Justice Committee on March 8th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Before we begin, I'd like to mention, in the name of all colleagues and personally, that we wish everyone—particularly all our female colleagues and panellists present today—a good International Women's Day. As you can see, our agenda reflects that important day today.

Welcome to meeting number 53 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and the motion adopted on January 30, 2023, the committee is beginning its study on Canada's bail system.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I would like to make a few comments for the benefits of the witnesses and the members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking. With regard to interpretation for those on Zoom, you have the choice, at the bottom of your screen, of either English, French or floor audio. Those in the room can use the earpiece and select the desired channel.

I will remind you that all comments should be addressed through the chair. Members in the room, if you wish to speak, please raise your hand. Members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

The Speaker's ruling in the House on March 7 regarding virtual meetings.... Briefly, I'd like to remind all of us of Speaker Rota's ruling regarding virtual meetings as per Tuesday. Interpreters “will not be able to provide simultaneous interpretation if members, and also witnesses in the case of committees, participating remotely are not wearing the appropriate headsets.”

Thank you. Now we'll resume our study on Canada's bail system.

Appearing today, we have, as an individual, Dr. Nicole Myers, an associate professor from Queen's University, my alma mater. Also, from the Canadian Association of Elizabeth Fry Societies, we have Emilie Coyle, executive director, via video conference; and from London Abused Women's Centre, we have Jennifer Dunn, executive director.

We welcome you and are glad to have you here. You have the floor for five minutes, and as usual your opening remarks will be followed by questions from the members of the committee. I have cue cards, so when you have about 30 seconds remaining, I'll raise the yellow card, and when you're done, the red card. I'll just ask you to wrap up at that time so that I don't have to interrupt you.

The same goes for members.

Welcome, Ms. Vecchio, to the committee.

I'm a little old school. I use cue cards.

We'll begin with Dr. Nicole Myers for five minutes.

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

Mr. Chair, I'd like to make sure that the sound checks were done.

[The Chair, Liberal, Randeep Sarai]

Sound tests have been done, and we are good to go, Mr. Fortin.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Dr. Nicole Myers, Associate Professor, Department of Sociology, Queen’s University, As an Individual]

Thank you, Mr. Chair and members of the committee, for the invitation to speak with you today.

My name is Dr. Nicole Myers. I'm an associate professor at Queen's University. I've been studying issues around bail and pretrial detention for almost 20 years.

Following a tragic event, it is understandable that people, especially the police, are upset and concerned about what's happened and would like to find a way to make sure it does not happen again in the future. I agree that our bail system merits review and attention.

While a tragic incident may be what motivates a critical review of the law and the operation of the system, systematic empirical data needs to be what informs our conclusions about the system and the directions for change. When we think about bail, we must be mindful of the foundational principles of the criminal justice system and the rights enshrined in the Charter of Rights and Freedoms, including the presumption of innocence and the right to reasonable bail.

The Supreme Court of Canada has emphasized that restraint must be exercised in the bail decision, with the starting position being that accused are to be unconditionally released. To hold people accountable for their actions and to sanction and punish behaviour, we must first convict people of the offence for which they've been charged.

What do we know? We know that Canadian crime rates, including violent crime rates, continue to be at historic lows. However, the bail decision in Canada has become generally more restrictive and more risk-averse over time. For example, in Canada the number of people in pretrial detention has exceeded the number of people convicted and sentenced to provincial custody since 2005-06. In 2021-22, 70.5% of the provincial jail population across Canada was in pretrial detention. The rate at which we use pretrial detention has more than doubled in the last 40 years, and the number of people in pretrial has quadrupled in this time.

Given the rate, number and proportions of people in remand, it is clear that Canada is not lenient when it comes to pretrial detention. Many people are serving time before they have been found guilty.

One of the biggest difficulties we face is that there is no accurate, reliable way to predict who is going to go on to commit crimes in general or serious violent offences in particular. Our criminal justice system cannot and should not be expected to identify, address and eliminate all future risks. Any attempts to predict risk are both unreliable and discriminatory, especially against indigenous people, Black people and other racialized communities.

