Justice Committee on March 6th, 2023

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

Thank you, Minister.

As an Atlantic Canadian, I'm curious to know whether you've heard from the Atlantic provinces.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I have spoken to my counterpart in Newfoundland and Labrador. I look forward to hearing from the rest on Friday.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Diab.

Next we'll go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

Thank you, Minister, for being here today. I heard you say that the administration of justice is the responsibility of the provinces and Quebec, and on that, I completely agree with you. Obviously, that includes the building of courthouses, the hiring of judges and staff, and the managing of roles.

Nevertheless, the law work to address the challenges of the bail system must go hand in hand with the utmost respect for existing rules and legislation, namely, the Criminal Code. Do you agree with me there?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Yes, absolutely. The federal government has that responsibility, but obviously it's not a responsibility that we carry out alone. As I mentioned, former Bill C‑75 was the product of co‑operation with the provinces and territories, and so was the bill we passed to amend the Criminal Code in relation to the rules of criminal procedure.

We are going to continue on that path. It's also important to consider the resources that the provinces have to do the work. Clearly, we are open—

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

My apologies for interrupting, Minister. I realize it's not polite, but you know how this works. We have a very limited amount of time.

I gather, then, that you agree with me: the provinces, including Quebec, and the territories must administer the justice system with the utmost respect for the Criminal Code and its provisions.

You said that former Bill C‑75 was the product of co‑operation with the provinces and territories. That's well and good, but it's still a federal responsibility. Your government introduced Bill C‑75 and carries the weight of the Criminal Code in its entirety. I assume the code reflects what your government believes to be the best rules for administering criminal justice.

Am I wrong?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

No, not at all. You're right, and as I said, we do not carry out that responsibility alone.

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

I understand, Minister, but we are here to discuss the bail conditions laid out in the Criminal Code.

Forgive me, but with all due respect, when you say that it's a shared responsibility, I wonder whether you aren't trying to avoid the question. The provinces and territories are the ones who administer the law. There are all the people whose job it is to do just that. Fine, but they merely apply the rules that you lay down, Minister.

That's why I think it's important to look at what those rules are. Today, we are discussing potential reforms to the bail system. Over the last little while, we have seen your government relax those rules, as illustrated by former Bill C‑75, which became An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. The legislation introduced the principle of the least possible interference with freedom, whereby the judge must release the accused at the earliest opportunity, subject to certain conditions. All right.

Then, you did away with minimum sentences for a number of offences, including discharging a firearm with intent. With the minimum sentence being eliminated, accused came to the conclusion that lawmakers saw this crime as less serious.

The same goes for sexual assault, a crime for which conditional sentences are now permitted.

In my humble opinion—and correct me if I'm wrong—what all of that does is create a freer and less restrictive environment for individuals charged with criminal assault. Once you take all that into account, don't you think you should do the opposite? I mean restricting access to bail a bit more and expanding access only reluctantly. Don't you think you should bring back certain minimum sentences and conditional sentences to keep things from going off the rails as they have in recent months?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you for your question.

I'm quite glad to have the opportunity to correct you.

Minimum sentences didn't work, actually. They were a total failure on the part of the Conservative government. Conditional sentences exist to address the overrepresentation of Black and indigenous people in the justice system. Serious crimes always deserve serious consequences, but in our system, we give judges some discretion in applying the law.

The principle whereby a person is presumed innocent until they are convicted does not come from An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. That principle goes to the heart of the right to be presumed innocent for the purposes of bail, as per the Supreme Court. The purpose of the act was to provide a framework for common law and charter principles, as interpreted by the Supreme Court of Canada. It did not change the foundation of the bail regime or even the majority of bail rules.

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

Thank you, Minister.

[The Chair, Liberal, Randeep Sarai]

Thank you, Minister Lametti and Monsieur Fortin.

Mr. Garrison, you have six minutes.

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

Thank you very much, Mr. Chair.

Thank you to the minister for being here.

I've said before that I think we have three different levels of concern that we're talking about with the bail system. Obviously, we're talking about legitimate public concern about violent offenders who reoffend while on bail. We're also talking about a lot of low-level repeat offences, or what I call public order offences, that legitimately threaten some people's safety. The third one, which I don't think we talk about, is the overrepresentation of marginalized people, including indigenous people, in detention before trial. In six minutes, I can't ask you about all three. I think we'll get lots of other witnesses who can talk about how the lack of mental health programs and addiction programs causes a lot of the low-level public order offences, so I want to ask you about the other two.

