Evidence of meeting #53 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was conditions.
A recording is available from Parliament.
Bail Court Support Worker, Victim Services of Brant
If more people were denied bail, that would result in more people being remanded after being denied bail, but currently, from what I see, people are not being remanded as a result of being denied bail.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you.
Mr. Danardo Jones, it's nice to have you here. Earlier in the study we had Chief Darren Montour here of the Six Nations Police Service. That was the police service that was supervising the bail conditions of the person who is now charged with murdering Greg Pierzchala. Chief Montour made the point that there are deep societal problems that are underlying the whole issue of bail and our judicial system.
This is the way he ended that statement, though. He said, “It is sad to see, but we still have a responsibility”—and he's talking about the justice system—“to ensure public safety of our communities because 99% of the time the offender is indigenous and so is the victim.”
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
My question to you is this. How do we resolve the tension between not wanting to further harm those offenders and ensuring public safety? Maybe you can have a chance at that later.
Liberal
The Chair Liberal Randeep Sarai
I'm sorry, Mr. Van Popta.
We will go to Ms. Diab, for six minutes. Then, hopefully, you can answer that question later.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thanks very much, Mr. Chair, and welcome to our witnesses. We very much appreciate your coming to help us parliamentarians do our job in trying to figure out what the challenges are in the bail system and what recommendations you have.
I'm going to start with Mr. Jones on the same theme that has just been asked, which you didn't have a chance to answer, on the Gladue principles. I would ask you to please comment on the importance of these measures and the consideration of an accused's race and background generally in the bail system. Also, in your research experience, how are these Gladue factors and other elements of the accused's background weighed compared to other factors in bail decisions?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
We know that race is an extremely important consideration in who gets bail, on what conditions, and who's able to meet whatever conditions are set, whether it's by the Crown, a judge or a justice of the peace.
As I mentioned in my interlude, bail is all about risk management, and risk is read on bodies. Certain bodies read as more risky than others. There is a tremendous amount of sociological data to support that. This is not something that's lost on our courts. Our courts—the Supreme Court of Canada, the Court of Appeal—routinely remind lower court judges to take judicial notice of this fact.
Gladue factors play a role, in that they remind bail jurists that for most non-indigenous non-racialized people, particularly compared to Black accused people, the opportunities they would have are not opportunities that are afforded to these folks. Unfortunately, it is these folks who are overcharged, and it's these people who find themselves before our bail courts.
Taking race into consideration does one of two things. It either levels the playing field so our system is more fair, or at the very least it creates a contextual background to allow a Crown or a justice of the peace to make an informed decision about whether or not this person is too risky to be released pretrial.
That is it. It is just about providing the necessary context to allow a justice of the peace or a judge to make a decision around risk.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you for that.
What would you say to provinces and territories? What can they do to complement the federal government's action on bail?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
Well, judicial education is important—having judges understand that just because we're asking judges or justices of the peace to take race into consideration, it's not necessarily an act of leniency or some kind of discount. That's not the case. It's providing the necessary context, the social context, that is required for decision-makers to make fair decisions—decisions that are in line with our constitutional values. It's not possible to make these decisions without taking that context into consideration.
It means that our Crowns need to be educated about some of the implications of race, as do our bail jurists, whether it's a justice of the peace or a judge. It's that necessary context that is missing.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you for that.
Can you describe what Bill C-75 did, in your experience, and the impact it had on the bail system?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
It provided bail jurists, Crowns and defence lawyers with language that was missing from our judicial interim release provisions: for example, the principle of restraint, bringing in considerations for vulnerable populations, including indigenous populations. That was something that was missing from our bail provisions. It provided the necessary language. It provided that vocabulary.
We know the Supreme Court of Canada has said that whenever indigenous liberty is at issue, the Gladue principle will always apply. Unfortunately, there was no jurisprudential guidance around whether or not anti-Blackness or the plights of Black Canadians should form the basis or at least be taken into consideration at the bail stage. Section 493.2 gave that language, that vocabulary.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you very much.
