Justice Committee on April 4th, 2017

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, welcome to this meeting of the Standing Committee on Justice and Human Rights. We are resuming our study of Bill S-217, an act to amend the Criminal Code (detention in custody).

Today we have three witnesses before us. We will hear them as a panel before we ask questions. We have Ms. Shelly MacInnis-Wynn, as an individual; the Alberta Federation of Police Associations, represented by Mr. Michael Elliott, president; and the Canadian Council of Criminal Defence Lawyers, represented by Mr. William Trudell, the chair.

Ms. MacInnis-Wynn, on behalf of all members of the committee, all parties, and on a non-partisan basis, we want to express our deepest condolences to you for loss of your husband. I'm sure you've heard it over and over again, but just know that we say this with meaning as all members of Parliament from all parties.

We look forward to hearing your testimony today. Please, the floor is yours.

[Shelly MacInnis-Wynn, As an Individual]

It's been two years of what I'd like to call my journey of picking up the broken pieces. I call it this because that is exactly what has been left for me and my family to do, that is, to pick ourselves back up and try to put our lives back together, not only as a family but as individuals.

On January 17, 2015, our lives were torn apart in just four seconds, torn apart and left forever broken because of a career criminal, Shawn Rehn, who had been let back out onto the streets after a bail hearing, a bail hearing that didn't disclose his lengthy criminal record. These four seconds could have been prevented, and my husband would still be here today. Every day for the past two years, I have woken up and realized that Dave is really gone. I start each day crying in the shower. Every day I have to pull myself together and try to continue living and play the role of both parents—and that's not easy. Every day I have to watch my children grow and try to continue their lives without their father.

Every day we are reminded so many times that he is no longer here, and it breaks our hearts that we can't have those simple moments back that we had every single day with him. There were the moments of hearing the cereal bowl hitting the table in the morning and his asking who ate the last of his Froot Loops and the simple moments of hearing the teapot rattle and knowing that it was three o'clock because Dave was making afternoon tea. I even miss the moments of him complaining about how I made the bed in the morning. All those little moments add up during the day, and we are reminded every single moment that he is not there.

Our lives have changed in a way you would never understand unless you have walked the path. I am so grateful for the people I have in my life who have had to walk this path as well. We call it a bittersweet relationship because we're thankful for each other—but we wish we had never met. It's a life that we wish no one should have to live.

There is not enough time today to explain or tell you the struggles that we have to go through every single day of our lives and will continue to go through every single day. However, I'm going to share just one moment with you, one that happened a few weeks ago. This is a pretty significant moment.

When Dave was shot, he was taken to the Royal Alexandra Hospital in Edmonton. I had to go back there after this had happened, and I thought that first meeting would be the worst and that I'd get it out of my system, and that would be it. Just recently, I had to go there for work. When driving there, I was very anxious but was able to get through the day.

Just before I left, I caught a glimpse of the emergency entrance, and then I saw an ambulance. In those few seconds, I was taken back immediately to the night that Dave was shot and reminded of everything that we had to go through in those four days that followed. In those few seconds, I could feel everything, the chest pain, the anxiety, the feeling of not being able to breathe, and the uncontrollable tears that were rolling down my face. It was like it was happening all over again.

These are the things we are reminded of daily, and trust me, it happens every single day—not to this degree, but it happens every single day. We are constantly reminded of what has happened and that Dave is not with us anymore. This is so draining, not only emotionally, but physically. This affects not only me, but also my children. It affects Dave's mother and it affects his sisters. By changing this one simple word, another family can be saved from going through this heartache and torture that we have to go through every single day. This is something that absolutely no one should have to endure.

I ask you to, please, do the right thing. Make this change and make our streets a safer place to be, not only for our law enforcement, but for everyone.

This can affect the safety of every single person in our country, including you and your loved ones.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Wynn, for the very compelling testimony. Again, from everybody's perspective from across Canada, our hearts break for what you and anyone else in those circumstances have gone through.

Mr. Elliott, the floor is yours.

[Michael Elliott, President, Alberta Federation of Police Associations]

Thank you.

Good afternoon. My name is Michael Elliott. I have been a police officer for 12 years. I'm currently the president of the Alberta Federation of Police Associations. We represent approximately 4,500 municipal police officers across the province of Alberta.

I wish to thank the committee for the opportunity to speak in regard to BillS-217, an act to amend the Criminal Code (detention in custody).

