Justice Committee on March 21st, 2017

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It is a loophole, if the information isn't presented. You could have a perfect CPIC system and not have the information presented. In this particular case, the status of CPIC would not have changed the fact that the information wasn't presented—information that was readily available, information that was on CPIC, and information that, had it been presented to a judge or magistrate, almost certainly would have kept Shawn Rehn behind bars and Constable Wynn alive today.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Boissonnault, you have the floor.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair,

Mr. Cooper, thank you very much for your work on this important consideration of our Criminal Code, and I appreciate your taking the time today to speak to us about Bill S-217.

I have some questions and some concerns about the proposed legislation, and I'm hoping you can shed some light on those concerns. I think it's important to note that there isn't a single parliamentarian who doesn't acknowledge the tragic circumstances that led to the thinking behind the loops that may be closed by S-217.

My concern is three-fold, so I have three questions. One is related to the delays that will invariably be introduced in the system should this legislation become the law of the land, including in non-contested hearings. If this passes, it would have to be considered in a non-contested hearing, and if that only added five minutes, doing 30 to 50 bail hearings a day, the system of justice would slow down. You are on record as well as having said we need to do better to speed up the wheels of justice. Our government has done its part, in part, by having 12 judges nominated in Alberta. I see a dichotomy here between, on the one hand, wanting to speed up the wheels of justice, and on the other hand, introducing potentially serious consequences at bail hearings if S-217 should pass. That's one concern.

The second concern I have is that I think this tries to legislate human error. As much as I think there's legislation we'd like to see in the Criminal Code that could legislate human error, I'm not sure how that's possible and how we could have that come out of the system.

Third, the Alberta bail review conducted by former federal prosecutor Nancy Irving raises serious concerns and strong objections to the practice of some 3,000 police officers being able to represent the crown at bail hearings. I know that's under consideration in Alberta right now. If we had crown prosecutors at bail hearings instead of police officers, crown prosecutors who are better trained and understand the nuances of this, wouldn't that obviate the need for S-217?

I think it's important to note for the record that it was the Conservative government in 2015 in their budget that cut CPIC by 10%. I also think it's important to note that the last AG's report said very clearly that the delay in getting information from conviction into CPIC is 14 months in English Canada and 36 months in French Canada. I believe this compounds the issue we already have, and that's why I have grave concerns.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Boissonnault, first and foremost, it is the judge or magistrate who makes the determination as to whether or not someone should be let out on bail. Consequently, the information about the criminal history of an accused seeking bail remains relevant and material even in the context of a consent application.

Second, with respect to the Alberta bail review, I would note that the Alberta bail review takes for granted that this type of information should always be presented at bail application hearings. I would draw your attention to page 3 of that report, wherein the author states that there was virtually unanimous agreement from all of those consulted on four issues, including all participants in the bail application process. The report also states that a judge or magistrate should have access to complete and accurate information, and that convenience and efficiency should not be allowed to trump the integrity of the process.

I would also draw your attention to recommendation 25 of the report arising from the Alberta bail review wherein it was stated that before a bail hearing the police should provide the crown counsel with the following information at a minimum: an up-to-date criminal record, including both a CPIC printout and a JOIN sheet in Alberta; and information on outstanding charges together with copies of forms of release on those charges.

With respect to police officers conducting bail hearings, that is done and has been done in Alberta, British Columbia, and Saskatchewan. We have, as a result of a reference put before the Alberta Court of Queen's Bench, a decision of Chief Justice Wittmann who made certain findings having to do with the jurisdiction of police officers to conduct bail hearings in Alberta.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I appreciate that. I just think it's really important to note in this discussion that it's a practice that across the country is strongly opposed by those in the justice system. I know it would cost more money if we had crown prosecutors instead of police officers doing it. It could be a more just approach to follow Crown Prosecutor Irving's recommendations. However, I would like you to address my particular question around this slowing down the wheels of justice.

There are only so many hours in the day, Mr. Cooper, and I do not yet understand how passing S-217 is going to make the justice system faster and more efficient in the course of meting out justice.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Again, I reiterate that I don't see how this is going to slow down the process to any degree, and to the degree that it does slow down the process so that someone like Shawn Rehn isn't out on bail and on the street, so much the better.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson, go ahead.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'll just follow up on Mr. Boissonnault's comments. He said that with the enactment of this bill we could be adding an extra five minutes to every bail hearing, and I guess in Toronto they might have 30 hearings every morning or something. That being said, in your examination of this issue, this is information that they present all the time anyway. What we are talking about, that five minutes, would be the exception to the rule—when the crown, the police, or whoever is conducting the bail hearing doesn't give this. I think you've made it very clear that it's very seldom that they don't present this information.

