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.