Justice Committee on April 4th, 2017

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair, and my thanks to all of you for being here today.

Ms. MacInnis-Wynn, I echo the comments of the chair in thanking you for everything you have done to bring this forward today and for being here and sharing your story with us. I'm so sorry for your loss, but thank you so much for being here and the courage it took to do that.

Mr. Trudell, I'd like to ask you a question. I'm first going to ask you a question on subsection 515(10), the justification for detention in custody. This bill seeks to add a couple of factors on the third ground of reasons justifying bail detention. The rationale put forward for this bill is to ensure that the relevant evidence is always presented to the court or to a magistrate in a bail hearing.

These additions to subsection 515(10) on the third ground seem to expand the ability of a court to detain a person, or it's giving them another kick at the can, if you will, on things that have already been considered in paragraphs (a) and (b) of the justifications.

I'm wondering if you have any thoughts on that and if you believe that the grounds added to subsection 515(10) would be useful.

[William Trudell]

Sir, are you referring to Roman numerals (v) and (vi) in the bill?

[Colin Fraser, Liberal, West Nova, NS]

Correct.

[William Trudell]

With the greatest respect, I don't think they add anything to the existing system that we have. If an accused person has failed to appear, then immediately there's going to be a problem on the primary ground. In other words, if I've been charged with a criminal offence, the court wants to know that I'm going to show up. So that's the first thing. Is he going to show up? Does he have roots in the community? That may lead to some restrictions.

The fact that an accused has failed to appear in court on one or more occasions when required to do so doesn't say the accused has been convicted of a criminal offence; it says the accused has failed to appear. It's too broad. There are lots of reasons that people may fail to appear. That's not what we're concerned about here. If the person has a record of failing to appear, and that record is not excusable because of vulnerabilities, then that person fails on the primary ground. But that's vague; it doesn't add anything.

It is of concern if the accused has failed, but it doesn't say they've been convicted. The fact that the accused has previously been convicted of a criminal offence he has been charged with, or is awaiting trial for a criminal offence, is already there. That's the secondary ground. The secondary ground is, if we let this person out, is he going to interfere with the administration of justice, such as interfering with witnesses? Does he have a history of the revolving door? It's already covered in the Criminal Code.

It doesn't add to what we have, and it—

[Colin Fraser, Liberal, West Nova, NS]

Mr. Trudell, you say it doesn't add to what we have. Does it expand at all the ability or likelihood of a person's being detained who otherwise would not be?

[William Trudell]

The fact that an accused has failed to appear doesn't say he has been convicted of a criminal offence of failing to appear. That expands it, no question in my submission. How is this interpreted? Whether or not there is a new thrust on crown counsel not to follow the law as it is, as guided by the courts, in the Morales and Pearson decisions of the Supreme Court of Canada, is something I'm concerned about.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for that.

Could I now turn to proposed subparagraph 518(1)(c)(v)?

[William Trudell]

Right:

to prove the fact that the accused has failed to appear in court on one or more occasions when required to do so;

[Colin Fraser, Liberal, West Nova, NS]

Yes, and in proposed subparagraph 518(1)(c)(iii), it reads:

to prove the fact that the accused has previously committed an offence under section 145,

That deals with failures to appear. What, if any, difference do you see between proposed subparagraphs (iii) and (v) here?

[William Trudell]

I don't see any difference, really, on first reading, but this is the issue that's being examined by committees right across the country and by the Department of Justice. This is one of the administration of justice offences that contribute to the enormous number of persons in remand in the jails.

[Colin Fraser, Liberal, West Nova, NS]

I'd like to turn to Mr. Elliott.

In that same section 518, the crown would now have to lead evidence regarding the circumstances of the alleged offence to be considered. Do you see that causing any delay? I know we can talk about criminal records and how producing failures to appear may be easy, but can you respond to what Mr. Trudell said?

If we now put an onus on the crown to have to show or demonstrate what the circumstances of the offence were, even in cases where normally that wouldn't be a ground that the crown would rely on, the onus is now on them to show this evidence before the court. Do you see that causing any delay with regard to producing that information? If it does cause delay, what happens to the accused in the meantime if he has to come back for a bail hearing the next day? Is he released in the meantime?

[Michael Elliott]

Well, if I understand your question correctly, if a crown has to provide, say, an extra five or ten minutes to prove the onus on an accused, I look at it from this perspective: if I'm taking five or ten extra minutes to provide all the information that is available to a justice of the peace or to a judge, I'd rather take five or ten extra minutes to provide all the information that I have available than take an opportunity that something may, I'll say “slide” for lack of a better term, and then somebody, unfortunately, gets out and creates havoc, or an issue like we presently see before us. That's my understanding and take from that. To me, it may be 15 or 20 minutes, but the bottom line is that all the information is being provided, and what's important is making sure all the information is out there.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Elliott.

Can I ask Mr. Trudell to briefly comment?

[William Trudell]

It's not five or 10 minutes. It's not ready. It hasn't been prepared. If that's going to be introduced, then the defence has to challenge it, and you're going to have a trial at the bail hearing. If in five or 10 minutes the crown counsel could be better equipped to put a bail hearing together, then I'm all for that, but we're talking about the case. The police are under such stress in terms of getting disclosure that it's not going to happen in five or 10 minutes. Police officers aren't going to be able to put it together. Their cases are still developing. They have reasonable and probable grounds to charge, but a lot is going to happen between then—preliminary hearing, pretrial, and all the rest of it.

