Justice Committee on March 20th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 54 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'd like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you before speaking. If you're on Zoom, please use the “raise hand” function, and the clerk and I will do our best to identify you and put you on the speaking order. For translation, those of you who are here can select floor, English or French. If you're on Zoom, please use the icon at the bottom and choose the same: floor, English or French. All comments are to be addressed to the chair.

I use queue cards. I don't like interrupting when you're down to 30 seconds, so I'll raise the yellow queue card. When you're out of time, it's the red card. I ask that you respect the time constraints.

I want to take a moment to say, on behalf of the justice committee.... I'd like to express my deepest condolences to the families, friends and colleagues of the Edmonton police officers, Constable Jordan and Constable Ryan, who lost their lives while serving in the line of duty. I know it means a lot to everyone. We need to remember them, and I thought I'd do that at the beginning of this meeting.

We are now resuming the study on Canada's bail system.

Appearing today are Tom Stamatakis, president, Canadian Police Association, and Boris Bytensky, treasurer, Criminal Lawyers' Association.

Welcome. I am told that, by the time both of you finish your opening remarks, the Honourable Bronwyn Eyre, Minister of Justice and Attorney General for the Government of Saskatchewan, should be here via Zoom. I believe she is in a committee, right now, and should be out shortly.

We'll begin with you, Mr. Stamatakis, for five minutes, with questions and answers after that. Thank you.

[Tom Stamatakis, President, Canadian Police Association]

Mr. Chair and members of the committee, thank you for inviting me to appear before you today on behalf of the almost 60,000 members of the Canadian Police Association. For those of you who might not be familiar, the CPA is Canada's largest law enforcement advocacy organization, with members serving in each of your ridings and representing local police associations from coast to coast to coast.

I want to extend my appreciation for your work in undertaking this important study, particularly as I appear here today less than a week after the horrible tragedy we recently witnessed in Edmonton with the murder of Constable Brett Ryan and Constable Travis Jordan, both with the Edmonton Police Service.

I will begin my remarks by generally agreeing with the previous testimony before your committee by our Minister of Justice, the Honourable David Lametti, where he expressed his confidence in Canada's justice system. Frontline police personnel play a crucial role in protecting the public and maintaining law and order. Our members have a unique and informed view of the many areas where our justice system works, as well as its occasional failings. From my perspective, it doesn't benefit anyone to pretend that there aren't exceptions within our existing system.

Unfortunately, some of those exceptions result in tragic circumstances, as was the case in September of last year when a dangerous individual murdered two people, including Toronto police constable Andrew Hong. The assailant had a lengthy criminal history and clearly continued to pose a serious threat to public safety despite being repeatedly released. Contrary to the belief of some, this wasn't an isolated incident. In fact, just three months later, Ontario Provincial Police constable Greg Pierzchala was shot and killed in Haldimand County by two attackers who also had lengthy criminal histories.

I don't raise these cases to try to armchair-quarterback past decisions but only to highlight the need for all partners in the justice system to come together to address the very specific problem that repeat violent offenders pose not just for police personnel but for all Canadians. We appreciate that bail reform is a complex issue, and we do not claim to have all the answers. We are, however, committed to working with the government, justice system stakeholders and community organizations to find solutions that are fair, effective and non-partisan. We have some specific suggestions that we would like to offer for your consideration.

Establish a specific definition of prolific or repeat violent offender to give Crown prosecutors, justices of the peace and judges a framework or a set of guidelines to work within when considering bail applications, particularly in situations where reverse onus provisions already exist.

Put stronger emphasis on obligations with sureties, and ensure that there are consequences for those who act as sureties, particularly when there is established evidence that they are aware of breaches of conditions taking place.

Increase resources both within the justice system, to provide for dedicated Crown prosecutors who are specifically trained to argue these particular cases and facilitate quicker access to trials for accused who are held without bail; and for police services across Canada, to target those offenders who are in breach of their conditions.

Increase the use of technology, particularly electronic monitoring of offenders on bail, to help maintain public safety in our communities.

Have better data collection to ensure that any policies that are developed are evidence-based and can be evaluated for effectiveness, and to better understand how frequently bail is breached.

I want to be absolutely clear here today that we're not asking for a tough-on-crime solution. As law enforcement officers, we're not asking for an approach that focuses solely on punitive measures. Instead, we ask for a more balanced approach that prioritizes prevention and rehabilitation as well. We believe bail reform could contribute to this approach by ensuring that those who pose the most significant risk to the public are kept in custody until their trials, while those who do not pose such a risk are granted bail with appropriate conditions where necessary.

The fact will always remain that bail is a fundamental right. The presumption of innocence is a cornerstone of our justice system. However, as law enforcement professionals, we are hopeful that this committee, as well as the government, can work collaboratively to identify potential evidence-based legislative and administrative changes to address the concerns that many of the witnesses who have appeared before your committee have outlined.

There are very few issues in Canada where there is consensus that includes every elected premier and provincial minister of justice and public safety as well as police personnel, police boards and police executives. This is certainly one of them.

I look forward to the outcome of the study. I'm certainly happy to take any questions you might have.