Before I begin, I would like to provide a brief synopsis of the terrible event that has brought the attention to bail hearings.

On January 17, 2015, RCMP officer Constable David Wynn was serving his community and his country. Constable Wynn encountered a stolen vehicle parked at a casino in St. Albert, Alberta. Constable Wynn identified a suspect, Shawn Rehn. Upon making contact, the suspect proceeded to shoot Constable Derek Bond in the arm, and then shot Constable David Wynn in his face. Constable David Wynn succumbed to his injuries a few days later in hospital.

Who was Shawn Rehn? Shawn Rehn was a career criminal with at least 100 offences over a period of two decades. Between 2010 and 2015, Shawn Rehn was sentenced to a total of 10 years in jail. His charges included a variety of offences, such as break and enter, theft, dangerous operation of a motor vehicle, possession of property under $5,000, house break-in and the commission of theft, obstructing a police officer, failing to attend court, assault with a weapon, and possession of property obtained by a crime over $5,000. The list goes on.

You may have an attachment in front of you that provides a list of the charges he was subject to, what he was convicted of, what he was released on, and the charges that were before him, unfortunately, during the event that unfolded.

Mr. Rehn also had a history of firearms-related offences. He had been prohibited from possessing firearms for life. He was on conditions prohibiting him from possessing ammunition and firearms. Shawn Rehn had a total of 29 Criminal Code outstanding charges before the courts while he was on bail.

This brings us to bail hearings. Many questions were raised about why Shawn Rehn was released on bail via a justice of the peace. We can sit here today and discuss what or what wasn't provided. The bottom line is that not all of the information was produced.

You may ask what is required at a bail hearing. As a police officer in Alberta, I provide the just cause for detention. When a person is arrested, I have to provide a bail package. This information is provided in three levels to a justice of the peace to determine if the accused is granted bail or remanded.

The first level in the bail package is what we refer to as the “primary grounds”. I provide information to ensure that the accused will or will not appear in court to face his or her charges. The criteria include the nature of the offence, the strength of the evidence, the accused's criminal record, previous court orders against the accused, and his or her behaviour when arrested.

The second level of the bail package is what we call “secondary grounds”. This is for the protection and safety of the public. The criteria include the accused's criminal record and compliance with previous court orders, whether the accused is already on bail or probation, the nature of the offence, and the stability of the accused.

The third level of the bail package is what we refer to as “tertiary grounds”. This information is to maintain confidence in the administration of justice. The criteria include the strength of the case against the accused; the severity of the offence, such as whether a firearm was used; the criminal record of the accused; and finally, the potential sentencing of the accused if convicted.

The judicial system relies on all the evidence and information to make an educated and well-informed decision. When matters are before the court, disclosure and evidence are paramount to a fair and equitable outcome. The problem is that not all of the information is provided at bail hearings, as the Criminal Code states that information “may” be presented.

After Constable Wynn's death, a review of the bail system in Alberta was conducted. The following is an excerpt from the study:

The bail system can also suffer from a perception that bail hearings are less weighty and perhaps less consequential than other steps in the judicial process. The rules of evidence are more relaxed, the burden of proof is less onerous, and bail hearings do not generally involve the testimony of witnesses and experts. Most who work in the bail system, however, would be more likely to agree with the prosecutor who told this Review “a proper show cause hearing needs to have the same sense of importance and urgency as a murder prosecution.” The stakes for the accused and the public can be that high.

A study by Ms. Nancy Irving recommended the following, and provided strong evidence of the importance of implementing Bill S-217. It would make a small but significant change to section 518 of the Criminal Code. The recommendations are as follows.

Before a bail hearing, a police officer should provide the crown counsel with the following information, at a minimum: a copy of the information setting out the criminal charges, an accurate synopsis of the allegations and circumstances of the offences, an up-to-date criminal record including both a CPIC printout and JOIN sheet, information on outstanding charges, and copies of forms of release of those charges, and, finally, details of the accused's personal circumstances such as residence, employment, and ties to the community.

Changing the wording in section 518 of the Criminal Code from “shall” to “may” by implementing Bill S-217 is the correct way to proceed for the judicial system and the Criminal Code. Bill S-217 would not overburden the system, in my opinion. Bill S-217 would not create any financial hardships on any level of the government.

The requested information, in my opinion, is already available via the police to provide to the crown at a bail hearing. I have personally acquired the aforementioned information via available programs police agencies use.

