Justice Committee on April 11th, 2017

[Jay Cameron]

No, crown discretion is extremely important to the functioning of the criminal justice system. However, there are limits, and I highlight the limits in my brief, but the crown has discretion to lay a charge or not to lay a charge. The crown has discretion to oppose release or to release, but once the crown decides to oppose release, it becomes the judge's decision, and in fact, paragraph 518(1)(e) says that it is the judge's decision, and the judge is able to base his decision on anything that is “credible and trustworthy”.

There is no circumstance where the crown would be justified in withholding that information, and in fact, it not only impacts the public, as it did unfortunately with Constable Wynn's family, but it does impact the accused because it can lead to an infringement of the accused's constitutional rights.

[The Chair, Liberal, Anthony Housefather]

You're over time. Do you have a—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay, I'll pause, but I may have some questions after.

[The Chair, Liberal, Anthony Housefather]

Okay. Perfect.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thanks to all of you for your testimony today.

Let me begin by stating, Ms. Irving, that, like you, I sympathize with Constable Wynn's family on the pain and suffering they are enduring from the tragic events that have led us here. As an Albertan, I want to thank you for your seminal work in the Alberta bail review process. As somebody who does not come from the legal tradition, I found it informative. As you know, many of your recommendations are being implemented in Alberta.

I have three questions and six minutes, so if we can work together, that would be outstanding. Some of this will be just for the record.

First, in 2015 the government of the day cut funding to CPIC. What do we have to do from a government perspective, other than funding, to fix CPIC, understanding that there's a 14-month delay in getting that information up to date in English Canada and a 36-month delay in French Canada?

[Nancy Irving]

That's a really good question. I'm glad I'm retired from government, because that might create challenges.

I think it will really take some impetus, something driving it, some push. The fact that CPIC is outdated has been noted for years and years. I may be wrong on this—I'm at a certain age now—but I think there was a 2007 report by the Auditor General with recommendations that the CPIC system be brought up to date. That was 10 years ago. I believe there have been some subsequent discussions of CPIC's outdatedness in reports by auditors general since then, and yet still today.... I don't want to overstate it, but—as my grandson would say—seriously? In 2017 we cannot find a solution for that problem?

I'm just going to say it: it's a disgrace, in my opinion, that the system is so outdated. I heard from prosecutors in the province of Alberta when I was conducting the review about what it takes to do their best. Alberta being one of those jurisdictions where there are a lot of people coming in and leaving, it takes significant effort to gather information for a bail hearing. There's no formal way to do it. You have to pick up the phone or email, and you need to know who in the other jurisdiction you can get that information from. You have to do it quickly, because you have a bail hearing in maybe an hour. There are these patchwork ways to fill the gap created by the database.

I met with the RCMP during the review, and I know they're taking steps to bring it up to date, but still I think we'll be waiting until March—I believe I saw a date somewhere of March 2018—to clear the backlog. Of course, that doesn't solve the problem. That's the backlog of prior convictions. It doesn't solve the problem of an easy way to know about releases in extra-provincial jurisdictions on new outstanding charges and the terms of the release conditions. That information simply isn't available.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I'll move on to my second question, to something that you alluded to. I thank you for raising the “prove the fact” notion. It's the first time we've heard that it may be a higher standard of evidence. I understand your argument with regard to “may” and “shall”.

In very simple terms, the intent of Bill S-217 is to prevent criminals from being on the streets to reoffend and commit violent offences against people, including our first responders. As is, if we're not able to figure out any changes to Bill S-217, in your opinion would this cause delays in the bail hearing process, which would then have ramifications in the trial process, such that with Jordan, now being a time limit the criminal justice system has to respect, we'd actually see more criminal proceedings stayed, and thus have more criminals on the streets without having their cases heard?

[Nancy Irving]

I think it's reasonable to anticipate that this new language being added is different. I know I listened to some testimony that might have been given before this committee last week, by, I think it was a crown counsel, who said that every time you make a change as simple as a comma in a bill's provisions, it leads to litigation. I know that's an exaggeration, but to some extent it's true.

When I was doing the bill review, I was lucky enough to have Justice Trotter's book on bail. It's a huge volume of information, most of it case law—oodles and oodles of case law. As Professor Doob alluded to, a lot of these cases are the result of amendments that have been made over the years: tweaks here and there; change a little bit; something happens, and change it here, change it there.

Until a court of appeal, a higher court or the Supreme Court takes a look at it, it will generate litigation in the bail court. Whenever litigation is generated, when people are fighting over the interpretation of whether this does in fact—the word “shall” now, when coupled with the word “fact”—impose a higher onus, I think there's a....

