Justice Committee on Feb. 15th, 2023

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Is it—

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

We'll go to Monsieur Fortin for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Good afternoon, Mrs. Moore and Mr. Taylor.

All of that is interesting. Law enforcement is a provincial jurisdiction. I will obviously not ask you to elaborate on those issues, but I would like to hear what you have to say about the major principles that are your daily bread, more or less.

For example, we know that one of the criteria is public safety. We want to ensure that when a person is released, we are not putting public safety at risk.

What criteria are used to establish that? How do we determine whether a person might put public safety at risk?

[Chelsea Moore]

Thank you for your question.

During a bail hearing, the judge often has a copy of the offender's background. It is a way to truly see whether...

If I may, I will continue in English.

It helps the court to see if there are any past convictions of violence on the accused's record and to look at whether there's been a pattern of criminal behaviour. That's something that's very important when they're looking at the secondary ground: protection of the public.

They're also looking at whether the person was on bail or probation at the time of the offence. Often, they look at the personal circumstances of the accused. Is this someone who's a stable person, or is this someone who's likely to resort to crime again if they're released? Does this person have a steady job? Often, there will be a surety who might testify about the personal character of the accused or what they're doing in their life. All of this could be relevant to the secondary ground when looking at protection of the public.

There are a number of other provisions in the code under the bail provisions that also address public safety. I can discuss those if you want.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Tell me if I am mistaken, but I believe that the type of charge facing the accused will be taken into account.

For example, if it is a gun crime, I gather that would have an impact.

I would like you to elaborate on that.

At what point should that have an impact and what distinctions should be made among all the gun crimes?

[Chelsea Moore]

Absolutely. Under the tertiary ground, the court must consider the circumstances surrounding the offence, including whether a firearm was used. It signals to the court that the tertiary ground is relevant to the case when there's a firearm being used.

We have a reverse onus at bail, which is quite broad, for any offence when the subject matter involves a firearm, if the person has already been on a prohibition order. As I said before, Parliament has signalled that it ought to be more difficult for someone charged with a firearms offence in that situation to obtain bail. The presumption is reversed. The presumption is that they ought to be detained unless they can prove to the court on the balance of probabilities that they should be released.

There are also a number of conditions that a judge has to consider imposing for offences involving violence or involving a firearm. It's a mandatory prohibition on weapons and their use, if the offence is alleged to involve a firearm. They have to look at imposing conditions that would protect the safety of any victim or witnesses.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I imagine that you followed the legislative process. Recently, Bill C‑5 repealed certain minimum sentences, including some for gun related offences.

I do not know them by heart, but I remember the offence where a person discharges a firearm with the intent of causing harm or injuring another person, or something to that effect. That seemed rather odd to me. Honestly, I had a bit of a hard time accepting that.

Do you not find it a bit surprising that if we repeal minimum sentences for gun related offences we might, in the case of parole, reverse the burden of proof and tell an individual that we are putting him in prison unless he can prove that he is not a danger to the public?

All together, are these two principles not a bit paradoxical?

[Matthew Taylor]

It is hard to say if it is paradoxical. However, I think the considerations are different in the context of a minimum sentence. I will give you an example.

In the bail context, the reverse onuses that relate to firearms are very closely tied to the grounds for detention. A crime that is alleged to have involved the use of a firearm in a robbery or a sexual assault is presumptively seen as something that poses a public safety risk. It's closely linked to that just cause...the three grounds of detention.

There may be a tendency to want to try to make comparisons between considerations at the bail stage and considerations at the sentencing stage. The charter rights are different in those stages, and the purposes of those different processes are different.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Monsieur Fortin.

Mr. Garrison, it's over to you for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair. I'm going to ask the committee and officials to give me a little latitude here at the beginning.

Mr. Naqvi, I think we have to make it clear exactly what it is that we're talking about. I think the study actually deals with four separate problems.

Two of those have been very high profile and public, and certainly the premiers have been raising those: the problems for public safety caused by repeat violent offenders who achieve bail. The secondary problem there is the public order problems caused by repeat low-level offenders who receive bail.

