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.
Liberal
Colin Fraser Liberal West Nova, NS
I'm not talking about conducting them; I'm talking about testifying at one as a witness in order to demonstrate the circumstances of the offences. Do police officers sometimes testify in court on a bail hearing?
President, Alberta Federation of Police Associations
It depends on the offence. For example, if it's murder, then it has to be before a judge, so a police officer would be present.
Chair, Canadian Council of Criminal Defence Lawyers
I can respond to that. A police officer is often available, and crown counsel will ask for an officer to be available if they want to put the officer on the stand to talk about the case.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Mr. Trudell, you acknowledged, of course, that criminal history is relevant and material to a bail application hearing. There are three grounds provided at subsection 515(10) with respect to the basis on which bail may be denied, and obviously that is at the discretion of the judge or justice of the peace. Is that right?
Chair, Canadian Council of Criminal Defence Lawyers
A justice of the peace will make a judicial decision.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Yes. How could a judge or justice of the peace exercise their discretion without that information? For example, under paragraph 515(10)(b) on public safety, how could a judge or justice of the peace exercise their discretion without having information about the criminal history?
Chair, Canadian Council of Criminal Defence Lawyers
Every morning when a justice of the peace or a judge takes the stand, goes onto the dais, he is thinking about public safety. He is thinking about the interests of the public and how the administration of justice is working. So when an accused person comes before him, even though there are primary and secondary grounds, the reality is that the judge is thinking about the public in terms of safety in relation to the release of this accused. That goes through a judge's mind in every case. It's not something that is a vacuum. If, however, there is evidence available to help the judge move in one direction or another, then the decision that the judge makes is much more reliable and judicial.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I would hope you're not suggesting that a judge or justice of the peace should be making a determination on bail without evidence.
Chair, Canadian Council of Criminal Defence Lawyers
No, that would be a release.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Obviously, you would need the evidence of the criminal history readily available.
Thank you, Mr. Chair.
Liberal
The Chair Liberal Anthony Housefather
I have a couple of short questions. I'd like to start with Ms. MacInnis-Wynn. Again, thank you very much for your testimony.
In your testimony, you spoke from a very personal standpoint about what happened to your husband, but you also talked about what for you was the core of this bill, changing the word “may” to “shall”. As you've heard throughout all of the questioning, there are a number of other elements that have been introduced in this bill that may be of concern to a number of people, relating to how these elements are drafted and where they're incorporated.
What's important for you, and I'm talking about you personally, and what do you care passionately about? Is it for the purposes of proving that the accused have been convicted of a criminal offence, proving that they've been charged with or are awaiting trial for another criminal offence, or proving that they have failed to appear under section 145, and that the evidence “shall” be adduced as opposed to “may”?
Is that what's important for you?
As an Individual
It is. This information wasn't provided. It's just as easy or as simple simple as that, providing that information for someone to make the right decision, based on the information they were given. If they are not provided with that information, how are they supposed to make a decision?
Liberal
The Chair Liberal Anthony Housefather
I understand. I simply wanted to understand because there are many different elements. Is that for you the core element?
Liberal
The Chair Liberal Anthony Housefather
Mr. Trudell, I'd like to turn to you, and return to proposed subparagraphs 518(1)(c)(i), (ii), and (iii). I am disregarding, for the purpose of this question, proposed subparagraph (iv), which I see enormous problems with, in terms of the “shall”, and proposed subparagraph (v).
I only wish to talk about subparagraphs (i), (ii), and (iii), and as you say, they happen in almost all of the cases. It's with regard to the evidence and the record of the accused, what the accused has been charged with and what they're on trial for, and when they fail to appear, and also understanding that the most vulnerable are more likely to not appear for various reasons.
Can you offer me any reason, sir, why a prosecutor should have that discretion, if that information is available, not to present it?
Chair, Canadian Council of Criminal Defence Lawyers
It's hard for me to argue those three points, and I'm looking at the wording. I'm saying to myself, does the word “prove” add something? So, I leave that to you.
Liberal
Chair, Canadian Council of Criminal Defence Lawyers
That to me is an issue that someone much smarter, in terms of statutory interpretation, would say you missed, but this is symbolic.
Liberal
The Chair Liberal Anthony Housefather
You say it's symbolic, but if it's symbolic, then you don't really care if it's there, because for you this is—
Liberal
The Chair Liberal Anthony Housefather
For you to oppose or say that you disagree with the change in the wording, you should have a concrete reason, in my view, why you oppose the change, not simply say that it is symbolic, that it doesn't mean anything.
I get that there are a number of changes to the law that you are disagreeing with, and maybe that I disagree with too, but I'm asking you now specifically, on that one point, on subparagraphs (i), (ii), and (iii), can you give me any good reason why you would oppose changing “may” to “shall” for the purposes of the prosecutor lacking the discretion, but being required to adduce that evidence?
Chair, Canadian Council of Criminal Defence Lawyers
Here's my answer, with respect, and it may not be as good an answer as you might get from others.