Certainly if I were still practising and I were practising on the other side for the defence, I might be making that argument. I shared the view with Jay before the proceedings began. I'd probably try that on.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Before we conclude and I give you a question you might want to answer in further testimony, it's reasonable to assume that, as is, S-217 could end up causing more harm than good.

[Nancy Irving]

I think it could cause delay until the case law settles.

Maybe there won't be a lot of litigation. I don't know. I don't have a crystal ball. But I kind of have a feel for it, and my gut is telling me it's reasonable to expect litigation over it. I don't know what else I could say on that point.

You might have asked another question, but, I'm sorry, you'll have to refresh my memory.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I'll save the third question for later. Thank you.

[The Chair, Liberal, Anthony Housefather]

Or fourth. Thank you.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair.

Professor Doob and Professor Webster, I'll start with you both.

We've heard much made about particular sections of this bill that amend section 518, changing “may” to “shall”, and then adding that curious statement, “the fact”. Mr. Cameron has also voiced his opinion, wondering why “the fact” was added in there.

Is this bill in any way salvageable, and which possible ways could this committee take when we get to the line-by-line consideration? If this committee were to consider an amendment to getting rid of “the fact”, does that do anything, in your opinion, to the overall wording of the bill? I want to get your opinion on the record for that.

[Dr. Cheryl Webster]

In terms of the legal issues that they seem to be discussing, those are certainly outside my area of expertise. So keep that in mind when I'm answering.

Certainly in terms of the bill as it is, the first thing that struck me is that it's almost certainly not going to reduce the likelihood of the tragedy that's occurred. This tragedy seemed to me to be very clearly rooted in human error in the sense that it would be very difficult for me to even envision how the police officer involved or the justice of the peace involved purposely withheld that information. I believe if that information were there, they would have presented it.

It comes down to a question of why it wasn't there. Would a legislative obligation have produced that information? I don't believe so. I will go back to the fact that if this was, in fact, human error, legislation can't change human error. If it was just an oversight and they forgot, it seems to me that having legislation or not having legislation that says you have to present it won't change that. That is my first comment.

The second one is that this bill constitutes, for me, another cog in an already very complicated section of the bail law. I've wondered if part of the human error that I'm discussing, which was involved in the Rehn decision, might very well be rooted in the high volume of cases that the criminal justice actors are having to manage every day in bail courts. It seems that less volume may have meant more time for the police officer or the JP to ensure, as one of the witnesses said, an ability to dot all the i's and cross all the t's. It seems to me that this bill will very likely only add volume to an already exploding problem.

The third issue that stuck me—and as I said, I am not a legal expert—is that the higher evidentiary burden is going to add to court delays. That's particularly concerning to me, as others have mentioned, given the Jordan decision. Any additional time taken during the bail process puts cases even closer to being thrown out for violation of the constitutional right that an accused be tried within a reasonable amount of time. Again that seems very dangerous.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I go back to a Globe and Mail article from February 22 of last year, in which you are quoted. The article says that “in the realm of criminal justice, the role of the state has become one of limiting—to the greatest extent possible—the risks to public safety that offenders represent.” That was in a study done by you.

There's the risk-averse mentality. I think during our last committee hearing, Mr. Woodburn, representing the Association of Crown Counsel, said they are always thinking of that. I think his testimony certainly raised some questions for this committee about trying to legislate our way through a human error issue.

Professor Doob, there was some mention made about the efficiencies that exist with the CPIC system, and we certainly heard some interesting testimony from Detective Superintendent Truax about updating that. In your opinion, is that the most prominent thing that we can be doing to tackle issues like this so that they do not arise in the future?

[Dr. Anthony Doob]

I know very little about CPIC other than what it is supposed to do and how it works. It seems to me that it's clearly necessary to have a good retrieval system for criminal records that's up to date and accurate. Whether that means just getting rid of the backlog, it would seem to me that is necessary but insufficient.

I say that because it doesn't sound to me as if CPIC is a system that we should tolerate for many more decades, because it may be one of those circumstances where what we need to do is to build a new system and run, in a sense, a parallel system for a while until we get the new system working properly. As we've mentioned in our submissions to your committee, nobody is suggesting anything but the idea that a criminal record, in most cases, is relevant for the primary and secondary grounds for detention of an accused person. We need to have that information, we need to have it easily, we need to have it in a way that is authoritative, and so on. So we do want a way to get that at the first hearing.