Best of luck to you as a candidate for a Ph.D.
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
Thank you very much.
Liberal
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Thank you to the witnesses for being with us today.
Mr. Jones, the committee is reviewing the provisions relating to bail. Important and credible witnesses have told us that too many people are released too easily. However, we've heard other witnesses argue the opposite: there are too many people in prison and they should be released. A witness in the previous panel told us that nearly 70% of accused were in pre-trial detention. I was a bit shocked, and I don't think that's what we want. At the same time, when I hear what victims have to deal with when their attackers reoffend because they were released too easily, I find that very serious and worrisome.
Where do you think the line should be drawn? On one hand, how do we keep victims out of danger and ensure that repeat offenders out on bail don't commit more crimes? On the other, how do we avoid putting innocent people awaiting trial behind bars? How do we balance the best interests of both sides?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
Going back to my earlier comment about risk management, sometimes the difficulty around calibrating what is the appropriate approach to balancing those two very important considerations, public safety on the one hand and constitutional values on the other.... As I've said, it's not a science; it's an art. It requires Crowns and also bail jurists to exercise common sense and also to be alive to, as I said, the necessary social contexts.
We understand that we don't want people who pose a tremendous risk—the language used in the code is “substantial risk”.... How do we determine whether or not this person poses a substantial risk of reoffending?
The code gives us some guidance. It tells us about antecedents, whether or not this person committed other offences or has convictions. Also, it tells us about the type of offence—the normative dimension of the offence—so whether we're talking about a serious violent offence and so on. These are considerations that a bail jurist will take into consideration in making a decision.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Do you agree with Ms. Vlietstra's suggestion to deny bail for all repeat violent offenders or those accused of firearms offences?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
I categorically disagree with that. That is an affront to our Constitution.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
You talked about the impact of former Bill C‑75 on access to bail. I'd like to hear your views on the impact the elimination of mandatory minimum sentences had or didn't have on access to bail. Did it change anything, for instance, how judges assess the seriousness of the offence?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
Mandatory minimums, if they offend section 12 of the charter, have been struck down by the courts. Really, what courts are saying is that they are well positioned to sentence an accused...or sentence them to a proportional sentence. They have the necessary experience to do that. Mandatory minimums remove that discretion from judges.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I agree with you on that, but my question had more to do with the signal being sent. Allow me to explain.
I, too, am in favour of letting judges determine what the appropriate sentence is, because I think 99.9% of judges usually do an excellent job. I have no problem with that. However, when lawmakers say that they are going to get rid of minimum sentences, it sends a message to society. I wonder about the message being sent, especially if it's taken to mean that a crime that previously carried a minimum sentence isn't that serious.
Do you think that message could influence bail decisions?
Assistant Professor, Faculty of Law, University of Windsor, As an Individual
I wouldn't say that it has an impact on what decisions are made in a bail court, one, because it's different considerations that are being taken, that are being looked at, at the sentencing phase. We're talking about proportionality. We're talking about just deserts. What is a proportionate sentence?
That's what we're taking into consideration: the gravity of the offence, the moral blameworthiness of the offender. We're taking that into consideration.
You raised a point around the communicative dimension of a sentence. What message is it sending to the public? Is it saying that this particular offence or behaviour is not serious if a mandatory minimum is not attached to it?
What I'm suggesting to you is that our courts are well positioned to send a message, whether it's a message of the terms or denunciation, to attach a penalty that articulates society's abhorrence of a particular conduct. Our courts are well positioned to do that. I don't think our courts have been handing down lenient sentences that send a message to prospective criminals that they can commit crimes with impunity. I don't think that's what's happening with the removal of mandatory minimum sentences.
Liberal
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
I want to continue with you, Mr. Jones, and back up a step. I think you made your three points, but you didn't get a chance to summarize what that meant. I'm guessing that you're going to agree that the bail system contributes to the overincarceration of marginalized and racialized Canadians.
I want to give you a chance to talk about how that happens.