Justice Committee on March 21st, 2017

[The Chair, Liberal, Anthony Housefather]

You're exceeding your time right now.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

[The Chair, Liberal, Anthony Housefather]

Is it okay if I come back to you in the second round and we go to Mr. MacGregor now?—

[Colin Fraser, Liberal, West Nova, NS]

Yes.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Go ahead, Mr. MacGregor.

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

Thank you, Mr. Chair.

Mr. Cooper, thank you so much for appearing today and for taking the time to sponsor this bill.

The very fact that you chose to sponsor the bill means you've obviously had some very deep and thoughtful conversations with Senator Runciman over the scope of this bill.

My first question is regarding this. In paragraph 518(1)(c), you inserted the phrase “the fact”. I'm just wondering why that was. What purpose do you see that particularly serving?

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

That additional wording was recommended by the drafters, and it was incorporated into the bill for the purpose of expressly acknowledging that evidence only need to be led to prove the facts stated in the subparagraphs. That was the reasoning.

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

You are changing the wording for the prosecutor leading with evidence, from “may” to “shall”. Leaving aside both of those words and what their implications are for the particular section, what is your understanding of how the current CPIC system operates in Canada, based on your helping shepherd this bill so far? You obviously have listened to some testimony from the Senate side.

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

Could you be more specific?

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

Does it function well? Are there delays, gaps, and so on? What's your understanding of it?

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

The CPIC system operates well, in the sense that a police officer can go on to CPIC and can obtain information on the criminal history of someone in a very short period of time.

I would note that John Muise, who has 30-plus years on the Toronto police force, gave evidence before the Senate legal and constitutional affairs committee that this information was keystrokes away, at most a phone call away. It was information that could be obtained in a matter of minutes.

I would also note that during the House of Commons debate, Glen Motz, the member of Parliament for Medicine Hat—Cardston—Warner, who has some 35 years of recent policing experience, gave evidence that it had been his experience that, between CPIC and local and provincial databases, information can be accessed, and accessed quickly.

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

Okay.

I want to follow up on what Mr. Nicholson asked you about. Some people have brought up the question of delays. Perhaps I could quote from the testimony at the Senate committee by David Truax, the Ontario superintendent:

If these amendments contemplate the Crown leading evidence and proving the facts akin to a trial as opposed to obtaining relevant documentation from the police and presenting it to the court—for example, by reading in this information—it is conceivable that this evidentiary requirement may significantly lengthen bail hearings, with further added pressure on police resources, and create further adjournments that could prove to be counterproductive in a system that is already strained and operating at full capacity.

You and I, of course, have taken the Liberal government to account because we know very well what the delays in our justice system are. In fact, recent media reports have shown that very serious criminal charges are being stayed or withdrawn. I'm wondering if you could respond to that testimony in light of how overburdened both you and I know our justice system currently is.

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

I would state that it's just not so that this bill would create any real delay, because again, this sort of evidence is almost always presented in court. It formalizes, in essence, what is almost always done.

I would note further that this bill does not in any way change the rules related to evidence at a bail application hearing. Those are set out, for example, in paragraph 518(1)(a), which says, among other things, that the justice may make such inquiries, on oath or otherwise, concerning an accused as he considers desirable.

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

Okay.

We know that poor people and marginalized people, people of colour and the mentally ill, are more likely to come into conflict with the law. That's a statistic that is very much known. Do you think Bill S-217 might have some changes in terms of the makeup of the remand population in provincial correctional facilities across the country? Do you think specific minorities might fall into the trap of being disproportionately affected by this particular legislation?

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

Thank you, Mr. MacGregor. It's a good question, and the answer to that is “no”.

It's no because what this bill doesn't do is change the rules around bail. It doesn't interfere with the discretion of a judge or magistrate. All it does is ensure that information that should be presented is presented. It's up to the justice or magistrate, applying well-applied law, to make a determination as to whether or not someone should be let out.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

Thank you again, Mr. Cooper. I'd like to echo what my colleagues have said in terms of bringing this forward. This is clearly a tragic occurrence, and I do appreciate your efforts.

I'd like to dig down on some of the legal points within the bill, and I'd like to build upon what Mr. MacGregor talked about with regard to the term that's used, “fact”. It doesn't appear anywhere else in the Criminal Code. I know you said that the drafters suggested it, but is there any further information you could provide to us on this? I'm wondering whether this would lead to any legal complexities and court challenges if a term is used in this particular section that isn't found elsewhere in the code.

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

First of all, the only reason this language was incorporated into the bill, based upon the recommendation of the drafters, was for expressly acknowledging that evidence only need to be led to prove the facts stated in those four, now six, paragraphs.

That was the purpose of that. The intent was not, for example, to change the evidentiary burden that must be made out at a bail hearing. To the degree that it is somehow found that the wording somehow does that.... That was not the advice we had received, but if that were the conclusion, then it should be removed because that was not the intention.

[Chris Bittle, Liberal, St. Catharines, ON]

I agree with you. You mentioned that a lot of what you're bringing forward in terms of changes to the Criminal Code almost always happens, especially in terms of presenting an accused's criminal record. I've talked to prosecutors, defence counsel, and legal aid organizations. I've had a lot of conversations about it.

But what about issues like consent matters? Is the intention of the bill to still go through that process when the crown and the accused have come to an agreement keeping in mind all of these things, and might that build in some delay? It may not build in a lot of delay, but it still might build some delay into the court system itself.

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

Mr. Bittle, of course it is ultimately the judge or magistrate who makes the determination as to whether or not someone is let out on bail, and that includes in consent matters.

[Chris Bittle, Liberal, St. Catharines, ON]

What about even in terms of prosecutorial discretion? I know, again, you are correct in that, in almost all cases, this is happening anyway, but are we going down a slippery slope in terms of what Parliament is telling prosecutors to do and infringing on their discretion, which is a constitutional principle in and or itself, and what the Supreme Court in the Krieger case referred to as “a term of art”?

Is it a potential slippery slope if Parliament is telling prosecutors how to do their jobs?

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

Right. Well, Mr. Bittle, I would submit that the duty of a prosecutor in the context of a bail hearing is clear, and that is to present the best and most attainable evidence about the criminal history of an accused seeking bail. That's precisely what Bill S-217 would do.

[Chris Bittle, Liberal, St. Catharines, ON]

I know the intention is public safety. We have a tragic mistake by a police officer who was conducting the original bail hearing in the first place, which led to tragic consequences beyond. This bill doesn't provide for any punishment, not that I'm suggesting it should, but are we exaggerating the public safety message on this particular case, because these types of things still can slip through the cracks?

I know it's your intention to really crack down on that, but are we overstating the public safety value of this bill?

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

I would just submit that the purpose of this bill is simply to do what should always be done, which is to ensure that this type of information is presented. It removes any ambiguity that exists, by changing “may” to “shall”.