The law already provides mechanisms to keep people in pretrial custody where appropriate, including for reasons of public safety.

Keeping people in pretrial detention removes them from the community and may provide some short-term public safety. This protection, however, is temporary and is undermined by longer-term negative public safety outcomes.

Custody is not only incredibly expensive; it is also criminogenic. Even short periods of time in custody make it more, not less, likely that someone will commit further offences in the future.

The specific proposal to create more reverse-onus provisions is not an effective way to achieve the objective of enhancing public safety. Reverse-onus provisions are problematic and unnecessary, as they fail to acknowledge the inequality of power and resources between an accused and the state. When a person's liberty is at stake, the state ought to bear the onus of demonstrating that detention is justified, rather than an accused person bearing the onus of demonstrating why they ought to be released.

If the risk of an accused is significant, the Crown will make these submissions to the court, and an accused can be detained; if they are released they will be subject to conditions and monitoring in the community. It is a slippery slope to pursue, making the system more restrictive when our provincial jails are already full of legally innocent people. Tightening the bail system and increasing our reliance on pretrial detention will have discriminatory outcomes on the most marginalized, the most over-policed and the most disproportionately incarcerated in society, compounding disadvantage, having the opposite of our intended effect of making the communities less rather than more safe.

The best way forward is through a thorough and principled review of the law that brings together justice system actors and community stakeholders to consider the purposes of bail and how to best balance rights with public safety. We might consider that rather than making amendments to section 515 of the Criminal Code, we step back and reconceptualize and fully replace the law on bail, with recent Supreme Court of Canada decisions in mind, explicitly outlining principles, objectives and directions for how decision-makers are to exercise their discretion.

We should set up and encourage the police to use their powers of release, including judicial referral hearings that were created by Bill C-75. Having fewer minor matters starting in bail court will give the courts more time and resources to focus on those that are more risky or more serious.

We should improve efficiency and case processing, including access to justice. More funding for legal aid will help reduce the number of people who are held in custody as well as the amount of time that people are detained or subject to conditions in the community. We might think about developing specific, principled hurdles to detention.

The crisis in our bail system is not one of an overly lenient or lax system. What happened is undoubtedly tragic. Allegations of violence, especially repeat violence, are concerning. There are opportunities for reflection and change. The question, however, is one of priority. Are we more interested in short-term or long-term public safety? I encourage everyone to uphold the principled purposes and limits of the criminal law by prioritizing the latter.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Myers.

Next we'll go to Emilie Coyle from the Canadian Association of Elizabeth Fry Societies.

[Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you so much. I will be reading from my notes on my computer, although I will be looking periodically to see if you're holding up a yellow card.

Hello, everyone. It's lovely to be with you this afternoon. As many of you know, the work of the Canadian Association of Elizabeth Fry Societies, or CAEFS, has been playing a key role in shaping services and policy direction for Canada's population of federally sentenced women and gender-diverse people, as well as those at risk of incarceration, since 1978. We do this all while envisioning a world with strong and well-resourced communities, where everyone has what they need.

I come to you today from the traditional land of the Lenape people, on what is now known as Manhattan.

CAEFS also works to address the persistent ways in which the women and gender-diverse people who are impacted by criminalization are routinely denied their humanity and are excluded from considerations of community. The efficacy of our bail system is a critical conversation to have, as many of the criminalized women and gender-diverse people we work with and alongside are denied humanity and excluded from community through lack of access to bail.

A clear demonstration of this was a discussion that was related to me recently about the locating of bail court at the Finch Street courthouse in Toronto. This decision was applauded by some, as it meant that it was closer to the Vanier jail, the provincial jail for women, and a shorter distance to transport the people who were denied bail. I believe this message is quite clear.

Today, I'm so happy to be joined by Dr. Nicole Myers. Those of you who have paid attention to our website recently will know that CAEFS, along with the Canadian Civil Liberties Association and Dr. Nicole Myers, sent a letter to the Prime Minister and the Minister of Justice on this very topic at the end of January. I will discuss some of what we wrote in that letter, as well as some additional reflections on this topic.