Those are two things that are very high profile. They are legitimate concerns, and they're part of this study, but we have a bail system that is kind of contradictory. In fact, we detain way too many people before trial. When you look at the numbers of people in provincial institutions at any one time, you see that most of them haven't been convicted of anything. They're awaiting their trial dates. What we find, if we look at that problem, is that those are disproportionately indigenous people, racialized Canadians and people with low incomes. That's a third problem, I think, that's here.

A fourth problem, then, is that when people achieve bail, it's quite often more difficult for some people to meet what are thought of as non-onerous conditions of bail, and they end up with a public administration of justice offence, even though they haven't been convicted of anything.

I think there are actually those four different problems. I'm going to be calling witnesses on all four of those—if I get enough witnesses—and I'm going to be asking you some questions about those.

I want to start with repeat violent offenders.

I'm not going to try to lead you into saying this. I'll just say it: I think there's a consensus that, somehow, sometimes, our system fails to detain people and maybe we need to tighten that up somehow.

One of the things that came forward in a previous Senate bill was section 518, which says that prosecutors “may” present evidence in a bail hearing on previous convictions or if people are awaiting charges or they've breached conditions before or failed to appear in court. The operative word in that section is “may”, so I'm wondering if we sometimes have judges who are making bail decisions without that information always having been put before them. If we were to change the wording in that sentence from “may” to “shall”, we would guarantee that they had that evidence in front of them.

That was in a previous Senate bill, and I think it's a reasonable thing for us to look at. I want to know what you would have to say about that.

[Matthew Taylor]

I think it's a good thing to look at. Our one initial comment on that would be that changing a “may” to a “must” or a “may” to a “shall” in the bail process could have efficiency implications, and I expect you would have expected that as an answer. I mean, I can't tell you or the committee that this is a reason not to look at it.

I think it's something that provincial prosecutors and people who are in the courts would have better experience in and a better understanding of as to whether that would be a real impact that would meaningfully result in delays or in bail hearings being put off or things of that nature.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Anecdotally, and certainly in the media, we have heard of decisions where the judge appeared not to have the full information on the offender because it wasn't presented at the bail hearing.

Apart from efficiency, I'm looking at the other end. Tightening it up might actually have public safety advantages if we were to do that. Obviously, we're always weighing efficiency, and if we're talking about detaining too many people, of course, we're weighing costs against other impacts.

When it comes to, again, the low-level offenders, that's the second problem. I wonder if we have any statistics, if they're really collected—I have the feeling they're not, because provinces administer the justice here—about just how many offenders are being released multiple times on similar offences. I certainly haven't seen anything on that. I wonder if you have any information about how often that happens.

[Chelsea Moore]

We don't have any national statistics with respect to bail at this time. Individual provinces and territories, as I'm sure you know, are responsible for collecting criminal justice system data, including bail data. Sometimes they publish this data on their websites.

Statistics Canada provides provinces and territories with the opportunity to report their bail data so that a national dataset can be available, but not all jurisdictions are currently contributing to that.

Through its integrated criminal court survey, Statistics Canada is able to combine various sources of information to create what they call “composite indicators”. Basically, this is combined information on the occurrence and outcomes of bail hearings for seven jurisdictions that report, but sometimes they report differently, so it can be challenging to analyze that data.

Justice officials are currently working with Statistics Canada on a special data request to review and analyze the available data.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Something we have heard from the police quite often—and certainly I have in my riding—is that this does happen, but it involves a very small number of people. I wonder if there's any reaction from Justice about our trying to reform the bail system when we're dealing with not the majority but a very small number of people who go through it.

[Matthew Taylor]

We've heard that information as well, that a small percentage of people are committing a significant number of non-violent offences, often, as you said, Mr. Garrison, related to addictions or things of that nature.

