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.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I gather, then, that you aren't able to provide any insight into where to draw that line. This is not an easy problem to solve.
I have a few seconds left, Ms. Coyle, so I'm going to ask you the same question. Where should that line be drawn? How do we protect victims while preventing wrongful convictions?
Liberal
The Chair Liberal Randeep Sarai
Unfortunately, Mr. Fortin, your time is up.
Mr. Garrison, you have two and a half minutes.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
I think perhaps we got a bit of distortion today in talking about the time for a bail hearing, when the numbers show that obviously people are in custody sometimes a very long time before the trial process.
I wonder, Dr. Myers, if you have any figures or estimates on the time people are spending between that bail hearing—where they're obviously being denied bail—and the trial process.
Associate Professor, Department of Sociology, Queen’s University, As an Individual
Unfortunately, I don't have the numbers right in front of me, but often we're looking at the time between arrest and the resolution of charges as sitting at somewhere over 100 days. Again, this is on average, so when we think about those who are in pretrial detention, you have a small number of people who are going to be there for a very long time, whose cases may take a year or two years to come to trial.
We also have a lot of people who are going to spend very short periods of time there because we have what I've called a culture of adjournment in bail court, where each and every day the most likely outcome across this country is that your bail hearing is going to be adjourned to another day. We make very few actual bail decisions each and every day. A lot of the people we're seeing in remand are sort of in this churning place. They may eventually be released, but they are going to spend time in custody first. As we've talked about—and Emilie has spoken about it, as well—there are incredible harms that flow from even short periods of time in custody, making it more likely that people will offend, rather than less likely.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
For the last minute, I suppose, I'll go back to Ms. Coyle.
In terms of services available to people who are in remand—just to make it clear again before the committee and on the record—those with addiction and substance abuse problems and with mental health problems really don't have access to services during that time period while they're waiting for trial. Would that be true?
Executive Director, Canadian Association of Elizabeth Fry Societies
Yes, that is correct.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
That becomes problematic for public safety in the long run.
Executive Director, Canadian Association of Elizabeth Fry Societies
Oh, yes, certainly. As people are coming off whatever substance they may be addicted to, it's harmful to their own safety. As I said, many people have been dying in our territorial and provincial jails, and there hasn't been a public outcry about that.
I am concerned about the fact that the families and loved ones of people who have been dying in our jails, many of them on pretrial detention.... That hasn't warranted a study at committee. People aren't raising the alarm about that, and they should be. There have been vigils held. There have been podcasts made. There have been op-eds written. Certainly, the government should be paying attention to that, because it is indicative of a much larger problem.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Garrison, and thank you to all three witnesses.
That concludes our first panel. We'll now suspend while we set up the second panel.
Thank you once again for appearing—many of you for the second or third time.
Liberal
The Chair Liberal Randeep Sarai
We are back to continue our study on Canada's bail system. It's the second hour.
I hope the witness online saw my little notecards.
Your sound has already been tested. Hopefully, for translation purposes, you selected the correct feature, whether it's floor, English or French audio.
I advise the same for the witnesses here. If they want to adjust their headsets, they can pick the channel they want to listen to.
Each of you will have five minutes. Welcome.
We have Dr. Danardo Jones, assistant professor, faculty of law, University of Windsor. We also have Markita Kaulius, president, Families for Justice, via video conference, and Lia Vlietstra, bail court support worker, Victim Services of Brant, who is here in person.
We'll begin with Dr. Danardo Jones for five minutes.
Danardo S. Jones Assistant Professor, Faculty of Law, University of Windsor, As an Individual
I should correct the record. I'm a Ph.D. candidate. I'm not quite a doctor yet, but very soon. It does sound nice, though.
Thank you for the opportunity to be here today and to participate in the study on Canada's bail regime. I have three points I want to make today before taking your questions.
One, bail is a constitutional right. It finds its expression under section 11(e) of the Canadian Charter of Rights and Freedoms, but bail has also been part of the common law system for centuries. This is not a novel idea. It's not something that came into existence in 1982. It's been part of the common law tradition for a very long time. It recognizes that the state has a burden of establishing an accused person's guilt before denying or abridging their right to liberty. The right to bail subsumes other constitutional imperatives—for instance, the presumption of innocence; the right to life, liberty and security of the person; and the right to a fair trial. Taken together, though, all of these constitutional rights form perhaps the strongest procedural safeguards for people accused of criminal offences.