In terms of your openness to creating more reverse-onus offences, one that strikes me that currently does not have reverse onus is the unlawful possession of a firearm, along with ammunition, that is restricted and prohibited. In common language, having a loaded prohibited or restricted gun in public is not a reverse-onus offence. Would the government be prepared to add that to the list of reverse onuses for bail?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you for the question.

Certainly we'd be willing to consider that. We're going to meet with our provincial counterparts in good faith and see where we might make changes. Remember that we're working in the context of the charter. If everything has a reverse onus, it's quite likely that at some point we will pass a tipping point where the courts will not find favour because they will say the person's right to bail has been breached, but we're certainly willing to look at that in good faith.

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

The courts have upheld reverse onus in all the cases that have been tested so far, I believe.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

That's right, but as I said, at some point we may reach a tipping point.

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

Okay.

At the other end of things, we do see the overrepresentation in detention of marginalized people, and I think sometimes people forget, first of all, that people are innocent and haven't been convicted of anything. Second, when they're in detention before trial, there are no programming options available to people generally. There's no counselling, no addiction programs. There's nothing while they're awaiting trial, and because of the ways in our system, that can take literally months and months.

I know this is not a solely federal responsibility, but I think we have a problem here of a lack of community-based bail supervision programs that would allow people to be out who shouldn't necessarily be in, to keep their employment, keep their housing and keep their custody of their children if they could have proper bail supervision. How does the federal government feel about that lack in many, especially rural and remote, communities?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Again, we're certainly willing to work with provincial and territorial governments to look at those kinds of options moving forward.

When I talk about the system, we need to be looking at all parts of the system. Most people incarcerated are actually awaiting trial. Those people are all legally innocent at that point. A number of them are not factually innocent, necessarily—we know that—but a large number are and a large number are legally innocent. We do have a responsibility to work to create that kind of programming.

Again, you're not supposed to get bail if you represent a flight risk, if you represent a threat to society, or there's some other reason that would bring the administration of justice into disrepute. Most people do not fall into that category. Therefore, we need to work together with the provinces and territories to ensure that we have a system that works, not just in terms of the bail parts themselves but also for the people who are awaiting trial who are within their communities, trying to keep them integrated in their communities in a way that's safe for everyone and productive moving forward.

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

One of the things that Bill C-75 did was try to establish a better link between conditions for bail and the actual offences.

One of the things we see quite often is that bail conditions lead to an offence because of that breach that brings people into the system ever more tightly each time this happens. Quite often still, abstinence from drugs or alcohol is listed as a condition for bail, and we know that people with addictions can't possibly meet that condition. How do you think we might be able to address that problem in that Bill C-75 started down that road?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I think we need to continue trying to implement Bill C-75. Part of Bill C-75 was precisely to make sure that bail conditions were linked to the goals that we had in the system of keeping Canadians safe and preventing recidivism. We need to continue in that light.

We also tried to make sure that the so-called administration of justice offences didn't become a reason for someone to enter into the revolving door of the bail system and the carceral system in a way that in no way protected the safety of people. It did have an impact on indigenous and other racialized Canadians in that regard.

It's going through with the reforms in Bill C-75 as the first step and then re-evaluating and seeing where we are.

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

Great. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll go to the next round for five minutes with Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair.

Thank you, Minister, for being here. It's always a pleasure to have you here.

Do I have it right that your testimony before committee today is that you believe that Bill C-75 made it harder for people to get bail? Do I have that correct?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

It framed a number of Supreme Court decisions that already existed, and it made it harder for people to get bail in cases of intimate partner violence.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Okay. Are you saying then that fewer people should have been getting bail based on Bill C-75? Is that your position?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

No, in terms of serious offences, Bill C-75 didn't change anything. It made it harder for people in cases of intimate partner violence.

What Bill C-75 tried to do was.... In the case of administration of justice offences, like missing a bail hearing, those kinds of minor offences were meant to not be a larger point of entry into the criminal justice system.