In life, we make decisions. When making those decisions, we research, educate ourselves, and learn what is best before we forge ahead with our plans. It is no different with our judicial system. We want to make an educated and well-informed decision during bail hearings. This bill is not about being tough on crime. This bill is about being fair, honest, and open with the public about crime. In the end, we want to ensure that the public has faith in our criminal judicial system and that we can look at every citizen in Canada, including those accused of crimes, and tell them that we made the decision with all the information that was available. Our citizens deserve the truth. Bail hearings are no different.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Elliott.

Now we will go to Mr. Trudell.

[William Trudell, Chair, Canadian Council of Criminal Defence Lawyers]

Thank you very much, Mr. Chair, and honourable members of the committee. It's an honour to be here.

I am chair of the Canadian Council of Criminal Defence Lawyers, which was formed as a council in 1992. For those of you who don't know, where there is a strong criminal defence organization in a province, we have a representative. Where there is none, like in the north, we have a representative. We voice and assist on legislation from across the country from a defence council's point of view.

Before we started, I said to Ms. MacInnis-Wynn that I, too, thought she was incredibly brave. I acknowledged as best I could the pain she has gone through. I also said and apologized in advance that I would probably be saying things that she, and perhaps Mr. Elliott, would not agree with. But it comes in the spirit of all of us trying to help and make the criminal justice system work better. With the greatest respect, I hope that you accept these comments in the spirit in which they're given.

Something has happened in this country in the last five years that is remarkable. Actually, I'm going to expand it to maybe the last eight or nine years. One of the things that happened was that in Vancouver, about 10 years ago, the Canadian Association of Chiefs of Police, together with a couple of judges, decided there should be a forum on reinventing criminal justice. Fifty people were invited to a closed-door meeting. At that meeting, we found that all the different stakeholders have more in common than not. That has led to the 10th and its collaborative study of criminal justice.

The federal-provincial-territorial ministers of justice formed the Steering Committee on Justice Efficiencies and Access to the Justice System, a committee of 15 defence counsel, chief justices from the high courts and provinces, representatives from the Canadian Association of Chiefs of Police, and deputy ministers to meet collaboratively to look at criminal justice issues. One of the common features in both of those studies, those programs, those committees, is the front-end management of the criminal justice system, including the problems with bail and with mental health.

I want to recommend to the committee the report of the National Criminal Justice Symposium on reinventing criminal justice, and the report of the Steering Committee on Justice Efficiencies, which has studied bail, which has studied early case consideration, as you're probably aware. Probably in every province right now, provincial governments are studying criminal justice because of the impetus here from Parliament in Ottawa in looking at restorative justice, looking at the Criminal Code, and looking at bail. Bail is actively being studied in just about every province.

I understand. I commend, for what it's worth, the person who introduced this bill to try to deal with a tragedy, to see whether or not there needed to be a legislative change. But the legislative change that you—and this is your job, not ours—may introduce and pass is legislation that affects the entire country. It is not legislation that responds to a terrible tragedy.

My respectful submission is—and I'll help as best I can—is that we do not have a legislative failure here in this case, but a systemic failure. All of the factors that my friend, Mr. Elliott, referred to, the primary, secondary and tertiary grounds, are considered every day by the courts. The failure to pass information down the line is a mistake. It's a human mistake. I would like to respectfully submit that, as a result of that mistake, attention has been energized.

My friend has referred to Ms. Irving's report. I've just been told that Deputy Armstrong did a report in Alberta. You are considering this. Indeed, criminal justice is a live topic.

I hope that when you consider these provisions, you look at this in the big picture and try to understand the impact in Nunavut, as well as in Toronto, in Prince Albert, as well as in St. John's.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Trudell.

We very much appreciate all of the testimony we've heard today.

I'd like to take this opportunity to welcome to the committee today Mr. Sean Fraser, who is replacing Mr. MacKinnon; Mr. Dubé, who is replacing Mr. MacGregor; and Mr. Diotte, who is sitting in on our meeting today.

Welcome, all of you.

We're going to start with Mr. Nicholson.

Mr. Nicholson, the floor is yours, sir.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Thank you, lady and gentlemen, for your testimony here today.

Shelly MacInnis-Wynn, thank you so much for coming here today. You've made a difference in bringing attention to this gap in the Criminal Code's provisions, and I want to thank you very much again for your testimony here today.