We addressed our concerns with the letter sent by the premiers of the provinces on bail reform. In our letter, we highlighted the contradictions in what we believe is the direction the premiers have proposed be taken for bail reform. In particular, we're deeply concerned with what appears to be a complete lack of attention paid to an extensive body of research documenting the current operation of judicial interim release in Canada.

As Dr. Nicole Myers has already pointed out, there are more people today in pretrial detention than there are people serving custodial sentences in our provincial and territorial jails. We emphasize the foundational premise of our judicial system, which is the presumption of innocence. Hand in hand with that premise is the right to reasonable bail. The dismal reality is that too many people are serving time in detention before they've been found guilty.

I cannot underscore enough the importance of this presumption of innocence. We know this because in our work, we see overwhelmingly the power of the state in the lives of the people we work with. These are people who have very little power. They're being swept along by the tide of the criminal justice system, without a means to steer their own ship.

As such, we caution that criminal law reform needs to be undertaken very carefully, as any changes could potentially have unintended consequences, particularly for those who are already marginalized. When a change in reverse onus is suggested, as was proposed by the premiers in their letter, it fails to recognize this tremendous power imbalance between the state and accused persons. Decisions like this must never be made lightly or reactively.

Finally, our letter summarizes some of the more salient points of the evidence pertaining to the operation of bail in Canada. I won't go into it, but I'd be happy to answer any questions. Actually, I'm sure Dr. Nicole Myers would do a better job on it than I would.

Beyond the issues raised in our letter, I would be remiss if I did not speak about those who lost their lives in jail while awaiting trial. In Ontario alone, over 280 people have died in custody since 2010. The link between deaths in custody and bail reform is undeniable. If, in Ontario, over three-quarters of the people in our jails are on remand, then there is a direct link between the number of people in our jails who are on remand and their deaths.

As highlighted in a recent report on deaths in custody in Ontario, released in December 2022, being on remand increases a person's risk of death for a variety of reasons, including heightened risk of suicide, which is four times that of the sentenced population, and of drug overdose. The report further expands upon these reasons and points to “the challenges of adjustment, uncertainty, drug or alcohol withdrawal, disrupted personal relationships, isolation, restrictive conditions, and first time incarceration.”

I'll end there, but I welcome all your questions. I hope to get to the rest of my comments then.

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Coyle.

I hope members give you the opportunity to flesh out the rest of your comments.

Next we will go to Jennifer Dunn from the London Abused Women's Centre.

[Jennifer Dunn, Executive Director, London Abused Women's Centre]

Thank you, Chair, and thank you to committee for inviting me here today. It is very nice to see all of you again.

My name is Jennifer Dunn. I am the executive director of the London Abused Women's Centre, or LAWC, here in London, Ontario. LAWC is a feminist organization that supports and advocates for personal, social and systemic change directed at ending male violence against women and girls.

LAWC is a non-residential agency that provides women and girls over the age of 12 who have been abused, assaulted, exploited or trafficked, or who have experienced non-state torture, with immediate access to long-term, trauma-informed, woman-centred counselling, advocacy and support.

We know that under the law in Canada, a person accused of a crime is presumed innocent until they are proven guilty. Granting bail means they can remain out of jail while they move through the justice system. We also know that the court process can take many, many months.

I read that the cost of keeping an accused person in custody is a lot more expensive than the cost of supervising them in the community while they wait for their turn in court, but I ask this: It is a lot more expensive to whom? What is the cost to a woman who has to serve a life sentence for being brutally assaulted at the hands of a man while he is out on bail?

At the London Abused Women's Centre, we have a group of women with lived experience who are paid for their time to help advise us on our work. A couple of weeks ago, I had the privilege of sitting with this group of women for about an hour. I said to them, “Let's talk about Canada's bail system.” I took the time to listen to every story they wanted to share. With their permission, I bring some of this to you today.

I quote: “They gave him every accommodation. They wanted to give him consideration of not interfering with his work. He is a well-established businessman.”

