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.