Evidence of meeting #51 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 accused.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Shelly MacInnis-Wynn  As an Individual
Michael Elliott  President, Alberta Federation of Police Associations
William Trudell  Chair, Canadian Council of Criminal Defence Lawyers

4:55 p.m.

President, Alberta Federation of Police Associations

Michael Elliott

Yes, that's true.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

How long does it take you to access CPIC for information on prior criminal convictions, outstanding charges, and failures to appear? Give us an idea.

4:55 p.m.

President, Alberta Federation of Police Associations

Michael Elliott

If I had to run an accused on CPIC, I could probably obtain the information in a minute.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

And how long would it take you to get it to crown counsel?

4:55 p.m.

President, Alberta Federation of Police Associations

Michael Elliott

It would be printed off. I can either fax it, scan it, or email it to my colleagues.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Okay, so it's a matter of minutes.

4:55 p.m.

President, Alberta Federation of Police Associations

Michael Elliott

That's correct.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Trudell, you said that outstanding charges, failures to appear, prior criminal convictions, that type of evidence is almost always presented at a bail application hearing. Why is it?

4:55 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

William Trudell

Because a judge or a justice of the peace, as it may be, has to make a decision about whether an accused is going to be denied liberty, and he does it in graded steps, based on the primary, secondary, and tertiary grounds.

4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Exactly, and without that information it would be pretty tough for a judge or a justice of the peace to make a determination, wouldn't it?

4:55 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

William Trudell

Yes, obviously.

April 4th, 2017 / 4:55 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Obviously, and that's why the heart of this bill is to change the word “may” to “shall”. To that point, Ms. MacInnis-Wynn, there was some suggestion about symbolism and there was some suggestion at our last committee meeting that this might delay a bail application by five minutes.

We have in front of us the rap sheet of Shawn Rehn, which was not presented at the bail application hearing, and as a result her husband isn't alive. Maybe you could talk about the symbolism and what your comment would be on that.

4:55 p.m.

As an Individual

Shelly MacInnis-Wynn

That information was available in minutes, and again, as Mr. Elliott said, who would not want to have that information available to them when making that decision on whether or not that person should be back out on the streets?

Imagine what that person is feeling right now, how they're living with themselves knowing that they let that person out and that person went out and killed someone. People like that are walking the streets every day. Fortunately, it's not happened that we know of, again, but it takes minutes to have that information—just minutes.

You should stop to think about how those minutes could affect you as a person, because it could have been anybody. It could easily have one of you that evening that he decided to take his anger out on. Yes, my husband was an officer and officers are on the front line of things, but it could have been anyone. It only takes a few minutes, and why would you not want to know the information before making that decision and letting that person back onto the streets? It's just as simple as that.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Fraser.

4:55 p.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Thank you very much.

I greatly appreciate the testimony of all three of our witnesses and the perspective each of you has offered.

I have only one question and it'll be aimed at Mr. Trudell. My gut reaction when this issue came before the House of Commons was that I want to do my part to make sure, to the extent possible, that all bail decisions are made with full information. I think everyone agrees on that much.

My concern is arose when I started to think about the potential implications of this policy from my own background in commercial litigation. I've had colleagues before show up in court where the rules required, as a mandatory feature of the application, that they introduce affidavit evidence in support of that application. When you try to make an application without that evidence, the judge is required to dismiss the application and the person who bears the burden of proof has their application rejected.

I have no background in criminal law, so I'm looking for your opinion to inform my own open mind. My concern is if the crown were to show up and simply make a mistake. I think whether it's mandatory or not, a mistake will happen at some point again; we can't legislate against negligence. In the event this inevitable mistake happens again, will the judge be required to let the person go, who should otherwise be kept, for failure on the crown's part to discharge the burden of proof?

5 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

William Trudell

Let's start with the police station. If the police officer at a station, the officer in charge, has the power to release and there's no information in CPIC or wherever about this person's background, that person will probably be released from the station if the officer can do it, because there's no reason to hold them. If it's subsequently found out that there was a mistake—and it probably would be pretty quickly—the person could probably be rearrested.

If you get into a bail hearing in front of a justice as an accused person who has now been in custody for at least a day or two and there's no information before the court, it is the obligation of the court, then, to ask the crown whether he's showing cause here. If the crown has no evidence, that person will be released. There is no question about it.

There's another side: that person could be detained wrongfully. That person could be detained by a lack of “credible evidence”, I'll call it. There are a lot of people in jail for whom a different result might occur if we had that extra five or 10 minutes to find out something about their background—not this man's background, but their background—such as a history of mental illness, addiction, or whatever. What that different result might be is a bail program, a bail supervision.

We can't legislate to prevent human error, but what's happened here is.... In the last few days, I've been overwhelmed by all of the steps and studies that have been done in response to this case, especially in Alberta. You learn from the mistakes. It's even to the point where there's a reference taken and Chief Justice Wittmann says no, police officers can't do bail hearings other than for summary convictions. The system has responded to this human mistake. I think you can benefit from how the system has reacted and is trying to address this terrible tragedy.

I would say again that it's not a legislative issue here, and that's a problem.

5 p.m.

Liberal

Sean Fraser Liberal Central Nova, NS

In the limited circumstance where, through other potential evidence—perhaps it's the testimony of the officer or the nature of the offence, whatever it might be—it's apparent that the person should be detained, if this provision made mandatory the adducing of a criminal record into evidence, would the judge not then be hamstrung to have to let the person go?

5 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

William Trudell

I'm sorry. My mind faded for a couple of seconds. Could you ask me that again?

5 p.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Yes, certainly. I'm concerned about what I think would be an exceptional circumstance whereby the crown, through evidence such as the testimony of the officer who made the arrest or whatever it might be, determines that the person should be detained. If a judge is required to have the criminal record and someone makes the mistake despite this other evidence suggesting they should be detained, and there's no criminal record, would the judge not then be required to let this person go?

5 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

5 p.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Okay.

5 p.m.

Chair, Canadian Council of Criminal Defence Lawyers

William Trudell

The judge is going to apply the primary, secondary, and tertiary grounds. On the fact that a person doesn't have any criminal record, the fact that it's not available, if the facts as presented to the bail hearing at that particular point in time determine that this person should not be released.... Let's say they are from Alberta and the offence takes place in Ontario. They're not going to be released unless there's a cash bail, because they may not show up—they have no roots. There's no question about it: the justice of the peace can make a decision, not based on even a criminal record.

5 p.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Thank you.

5:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Dubé.

5:05 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

I have one quick question. I won't be long.

I want to ask Mr. Elliott one last question about how the police and law enforcement will operate under this. Without being an expert, I want to make sure I understand properly. I know that in the Senate committee the Canadian Association of Chiefs of Police raised a concern, but it was more of a question, as to how we change the burden of proof.

The burden of proof is very different in a bail hearing than it is in an actual trial. The concern raised was that maybe the burden being heavier would prevent hearsay and things like that, which could be perhaps lighter forms of proof—if I can phrase it that way—from being submitted. Is that a concern you share? If so, what can we do to rectify that?