Crown counsel, defence counsel, and the justice of the peace are under great pressure to move the clock and move the yardsticks. I see this as absolutely weighing down a bail hearing. Right now in this country, it is very strained at the bail courts, absolutely strained. Sometimes you wait hours for briefs to show up before a bail hearing takes place. It's putting unnecessary pressure on the police and the crown and it doesn't solve the problem, because at the end of this, and foremost, is the accused's right to bail. That has to be kept in mind here.

I see this, and my counsel colleagues from across the country see this, and we think, “My God, how is that ever going to happen now, with the pressures on the system?”

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Monsieur Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Ms. MacInnis-Wynn, you might be tired of hearing this, but I also want to offer my condolences. It must be challenging to be involved in this process. The fact that you're taking the time to do it is certainly remarkable. We thank you for that, for what it's worth.

Mr. Elliott, I want to ask a question about some of the issues that were raised when this bill was before the Senate, in particular with regard to the Canadian Police Information Centre. The Irving report mentioned that some of the information can be outdated, and it's sometimes difficult between jurisdictions for a whole slew of reasons.

We're dealing with the bill, but there are other moving parts around it, information for bail packages and things like that. I'm just wondering what your thoughts are on that. If this bill were adopted, would anything need to be done to fix that structure and to make sure that law enforcement is able to provide the right information so that the process can go forward in as unhampered a way as possible?

[Michael Elliott]

From my perspective, I know that CPIC has been behind on the information that's provided in their records. That's why I use what we call JOIN. Through JOIN I can get updates on any information not added to CPIC at that time. Many times when I pull a record on an accused it will be up to 2015, let's say, with maybe nothing added after that date. I can do a JOIN check and acquire additional information on the accused that potentially hasn't yet been added to CPIC. That way I can use two systems to provide up-to-date information on the accused.

Does that help answer your question, sir?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Sure, in part, but I'm also wondering about the jurisdictions—when crimes are committed in other provinces and things like that. My understanding is that some kinks need to be worked out at that level. What's your perspective on that?

[Michael Elliott]

I can only speculate on other jurisdictions. My background information is in dealing with Edmonton, and specifically Alberta, so it's very hard for me to provide.... I can't provide information on what occurs in Ontario or what occurs in B.C.; I don't know what programs are available. For Edmonton, for example, from the Alberta perspective, we have additional systems. We use EPROS. Any time an accused is dealt with in Edmonton, we have a record of that person.

Unfortunately, I can't answer on what's provided in Ontario or what's provided in B.C. I don't know if my colleague here can help provide any more information on that.

[William Trudell]

There are problems in communication between forces, but I think best efforts are made to make sure that CPIC is up to date. CPIC is a national program. Sometimes it falls through the cracks, but in my experience, when I'm going for a bail hearing, usually the police pretty well have the information that's available on CPIC in the crown's file.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

If this bill became law, would it be important, from the government's point of view, to look at improving those systems and perhaps look at what's happening in different provinces to make sure that the information is as readily available as possible to avoid some of these delays and other things that are being raised as possible consequences of this law?

[Michael Elliott]

There's no doubt in my mind that we need to continue to study and look at our judicial system. It's very fluid and ongoing. We're here today looking at Bill S-217. CPIC is just one system that we have across the country that, in my opinion, continues to be updated and be as accurate as possible. There's no doubt in my mind that there are other systems across this country that we need to continue to expand, adapt, and learn from so that we can help all jurisdictions work together, whether RCMP or municipal police forces. To me, this bill in the judicial system is one small step in trying to increase the amount of information available to all of our colleagues and to be more proficient.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Trudell, my next question also concerns jurisdictions.

As you know, the provinces are in charge of the administration of justice, even though the Criminal Code is under federal jurisdiction. What burden does this bill place on the provinces? How could we address the possible repercussions? For example, back home in Quebec, the delay in appointing judges leads to certain administrative delays. This is a major issue that's regularly raised back home.

How should we deal with this reality and ensure the legislation won't further burden the provinces?

[William Trudell]

I think when we're looking at criminal justice issues, we have historically looked at it with siloed approach. Health is not at the table with justice and corrections, and it's the same thing with the provinces, in my respectful submission.

The committee would benefit from knowing what happens in the provinces. I know that right now in Ontario a very vibrant bail study is going on through the ministry, and in deciding whether or not this bill is necessary you may benefit from finding out what's going on in the provinces and how this bill may impact them.

But there's no question about the following. Let's just say for the purpose of this discussion that if my interpretation of the increased onus to show the strength of the case is correct, then that seriously impacts the crown's ability to run a file. That means that instead of having three files a day, there might be one. It means you need more crown counsel and judicial officers, and you probably need more police officers in charge of getting that material together.

When we make a legislative decision in the system, the repercussions to make it work on the ground would go out to the provinces. I could only begin to touch the tip of the iceberg on the work that's being done by the provinces, which, as you point out, are in charge of the administration of justice. That's what happened as a result of the Jordan decision. All the provinces are trying to react.

With great respect, the committee would benefit from hearing from some of the provinces on what they're doing and on the impact of the bill.