The difficulty at the moment is that, as Professor Webster mentioned, bail hearings are taking multiple appearances in many cases, and those multiple appearances are serving no one. It's not okay to say, well, the person is in jail so it's all right; it's not serving anyone at all. We do have substantial numbers of people—I think Cheryl gave the figures—who are detained in custody and then are released without any...where all charges are withdrawn. Well what's going on there? It's probably a lack of information, and this may contribute to it.

I will say one final thing having to do with this issue about how we, in a sense, try to correct this error. I did mention the fact that this section has been amended, re-amended, and amended again a number of times since 2003. That suggests to me that what we're trying to do is patch holes in a rotting boat, and what we really need to do is to fix it.

If you're looking for analogies what I would suggest is that you look to a completely separate section, 718.21, which has to do with the sentencing of organizations. It lays out, in one section, 10 different factors to be considered, in this case by the judge, in sentencing organizations. Some of them might be seen as mitigating, some would be seen as aggravating, but it gives direction to everybody very clearly all in one section. What we have in 515 is this peculiar thing where everything is added to it.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Can I ask one more question?

[The Chair, Liberal, Anthony Housefather]

We'll do a short snap-around afterwards, but we're exceeding time.

Go head, Mr. Bittle.

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

Thank you so much, Mr. Chair.

My first question is to professors Webster and Doob. I would like to take this down another level.

Professor Webster, you said this bill misses the mark, and you talked about additional delays. Can I ask both of you if this bill has the potential to make Canadians less safe?

[Dr. Cheryl Webster]

It's a good question.

It's really raising the issue of public safety. When we first started looking at this, we tried to find studies that have been able to assess the risk of letting people out on bail and their subsequently, on bail, committing a violent offence, which is really what we're worried about. We couldn't find any studies.

What we were debating is whether we can use the data on release on full parole as an analogy, so let me speak a little bit to that. Granted it's not a perfect analogy, as one would expect that the number of releases on full parole who go on to commit a violent offence would potentially be higher than with those who we would see being released on bail. Keep in mind that it could be an overestimate.

If we take the fact that 140,000 to 150,000 adults are charged with violent offences each year in Canada, we were trying to find out how many of those had their parole revoked for a violent offence. Last year it was zero. The year before, it was five. If my math is correct, it means that .00005, or less than half a per cent, of those charged with a violent offence in the last couple of years were on full parole. Within that context it would seem that the message is that release on bail is unlikely to represent serious risks to the general public.

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

I will expand in terms of if there is significant delay added to the justice system. We're seeing charges stayed under subsection 11(b) and based on the Jordan decision. Does this have the potential to make Canadians less safe?

[Dr. Anthony Doob]

I think what it's doing is adding one more level of complexity to both the law and to the hearings. If we were clear on what we wanted to happen at the hearings, then, if any one or two of us around the table sat down and asked what section 515 should say, my guess is we couldn't come up with 4,500 words to direct people on what to do.

My suspicion is that, as we've gone from whatever it was I said, the relatively small number of words, to the number of words we have in section 515 now, what we have done in each of those cases is say, “This will actually make it a little bit better.” My guess is that at some point we went beyond the tipping point, so we made it a less effective system. We all want the right people to be detained on the grounds that are in there, so what we're doing is making it more difficult for people to ensure that because we have to do this, and we have to do that, and we have to do something else. Why is this section so much longer, three times longer than it was when it was first enacted? It first became law in January 1972. I think it's because well-meaning people added, “Oh, we have to close this off.”

Let's assume that there are no evidentiary issues—a huge assumption—but let's assume that there are no evidentiary issues, and this is just requiring this to happen. This is ignoring the problem. It's ignoring what is really going on. In that sense, it's a distraction from addressing the real thing.

I would be very disappointed if this committee or the House of Commons were to accept this bill saying, “It can't hurt”, and then wipe its hands of the problem of bail because if you do that, it is certainly a lost opportunity.

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

Thank you so much.

Mr. Cameron, welcome back to the committee.

Your testimony is similar to some of the other witnesses' we've heard from—and I know you can't speak to their testimony—speaking to how this bill will make Canadians safer, but no one has explained how, and neither did you. Why haven't you given us that explanation?

You're throwing around things, and it's not symbolism, and it's going to help, but you're not giving us practical examples or evidence behind how this bill is actually going to make a difference.

[Jay Cameron]

Thank you for the question.

It's apparent that not having a record in front of a judge in a circumstance where an accused has a lengthy record definitely impacts on public safety, and it's also—