Evidence of meeting #53 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.

On the agenda

MPs speaking

Also speaking

Cheryl Webster  Associate Professor, University of Ottawa, As an Individual
Anthony Doob  Professor, University of Toronto, As an Individual
Nancy Irving  Barrister and Solicitor, As an Individual
Jay Cameron  Barrister and Solicitor, Justice Centre for Constitutional Freedoms

5:05 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you, Mr. Chair.

Mr. Cameron, I didn't get a chance to ask you any questions during the first round.

I appreciated your strong and vigorous defence of the bill, but I think you have to admit, from the committee hearings we've had, that the number of people and organizations asking us to vote against this bill is starting to mount. We now have noted academics, the chiefs of police, people representing crown counsel, and so on....

I will go through your testimony, because I want to review the evidence you cited and make sure that when we come to clause-by-clause consideration of this bill that I have all the facts at my disposal.

As some sort of a peace offering, if you will—and I don't want to prejudge this committee's outcome—if we arrive at a situation where Bill S-217 is going to proceed no further, can you at least put into the record some of your suggestions on how we tackle some of the systemic issues that are causing these kinds of things in our bail hearings? Leaving aside what Bill S-217 is, I want to give you a chance to offer your suggestions for what we in the federal Parliament can do to make the operation of our justice system more efficient, aside from a legislative solution.

5:05 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

I think that, first of all, I will refer to Alberta and what Alberta has done. My understanding is that they've implemented a pilot project, so that you have dedicated crowns who run the bail hearings. They are run between certain hours of the day and it's a lengthy time period, something like 12, 14, or 16 hours of a day.

All that crown counsel does is consider the release of accused persons. Sometimes they release and sometimes they oppose release, in which case there's a bail hearing.

It really cuts down when you have a dedicated justice of the peace or you have a dedicated judge and then you have dedicated crowns to run bail hearings like that. That really gets rid of backlogs.

Perhaps I can address what you said about the number of people who oppose Bill S-217. It's a classic fallacy, and no disrespect in using that word. I just mean it in the sense of logic, to say that there is a lot of people who oppose something and therefore they must be correct.

I pointed out in my brief—and I urge you to go through it—that some of the people have misstated some material aspects of the legislation, and they're not small misstatements. I'm sure they're inadvertent, but yet they're there. Just because lots of people say one thing doesn't mean they're correct.

5:05 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

That's not lots of people, but the organizations that they represent and speak for are quite prominent, would you not agree?

5:05 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

I can't speak to the prominence or not prominence. I can just tell you that in my respectful opinion some of the things they said before this honourable committee are inaccurate.

5:05 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you.

5:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Boissonnault.

5:05 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

I have another question for Ms. Irving, and if I have time I'll go to Professor Doob.

If the boat is indeed leaky when it pertains to bail hearings, if we were to redesign the boat or start over, what kinds of bail reforms would you recommend we look at from a legislative perspective, given all of the time that you spent looking at this from an Alberta lens? What should we do as legislators to overhaul the bail reform process? Where should we go next?

5:05 p.m.

Barrister and Solicitor, As an Individual

Nancy Irving

That's a really good question. My focus, as I said at the outset this afternoon, really wasn't on an examination of the law as it currently stands and how it might be improved. That wasn't part of my mandate.

I'll admit that I'm maybe not equipped with the knowledge to answer your question today, but I think in fairness that it is perhaps time to take a look at the entire section and to consider a lot of things that have happened over the years.

Professor Doob has talked about piecemeal amendments that have happened, sections added here, words added there. I think it might benefit from an analysis. Step back and take a look at it against the statistics, the data analysis, and the conclusions that people like professors Doob and Webster and their colleague Nicole Myers have been engaged in. I think that would be of value. I know that's a very general question.

May I add one thing? I'll leave this with you to consider because someone, I don't recall who—you can see my memory is not as good as it used to be—said, “Can you think of an example where the crown might want to exercise discretion with respect to a criminal record?”

Before coming to this committee I gave that a bit of thought. It took me a while to come to it. I think I can. I'll share my views with you on that.

Let's suppose it's 2017 and we have a gentleman in our community who's upstanding. He might even be a public figure. He has led an exemplary life; he's well regarded. He gets arrested for impaired driving. It's not unusual, I hate to say, but it happens.

This individual comes before the court. The police didn't detain him for purposes of a bail hearing, and this is really in the context of a plea at the end of the process. He's found guilty. So the crown is looking at the record, and on the record is a conviction for an offence that arose from the sweep of the Toronto bathhouses in the early 1980s, and for which he received a small fine, and that's it.

He's a prominent person and so the media is in the court that day, the day of his sentencing. They're there to listen...“Oh, what's he going to get for this impaired...?”

That's an example where I think if I were the crown I'd probably exercise discretion not to put that in, not to be forced to file the record, and to have someone else comment on it or have the defence lawyer representing this individual feel compelled to say something about it. Now it's in the public domain.

So, I share that with you.

5:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

We'll go to Mr. Cooper next.

5:10 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

I have a couple of questions.

Mr. Cameron, we've heard a lot about the issue of this so-called delay, yet paragraph 518(1)(c) sets out the type of evidence that is presented at a bail hearing.

In that regard, what is new, other than changing “may” to “shall”?

