Justice Committee on April 11th, 2017

[Chris Bittle, Liberal, St. Catharines, ON]

Let me interrupt you there. I wasn't going to, but I do have that opportunity to interrupt you. I apologize if that concerns you, but in terms of the evidence we've heard from all of the different groups—and I know you were a crown attorney yourself—this bill doesn't have any consequences for not introducing that record, and human error can happen again. How does this bill stop human error, which is what I think the intention is and what you want to see, stopping human error, and you can't point me to that fact. No other witnesses have pointed me to that fact.

Could you enlighten me as to how this bill will stop human error?

[Jay Cameron]

I can enlighten you if you let me speak.

The fact that there are circumstances, and there have been circumstances where an accused's record was not before the court.... I gave you an example in the jurisprudence, and I know you are a lawyer by trade. There are cases, and I've seen cases where the crown has neglected or forgotten, and in the case of R. v. Brooks, the record was not put to the judge. It is in the public's best interest that that always occur.

I disagree that you can't legislate to protect against human error. If there is a requirement that a judge be aware, that the record be in front of the judge at every single bail hearing, if it is not, the judge will require the record to be there prior to making a decision in the bail hearing. It's that simple.

[Chris Bittle, Liberal, St. Catharines, ON]

It's already happening now. We've heard from witnesses, and I've gone back to the riding. I've spoken to police officers, and I've spoken to crowns. Putting the record in front of someone happens automatically. There are going to be instances, and we've seen it, and we've heard from the crowns who have testified. That's what they're trained to do. You even mentioned it—that's the first thing you do. I'm sure when you were a crown, the first thing you did was ensure that this document got up to the bench. Every judge wants to avoid what happened here, because the judge is the one who ultimately decides who's going on bail, so they want all the information before them.

Even if it's in the Criminal Code, you have to realize that it's a thick book. The judge can forget; the crown can forget. The defence counsel would be under no obligation to submit that record. This can happen, and changing this law cannot alter that. It will happen even if we change the law. If that's the case, what's your concern about the issues of delay? We've heard all kinds of evidence, which you seem to have sidestepped during your testimony. The possibility of delay, the unconstitutionality of this bill, the mess it could create for five to seven years until the Supreme Court decides—is all that worth the symbolism when we can't necessarily guarantee that human error won't occur again?

[Jay Cameron]

With all due respect, that was a speech, not a question. It's indecipherable to me what you're attempting to ask me, so I would ask that you rephrase it so that I can understand it.

[The Chair, Liberal, Anthony Housefather]

The good news for both of you right now is that Mr. Bittle is out of time.

What we're going to do is give everybody the chance to do short snappers. Whoever has questions, let me know. I know, Mr. Falk, Mr. MacGregor, Mr. Cooper, Mr. Bittle, Mr. Boissonnault, and Mr. Fraser have questions. We have a lot.

We're going to start with Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair, and my thanks to all our witnesses, whose testimony has been very interesting.

I've heard several times during this committee hearing—and I've heard it from my friends on the other side of the table, as well as from both Ms. Irving and Ms. Webster—references to human error, in particular in the case of Shelly MacInnis-Wynn, in which it was suggested there was human error. Would you both agree it was human error that caused the information to not be provided?

[Nancy Irving]

Yes, that's fair. It would be fair for me to say that's what happened.

[Ted Falk, Conservative, Provencher, MB]

Well, I respectfully disagree, and I do it on this basis: the legislation, as it is written today, says that you “may” provide that evidence. If you inadvertently or intentionally don't provide that evidence, you haven't erred. You have a choice; you have an option. When someone says you “may” do something, it is very different from when someone says you “shall” do something. It creates a different onus on the part of the person who looks at it. I don't recognize that a human error was made. I don't think this bill seeks to address a human error. Rather, it seeks to remedy an option, and right now the option is made.

I do appreciate the comments that I think Ms. Irving made. These comments addressed the word “shall” coupled with “to prove the fact”. I don't understand the implications of using “the fact” in there, and I would agree that it seems to perhaps create something it shouldn't.