I think it is worth dividing up the issues in the way you have. It is important to think about it in all of those terms. Is there a public safety concern in those situations? Perhaps there is not, but maybe there's a confidence concern there that needs to be thought about and looked at in greater detail.

To the extent that we have any information on chronic offending, we'd be happy to provide it to the committee.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll go to the next round for five minutes each, beginning with Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Mr. Chair, and thank you, witnesses, for being here.

We are here at the justice committee studying bail reform and the need for it. One of the reasons we're doing this is in response to a letter the 13 premiers wrote recently to the Prime Minister, and I have a copy of that letter here in front of me. I just want to read a couple of sentences from it and ask for your comments. They say, “We write to urge that the federal government take immediate action to strengthen Canada’s bail system to better protect the public and Canada’s heroic first responders.”

We all remember with great sadness and shock, really, Constable Greg Pierzchala being murdered by a person who was out on bail after being accused of firearms-related crimes, so it is very urgent that we look into this and ensure that the public remains confident. Otherwise the administration of justice could be brought into disrepute.

Here's the problem that I see. The premiers go on to say, “The justice system fundamentally needs to keep anyone who poses a threat to public safety off the streets.”

Well, we all agree with that, but how does a judge determine in advance whether a person is a threat? In hindsight, we all know that the person who murdered Pierzchala was a threat, but did the judge know it ahead of time?

[Chelsea Moore]

As I mentioned, a risk assessment is done at the bail hearing. There is a provision under subsection 515(3) of the Criminal Code that was added through former Bill C-75 and that now requires judges, before making any bail decision, to look at the criminal record of the accused and at whether the accused was charged with domestic violence. I think the criminal record is really key to getting the history of offending and whether there's a pattern of violence there that is likely to be a risk to the public.

Often the Crown introduces occurrence reports if there have been charges laid but no conviction entered, and the Crown can have an officer testify about these reports to say there's been a pattern of behaviour.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm just going to stop you there. I forget what the accused person's name was, but it doesn't matter. I'm assuming all of that procedure was followed with the person who murdered the police officer. Yet, in retrospect he was a threat to the public.

[Chelsea Moore]

Any law that has discretion built into it is going to, unfortunately, result in situations that you simply cannot predict. We can't legislate to remove any and all risk unless we detain all the time. The thing is that the charter says there must be just cause to detain someone; they can't automatically be detained. However, in some cases there can be a presumption of detention, and I talked about the reverse-onus situations.

Ultimately, if the judge does get it wrong, there is an appeal process that's available under section 520 of the Criminal Code.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

After the person is murdered....

[Chelsea Moore]

In this particular case, I believe there was a warrant out for his arrest at the time.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

The premiers' letter goes on to suggest, “A reverse onus on bail must be created for the offence of possession of a loaded prohibited or restricted firearm in s. 95 of the Code.”

I know that under section 515 of the Criminal Code there are some reverse onus provisions, which, I understand, have withstood charter challenges. Would adding “possession of a loaded prohibited or restricted firearm” survive a charter challenge, in your opinion?

[Matthew Taylor]

That's a difficult question to answer. Maybe I can answer it in a slightly different way. That specific proposal is something that we're looking at in collaboration with the provinces and territories, as you would expect.

Section 95 is a broad offence. For those of you who will remember the newer decision, there was another Supreme Court decision, MacDonald, that involved an otherwise law-abiding gun owner who stored their prohibited or restricted firearm in a second residence. Their licence authorized them to store it in their primary residence, but they stored it in their second residence.

In constructing a reverse onus for an offence of that nature you have to take into consideration the types of situations that would be captured and whether those situations, which may or may not pose public safety risks, warrant a reverse onus.

On the charter question, I would say two things.

Justice Canada's website includes a dedicated resource on all articles of the charter. It includes detailed information on the bail provisions, including on the reverse onus. I think what a court would want to see in terms of assessing the charter viability of a reverse onus in that space is if it is linked to grounds of detention. Is there a just cause associated with it?

As you say, reverse onuses have not been struck in the bail regime by the Supreme Court of Canada.