5:10 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

That's one of the things I've been trying to discuss in my testimony and in my brief. It doesn't alter the section in a material fashion. In my respectful submission, it's a mistake to characterize the change from “may” to “shall” as being this really significant change to the act that's going to have these terrible unforeseen consequences.

In fact, one of the witnesses on April 6 said that they didn't know what was going to happen, but it was going to be bad. It's going to be bad, so we shouldn't do it.

The idea that you shouldn't change legislation because you fear litigation.... Then you'd never change faulty legislation, because you fear litigation. That's not a good reason not to fix something if it's broken, in my respectful submission.

5:10 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Ms. Irving, I'll quote what you wrote in your bail review report on page 1, in the introduction:

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.

Now, that's a pretty profound statement. It talks about how important bail hearings can be and what the consequences can be when corners are cut. That was what happened to Constable Wynn. If you read the transcript, you see that corners were cut in that bail application hearing.

I raise this in the context that we've heard a lot of concern about efficiencies and getting this over with quickly, but in your report, you say that the stakes are as high as those in a murder trial.

Maybe you could comment.

5:15 p.m.

Barrister and Solicitor, As an Individual

Nancy Irving

Well, I was quoting that. Those are the exact words. I think it came to me in an email when I was conducting the review, and it was from a prosecutor. I think what he was doing was emphasizing that in many cases the stakes are high. He was generalizing, because they won't all be at the same level of risk.

I think it's fair to say—and I may be mistaken, but I believe you've heard this from other individuals who've been here as witnesses—that everyone who is engaged in the bail process—the justice, the bail decision-maker, the judge, the prosecutor, and even the defence counsel—knows what the risk is, and the risk is high.

It's everyone's nightmare that someone who is there for spousal assault but who looks like a decent guy or girl—let's say it's a guy; more often than not it is—who doesn't fit the pattern of a repeat offender, and who doesn't have much of a criminal record is released, perhaps on consent, and he goes out and kills his spouse. That's everybody's nightmare.

I think that's what the crown was trying to convey, that not just crowns, but all individuals who are engaged in bail-making decisions every day take it seriously.

5:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Of course, while you paraphrased the crown, in the recommendations that you put forward in your report, as you pointed out in your statement at the beginning of the committee meeting, there is a recommendation that all participants have complete and accurate information. Obviously, a participant is a judge or justice of the peace.

Also, recommendation 25, which I think you alluded to in your opening statement, is that, at the very least, the bail packages that are presented to the crown, which would then be put forward in evidence or used at a bail hearing, include “[a]n up-to-date criminal record, including both a CPIC print out and a JOIN sheet”, as well as “[a]n accurate synopsis of the allegations/circumstances of the offences”, among other things. Is that right?

5:15 p.m.

Barrister and Solicitor, As an Individual

Nancy Irving

Right. I did make that recommendation. I'm agreeing to that.

5:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Yes, that's very good. Thank you.

5:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Bittle.

5:15 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

Thank you so much, Mr. Chair.

Mr. Cameron, first I want to commend you on answering Mr. Falk's lengthy question in the non-partisan manner, as you said, you brought to this committee. You've testified that there's really nothing new to this, that there's no material change. If there's no material change to the legislation, to the bail process, you can't possibly hope to fix a material problem with the bail system, can you?

5:15 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

The problem currently is that the legislation allows for crown discretion about whether or not to introduce the record. There shouldn't be any discretion to do that, in my respectful submission.

5:15 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

There shouldn't be, but again, you still keep skirting the fact as to how to counter this human error that will continue to exist. There are no consequences. Judges can forget. Lawyers can forget. Things happen. Years go past. It may be on the top of people's minds when this bill is passed and the change is put through the system, but going forward this is going to happen again. We've heard that from all kinds of witnesses.

5:15 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

No, sir. My father used to ask me, when I had a hard time understanding a math problem, if he should get the pennies out. I feel that's what I should ask you, should I get the pennies out? Because this creates a requirement for there to be a record in order to have a bail hearing. If there is no record, there is no concluded bail hearing. It's not something that occurs over and over again, because there is a requirement that the record be there. If there is no record, there's no decision, and that's what the legislation does. That's the point of it. It requires the prosecution to do something, and if they—

5:20 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

Again, Mr. Cameron—and I appreciate your analogy does include the word “shall”—there's no consequence.

5:20 p.m.

Conservative

Ted Falk Conservative Provencher, MB

This isn't a cross-examination.

5:20 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

Mr. Falk, I can ask questions however I deem appropriate. This witness is not necessarily agreeable, but that's fine. That's his right, but I can ask questions, and if I have to cross-examine this witness, that's my right to do so, as is your right to examine other witnesses.

Again, at the end of the day, you have to admit the Criminal Code is full of “shalls”, like “shall not kill”, “shall not do...” whatever. You shall not do all sorts of things, and things happen. Crimes are committed. Mistakes happen. Mistakes happen in the process. We wouldn't need appeal courts if judges didn't make mistakes. We wouldn't need a supreme court. Mistakes happen at every level.

How can you say that this will prevent what happened to Constable Wynn? How can you say with certainty that it won't happen again?

5:20 p.m.

Barrister and Solicitor, Justice Centre for Constitutional Freedoms

Jay Cameron

I'm surprised by the question, sir, because you're a lawyer. You know, in the legal context, there is a prerequisite that can be put into the law to require that something happen as a prerequisite for something else happening. For example—