Evidence of meeting #51 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accused.
A recording is available from Parliament.
4:40 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
That's perfect. Nowhere in St-Cloud does it say that detention should be exceptionally rare on that tertiary ground.
Do you agree with that? It says the opposite.
4:40 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
I think [Inaudible—Editor] your earlier point is that it is its own ground. It's not reserved for exceptional cases.
February 15th, 2023 / 4:40 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
We have Bill C-75 and we have Antic and Zora. I'm not going to get into the nitty-gritty here, but the gist of Antic and Zora is to say that detention should be very rare. That's how I read those cases.
Do you agree with that?
4:40 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I read those cases as saying sort of the cardinal rule that the Supreme Court talks about, which is that release ought to be the norm and detention ought to be the exception. There's a presumption in most cases that an accused ought to be released.
4:40 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Do you see there being a conflict there, between St-Cloud and those other two cases I mentioned? Detention shouldn't be rare in the one case, but in the other case, they're saying bail should be the rule, not the exception.
Do you see how there's a tension there?
4:40 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
If I may, Chair, I'm not sure there's a conflict per se, as our opening remarks tried to convey. The grounds for detention are the grounds for detention, so I think that with the ladder principle and the principle of restraint and these other important concepts to the bail regime, the idea is that all of these are signposts, essentially, to the court.
You have to take into consideration what is the least restrictive measure on liberty to assure attendance in court, to protect public safety and to maintain confidence in the administration of justice, so the fact that there is a principle of restraint, or that there is the requirement that consideration be given to the specifics of indigenous or marginalized accused, doesn't mean detention is off the table. It's about the process through which a decision is taken, rather than favouring one outcome over the other—
4:45 p.m.
Liberal
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
I'm going to start where you left off, sir, so we're all good. The only place I differ from you is that you jumped into reverse onus right from the get-go. I think we need to have the basic principles discussion first before we get into the exceptions to the principles.
Thanks, both of you, for being here.
Let's start from the top. You alluded to this in your introductory comments, so let's start with common law. What does common law tell us when it comes to bail?
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
We have a number of Supreme Court of Canada decisions that have been released over the past decade talking about what we just talked about, which is the cardinal rule that release ought to be the norm and detention ought to be the exception.
That principle really derives from the structure of the code as it stands right now, as well as the charter, but if you look at the structure of the code, the principle of restraint is actually embedded within subsection 515(1) of the Criminal Code. It's the starting point. It basically says that the justice shall release the accused unless the prosecutor shows why the accused ought to be detained. That's the starting point.
Then, under subsection 515(2), we have the ladder principle, which the common law has discussed at length recently in the Antic decision, as well as the Zora decision—
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
I'm going to ask you to stop there, because I want to come to the ladder principle.
Can you just interweave in this the constitutional...the charter guarantee in terms of bail?
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Sure.
Under section 11(e) of the charter, there's a right not to be denied bail without just cause, so there are two aspects of this.
There's the just cause aspect of it. Bail can be denied only in narrow circumstances that are tailored to the specific purposes of bail, the proper functioning of the bail system. Public safety and reoffending are considered purposes that have been accepted and linked to the proper functioning of the bail regime.
The second one was “reasonable”, so bail must also be reasonable. That really ties into what we're talking about here with the ladder principle and ensuring that an accused is released on reasonable conditions that are necessary and tied to the specific risks that an accused poses if they are released.
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Fantastic, and now let's talk about the ladder principle, because that's a very important part of the common law, and it comes out of the charter jurisprudence as well.
Imagine, Ms. Moore, that we're in first-year criminal law class and we're fresh young law students—
4:45 p.m.
Voices
Oh, oh!
4:45 p.m.
Liberal
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
The ladder principle sets out a presumption for most bail hearings that an accused ought to be released on the least onerous terms and form of release. We're really looking at subsection 515(2) of the Criminal Code. You will notice that from paragraphs (a) to (e) it progressively gets more restrictive.
As you go down each paragraph, the form of release becomes more restrictive. At paragraph 515(2)(e), there's an automatic condition of a cash deposit as well as an optional surety, and that's available only to accused who reside more than 200 kilometres away or out of province. It's the most restrictive form of release that we have.
We have subsection 515(2.01) of the Criminal Code, which says the starting point is to release on a release order with no conditions. Then, for each more restrictive term that's added to the release order, the prosecutor needs to justify why a more restrictive release is necessary. They really need to link it back to the specific risks that an accused poses.
For example, if we're dealing with someone who might be a flight risk, there are conditions that can be imposed, such as a cash deposit or the deposit of a passport. If someone is at risk of reoffending, there are other conditions that can be imposed to ensure they are following the conditions.
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
You went through the Criminal Code, which articulates the ladder principle, which is in compliance with both the charter and the common law. Is that correct?
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Again, we're going to basics 101: Who is responsible for implementing those provisions, and particularly the ladder principle?
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
For implementing them, the judge or justice at the bail hearing is the one who ultimately decides what type of release the accused should be released on. Typically, in a bail hearing, the Crown will make submissions on what conditions are reasonable; the defence will also make submissions; the judge will decide and then the accused needs to follow their conditions.
What's important to note is that if the accused breaches a condition of bail, they're liable to up to two years in prison, so it's a significant—
4:50 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
And the administration of justice is the responsibility of...?
4:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
The provinces and territories.
4:50 p.m.
Voices
Oh, oh!
4:50 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
The provinces. Thank you. I just wanted to make sure we have the foundations right.
I know you are a federal Crown at the Department of Justice, but I'm sure you have a fairly sophisticated understanding of how provinces operate. What methods do provinces use to inform their Crowns when it comes to the implementation of various things, such as the bail process?
4:50 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
One way that you are probably all quite familiar with is the directives that are issued by attorneys general in the provinces. We know, for example, that Ontario issued a directive on bail matters in the context of the COVID pandemic, and British Columbia has recently issued new guidance to its prosecutors on bail matters involving repeat and violent offenders.
To piggyback on the federal perspective, the federal Public Prosecution Service of Canada is responsible for prosecuting in the territories and for certain federal criminal offences in the provinces. It also issues guidelines that can be looked at in its deskbook, which is on the PPSC website and provides information on the relevant considerations in bail matters.
