Justice Committee on Feb. 15th, 2023

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

It's helpful data.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Next we'll go to one more five-minute round, beginning with Mr. Brock and ending with Ms. Diab.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair, and thank you to the witnesses.

I didn't think I was going to get a round, so this is an honour.

You obviously know my background. I'm not going to mention my background, because whenever I mention my background, I get my colleague Mr. Naqvi, who was my former boss, chiming in and adding his editorial.

I can inform you, sir and ma'am, that I come at this study with a completely different lens and a different perspective. Unlike my colleague and another prosecutor, Mr. Caputo, I spent a substantial amount of time—15 to 20 years—in bail court on a regular basis.

I want to know whether or not you agree with my assessment.

Prior to the release of Antic.... I don't know. Maybe the two of you weren't even lawyers at that point yet. I've been around for a long time. Prior to Antic, there was a general consensus that the overall pendulum with respect to serving the needs of the public, protecting the public and highlighting the protections under the charter for the accused was not balanced and that far too many people were being detained for really minor offences. There was a lack of focus in prosecutors around this country to argue for detention only on those serious cases that posed a risk, not only to a community's safety, but to that of the victim.

Antic tried to reinforce that the pendulum had shifted too far to the protection of society and the public. In my view, it moved that pendulum a little closer to the rights of the accused.

We then had Bill C-75, and we had another Supreme Court of Canada decision in Zora that reinforced those principles. Now we're left with this perception that the public has that this system we call the criminal justice system is not in balance.

Is that the theme? Is that a focus that you are hearing? Are you reading studies about this, and hearing experts and stakeholders talk about this? Is it a concern at the Department of Justice?

[Matthew Taylor]

Yes, I think it's a very good comment, Mr. Brock.

Let's start with the public concern.

When we see stories in the news of the tragic cases that we're all aware of and that motivated your decision to undertake this study, the public is going to be concerned. We understand that. The minister understands that. We're supporting the government in looking at solutions. That's why Minister Lametti has called the special meeting with his provincial counterparts.

The other thing we're hearing, and perhaps it's implicit in what you're saying, is that the bail system is fundamentally sound in that it provides clear grounds for detention that are well understood. However, there are concerns that perhaps, as you've said, the pendulum shifts one way or another way.

It is about trying to find that balance. It's not an easy thing to do.

[Larry Brock, Conservative, Brantford—Brant, ON]

I'm going to stop you right there, because I have limited time. I thank you for that.

Do you share this belief?

I've talked with many judges—provincial court judges—and I've talked to many justices of the peace. We all acknowledge that the vast majority of JPs, for short, in Canada do not have a legal background. There's no requirement for them to have a legal background. However, both those JPs and judges feel that Bill C-75 really shackled their discretion. Bill C-75, in addition to the two Supreme Court of Canada decisions in Zora and Antic, has really forced them to consider release, regardless of the circumstances of the predicate offence, regardless of the criminal background and regardless of the number of “failed to attends” and the number of breaches. Default is the overriding principle.

Is that an issue for the department?

[Matthew Taylor]

Yes. In our opening remarks, we tried to speak to that point directly, which is that the Supreme Court cases you talked about and the reforms that were enacted in former Bill C-75 are principles that inform a process. They don't dictate an outcome. The outcome, in terms of detention versus release, is very clearly set out. You should be detained. A JP or a judge should deny bail if one of the three grounds has been established.

[Larry Brock, Conservative, Brantford—Brant, ON]

There's always a fear of being appealed. JPs have those concerns. I'll be very blunt with you: Sometimes they err on the side of not being appealed. They release, pray and cross their fingers there are no consequences. However, we know that across this country, every day, there are significant, serious and fatal consequences based on decisions that JPs, provincial court judges and—in the most recent case—superior court judges make on bail reviews.

Is that correct?

[Matthew Taylor]

Yes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Yes, and I think—

[The Chair, Liberal, Randeep Sarai]

Mr. Brock, unfortunately we're out of time.

Ms. Diab, you have five minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thanks very much, Mr. Chair, and thanks to our witnesses.

It is an important study. Obviously, we're studying it. There's a lot of public concern in Canada, but there are also a lot of discrepancies in how different provinces and territories are using this. It makes absolute sense for us, as parliamentarians, to take a look at this. I think we are all in favour of this study. I appreciate it, because I didn't do criminal law. I appreciate the “Criminals 101”. I did law school, but that was a long time ago.

I will start off with Bill C-75, which is where you ended with Mr. Brock, just now. It made certain reforms to the Criminal Code.

I know it's only been around for a couple of years, but my question to you is this: Can you tell us—continuing with your response—how it brought the law in line with Supreme Court of Canada jurisprudence? In your opinion and expertise, what has it done, and has there been enough time to assess it, since it's only been a couple of years?

