Evidence of meeting #52 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 crown.
A recording is available from Parliament.
President, Canadian Association of Crown Counsel
As I already pointed out, with regard to each one of these new sections, which is what they are, really, when you put “shall” in there, we're being mandated to do something that we've never before had to do. While we “may”—
President, Canadian Association of Crown Counsel
—put the information before the court, and we “may” put in the criminal record...in the past, we didn't have to prove it. Now we have to prove it. That takes us into a different ball game altogether, and that's important.
Conservative
Ted Falk Conservative Provencher, MB
You've put quite a bit of emphasis on the word “prove”, that it's a problematic word for you. Can you suggest an alternative?
President, Canadian Association of Crown Counsel
No, I can't. I couldn't sit here and suggest another alternative word for that.
Conservative
President, Canadian Association of Crown Counsel
No, the most problematic part is “shall”. The word “prove” is already in the code.
The most problematic part is when you take “shall” and put it with “prove”.
Conservative
Liberal
The Chair Liberal Anthony Housefather
I have to go to Mr. Fraser. I don't want anyone to miss the vote.
Mr. Fraser.
Liberal
Sean Fraser Liberal Central Nova, NS
Thank you very much.
I'll follow up with Mr. Woodburn as well.
If I accept Mr. Denis' comment, and I do, that mistakes happen, and that mistakes will happen at some point in the future again, one of my remaining concerns is that if the court requires you to prove—or show, or whatever language we use—some evidence that there's a likelihood of reoffending, the mistake is made, and the judge does not feel you satisfied that higher standard of proof, is it the option of the judge to let the potentially guilty person go?
President, Canadian Association of Crown Counsel
Absolutely. When you raise the standard of proof on all of these sections, which is really what you're asking to do with “shall” prove this, it sets bail hearings on a higher standard, not a lower standard. It makes it harder, not easier, for us to get bail. When you remove the crown's discretion to decide how to conduct ourselves in court, that's also a problem.
Liberal
Sean Fraser Liberal Central Nova, NS
So essentially this removes the discretion of the crown or, depending on your province, the officer running the bail hearing, in actually making submissions based on hearsay evidence to the court: “You know, you should hang on to this person. You should not release him.” By making it mandatory, if the same mistake is made, the person is more likely to go free?
President, Canadian Association of Crown Counsel
That's kind of a quagmire of questions.
President, Canadian Association of Crown Counsel
There's a lot there. What I can say is that as it stands right now, we “may” prove all this. But when you put “shall” prove, it raises the standard. And if we don't prove, which we'll now be mandated to do, they're more likely to be released than not. If we don't properly prove the record, if we only get some of the record instead of all of it, if they don't properly prove the rest of it, then we're going to have problems.
I see that the chair is cutting me off, which is fine.
Liberal
The Chair Liberal Anthony Housefather
It's only because of the vote.
You guys were fascinating. I want to thank you so much. Would you be willing to answer written questions from the panel? Some members have indicated that they still have questions. I could ask that the questions be sent to the clerk. The clerk would send them to you and then circulate your answers to all of the members.
Would that be okay with all of you? Okay.
Thank you so much for your testimony.
The meeting is adjourned.
Please go and vote, everyone. Don't miss the vote.