I mention this to set the tone that we have to be careful that protecting public safety, which is important and paramount, doesn't come at the cost of public confidence in the administration of justice, that it doesn't come at the cost of an erosion of constitutional rights.
My second point is that the granting of bail is not a matter of judicial benevolence or leniency. It never has been. I make this point because in our criminal jurisprudence on bail, the presumption in the Criminal Code and also in the case law is release. There's a reason for that. It's because accused people are presumed to be innocent. The Supreme Court of Canada has said over and over again that the granting of bail should not consider matters extraneous to the requirements articulated in the Criminal Code and in the jurisprudence on judicial interim release.
Bail is about risk management. It's not a science; it's an art. There are factors that are considered, that are set out in the Criminal Code, that a bail judge or a justice of the peace must consider in their decision-making, but we're also reminded that the principle of restraint is paramount—the idea that we should not rely, or overrely, on carceral responses at the bail stage.
There's a reason for that. We cannot compensate people for the loss of liberty after they are acquitted or a prosecution falls apart, which often happens. These people cannot be compensated. I have heard a few witnesses talk about some of the collateral consequences of being denied bail, or of being granted bail but on onerous conditions, whether it's the loss of a job or whether it's a disruption in family life and so on.
Moving to my third point, I want to talk about the reasons people do poorly on bail. It's not because they are inherently risky. There's a lack of social infrastructure to allow people to thrive while they are out in a community, waiting for their day in court. Oftentimes, that is the reason people breach. It's a lack of housing, and inadequate access to treatment and to the things necessary to lead a prosocial life.
Thank you.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Jones.
Next we'll go to Markita Kaulius from Families for Justice.
Markita Kaulius President, Families For Justice
Thank you very much for inviting me to be here today.
On December 27, 2022, the killing of an Ontario Provincial Police officer brought renewed scrutiny to Canada's bail system. Before the shooting death of Constable Greg Pierzchala in Ontario, the 25-year-old suspect, Randall McKenzie, was wanted by police for missing an August court date. He was accused of assault, and he faced a number of weapons charges. A judge issued a warrant for Mr. McKenzie's arrest when he failed to show up for a court date.
Mr. McKenzie had a previous lifetime firearms ban after being convicted for a 2017 armed robbery. He spent much of his nearly three-year sentence in maximum security for allegedly stabbing another inmate. While out on bail for charges of assaulting another police officer and illegally possessing a handgun, Randall McKenzie is now facing a charge of first-degree murder in the death of Constable Pierzchala.
There have been six police officers killed across Canada in the line of duty in the last few months. The Canadian public and several police agencies have great concern and are demanding new bail reforms.
On January 13, 2023, premiers across Canada issued a call to action, strongly asking the federal government to take immediate action to strengthen Canada's bail reforms. The call for bail reforms is supported by several police agencies. In addition, you have millions of Canadians who are asking for bail reforms and demanding tougher sentencing laws in Canada. We believe the rights of the accused are being prioritized over the rights of victims and public safety.
The criminal justice system fundamentally needs to keep anyone who poses a dangerous threat to public safety off the streets. This starts with meaningful changes to the Criminal Code, an area solely within the federal government's jurisdiction.
Most Canadians feel that enough is enough. We cannot allow the deaths of police officers or innocent people to go unchallenged. As elected government officials, it is a priority to review the judicial and public safety frameworks, commit to fully understanding the best remedies, identify what isn't working and call for change to ensure that this does not continue. Everything should be on the table, from bail to sentencing to a growing, chronic shortage of police officers.
In B.C. recently, statistics show that 200 people accounted for more than 11,000 police files in just one year. Our police agencies also flagged a significant increase in the number of offenders routinely breaching conditions without consequence while out on bail and failing to appear in court without any consequences.
The urgent call for stronger bail conditions, stricter consequences and sentencing, as well as stronger consideration for maintaining public confidence in the administration of justice in bail and charge assessment policies, is long overdue.
In B.C., since 2017, there's been a 118% increase in the amount of time the province takes to review files it receives from the police, and a 75% increase in the rate of the BC Prosecution Service choosing to not charge suspects on police file cases.
