We would agree that perhaps everyone who has expressed a view on this bill has said that the criminal record is relevant to the primary and secondary grounds for detaining a person. The question before you, however, is a simple one: was the error that everyone agrees was made in the case that led to this legislation an error that can be fixed with legislation, or was it a tragic error that can't be remedied by changing a few words in the Criminal Code?
The bill can be seen as having two parts. One changes the word “may” to “shall” in section 518. Most obviously, we would argue that one cannot legislate away human error. Even had there been an explicit obligation in the year 2015, it almost certainly would have had no impact. The bill also adds “the fact”, so we are going from “may” “prove that the accused has previously been convicted of a criminal offence” to “shall” “prove the fact that the accused has been convicted of a criminal offence”.
It has been suggested to you that it takes only seconds to print a criminal record. This may be true, but the problem, as it has been pointed out to you, is that proving that a specific accused person before the court has a criminal record takes substantially longer than the seconds it might take to print it out.
In addition, there are some provisions of this bill that would appear to be redundant but probably are not. The bill would require proving the criminal record, but it would also appear to require proving that the accused was guilty of offences that might not have been subject to a court finding. Proposed subparagraphs 518(1)(c)(iii) and (v) would appear to require proving facts. Since pretrial detention has been deemed to be a punishment, it's hard to read those sections without suggesting that the standard of proof will be rather high. Once again, considerably more time would be required. These changes are not cost-free.
The bill that you have before you will expand the bail process for everyone at a time when almost everyone agrees that court delay is a problem. Though we all agree that a mistake was almost certainly made in the case that led to this bill, maybe the problem is in the incoherence of the bail provisions that we are currently working under.
Let's look at a key section of the bail law, section 515. It describes the conditions under which a person can be detained. It is an important section. When it became law, as section 457 in January 1972, it had 701 words. It now has 2,482 words, more than three times as many.
Section 518 has grown, but not by as much. It’s only twice as long as it used to be. The problem is that we have modified, remodified, and expanded these provisions in the past 45 years. For example, section 515 alone has been changed on eight separate occasions since 2003, with seven of these sets of changes coming since 2008. Bill S-217 would only complicate an already complicated section.
Bail laws in Canada should not be seen as lenient. The rate of pretrial detention has increased considerably. Crime peaked in 1991, and has generally been drifting downwards since then. There are about half as many Criminal Code offences being reported now as in 1991. The remand population in 1991 was 18 per 100,000. Now it has more than doubled, to 38 per 100,000. We are detaining people at a very high rate.
What is needed is a rethinking and reworking of the bail laws generally. I would suggest that it would be useful for you to examine comprehensively the issue of Canada’s bail laws. I would urge you to address the very real problems of bail. The current bill before you adds incoherence, cost, and delay to a critical procedure.
It’s our understanding that the Province of Alberta has agreed that the error that was made in the case leading to this bill is best remedied by having bail hearings conducted by crown attorneys. We would suggest that you accept this conclusion, but take it as an opportunity to look seriously at this very important part of our criminal justice process. Rather than simply add new problems to the mix, this would be a valuable opportunity to make a real difference in attempting to fix Canada’s broken bail system.