Justice Committee on Feb. 15th, 2023

[The Chair, Liberal, Randeep Sarai]

I think your time is up. Thank you.

Next we'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you, Chair.

I think we still have to get through some basics here, because we have you, and I just want to make sure we have all that.... I know people are getting you into the nitty-gritty, and rightly so, but I feel like I'm in first-year law school right now.

Let's talk about reverse onus. Describe the concept of reverse onus to us, in general, and then how it applies to bail in particular.

Please and thank you.

[Chelsea Moore]

Reverse onus departs from the general approach to bail in two respects.

First, there's a presumption that the accused ought to be detained, and second, the accused has to prove, on a balance of probabilities, that they ought to be released having regard to the statutory grounds. They have to prove to the judge that they're not a flight risk, that detention is not justified to protect the public, and that detention is not justified for confidence in the administration of justice.

Those provisions, set out in 515(6) of the code, signal Parliament's intent that it ought to be more difficult to release an accused in those circumstances. We have reverse onuses, as I said, for accused who are alleged to have breached their bail conditions. We have a reverse onus for intimate partner violence, where someone has already been convicted of intimate partner violence, and we have reverse onuses for more serious offences like firearms offences, where they're already on a prohibition order.

I think that's it for the reverse onus.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

There are a variety of types of offences in the Criminal Code, then, that fall within a reverse onus requirement for bail. Again, the determination of whether or not that onus is met is up to a justice of the peace or a judge who is presiding over that bail hearing.

[Chelsea Moore]

Yes. The code says “justice”, but “justice” is defined under section 2 of the code to include a judge of a provincial court, so it could be a justice of the peace or a judge of the provincial court.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Okay. I think either you or Mr. Taylor touched on the notion of directives at the provincial level. Am I correct to understand that there is still some latitude of capacity with the Attorney General at the provincial level to issue a directive that asks the Crown to take a particular position, let's say, to always seek a refusal of bail, for instance. Does that latitude still exist?

[Matthew Taylor]

Yes. For example, I spoke to the directive of the updated guidelines that B.C. provided. They provide fairly clear instruction on when provincial prosecutors in British Columbia should request that bail be denied based on certain criteria—repeat violent offending, safety risks. It's set out in some detail.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Can you expand a bit on what British Columbia just recently did?

[Matthew Taylor]

I don't know if I can expand. I think Mr. Garrison probably knows quite well also.

As I referenced in my opening remarks, British Columbia has for some time been concerned about the situation of repeat violent offending. This is something we have been working on with them collaboratively in terms of whether we make amendments to the bail regime to address this issue.

Within their area of responsibility as administrators of justice, they have updated their guidelines to provide guidance to their prosecutors when dealing with accused persons who have been charged with offences of violence. I think those guidelines also speak to other circumstances—specific considerations of indigenous accused, for example.

We can provide those guidelines; it's publicly available information.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Are you aware of any other province besides British Columbia that is taking similar steps?

[Matthew Taylor]

I know Ontario has issued guidelines on bail. I think they were specific to the COVID context.

I have not done, and I don't believe our unit has done, a comprehensive search of every jurisdiction.

I can point you to British Columbia and, at the federal level, the Public Prosecution Service of Canada Deskbook, which provides information on bail hearings.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Does the reverse onus exist when the accused has been charged with offences involving firearms, where the accused is subject to a weapons prohibition order?

[Chelsea Moore]

Yes, there is.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Can you refer to the section in the code?

[Chelsea Moore]

It is found under subparagraph 515(6)(viii). Actually there are two reverse onuses that link to firearms. Subparagraph 515(6)(vii) says, “an offence under section 244 or 244.2...that is alleged to have been committed with a firearm”.

Then, under subparagraph 515(6)(viii), it's quite broad. It's any offence that's “alleged to involve, or whose subject-matter is alleged to be, a firearm...while the accused [is already] under a prohibition order”, as defined under subsection 84(1).