Mr. Cameron, we've heard a lot of discussion about delays, and yet we hear that everybody provides the criminal record at a bail hearing. Still, we're told that if we shall compel people to do it, it's going to create delays. Can you help me understand how this could create a delay if we're already doing it?

[Jay Cameron]

It's nonsensical.

[Ted Falk, Conservative, Provencher, MB]

Okay, thank you.

I have more questions, but in the interest of time—

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser, did you have a question?

[Sean Fraser, Liberal, Central Nova, NS]

I have a quick question for Ms. Irving. After Chief Justice Wittmann's decision in the reference case that said police officers shouldn't be running bail hearings anymore, do you know whether, as a matter of practice, bail hearings are in fact still happening with officers running them in Alberta?

[Nancy Irving]

No, I don't. When I was working, I would often be on the phone to a lot to colleagues in the province, but since I retired, I don't do that so much anymore. I know he gave them six months. I did hear something the other day, which I think was just a rumour, that they're no longer doing it. I don't know. It seems to me it would probably take the full six months to get the change fully in place.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Cameron, moving on, whether it's mandatory or not, I do accept that human error will exist. I'm thinking of the circumstance where, for whatever reason, the criminal record is forgotten or chosen not to be put in front of the court. What happens when the criminal record isn't readily available? I come from a small community. Internet connections are sparse throughout large portions of rural Canada.

You mentioned earlier that there's a constitutional argument there. If, for whatever reason, a criminal record isn't brought forward, by mistake or otherwise, and it's not readily available, does the person simply go free?

[Jay Cameron]

Section 516 of the Criminal Code allows for an adjournment in certain circumstances. It's possible that the crown could apply to remand the accused for a set period of time so that the record could be obtained. That's one possibility.

In my experience, and I travelled to Williams Lake and worked in Prince George, the CPIC record was readily obtainable. I don't recall any instances where it couldn't be produced. I'm not sure how possible it is that there would be a circumstance where the CPIC is not available. It is up to an accused person to determine when they are going to ask for a show-cause hearing or apply for judicial interim release.

[Sean Fraser, Liberal, Central Nova, NS]

I have a question for Mr. Doob, and I want to follow up on one of Mr. Bittle's questions earlier.

He asked whether there is a potential, particularly in light of the Jordan decision, that because of procedural delays—whether because a number of adjournments have happened or there's a longer time to produce a record that the court feels is reliable—it could make us less safe. You responded by essentially saying that this narrow provision misses the point; we need to do an overhaul of the entire section.

I think doing an overhaul of the section is actually a great idea. If, for whatever reason, an overhaul is not done and this specific change made, with the way that the section is phrased today, I do have fear that we could be made less safe. Would you agree that's a reasonable outcome?

[Dr. Anthony Doob]

There are two issues that you've raised: one is the delay issue; the second issue is the less safe issue.

The delay issue is a real one. The idea of adding, even though it might be a few days to a lot of cases.... What we also have to think of is not just the two or three days, or a week, or whatever it might be, to this particular case, but that's adding another appearance. It's adding another court appearance to that process, and that court appearance is going to have effects on other cases as well.

[Sean Fraser, Liberal, Central Nova, NS]

That's right, and if I could jump in just so I can move past my question and give the microphone to someone else, the two issues I think are inextricably linked.

[Dr. Anthony Doob]

Yes.

[Sean Fraser, Liberal, Central Nova, NS]

Because the delay you pointed out is exactly what I have on my mind.

In light of the Jordan decision, that would require a stay, which would let the accused person go free without trial. Would that delay result in more people going free without trial?

[Dr. Anthony Doob]

Presumably, it's just going to add additional burden to the court.

[Sean Fraser, Liberal, Central Nova, NS]

Okay.

[Dr. Anthony Doob]

The problem is...and we've seen this on work we've done for the Province of Ontario on court delay. We searched for a solution for the problem of delays, as to why things are taking a long period of time. What it seems to be is a combination of things, where many things—unfortunately, there isn't a single problem—are adding a little bit.

What one has to do, it seems to me, is to say, how do we chip away at the problem rather than adding to it? My concern is that it's adding to it, with no benefit.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor.