Justice Committee on April 11th, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen, and welcome to this meeting of the Standing Committee on Justice and Human Rights as we resume our study of Bill S-217, an act to amend the Criminal Code (detention in custody), otherwise known as Wynn's law.

First of all, I want to apologize to our witnesses. As you know we had votes, which caused us to be late. We very much want to hear from you and want to give you as much time as we can. I apologize profusely for that, and hopefully we'll be able to get through today's meeting without more votes that will interrupt. At least, we can always hope.

I'd like to welcome Cheryl Webster, an associate professor at the University of Ottawa. She is accompanied by Tony Doob, a professor at the University of Toronto. We are welcoming Nancy Irving, a barrister and solicitor, and Jay Cameron, who is also a barrister and solicitor, representing the Justice Centre for Constitutional Freedoms.

I very much appreciate the witnesses being here. To give you as much time as possible, I'd like to move straight over to you. We're going to start with Ms. Webster and Mr. Doob. The floor is yours.

[Dr. Cheryl Webster, Associate Professor, University of Ottawa, As an Individual]

Thank you.

I'm grateful for the invitation to share my views on Bill S-217 with this committee today. Although Tony Doob and I may appear to you as two people, we're actually functioning as one witness today. As such, we've divided the eight minutes between us.

Let me begin by publicly presenting, as have others before us, our heartfelt condolences to Ms. MacInnis-Wynn and her family for the tragic origin of this bill. It's our genuine wish that Parliament continues its search for effective solutions to the growing crisis in the Canadian bail process. Indeed, over the last decade in which Tony and I have been examining pretrial detention, a new expression has taken shape whereby a growing number of academic, professional, and media reports have claimed that bail is broken.

I applaud this committee for considering a bill that proposes changes to the Canadian bail law. We differ simply in the approach. I have no doubt that we share the same objective—in this specific case, of trying to avoid the terrible tragedy that occurred in early 2015. We're simply concerned that the current bill will not meet this objective. Specifically, it seems to us to miss the mark.

We would argue that it's likely no coincidence that the proposed legislative changes were not part of the numerous recommendations made by the two Alberta reviews examining potential deficiencies in the administration of the bail system in that province. Nor could we find any similar recommendations in the numerous other governmental, non-governmental, and academic studies of bail in Canada. The problems, we would submit, are unlikely to be rooted in any purposeful or intentional failure to bring forward an accused's criminal record, outstanding charges, or failures to appear in court, which an explicit legislative obligation would now solve. Rather, the problems are multiple in nature, complex as well as intertwined, and largely systemic, embedded in the very culture of bail court.

More simply, it seems we have lost sight of what bail was originally intended to be, a summary procedure that determines whether an accused person is to be detained or released until trial while ensuring a balance between individual rights and public safety concerns. Here lies the fundamental problem that the current bill doesn't address and, perhaps ironically, may well end up contributing to.

In fact, we respectfully submit that it would be misguided to suggest that there are any easy, quick fixes on the legislative front. Strategies of intervention will likely need to be conceptualized as part of a multi-faceted, long-term solution that recognizes that isolated changes will have little effect without altering the mentality of the court more broadly. Indeed, a pervasive risk-averse mentality has been progressively adopted over the past several decades, which has set in motion a plethora of changes in the legislative framework, the court culture, and ultimately the policies and practices of the day-to-day operations of the Canadian bail court.

We're not short of evidence that bail in Canada is broken. The proportion of remand admissions who are indigenous continues to rise in most provinces and territories. In Ontario over 4,500 cases were in remand in 2013 and 2014, only to have all charges ultimately stayed, withdrawn, or dismissed. Or there's the fact that 41% of cases in this province began their criminal court lives in bail court during this same year. Of these cases, 54% had no violence.

Further, despite being conceptualized as a summary procedure, the bail process is taking longer than it did when these laws were originally introduced. In 2013-14, 37% of Ontario cases took three or more appearances to resolve the question of bail. In a study of 11 large Ontario bail courts, most cases were adjourned on any given day. Show-cause hearings have not only become more frequent but they also often resemble mini-trials.

My guess is that of those knowledgeable about our current bail laws, few have confidence that they are currently serving us well. More importantly, for our current purposes, Bill S-217 does not address, much less resolve, any of these issues. In fact, it may exacerbate them.

[Dr. Anthony Doob, Professor, University of Toronto, As an Individual]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Webster and Mr. Doob.

We will now move to Ms. Irving, who is testifying as an individual, but I do want to point out to members of the committee that she was the author of the Alberta Bail Review report that we've all seen, called “Endorsing a Call for Change”.

Ms. Irving.

[Nancy Irving, Barrister and Solicitor, As an Individual]

Thank you, Mr. Chair.

I will say just a few words about the Alberta Bail Review before I begin with my submissions. As you know, it was established by the Government of Alberta in 2015, in the wake of the tragic killing earlier that year of Constable David Wynn and the wounding of Auxiliary Constable Derek Bond.

As members are well aware, the officers were shot by a person with a long criminal record, who had been released on bail pending a court appearance on outstanding charges. At that bail hearing, the crown was represented by a police officer, not a prosecutor. The release of the accused was not contested by the officer. The accused was released with conditions, with the officer's consent.

The mandate of the bail review, as set by the Government of Alberta, focused on the administration of the bail system in that province. I was not asked to conduct an inquiry into the specific circumstances leading to the death of Constable Wynn, nor was I tasked with reviewing and recommending changes to the bail provisions of the Criminal Code. Nevertheless, during the course of my review, I did become aware of Bill S-217, and although I did not refer to it in my report, I did consider its potential impact on the bail system in Alberta.

On the face of it, the bill might seem helpful to the administration of the bail system. One of the pillars of my report, as I'm sure you're aware, was that justice is best served when all participants have access to complete and accurate information. But I was troubled by some of the provisions and its potential impacts on the administration of justice, and I still have those concerns today.

I'm now going to focus on two aspects of the bill in particular.

The first is the proposed new wording of paragraph 518(1)(c) of the Criminal Code. I agree with earlier witnesses you've heard from in this committee who said this clause might be interpreted by the courts as imposing a higher standard of proof than prosecutors currently must meet. It's not just the change from “may” to “shall”, which I'll address in a moment; it's also the words “prove the fact” in each of the subparagraphs 518(1)(c)(i), 518(1)(c)(ii), and 518(1)(c)(iii). I'm not aware of that phrase being used in any other section of the Criminal Code, and I think it introduces some confusion and uncertainty into the bail provisions.

It's different from subparagraph 518(1)(c)(iv), “to show the circumstances”, so judges might find that it means something different from that. This could feed the argument that it requires a higher standard of proof in bail hearings, including consent bails.

It's also different, again, from the language used in paragraph 518(1)(e) as it currently reads. This is the section that allows Justices of the Peace and judges to receive and base their decisions on evidence considered credible and trustworthy in the circumstances of each case. That language permits judges to receive hearsay evidence, and it allows prosecutors to dispense with more formal matters of proof that would have to be met at trial, such as the calling of viva voce evidence.

I share the concern that this new language could turn bail hearings into mini-trials. That would certainly make bail hearings longer, and it would likely contribute to further delays in a system already struggling to cope with the volume of bail cases and the new time requirements set by the Supreme Court of Canada in R. v. Jordan, which were released last summer.

At a minimum, I think it's reasonable to anticipate that the meaning of this new language will be litigated, perhaps all the way up to the Supreme Court of Canada, before we receive judicial guidance. That could take years. In the meantime, the crown's standard of proof will be uncertain.

As I suggested a moment ago, my second concern relates specifically to clause 2, and the changing of the word “may” to “shall” in proposed new section 518, subsection (1), paragraph (c), subparagraph (i). What a mouthful. This language imposes a mandatory requirement on prosecutors to put into evidence an accused person's prior criminal convictions.

If that language means all prior criminal convictions, it will impose a practical impossibility on prosecutors. They simply won't be able to meet that requirement in many cases because of the problems with CPIC, which are widely recognized throughout the criminal justice system.

At present, there is no complete, up-to-date, Canada-wide database that includes all prior records of persons convicted of criminal offences. I refer you to pages 66 to 68 of my report in this regard. To ensure that all convictions are brought to the court's attention, it might be necessary, in many cases, for the prosecutor to check with every Canadian jurisdiction, just in case a conviction has yet to be entered into CPIC. That would have to be done for every bail hearing in the country involving an accused who might have crossed provincial borders. We know today that people are generally much more mobile than they were when the bill provisions were first introduced.

If we want to close a gap in the bill system, in my opinion, we must find a solution for the CPIC problem. We must create a more effective and timely system for the sharing of information between provincial jurisdictions. That includes improving national access to all extra-provincial outstanding charges and release orders. That would be an effective way to improve the operation of the bail system and enhance public safety, in my view.

I said in my report that convenience and efficiency must not be allowed to trump the integrity of the process, but I don't think these amendments would enhance the system's integrity in a meaningful way. I worked as a federal prosecutor for close to 30 years before I retired in 2014. Maybe I'm biased, but I have sufficient faith in the ability and judgment of my former colleagues to trust them with the discretion that they now enjoy. In fact, as stated by the Ontario Court of Appeal in R. v. Nur, “The exercise of Crown discretion throughout the criminal process...is a longstanding and essential component of the fair and efficient operation of the criminal justice system:”

I would like to conclude on a more personal note. I have the deepest sympathy for Constable Wynn's wife and family, as do all the members of this committee. I understand the desire to honour his legacy through meaningful change, and to do what's required to ensure that a similar tragedy doesn't devastate another family.

However, I think the meaningful change can be found in the actions being taken by the Government of Alberta in the wake of my report and other calls for reform. I think those improvements will be more profound and less uncertain in their effects than Bill S-217. I think they could be considered a fine tribute to the memory of Constable Wynn.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Irving.

Now we'll go to Mr. Cameron.

[Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms]

Thank you, honourable members, for having me here today. I'll start by offering condolences to Constable Wynn's family, who lost a husband and a father through something that was entirely preventable, something at which Bill S-217 is indeed aimed at preventing from occurring again.

I am with the Justice Centre for Constitutional Freedoms. We are a not-for-profit, non-partisan, non-religious charity. I don't have a horse in this race. I've been watching the proceedings. I am interested in them because I am a former prosecutor. I worked in British Columbia as a prosecutor in Prince George, one of the most active places in which you can practise criminal law in our country.

I will say that as I have watched the proceedings, I have been dismayed and a little bit uncomfortable with some of the evidence that has been presented to this committee. I'm going to attempt to, from my perspective, correct some of it today.

I think that some of the witnesses who have spoken have no doubt had good intentions, but they have given at times contradictory, inaccurate, and, therefore, misleading and unhelpful evidence.

The legislation, from my perspective and in my respectful characterization, has been mis-characterized by some of the people who have given testimony here. I'm just going to cover some of the misstatements while I go through it.

Misstatement number one is that changing paragraph 518(1)(c) from “may” to “shall” negates the ability of the crown to introduce hearsay evidence. Mr. Woodburn on April 6, 2017 stated that somehow Bill S-217 removes the ability of the crown to introduce hearsay and that section 516 allows hearsay at bail hearings.

Both of those things are inaccurate and incorrect. It's not section 516 that allows the introduction of hearsay; it's paragraph 518(1)(e). It is paragraph 518(1)(e) that allows the introduction of hearsay evidence. I'm going to read you a quote from the Supreme Court of Canada, from the Toronto Star Newspapers Ltd. v. Canada case from 2010, which says that:

According to s. 518(1)(e)...[a crown prosecutor] may lead any evidence that is “credible or trustworthy”, which might include evidence of a confession that has not been tested for voluntariness...[and include] hearsay statements,...prior convictions, untried charges.... The justice has a broad discretion to “make such inquiries, on oath or otherwise,...”.

That's on page 8 of my brief, which was submitted to the committee, but I don't think is in front of you yet because it hasn't been translated.

My point is that some of the witnesses before this committee have placed too much emphasis on the prosecutor controlling the process and not enough emphasis on the judge controlling the process. A judge at a bail hearing is able to admit and rely on any evidence that is credible and trustworthy. There is no standard of “beyond a reasonable doubt” or a higher standard of proof at a bail hearing. That's the point of a bail hearing. It's meant to be something that's impromptu and that protects the rights of the accused while allowing the crown to introduce evidence that is relevant but credible and trustworthy. That's the standard.

When a crown stands up to run a bail hearing, a crown cannot just say, “Your Honour, the accused has a record.” The crown has to introduce evidence to prove that the accused has a record. Today, across the country, hundreds of times every single week, the crown proves that the accused has a record by introducing the CPIC, just the basic CPIC. That's what it means to prove the record of the accused.

All the change from “may” to “shall” does is to require the introduction of the evidence.

Some of the people who have testified here—in fact I heard it today—said that Bill S-217 changes “may” to “shall prove”. It doesn't change it from “may” to “shall prove”. It changes from “may” to ”shall lead evidence to prove”. There is a world of difference in the legal world between the former, which is not in the bill, and the latter, which is in the bill. So that's a difference as well.

Misstatement number two is that there is no problem. There is a problem. Despite the fact that the police are not running bail hearings anymore, prosecutors make mistakes. I'll direct you to page 5 of my brief and read you the following quote from a case called R. v. Brooks:

The court in that case said:

Unfortunately, [the] Crown...failed to file the document which she asserted contained a statement of the applicant's prior criminal record. Ordinarily, a CPIC printout or equivalent should be made an exhibit. What resulted was a meandering and muddled discussion in which the court and the prosecutor directed questions to the applicant through counsel as to his prior criminal record. This inquisitorial approach is to be deplored. An accused is free to acknowledge the tendered record or not.... The accused's right to silence and right against self-incrimination must be respected. Defence counsel herself, for whatever reason, failed to object and indeed participated in the exercise.

In that case, the failure of the crown to introduce the record resulted in a constitutional infringement of the accused's rights. From my perspective, it's incumbent on Parliament to pass legislation that requires the leading of the record to protect the rights of the accused, because what happened in the case of R. v. Brooks is that the accused ended up being cross-examined by the justice of the peace, the crown, and his own counsel, which violated his article 11(c), 11(e), and section 7 rights, and he was released on appeal, so there is a problem.

My third point is on Mr. Woodburn's testimony about the idea that, again, that if Bill S-217 becomes law, the crown would be required to obtain certified CPIC records. That's not so. If you have a certified CPIC record and there's a data entry error in the original, it's going to be reproduced in the certified copy. The CPIC record is admissible because it is already produced by the Canadian Police Information Centre. You don't need a certified copy. With due respect, that's a misstatement as well.

On the idea that it interferes improperly with the crown's discretion, it does interfere with crown discretion. There's not a single reason why a crown prosecutor who has decided to oppose somebody's release should have the discretion not to introduce the record of an accused. There is not a single example of where that would be justifiable in a free and democratic society. Once the crown decides to oppose release, the crown has an obligation—should have an obligation—to tender that record so that the judge has all of the facts.

In fact, Mr. Woodburn said that it's “meat and potatoes”, and that for crowns, that's the “first thing” they're taught. Then he said that it interferes with “discretion”. If it's meat and potatoes and it's the first thing that a crown is taught to do, why would anybody object to the crown having a requirement to introduce the record?

I'll conclude by saying this. Some people say that this is only symbolic. It's not symbolic. There was a tragedy that occurred, and it was the result of a flaw in the legislation. Only a fool would say, “I'm emotional about the tragedy; therefore, I'm not going to fix the flaw.” The problem is that there is a flaw. Fix the flaw and you won't again have more tragedies that result from it. That's the point.

Those are my submissions. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Cameron.

We're now going to move to questioning of the witness panel.

We'll start with you, Mr. Cooper.

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

Thank you, Chair.

Thank you to the witnesses.

I'll start with you, Mr. Cameron. Perhaps you could explain how evidence is tendered at a bail application hearing. Would it be viva voce evidence?

[Jay Cameron]

Typically, there is not viva voce evidence. What happens is that the police generate a police report. The crown has that in a file, as well as the CPIC, and then the crown reads in the information that has been compiled by the police. That information is hearsay, but it is admissible because of paragraph 518(1)(e), just like the CPIC is. Typically, the CPIC is admitted because the accused knows what his record says or what it doesn't say and the hearing proceeds.

I will say this. I have personally seen situations where the record was not in front of the court. It's not just in the case law; I've seen it personally. What happens is that you have a crown who is busy. They have a hundred different files, they take a file apart, and part of it goes here and part of it goes there. They put it back together, they run down to court, and they leave the record upstairs.

Bill S-217 is required because it requires the crown to go upstairs, get the record, come back to the courtroom, and introduce the record. In the case of R. v. Brooks, that didn't happen.

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

Right. Very good. A prosecutor would typically read it into the record, and that's because, as you point out, paragraph 518(1)(e) indicates evidence may be tendered that is considered “credible” and “trustworthy”. Also, just to be clear, the record would be credible and trustworthy because it was generated by a police agency. Is that correct?

[Jay Cameron]

That's exactly correct, and there's a case cited in my brief that says exactly that. In the case of R. v. Brooks, the judge said that typically it should even be made an exhibit at the bail hearing. So it's “credible and trustworthy.”

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

So tell me how Bill S-217 changes that evidentiary burden. Does it?

[Jay Cameron]

Bill S-217 just changes the “may” to “shall”, as in “shall...lead evidence.”

It's not “shall prove”, as everybody keeps saying. It's “shall...lead evidence to prove”.

Now I think, and I'll tell you candidly, that the introduction of “the fact” in the legislation is unfortunate. I don't think it belongs in there, to be perfectly honest. So I think that it could be amended because I think that's partly the reason there's confusion on this point, but ultimately speaking, from my perspective, it doesn't change the evidentiary burden because it's something that the crown is doing on a daily basis. It just says “shall...lead evidence” as opposed to “may...lead evidence”. Right? We just want them to lead evidence.

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

Right, and of course, the intent was not to change the evidentiary burden, so I'm absolutely in agreement that, if the wording “the fact” needs to be deleted, then perhaps it should be, but of course, if you did delete it, then it wouldn't change the evidentiary burden in light of paragraph 518(1)(e), which is the applicable subsection.

[Jay Cameron]

There's a protection in the section, in paragraph 518(1)(e), that says that a justice can accept any “credible and trustworthy”.... It's a catch-all.

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

Yes, and then, to Ms. Irving's point about CPIC, do you have any comments about that, Mr. Cameron?

[Jay Cameron]

I'm sorry, I missed that.

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

It's about CPIC. She was saying you'd have to go back, pull the history, and get in touch with 10 different jurisdictions. Would you be able to comment on that?

[Jay Cameron]

First of all, I'll agree with her that CPIC is way behind being updated, which is really unfortunate and why prosecutors currently supplement the CPIC record with the provincial record, but no, there's no reason to go and call viva voce evidence at a bail hearing just because of Bill S-217, because the CPIC is already “credible and trustworthy”, and that's what the case law says.

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

Right.

Of course, because, again, you're just showing evidence. You're pulling the record. You're not proving anything. That's governed by paragraph 518(1)(e), but let's take a scenario where, for example, evidence wasn't tendered.

I would draw your attention to, for example, I believe it's subparagraph 515(6)(a)(i) where, in certain circumstances, there is a reverse onus, is there not? So if that information wasn't presented before the judge or the justice of the peace, you could have the judge or justice of the peace applying the wrong standard at a bail hearing, couldn't you?

[Jay Cameron]

Yes, and it's important that it not occur.

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

And that's what Bill S-217 would fix. It would ensure that it wouldn't occur.

[Jay Cameron]

That's correct.

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

In terms of crown discretion, can you think of a...? I think you highlighted it, but I would just ask you to maybe put it on the record again. Can you, as a crown attorney, think of a single instance in which you withhold the criminal history of someone seeking bail?