Subsection 515(5) deals with reverse onus as well.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Now we'll go to two rounds of two and a half minutes each. We'll start with Monsieur Fortin.

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

Thank you, Mr. Chair.

Mr. Taylor and Mrs. Moore, I have two minutes left and I would like to come back to firearms.

I understand that there are specific provisions for certain crimes committed with firearms. What is more, as I was saying earlier, not so long ago we legislated to repeal minimum sentences for certain gun related crimes. I am thinking specifically about discharging a firearm with a specific intent; we repealed the four-year minimum sentence for that offence.

We have to assess the seriousness of the crime. A defence lawyer might say to the judge that in today's society, the crime in question is clearly much more serious than it was 10, 20 or 50 years ago. He might use that type of argument since the legislator repealed the minimum sentences.

In your opinion, is it not worrisome that this type of argument could be used?

[Matthew Taylor]

A lawyer can always try to convince a judge that one offence is more serious than another. The repeal of mandatory minimum sentences is not a—

It's not only an acknowledgement that an offence is less serious. The decision to repeal mandatory minimum penalties was based on the importance of restoring discretion to judges to impose fit sentences in all cases.

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

Okay, but this leaves room for the judge to not impose a prison sentence.

Recently in Quebec news there was a case where the person had firearms at home, but it was decided that the person would not get a prison sentence.

A minimum sentence is an indication of the seriousness of the crime. The legislator does not talk just to fill the air. If a four-year minimum sentence is repealed that must mean that the legislator considers the crime to be less serious. Am I wrong?

[Matthew Taylor]

I will say what I've said previously. I think judges and the Criminal Code provide a structure; offences involving firearms are punishable by significant maximum penalties of imprisonment. The Supreme Court, in some of its recent jurisprudence, has reaffirmed the principle that a maximum penalty, provided for in law, provides clear guidance to the courts on the seriousness of the offence.

With regard to the example you cite in terms of the decision in Quebec, we're aware of it. There are routes of appeal for these matters.

I understand your point. The important piece to remember, again, is that the law, as it operates, provides clear signposts. In the way the law is implemented, there are situations in which the outcomes are, perhaps, what one would expect, but there are checks and balances within that system in terms of appeal rights, etc.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Mr. Garrison, you have two and a half minutes.

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

Thank you, Mr. Chair.

I'm in the back-to-basics section again.

If we keep in our minds that the purpose of the bail system is to protect the presumption of innocence at the same time as we protect public safety.... I think that's the frame we're in. The trick in the legislation and in procedure is to figure out who to detain in that.

I guess I'm back to a lack of statistics. Can you tell me what we know about the number of people who are being detained before trial and how long they're being detained?

[Matthew Taylor]

Ms. Moore will look something up.

What we don't have is a breakdown of, for example, the percentage of people being detained in custody pretrial versus the percentage of people being detained in custody pre-sentencing. Some of the statistics that we have speak to both those ideas of detention. We can't parse out which of those are a remand, but we do have some limited datasets.

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

Could you give us some indication of magnitudes here? We see reports in the media about the large number of people, and the implication is that they're on remand. I appreciate the distinction you've made: that some are awaiting sentencing. Do we have any magnitude or percentage estimates of how many people? People who are detained before they're convicted do suffer. It has an impact on employment, both on whether they can go to work and on what their employers think about them. It has impacts on families, and it has impacts on things such as drug and alcohol treatment programs.

[Matthew Taylor]

Maybe I can give you one data point, and then we can undertake to provide additional data with regard to your question.

It's a statistic that we were provided by the Toronto police. It's in a report from 2022, and it's specific to firearms offences. According to the Toronto police, in terms of the data they're keeping, the percentage of individuals charged with a firearms offence who were granted bail decreased from 63% in 2019 to 58% in 2021. The percentage of individuals charged with a firearms offence who were rearrested for a criminal offence after being granted bail decreased from 44% in 2019 to 19% in 2021. It's very limited data.