Mr. Elliott, you pointed out that it's usually the case that whoever's conducting these bail hearings gets all this information, and that it would be an exception to the rule if they didn't get the information with respect to a person's past, either criminal record or breaches of bail or anything else. Is that correct?

[Michael Elliott]

If I understand your question, the systems that we have before us are what I refer to as CPIC and JOIN. JOIN is like a justice online information check. When we do CPIC checks of an accused, we get their previous information. When I say “previous information”, that's what their convictions are and what charges against them have been withdrawn or taken away from them. We do a JOIN check, because JOIN can actually provide information to us that shows what criminal charges are before—

[Rob Nicholson, Conservative, Niagara Falls, ON]

But in most cases, this is before the court. Is that correct?

[Michael Elliott]

That's correct, sir.

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the issues we had the last time we were here was that one of the witnesses was saying that we were going to increase exponentially the time it's going to take to do these things. I made the point to him—and you're confirming this—that most of this information is before the court in any case, isn't it?

[Michael Elliott]

If CPIC and JOIN are up to date, there should be no reason not to acquire that information. We do it on a daily basis. Actually, I call it protocol. Every time we arrest an accused, we do a CPIC and JOIN check to obtain this information to find out if we can release an accused, such as on a promise to appear, or if we have to, depending on the circumstances, present the person before a justice of the peace to see if the person will seek bail.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's good. This is what we have to have.

Mr. Trudell, you indicated that this was a systemic failure, but isn't that what this bill is about doing—correcting the possibility that we could have a systemic failure?

[William Trudell]

No, with great respect, sir, the bill is a legislative change to the Criminal Code. I've tried to get up to speed, and I'm happy that Mr. Elliott referred to it. I've read a couple of the reports. As a result of this, there was a decision by Chief Justice Wittmann dealing with police officers doing bail hearings, etc., in Alberta. But what I understand is that the information that may have been available—certainly was available someplace—was not conveyed.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right.

[William Trudell]

You can't legislate the failure to communicate, and that's what happened here.

Let me say this: most defence counsel will tell you that the bail hearing is the most important aspect of the criminal justice system, because it's the front end. A determination is made as to whether or not your client's right under the charter is going to be met. A client in custody starts, in effect, serving their sentence, and the pressure is incredible. I can tell you, with the greatest of respect, that after 40 some odd years of experience, bail hearings are taken very seriously by crown counsel—

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right, and this is why they have to have all the information before them, don't they?

[William Trudell]

With the greatest respect, you don't need legislation to tell someone that they need the information. The bill creates problems in that sense.

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

In what sense?

[William Trudell]

Let's look at paragraph 518(1)(c) of the Criminal Code and its proposed replacement subparagraphs, starting with:

(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused,

That's nothing new in some respects, but if you're putting it in there, what does it do? Does that mean that crown council has to make sure that they have more evidence to put to a justice of the peace? Then it becomes almost a trial as opposed to.... We, the system, just cannot afford that. We are concerned right now about time and pressure in the system.

Right now, one of the factors that is taken into consideration on the tertiary ground is the strength of the crown's case. If you're going to mandate that the crown has to produce that evidence, what does that mean? It's not available yet. The police have not done it. What you get at a bail hearing is a synopsis because the file isn't ready. What you're doing here is introducing a potential step that is absolutely impossible with the resources we have and will add to the problem of the Jordan decision. That's one thing. Another is:

(i) to prove the fact that the accused has previously been convicted of a criminal offence,

Obviously, that's a secondary ground. Moreover, there's the following:

(ii) to prove the fact that the accused has been charged with and is awaiting trial for another criminal offence,

In an indictable offence, it's a reverse onus. Finally, there is:

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

Those are the administration of justice offences. With respect, I would suggest that every police officer, every judge, every defence council, every crown council in this country would say that we have a real problem with the administration of justice offences in the criminal system being prosecuted and loading up the remand. This, as I read it—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Does that make the argument that the court shouldn't hear about this information? If somebody has breached the terms of their release or something—let's say they breached it 15 or 20 times—don't you think that's relevant for the court to decide?

[William Trudell]

Of course it's relevant, but why have they breached it 15 or 20 times?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, they may be criminals. That happens.

[William Trudell]

With the greatest respect, they may be persons.... You will find in the National Criminal Justice Symposium's studies on justice efficiencies that the vulnerable in this country face administration of justice offences more than anyone else. I didn't come up with that. Those are the studies that have been brought forward. I don't know whether that assists you.