I spoke with a woman victim whose perpetrator is on bail. He is allowed to go to work. She also works there, I might add. He is supposed to be supervised at work. He is supposed to stay a certain distance from her, but this simply does not happen. Because this particular man is in a very high position of power, the business seemingly looks the opposite way. Firmer bail conditions in this situation could help this woman to work without fear. She isn't the one at fault. She shouldn't have to find another job to stay safe.

I will quote again: “The onus is on you to keep yourself safe, instead of the onus being on the abuser to follow his conditions.” I heard from another woman, whom I quote: “As a victim, I feel I have to prove that I'm the victim more than he has been accused of his actions.”

One woman said, “My abuser was arrested in my driveway for domestic assault. Less than 12 hours later, he was out on bail. At that time, the abuse had gone on for many, many years, but I had never reported the abuse previously. He breached his conditions every single day and had no true consequences.”

On Monday, Justice Minister David Lametti said, “Canadians deserve to be...and...deserve to feel safe.” I read that the minister said it's “important to note that bail laws are clear that detention of an accused person is justified if it is necessary to protect the safety of the public”, but on the ground, from the London Abused Women's Centre, this doesn't particularly make sense to us.

We have seen instances in which police have issued public safety warnings, yet a repeat offender continues to receive bail. I'm referring to an ex-police officer who spent more than two-thirds of his career suspended with pay for criminal charges and professional misconduct. He was charged with sexual assault, sexual assault with choking, sexual assault causing bodily harm and forcible confinement, and the list goes on. It was in December that the police first issued a public safety warning with his picture and some of the names he has been using online. He now faces charges involving four different women and has pled guilty to breaching his bail conditions. Just last week, on February 27, he received bail again.

We see time and time again privilege in the system, where perpetrators who have money for the best lawyers are receiving all the benefits. Even the surety system is made for people with money. The ease with which a perpetrator can receive bail is often seen as excusing the offender's actions, can show a failure to hold offenders accountable and can be seen as minimizing violent crimes.

The women I spoke to are fearful. They are fearful not only of their perpetrators, but of the system that is supposed to be protecting them. I quote: “He scores goals, he's well established, he's well known. Bail shouldn't be based on privilege, but sometimes it is.”

In closing, the London Abused Women's Centre and the women we serve would like to recommend that this committee be sure to use a lens that focuses on those who are most vulnerable. Think of violence against women while studying Canada's bail system. The government must prioritize the rights of victims.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dunn, and thank you again for coming to the committee.

We'll go next to our first round.

We welcome Ms. Vecchio for five minutes.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you so much for having me on this committee today.

It's very important that we make sure that we protect people when we're talking about bail reform, the criminal justice system and victims of violence, sexual exploitation and those types of things that are interfering in women's lives and affecting how we move forward.

Jennifer, I've had the opportunity to work with you several times on different things like sex trafficking and exploitation. We've talked about these types of things.

You've talked about some of your clients and the fact that they are scared. When we're talking about bail reform, we already know it's very difficult for women to go forward and make.... We already know it's difficult to go to the police, but when there is bail reform and these people are allowed back out, it is also a very.... They feel lost. They feel like no one's listening.

What other stories are you hearing, Jennifer, from some of these women who are talking about the fact that their spouses or their perpetrators had been released on bail? Can you give me an example of how many times they've been out on bail? Is it one, two or three times? What types of data do you have on that?

[Jennifer Dunn]

It's nice to see you, Mrs. Vecchio.

We have many stories every single day that we could go through that are exact examples of this.

A good example would be the one I gave while I was speaking. It's about the ex-police officer who has been in the news as of late here in the city. He has four charges from four different women against him now. He has repeatedly been released on bail, even after pleading guilty to breaching. It's problematic, because we have women who access our service every single day who are constantly looking over their shoulders and constantly feeling unsafe and unaware of what's going to happen next, and that's where the problem lies.

You mentioned that women sometimes don't report. Sometimes that's very tricky for women, because when they see in the media or other situations that this is happening—maybe to people they know—that an individual is being released after doing something absolutely horrible or it seems as if justice was not served, it makes it that much more difficult for a woman to feel like she will be trusted when she decides to share her story.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thanks.

