Justice Committee on April 11th, 2017

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

Mr. Cameron, I've appeared in court. I'm a civil lawyer, so I'm not an expert in the criminal law, but perhaps counsel shall provide an affidavit in that case. I've seen lawyers receive orders, forget to put in that affidavit. It happens, but it's in the legislation that says you shall provide that affidavit. It's a minor matter, but it goes ahead, no questions asked. Those mistakes happened. The judge didn't ask for it, neither side objected, and it went through. These things happen. They happen in other areas of the court, despite the fact it says “shall”.

[Jay Cameron]

I think there's a basic assumption in your question which betrays the fallacy that undermines it, and it's that you're making an assumption that people are going to disobey the law or ignore the law. What is the point of having a law—

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

Excuse me, Mr. Cameron, no, no, no. Listen to my question.

[Jay Cameron]

Go ahead, sir.

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

I'm not saying that people will disobey the law; I'm saying that mistakes will happen. It's human error.

This constable who made the error, I'm sure lives every day of his life in the horror of this. From crowns we've heard from, including Ms. Irving, they and judges are afraid of the instance where a mistake happens, someone goes out on the street, and it happens again. These are real concerns, and real mistakes can happen. People working on the front line of the justice system understand that and are working hard on that; mistakes still happen despite that fear, despite the hard work of our prosecutors and our judges. In this case I'm sure that particular police officer was working hard that day, but a mistake happened.

[Jay Cameron]

He had the discretion to make the mistake. That's the difference, right? You remove the discretion to make the mistake, and you solve the problem. That's the basic problem with your question.

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

Thank you.

Ms. Irving, going back to the discretion issue, was it a finding in your report that it was an issue of discretion that caused the failure to produce the criminal record?

[Nancy Irving]

No. As I said at the outset, I had no mandate to make an inquiry into why the police officer failed to provide the record to the justice of the peace. I made some inquiries to confirm, to find out if it had been provided, and I concluded on the basis of a transcript, because that's all I was given access to. The transcript made no reference whatsoever to the record.

Now, I could guess that it might have been his practice at the time that when you agreed to a consent bill, there was no need to file the record. Maybe that was the explanation. I don't know the answer to that.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

Again, thank you to the witnesses.

People keep talking about human error. I respectfully submit again that there was no human error made because there was no specific requirement, and just because there's no prescriptive punitive remedy for a violation of the word “shall” doesn't mean that it doesn't carry more weight when it's there.

Ms. Irving, I'd like to ask a question on a comment you made. You said that the word “shall”, when coupled with “the fact”, could be problematic. Can you talk to me a bit more about that phrase “the fact”? I'm having a little trouble understanding just what the consequences of that could be, and you're a lawyer and I'm not.

[Nancy Irving]

Thanks for recognizing that. I'm delighted.

I think it's an unusual choice of word to be inserted into this part of the code. As I said during my opening remarks, I don't recall seeing language like that in other parts of the Criminal Code.

It suggests that something more is required by the addition of those words, and lawyers will litigate all manner of things, including adding a couple of words like “the fact”. It's certainly not there in the section now. You don't find that language.

[Ted Falk, Conservative, Provencher, MB]

Would you have less issue with the word “shall” if the phrase “the fact” were to be removed? You did make a connection there.

[Nancy Irving]

I think I'd have to say that I don't think this amendment is necessary, for all the reasons I've heard today. I view it as human error. I think we're giving the officer the benefit of the doubt. I appreciate your very surgical argument that it's not human error because there was no requirement at the time on the bail presenter to file the record, but I think that for those working in the bail system.... You probably are aware of the earlier report by the Alberta Crown Prosecution Service. It's still online. It contains Mr. Rehn's record and all of his information on the prior offences and outstanding charges.

That wasn't a run-of-the-mill bail hearing. It was a complex matter and should not—in my personal opinion—have been in the hands of someone untrained in the law, and Officer Quan was up against a very experienced defence counsel.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I don't see any other questions.

Ms. Irving and Mr. Cameron, I thank you very much for your testimony today. I think it was very helpful to the committee to hear all the different perspectives that were offered. The same is true for Ms. Webster and Mr. Doob, who, for any of you who didn't know, had to catch a train and unfortunately had to leave.

Again, it was really helpful. Thank you.

The meeting is adjourned.