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.