Jennifer, I just want to ask, because you're speaking about this. In Bill C-75, we're talking about reverse onus. You've talked about this police officer showing that they're good, and they have to have this reverse onus proving that they're not going to do it again. Are we hearing the exact opposite, though, from what you're talking about with this police officer and other people within our own community?

[Jennifer Dunn]

With what we're seeing on the ground here from the London Abused Women's Centre and this ex-police officer, for example, I don't think there's any option for him to prove that he's going to do better. Because he is who he is, he's able to get away with what has happened in this particular situation.

In most of the stories we hear, and I've referenced them in my speaking notes, it's often that these men are in positions of power—I gave the example of the businessman—or in positions in which they feel like they can get away with whatever they want.

What we know from the work we do is that the best predictor of future behaviour is past behaviour. Most of the time, it's as if our justice system is working on reaction instead of prevention, so—

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

I'm sorry, Jennifer. I just don't have very much time, but I have lots of questions.

I want to go to Dr. Nicole Myers. When we're talking about the reverse onus of C-75, do you support the reverse onus when it comes to those who have been sexually exploited and trafficked and suffered domestic violence? What are your thoughts on that, if you don't mind sharing?

[Dr. Nicole Myers]

The difficulty with reverse-onus provisions is that we're speaking of them and trying to apply them to specific circumstances. The Crown absolutely has the ability to make arguments for the detention of someone, whether they are the one who bears the onus or the accused person bears the onus.

Some of the difficulty that then comes in is that, when we think in a principled fashion about the difference in power between the state and an accused, if we're talking about denying somebody's liberty, perhaps it should be up to the state to make those kinds of arguments.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

I really appreciate that. I think part of the problem I have—Emilie, if you want to come in on this one too—is that we know with abuse cases it's not just one, two and three times, but it continues. We know, unfortunately, that the justice system is not always working. There's Bill C-233 regarding judges' training, and hopefully that's going through, but we know sometimes these aren't taken into consideration.

You mentioned the 70.5% who are in pretrial detention. Do you know what the data is on that in terms of how many of these are abusers of women and children?

[Dr. Nicole Myers]

This kind of data is not made widely available, unfortunately, for academic research.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Would it be possible for us to get data on that? Do you know if it's available?

[Dr. Nicole Myers]

I don't know. If you can, I think that would be fantastic. That's one of the biggest challenges we have—access to high-quality systemic data to do those kinds of analyses.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much. When I look at this, the last thing we want is more women to be abused and constantly re-abused by an abuser who has not gone through the justice system properly.

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Vecchio.

Next we go to Ms. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I thank all our witnesses for being with us here today. I will ask my questions in French. The first one will be directed to Ms. Coyle.

It's good to see you again.

First, can you talk about how remand affects the personal lives of women?

Second, can you describe the effects of remand on women with mental illnesses or substance abuse issues?

[Emilie Coyle]

It is important to remember that among the people who are held in pretrial detention are people who have been harmed themselves, hundreds and sometimes thousands of times over in their lives. The harm that comes from being detained—these are the people we work with—is something we don't often think about. Being in detention and the impact that has on very marginalized and vulnerable people's lives is something that isn't widely discussed.

Being in jail for even two weeks can impact a person's life in unimaginable ways. People who have been in pretrial detention for what some might consider very short periods of time can lose their employment; they lose their housing. In the case of many parents we work with, they lose custody of their children.

As many of you know, in the federal system, half of the population we work with in the prisons designated for women are indigenous women. That number is higher in the provincial and territorial jails, particularly in the Prairies.

All of you are very aware of the efforts we're making to address colonization in this country. Bail reform that places more people in pretrial detention actually has an adverse effect on our efforts to address colonization, because we have an epidemic of indigenous children being taken away from their parents. This is part of it, because our bail system is part of a larger cycle of poverty, discrimination and incarceration. We think that could largely be avoided with appropriate community supports and social services. As one of the other panel members suggested, prevention is key.

The other thing to remember, if I may...or did you want to ask another question? I understand you have limited time.