Justice Committee on March 8th, 2023

[Danardo S. Jones]

Indeed. We know from the social science data that police officers engage in racial profiling. At this point in time, that's not a very controversial statement to make. What that results in is an over-prosecution of racialized people, of indigenous and black people.

When these people are in bail court, as I said earlier, because of how we read risk and how risk is kind of inscribed on bodies, these people, whether it is the Crown's onus or it's a reverse onus, are seen as less likely to adhere to whatever bail condition they have received than someone not in their position. We have certain narratives around who is more trustworthy. That is the threshold for evidence in a bail hearing—credible and trustworthy evidence. Some people, because of certain racial narratives, as I said, are deemed to be more credible and more trustworthy. We're talking about not just the accused person but also any sureties they may rely on.

There's a profound issue with how risk is understood and how we read risk on particular bodies. This is where that race sensitivity or awareness or consciousness comes into play. Is that something you can legislate? Not necessarily. As I said, I think Bill C-75 gave us some language, but it is incumbent on Crowns and defence lawyers and JPs and judges to start taking notice of some of these racial realities on the ground and incorporating them into their decision-making.

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

I think earlier you talked about what leads to breaches of conditions, so I guess I would ask you a similar question. It seems from the literature that people who are racialized, otherwise marginalized or indigenous get more conditions, and then they're more likely to be unable to meet those conditions if they're on bail.

I presume you're going to tell us the same thing, that there's a reason for that.

[Danardo S. Jones]

Indeed. We've seen that the bail system, unfortunately, has been almost co-opted to be used as some kind of proxy for punishment. That's a perversion of the bail system. It's also an affront to our Constitution. It's an affront to section 11(e), definitely.

It is this attempt, I think, to turn bail hearings into proto-trials, or trials before trials, that is worrying, because there are different issues being decided at a bail hearing. As I said, it's about risk management. It's not about proving guilt or innocence. It's also not about punishing people for wrongdoing. That will happen later on. We cannot co-opt or circumvent the process to try to punish people earlier because we believe, or it's already a foregone conclusion, that this person is guilty. We don't know that. It's why we have an adversarial system. One day the person will have their fair trial and that determination will be made.

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

I have one minute left. Perhaps I can go back to your original presentation, in which you talked about the inability to compensate for a loss of liberty. Can you say a bit more about the consequences—for those who have not been convicted and maybe will not be convicted—of being held in detention or subject to those conditions?

[Danardo S. Jones]

Indeed. What we're talking about is not only a loss of liberty but also a loss of dignity, and we're talking about populations who have already historically been stripped of dignity. They have no more dignity to be taken away, and this is what happens when people are presumed guilty from the very beginning. They are stamped as guilty from the beginning. It's an affront to dignity, and obviously it takes away liberty as well.

It's doing that damage up front, and we cannot compensate for that later on. I'm sure folks have talked about this before, around the likelihood of someone pleading guilty if they're denied bail and so on and so forth.

I see that my time is up.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

In the interest of time, our next round will be limited to three minutes each, and that will be our final round.

We go to Mr. Brock for three minutes.

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

Thank you, Chair.

My first question is for Professor Jones.

I understand that you are in the academic field. You're at the University of Windsor's faculty of law. Have you ever practised law, sir?

[Danardo S. Jones]

I have, yes.

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

In what area did you practise?

[Danardo S. Jones]

I worked in criminal law.

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

Was it criminal defence?

[Danardo S. Jones]

It was criminal defence. I worked with legal aid organizations across Canada, in Newfoundland and Labrador, Nova Scotia and Ontario.

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

From what year to what year did you do that?

[Danardo S. Jones]

I got called to the bar in 2013, and I practised up until 2020.

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

The reason I ask is that I've taken some notes of some pretty inflammatory language that you're using, which, in my view as a former Crown attorney, does not reflect reality. I'd really like to know where you're getting your data from on issues such as the Crown in the system presuming individuals guilty as they enter the bail stage, that Crowns need to be educated with respect to the realities of marginalized individuals, whether they're Black or indigenous, that the bail system is a proxy for punishment, and that judges need to be aware of the racial realities on the ground.

Where are you getting this data from?

[Danardo S. Jones]

The Supreme Court of Canada has said it over and over and over again, and also there's the—

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

That's right, and we have Antic; we have Zora, and we have, from the Court of Appeal of Ontario, Morris, which was an anti-Black strategy.

Are you aware of that?

[Danardo S. Jones]

I've written on it.

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

Yes, and Crown attorneys from coast to coast to coast receive extensive training, yearly training, if not Crown school, ongoing legal education, so I find it rather offensive that you're just using this broad stroke to categorize the Crown system and the judicial system when it comes to marginalized individuals, Black and indigenous, not receiving a fair shake in our bail system.

[Danardo S. Jones]

This is not my language. The courts have said it, and the courts have mentioned it from 1993 in the case called R v. Parks. This is not my language, that the system is profoundly anti-Black. That's Justice Doherty's language.

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

Thank you, sir.

Ms. Vlietstra, compared with the small period of time that Professor Jones has practised law, you've been in the trenches day in and day out in bail court over a number of years. You've heard the panel of witnesses today. You've heard references to witnesses who testified previously.

What sort of reaction do you have to what you've heard today? What are the realities? What are the day-to-day realities that you see in the criminal courts?

[Lia Vlietstra]

The day-to-day realities that I see and deal with on behalf of victims are that most offenders are released quickly and repeatedly, and it's for domestic violence and a wide range of violent offences. They're released starting right from when they're arrested by the police and released on undertakings, and they can have a criminal record for it, previous offences, and then they're held for bail court and oftentimes released on consent by the Crown on their own recognizance or undertaking, with conditions of no contact, not within 50 metres of a victim, and no weapons. That's where it starts. Then they're charged with, usually, a breach, or they can be charged with a breach and further offences and held and released, slowly climbing that ladder of release. They're not charged only once; it's repeatedly.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Brock.

We'll go to Mr. Zuberi for three minutes.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Hello, Mr. Jones, or as they say in Quebec, maître Jones.

I'd like to open the floor to you so that you can give your concluding remarks.

I'd also be interested in your personal experience as a person of colour in the legal world. What are some of the...?

Do you want to share any personal anecdotes of how you, personally, have been treated or referred to by others, if you found some different interactions from other colleagues of different backgrounds?

[Danardo S. Jones]

Race talk is always uncomfortable. Whenever you raise issues of race, there are going to be people who think you're singling out particular individuals or particular institutions, but my data is quite sound. The Supreme Court of Canada backs my data—it's not my data. It's data that has been compiled over the last 30 years.

If I had known that I needed to bring that data with me, I would have brought it. I can send it in at a later date and it can be part of the record.