's that they may reoffend, or they may “interfere with the administration of justice”.
The third ground, sometimes referred to as the “tertiary ground”, in paragraph 515(10)(c), is what this bill is seeking to expand. The grounds that are being expanded upon in the proposed bill here would overlap considerably with what has already been determined in paragraph 515(10)(a), the flight risk, or paragraph 515(10)(b), public safety, by adding elements that were already considered in those first two, such as the person's criminal record or the person's failure to appear.
In my view, I guess the crown has already had a kick at the can, if you will, on paragraph 515(10)(a), to detain the person as a flight risk, or on paragraph 515(10)(b), because of their criminal record or their likelihood of reoffending.
I'm wondering why, then, you would see that an expansion is necessary when these things were already considered in the earlier provisions in this triage of elements to determine bail.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
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.
Liberal
Colin Fraser Liberal West Nova, NS
Okay, thank you for that.
In the proposed new paragraph 518(1)(c), you're suggesting that the third ground in the bill, here, is “to prove the fact that the accused has previously committed an offence under section 145”, which is already there in the language.
But then you're adding:
(v) to prove the fact that the accused has failed to appear in court on one or more occasions when required to do so;
It would seem to me that there is significant overlap between these two provisions, since section 145 is about failure to appear in court when required to do so. I'm wondering if you have some comment on what proposed subparagraph (v) may be referring to. I'm also wondering if it has anything to do with some evidence that the crown could adduce that a person has failed to appear in court when subject to a subpoena as a witness, or is this something else?
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
No. It certainly wasn't intended for that purpose. It is simply to clarify, again, that failure to appear would be one of the grounds.
Liberal
Colin Fraser Liberal West Nova, NS
Since it's already covered by section 145, which is a person convicted of a failure to appear or not having appeared when requested to do so by the court, why is proposed subparagraph (v) necessary?
Conservative
Liberal
The Chair Liberal Anthony Housefather
If you look at proposed subparagraph (iii), that's what Mr. Fraser is referring to.
Liberal
Colin Fraser Liberal West Nova, NS
There are two things that seem to do the same thing. Reference to proving the fact that an accused has previously committed an offence under section 145 is already in there, and you're seeking to add the fact that the accused has failed to appear in court, which is already covered by 145. I'm just wondering why you are adding it if it's already covered.
Conservative
Conservative