We have a criminal justice system that is not working, and it hasn't been working for years. Most Canadians, when asked to consider our criminal justice system, refer to the system as a joke, based on the lack of appropriate sentences handed down for serious crimes, and these sentences are based on previous court precedents. These include impaired driving cases, stalking, domestic violence and homicide cases.
Bill C-75, a federal bill passed in 2019, was designed in part to modernize and streamline bail procedures. However, it is inadvertently causing more repeat offenders to end up on the streets. We now see easy catch-and-release bail policies that make it easier to get bail, and we seem to have a revolving door at the courthouse.
In Canada, the accused who have been arrested—who have a long rap sheet for previous offences or violent crimes, or who are prolific offenders who continue to commit crimes knowing not much will happen to them in court—are being released again and again, and are being given a minimal sentence, if any at all.
Canadians believe that if convicted, a person should stay behind bars [Technical difficulty—Editor] to the public. Ensuring the safety and security of victims and witnesses should be an essential part of the decision-making process in release procedures.
We would like to see a legislative bill for reform that gives more weight to those whom we deem as chronic offenders, those who have demonstrated a repeat pattern of violent behaviour, behaviours with firearms and the actions caused by involvement due to being impaired by alcohol or drugs. Previous criminal history should play a large part in determining if bail is granted.
On behalf of all victims of crime, I call upon this justice and human rights committee and the federal government of Canada to make the needed changes to strengthen Canada's bail reforms to ensure public safety for all Canadians.
Thank you.
Liberal
Lia Vlietstra Bail Court Support Worker, Victim Services of Brant
Good afternoon.
Thank you for your time and for allowing me this opportunity to present to you on the issue of bail reform. It is an issue that's having a significant impact in Ontario. I'm hopeful that positive changes will be made to better protect victims in communities as a result of this inquiry.
My name is Lia Vlietstra, and I have provided support to victims for the past 10 years in my role as bail court support worker at Victim Services of Brant. My position is funded through the Brant United Way. Our office is located at the Brantford police station and assists clients for the City of Brantford, Brant county and the Six Nations of the Grand River.
As part of my role in bail court, I contact victims whose offenders are appearing in bail court and obtain input from the client regarding their safety concerns and other information they would like provided to the court. I then send their input to the Crown to consider when taking a bail position in proposing conditions to the court prior to the accused's release on bail.
While speaking to the victim, I conduct a risk and needs assessment for urgent resources that the client may need immediately in case the offender is released on bail, for example, a lock change and safety planning. Following the bail hearing, I will notify the victim of the bail conditions and offer further supports.
This role has become challenging in recent years due to the volume of arrests in bail court and how quickly offenders are released. This is particularly apparent when it comes to intimate partner violence. We can face difficulty even being able to have a locksmith attend to change the locks before the accused is released on bail with nothing more than their own word that they will abide by conditions.
Notifying the victim as soon as possible of a release can become critically important. I have had to call 911 while on the phone with a victim of intimate partner violence, because the accused came through her door 10 minutes after being released on bail on conditions of no contact.
This is the unfortunate reality of our bail system. It has become a one-size-fits-all based on the ladder of release since the Supreme Court decision in R v. Antic in 2017. Currently, you can be charged with domestic violence, sexual assault or robbery and be released on the same form of release as someone charged with mischief and theft under....
Changes that I believe need to be made for public safety and public confidence in the bail system are the following.
Violent repeat offenders should be denied bail. Drug traffickers, especially of fentanyl and meth, should be denied bail. If you were charged with using a firearm, you should be denied bail. The use of more cash bail and bail estreat for those convicted of breaching their bail conditions should be estreated for the entire bail amount. Sureties need to be thoroughly vetted regarding their ability to supervise and their financial assets. In the case of intimate partner violence, the surety for the accused should not be a new intimate partner.
Bail conditions need to be put in place to address the risk factors relating to the specifics of each case. For example, if an offender is coming before the court only when they are intoxicated, conditions of supervision and support need to be put in place to address alcohol as a risk factor, especially if the charges involve violence.
Stronger conditions relating to victim safety must be put in place. In Brantford it is common for the court to impose only a 50-metre radius from the victim's residence or employment. This is approximately two residential houses apart, and it can allow for the accused to live on the same block as the victim.
