Distinguished members of this committee, my name is Rachel Huntsman, and I am legal counsel with the Royal Newfoundland Constabulary. I am here today with Detective Superintendent Dave Truax, who is with the Ontario Provincial Police, and Lara Malashenko, legal counsel to the Ottawa Police Service.
We appear as representatives of the law amendments committee of the Canadian Association of Chiefs of Police. We are speaking to you today on behalf of President Mario Harel and fellow CACP members. We will address the important issues relating to Bill S-217. We express our sincere appreciation for your inviting us here today.
The mandate of the CACP is safety and security for all Canadians through innovative police leadership. Ensuring the safety of our citizens and our communities is central to the mission of police services. Police officers discharge their obligations with professionalism and dedication in often dangerous situations, as demonstrated by the senseless and tragic death of Constable David Wynn in St. Albert on January 17, 2015. On this date, Constable David Wynn's family suffered an unimaginable loss that has forever changed their lives.
We know that people who commit crimes repeatedly or who do not comply with conditions of their release pose a significant risk to the safety of the public and to the police. The decision to hold or to release has been described as an exercise in risk assessment. Those of us who are duty-bound to protect the public must predict whether an offender will attend court, reoffend, and abide by release conditions.
In order to make the right decision on an offender's detention or release, the various stakeholders of the criminal justice system must have relevant information when making these critical decisions. Bill S-217 proposes to strengthen the bail provisions of the Criminal Code to ensure that offenders who should be detained are detained.
Although we support the spirit of Bill S-217, our presentation will address concerns we have with respect to the particulars of these two amendments and the impact they will have on police operations and resources. Following careful consideration and analysis of this bill, we believe that the amendments, in particular the amendment to paragraph 518(1)(c), may cause confusion, create added delay, and impose challenges upon a bail system that is already operating at full capacity. Instead of strengthening the bail provisions, we fear that these amendments may create a result counterproductive to what the bill is hoping to achieve.
Bill S-217 proposes two amendments to the bail provisions of the Criminal Code. The amendment to paragraph 515(10)(c) sets out the grounds that will determine whether an offender will be released or detained prior to trial. There are three clearly articulated grounds for detention under subsection 515(10) of the Criminal Code, commonly referred to as the primary, secondary, and tertiary grounds. The application of any one of these grounds may result in the detention of the accused person.
Clause 1 of Bill S-217 seeks to amend the tertiary ground by adding the accused's criminal record and outstanding charges to the circumstances that a justice may consider when deciding whether the detention of the accused is necessary to maintain confidence in the administration of justice.
It is our position that this amendment is not necessary, because the criminal record and outstanding charges of the accused are already relied upon under all three grounds for detention. Under the primary and secondary ground, the accused's criminal record and compliance with previous court orders are considered when assessing whether detention is necessary to ensure the accused's attendance in court and assessing the risk of further offences being committed by the accused if he or she is released.
The Supreme Court of Canada in the case of R. v. St-Cloud (2015) held that the accused's criminal record may also be considered by the justice under the tertiary ground.
Clause 2 of the bill proposes to remove crown discretion from paragraph section 518(1)(c) by requiring that the crown shall lead evidence to prove the fact of a prior record, outstanding charges, previous convictions against the administration of justice, that the accused has failed to appear in court, and to show the circumstances of the offence.
The CACP sees a number of concerns arising from this amendment. First, what does “to prove the fact” mean, and why is the current evidentiary burden “to prove” being changed to “prove the fact”? Does proving the fact place a higher evidentiary burden or onus on the crown? To prove a fact is not a legal term, and it is not defined. We suggest that this is problematic.
The current threshold for admission of evidence at a bail hearing is evidence that is “credible and trustworthy”. The crown is not placed to the burden of proof that exists for the admission of evidence at trial. Will the crown now be required to call evidence through the investigating officer? Will hearsay evidence be permitted? Will affidavit evidence now be required?
The crown should continue to exercise its discretion as to how to lead evidence.
If this amendment contemplates the crown leading evidence and proving facts, it will place added pressures upon police and create “mini trials” through the calling of multiple police witnesses, thereby causing further adjournments and delays in a system that is already strained and operating at full capacity. While this is not the intended purpose behind this bill, it may be an inevitable consequence. Presumably these requirements will apply in consent situations as well, but this remains unclear and needs to be considered by the committee.
We ask this committee also to consider that delays at the bail stage of the prosecution work to the accused's advantage, allowing for a Jordan application for a stay of proceedings. We do not want to see charges against high-risk offenders stayed because of delays during the bail process.