[Chelsea Moore]

As you may or may not be aware, bail provisions in the Criminal Code had not been comprehensively amended since the Bail Reform Act of 1972. There were a lot of inefficiencies in the bail system, with police release or the forms of release, so Bill C-75 tried to improve some of those inefficiencies in the bail process. One of the provisions enacted, as we discussed, was the “principle of restraint” under section 493.1. This requires judges and courts to “give primary consideration to the release...at the earliest...opportunity and on the least onerous [grounds]”. They also have to consider the circumstances of indigenous accused in making any bail decision, as well as accused from marginalized populations.

There had been many calls for reform, and many studies done on inefficiencies in the bail system. The Standing Senate Committee on Legal and Constitutional Affairs did quite a comprehensive study on delays. They looked at the bail issue in their report, “Delaying Justice Is Denying Justice”. They specifically recommended the Minister of Justice prioritize reducing the number of persons on remand across Canada. The principle of restraint responded directly to that recommendation. There were also calls for reform from the Steering Committee on Justice Efficiencies and Access to the Justice System, as well as in several reports conducted.

The bail amendments were significantly informed by Supreme Court of Canada jurisprudence as well. We talked about the decision in Antic, but there was a history of decisions made. In Antic, specifically—which was a unanimous decision of the Supreme Court—now Chief Justice Wagner wrote, in that decision, that there was “widespread inconsistency in the law of bail”. He stated, “the bottom line [is] that remand populations and denial of bail have increased dramatically in the Charter era”. You'll see some data in the Senate report with respect to the remand situation. They heard from a witness from Saskatchewan, who said the remand population went up 97% over several decades. That's quite significant.

I could refer you to the legislative background around Bill C-75, which is available online if you have questions about it.

With respect to the implementation of Bill C-75 reforms, these came into force in 2019. In particular, the bail reforms came into force nine months after that, I believe, so the implementation coincided with the beginning of the pandemic. As you know, there were many disruptions to the court system during the pandemic. Many jury trials were adjourned. Officials are continuing to find ways to look at the data in order to try to measure implementation efforts.

There are a number of ongoing research projects by officials from the research and statistics division at Justice Canada. If you'd like more information on those, I can certainly provide them.

[Lena Metlege Diab, Liberal, Halifax West, NS]

The data is an important point, and I think Mr. Garrison was trying to get that.

I can appreciate that you responded by saying there's data available, but it doesn't break down pretrial and pre-sentencing. I'm not sure why; perhaps you can tell us why.

However, the question is on data collected on the bail system. Can you tell us what is collected and what is publicly available?

[Matthew Taylor]

Further to what we committed to with Mr. Garrison—I know we don't have a lot of time—we'll provide you with a list of what we have.

We have limited data from seven jurisdictions. As Ms. Moore said earlier, the way it's collected is not consistent across jurisdictions, so we'll provide that to you along with an explanation of the methodology around it.

[The Chair, Liberal, Randeep Sarai]

Thank you very much.

I want to thank both of you. We have a lot of lawyers in the room—a few former AGs—so they have a lot of legal questions. I really appreciate your comprehensive and strong answers.

We'll suspend until our next witness comes on, so give it a couple of minutes.

[The Chair, Liberal, Randeep Sarai]

Welcome back.

I'd like to welcome our next witness, the commissioner of the Ontario Provincial Police, Thomas Carrique. We're glad to have the commissioner here with us.

You have five minutes, but you have the liberty to take another minute or two, since you're the only witness today. We'll have a round of questions right after.

It's over to you, Commissioner Carrique.

[Commr Thomas Carrique, Commissioner, Ontario Provincial Police]

Thank you, Mr. Chair and committee members.

I really appreciate the opportunity to speak about the concerns I have raised, and will continue to raise, over the preventable circumstances related to the murder of Ontario Provincial Police constable, Greg Pierzchala.

One of the individuals responsible for the death of Constable Pierzchala and charged with first-degree murder, Randall McKenzie, is a repeat violent offender who has been convicted of violent weapons-related offences. Despite showing a concerning pattern of non-compliance with previous weapons- and firearms-related prohibitions and other court-imposed conditions, he was released on bail while awaiting trial for additional violent weapons-related charges, including assaulting three victims—one of whom was a peace officer.

McKenzie has a violent past, with criminal convictions for armed robbery using a firearm, assault with a weapon, possession of a weapon and assault. He had been subjected to a five-year weapons prohibition in 2015, a 10-year weapons prohibition in 2016, and another 10-year weapons and lifetime firearm prohibition in 2018. At the time of Constable Pierzchala's death, he was under bail conditions prohibiting him from possessing a weapon and ammunition.

As noted by the Superior Court justice in the bail review decision releasing McKenzie from custody on June 27, 2022, McKenzie had a record of five previous convictions for failing to comply with court orders.

Despite all of this, he was released on bail, even though in the past, he had not complied with the conditions ordered, including discarding a GPS ankle-monitoring device that he was ordered to wear while under the supervision of a surety. This ultimately led to the murder of Constable Pierzchala.

Regrettably, incidents of repeat offenders with a violent history being granted judicial interim release and committing further violent criminal acts thereafter are not rare. In fact, in 2021 and 2022 the OPP charged 587 repeat violent offenders for failing to comply with bail conditions. Of these 587 individuals, 464 were involved in serious violent crimes while out on bail, and a shocking 56 of these crimes involved a firearm.

In many cases, incarceration is the only effective means by which to protect the public from repeat violent offenders. The public's right to be protected from these offenders must be given far greater weight than is currently the case when bail matters are considered.

Consistent with a 2008 resolution from the Canadian Association of Chiefs of Police, many police leaders throughout Canada are currently focused on enhancements to paragraph 515(10)(b) of the Criminal Code, which would result in conveying the will of law-abiding Canadians and compelling courts to consider factors that must be weighed against the release of an accused.

These factors include preventing the commission of a serious offence; the prior commission of a serious offence while on bail; the prior commission of an offence while using a weapon, in particular a firearm; and the extent of the number and frequency of previous convictions of the accused for serious offences, including persistent offending by the accused. These also include the nature and likelihood of any danger to the life or personal safety of any person or to the community that may be presented by the release of a person charged with an offence punishable by imprisonment for a term of 10 years or more.

I strongly believe that our officers, the very ones who protect our families, communities and Canadians alike, deserve to be safeguarded against repeat violent offenders who are charged with violent, weapons-related offences while those offenders are awaiting trial.

In closing, I would like to express my appreciation to the Standing Committee on Justice and Human Rights for this study. Together, with a commitment to actioning meaningful and responsible legislative change, we can and must expeditiously ensure that appropriate weight is given to public safety concerns when considering the interim release of a repeat violent offender, thereby improving the safety and security of Canada and Canadians.

Thank you. Merci. Meegwetch.

I welcome questions, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Commissioner.

We'll now go to our first round of questions, beginning with Mr. Brock for six minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Welcome, Commissioner. It's always a pleasure to have you attend at committee. I'm looking forward to your evidence. I'll get right to it.

Unfortunately, the most recent events have not only been tragic and disturbing but also in my view galvanized public opinion. This has galvanized police services. It has galvanized police services, police associations, police chiefs, advocacy groups and the Canadian public. There is a serious problem with the bail system here in Canada. Would you agree with me, sir, given your recent statements in the last few weeks?

You've been extremely critical of our bail system. Do you agree, Commissioner, that our system is broken?

[Commr Thomas Carrique]

I definitely feel that our system is in desperate need of some very meaningful change—change that will ensure that repeat violent offenders who have shown a propensity for using weapons against victims are held accountable and held in custody so they can't further victimize innocent community members and risk the lives of police officers. Change is needed.

[Larry Brock, Conservative, Brantford—Brant, ON]

We clearly both agree that the vast majority of Canadians charged with criminal offences exercise—rightfully so—their constitutional rights to be presumed innocent and to be released on bail. This study is not about those individuals.

This study is about the individuals you just quoted in your statistics. I didn't do the math on a calculator, but by my count, we're talking about the 80% who are repeat offenders and the OPP is charging on a regular basis. Of that 80%, we have individuals who are using firearms.

Do you agree with me, sir, that firearms, not only in Ontario but across this country, have seen a considerable spike in terms of usage in the commission of crimes over the last several years?

[Commr Thomas Carrique]

I would absolutely agree with that statement. Day in and day out, my officers are seizing more firearms than we ever thought would be available in communities across this country.

Just three days ago, we had an offender who had been released on bail for possession of a firearm and who, within days of being released on bail, was arrested in the possession of numerous firearms yet again.

[Larry Brock, Conservative, Brantford—Brant, ON]

Would you agree with me that a hundred per cent—or pretty close to a hundred per cent—of all criminals who freely use guns in the commission of an offence are those very same individuals who treat bail release papers as a piece of paper only, with no obligation to comply?

[Commr Thomas Carrique]

I would agree that we see a higher rate of violation of bail conditions for those who use firearms in the commission of violent offences.

[Larry Brock, Conservative, Brantford—Brant, ON]

We both agree that the senseless murder of OPP officer Pierzchala did not have to happen and would not have happened if the system had worked as planned. Is that correct?