In cases of criminal harassment and stalking, where the accused has no reason to be in the city in which the victim resides, a geographical radius for the entire city should be imposed. There have been cases where this was requested, and the condition was not imposed because it was too onerous on the accused.
Tertiary grounds should also be taken into consideration in cases in which the accused has an extensive criminal record. That goes to the heart of one of the prongs in the assessment on the tertiary grounds, which is public confidence in the administration of justice. Bail supervision programs should not be used as a form of supervision in cases of violence and particularly intimate partner violence. They do wonderful work, but they cannot provide the supervision necessary to alleviate concerns on the secondary grounds.
Regarding supports for offenders, much of the input that I receive from offenders, family members and intimate partners is that they want the offenders to receive the help they need. Whether it's for addictions or mental health, they want them to have a place to live where they can receive their medication and receive their mental health assessments, counselling and treatment. Unfortunately, this does not happen in bail court.
Once a justice of the peace conducts an assessment under section 493 and determines that the accused belongs to a vulnerable population, they must look to alternatives to incarceration. This can usually result in the release on their own recognizance or to the bail supervision program.
More needs to be done for low-level offenders struggling with addictions and mental health issues at the bail stage. By the time they're placed on a probation order, they can have up to 10 sets of charges.
Thank you for your attention. I'm open to any questions.
Liberal
The Chair Liberal Randeep Sarai
Thank you so much.
We'll begin our first round of six minutes with Mr. Van Popta.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you, Chair, and thank you to all the witnesses.
I'll start with you, Ms. Kaulius. It's nice to see a familiar face from British Columbia. Thank you for being here and giving evidence and for the important work you're doing with your organization. I know you work a lot with victims of impaired driving, and I know you've done some very effective work there, so my question is going to be about that and particularly about repeat offenders. Maybe share with the committee your experience around that and how that might tie into bail reform.
President, Families For Justice
Well, we've seen too many times as well that it's not a first offence. Police have told us that for every person they stop who is impaired, 100 more get away, and we continue to see the stats rise. We have had repeat offenders who have had three and four and five impaired driving charges against them, but who have been released on bail until they have finally killed someone. Even then, we've seen sentences of a $1,500 fine or a $2,000 fine.
We just had two cases here in B.C. last week, and the people who were convicted of killing someone received house arrest. That's no deterrent to drinking and driving. I'm sorry, but it's not. Those families were left devastated, knowing that the individuals who killed their family members were back home, continuing on with life. They may not be going outside, but they are not spending any time whatsoever in jail.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
We're talking about bail reform in this study, so I'm going to ask a question specific to that. Do you think it would be fair to make abstinence from alcohol a condition for granting bail to a person charged with impaired driving?
President, Families For Justice
Absolutely, we need to do something. I mean, we're losing about 1,500 people a year to impaired driving, and I don't know what it comes down to. I have been fighting for change now for 12 years, and there's still so much more that needs to be done, because we continue to lose people.
I don't know whether it's going after the car manufacturers to implement something so the car will not start, like an interlock ignition; I don't know whether it will be tougher sentencing laws, or whether it will be that you get one chance to get your licence, and if you drive impaired and you crash and kill someone, then you lose your licence and it's gone forever. It's something that has to be tough. It has to be drastic. People have to know that if they drink and drive and cause a collision that kills someone, there are severe consequences to those actions, and I think it's—
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you.
Ms. Vlietstra, I'm going to go to you. Thank you for the evidence you've given.
You said you would, if I understood you correctly, recommend an outright denial of bail for repeat violent offenders and those involved in drug offences and firearms offences. Did I understand that correctly?
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Earlier evidence we heard today from, I think, Dr. Myers, was that there's a very high percentage of people in incarceration who haven't been convicted yet. These are people who are awaiting bail, so denying more people bail is going to increase that population. What do you say about that?
Bail Court Support Worker, Victim Services of Brant
The people who are in custody who I see are not being denied bail. They're in custody at the defence's request for an adjournment. Some may be in a “bail set not met position”, but most requests are remand at their lawyer's request for different reasons that I wouldn't know.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
You don't see that bail reform to either make things stricter or make things less strict is going to make a difference, because it's really just procedure in court that is slowing bail courts?