I am completely at a loss to say how every bail hearing now could be extended by five minutes, because they're reading in information that is generally before them in every case in any case.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It just doesn't make sense, Mr. Nicholson. It is not supported by the evidence before the Senate Standing Committee on Legal and Constitutional Affairs, and it is not consistent with the representations that have been made by the law enforcement community, which has overwhelmingly supported this bill. When we talk about five minutes, I would say that Constable Wynn's life was worth five minutes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Right on.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

His life, in fact, was worth a lot more than the five minutes it could have taken to dot the i’s and cross the t’s to make sure that someone like Shawn Rehn was not let out.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

I have a couple of questions. I'll go last.

Mr. McKinnon, go ahead.

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

It seems the thrust of this bill is about public safety, although our notes state that it is about maintaining “confidence in the administration of justice”. Your remarks are fundamentally all about safety, yet we don't know that, had this information been presented in the case of this individual, he would not have been given bail in any case. Hindsight is 20/20, but it's hard to say that he would not have been given bail anyway.

I guess I'm struggling with the notion that this really does advance public safety. Some of these provisions.... For example, the individual's propensity for not showing up in court certainly speaks to the likelihood of his not coming back, in this case as well, but that doesn't necessarily speak to him as a public safety risk. Similarly, the fact that he might have had previous criminal convictions or a criminal record.... You would need to speak to the nature of those criminal offences to decide whether or not he was a public safety risk in those cases.

While I accept that this would encourage a tighter view of an individual as to whether or not he will in fact show up when he is supposed to, I am not seeing that this necessarily speaks to public safety.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. McKinnon.

I would say, in response, that in terms of what happened to Constable Wynn and what happened at that bail hearing, we will never fully know. What we do know is that it wasn't presented. We know that there is this loophole in the Criminal Code, and that's what this bill seeks to close because, again, this information is always relevant. In fact, when we look at the three grounds that are set out in the Criminal Code in subsection 515(10) in terms of grounds or justification for detention, criminal history is relevant in all three cases. I think it certainly goes to public safety in terms of ensuring that a judge or a magistrate has information to know whether the person has an extensive criminal history, whether they are a flight risk, and whether they have an arm's length of outstanding charges.

Of course, it's still up to the judge or the justice of the peace to make the final call as to whether or not that person is suitable for bail, and if so, what the conditions should be, if any.

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

Can I have one quick one?

[The Chair, Liberal, Anthony Housefather]

Yes, of course.

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

Continuing on with regard to the distinction between “shall” and “may” in this amendment, we change the word to “shall”, so that these things “shall” be presented. As Mr. Boissonnault pointed out, it looks like we're trying to legislate against human error. These data, as you have testified, are almost always presented.

What is the significance of putting the word “shall” here? It doesn't stop someone from making a mistake. If someone fails to follow through on this—it says these “shall” be considered—and they release the person anyway, what is the consequence of that?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It removes any ambiguity. That's what it does.

There's absolutely no basis for it to be made, because this information needs to be presented in order for a bail application hearing to be properly conducted. Why would we leave a word that is ambiguous, such as “may” and not change it to “shall”, to close the loophole, to make it clearer?

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

I recognize that as a legalistic thing, but in practice, if someone fails to do this and the individual is released, what then happens? The fact that we've changed it from “may” to “shall” would have no effect in the case of human error, right?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In the case of human error, yes. I mean, there could be human error. You can never prevent human error. I agree that you can't legislate against human error, but you can minimize the likelihood of something like this happening. One way to minimize it is to remove the ambiguity by closing the loophole.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

I thought of one thing in listening to the other questions and answers.

On the delay aspect, I take what you said with regard to the criminal records being presented, and that should happen as the normal course. With regard to one of the grounds that you're adding, and that is, “to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused,” that evidence would now need to be presented to the court. It's not a suggested thing.

I would see this ground as being the one that would perhaps cause more delay, because the extent to which that evidence needs to be adduced could be different case by case. In some circumstances, it could require extensive evidence to satisfy the court as to whether the probability of conviction of the accused would happen. If a police officer weren't available, perhaps the bail hearing would have to be set over. It's this ground that I would see being problematic with regard to delay, more so than the criminal record being adduced or failures to appear.

Can you comment on that?