Again, thank you very much for the opportunity to appear before you today.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we'll go to Mr. Bytensky for five minutes.

[Boris Bytensky, Treasurer, Criminal Lawyers' Association]

Thank you, Chair.

Thank you to the members of the committee for inviting the Criminal Lawyers’ Association and for having me address you on their behalf.

Our organization represents nearly 2,000 criminal lawyers in Ontario and, indeed, throughout Canada. Many of our members are on the front lines of bail courts every single day.

In addition to the work we do in bail court, criminal defence lawyers are typical, regular members of the communities in which we live. We join all of our neighbours in acknowledging the policemen and women who put their lives at risk to help this country thrive and to keep it safe. Tragedies like the deaths of Officer Grzegorz Pierzchala in December and, more recently, Constable Travis Jordan and Constable Brett Ryan in Edmonton remind all of us, including all criminal defence lawyers, of the enormous commitment all police officers make every day.

May one legacy of all of the police officers who are taken too soon from us be that they led our government officials, this committee included, to re-examine and produce a more just and fair system of bail, and not merely one that incarcerates more people who are presumptively innocent.

I've had the privilege over the last 20 years or so of litigating a number of leading cases in Ontario, Manitoba and at the Supreme Court of Canada regarding the issue of systemic bail court delays. I want to focus some of my remarks on that issue today, as it is an issue that I believe this committee can spend some time reviewing.

The position of the CLA can be summarized in a number of points. Others have spoken about the presumption of innocence, the ladder principle and the right to reasonable bail. In the interests of time, we won't repeat those principles, but of course we acknowledge them as the bedrock of our system of bail.

Legislative amendments to the Criminal Code are generally not required to address public safety or to help protect the public. All the tools are already in place to permit judicial officers to make appropriate bail decisions in every individual case, including decisions to detain those who pose an unacceptable risk to commit further violent crimes while on release.

Our judges are appointed following a rigorous selection process, and they are highly qualified to apply the legal principles as codified by legislation and explained by the Supreme Court of Canada. While some justices of the peace do not have legal training, many have become subject matter experts with respect to bail and have extensive experience in applying the law in this area.

Despite the expertise our jurists have, bad outcomes can still occur. This is not the result of bad laws but rather the simple fact that predicting future violence is very difficult. A standard of perfection can never be achieved, nor should it be the yardstick by which to measure whether or not our system of bail is working.

Bail courts in Canada are not lenient. I encourage everyone to recall the remarks of Dr. Nicole Myers, who testified before this committee on the last occasion and the statistics she cited in support of her proposition. It is not “easy” to get bail in Canada for serious offences.

The suggestion made by some to increase the number of offences that are subject to a reverse onus provision is not, in our view, likely to have any significant impact on any future case and will not help to better protect the public. Unlike some who trace this to the presumption of innocence, I simply rely on the de facto realistic outcome in bail court that everybody facing these types of charges—possession of handguns, for example—is already facing a de facto reverse onus situation, even though the law may not call it that. Every single lawyer who represents a client in bail court on these types of charges comes prepared to argue why their client should be released regardless of what the onus in the Criminal Code actually says.

We agree that estreatment of bail perhaps should be pursued more commonly than we see today. While we believe most sureties take their roles extremely seriously and do their best, there are some who do not, and the fact that estreatment proceedings have been rarely pursued, at least in Ontario during my professional career, may well make some believe that pledging their assets is a risk-free proposition. Estreatment provisions are already included in the Criminal Code. Having said that, it is critically important to ensure that any increased use of this power is paired with a commitment to only impose conditions that are truly necessary and to not overuse sureties: two very real problems of our current system.

Respectfully, it is our submission that the best way to actually protect public safety in the big picture and overall is to release more people on bail with fewer conditions and to do it more efficiently and quickly. While this may seem counterintuitive, for reasons explained by other witnesses before this committee, studies clearly show that short-term gains that are realized by keeping an individual in custody without bail are outweighed by the increased risk to public safety that will relate to the very same individual when he or she is eventually released.

If our system of bail and bail reform is evidence-based and not merely reactionary to 280-character posts on social media, we will prioritize longer-term gains to public safety over the shorter-term view.

Bail delays and the phenomenon of matters not being reached continue to plague bail courts throughout Canada. They are directly responsible for enormous harms caused to many people, not just to those accused but to their family members and those who would stand to be sureties. It also has a disproportionate impact on racialized and especially on indigenous communities.

I invite everybody to read the decision of Justice Martin of the Manitoba Queen's Bench—as it then was—in the Balfour and Young case, which is cited in the written submissions I have provided as part of my presentation. We encourage every member of the committee to note what happened in those cases and the real-life impacts that it has.

We have a very conservative approach to bail. Proceeding more efficiently and more quickly will allow judicial decision-makers to have more time to deal with the serious cases, to deal with them more appropriately, to deal with them more fairly and to deal with them based on better information in a more fair way.

At the end of the day, consequences from cases not being reached are very severe, and they have a tremendous effect on all cases, including the serious ones that will eventually be litigated.

[The Chair, Liberal, Randeep Sarai]

Mr. Bytensky, I'm going to have to stop you there. I'm sorry.

[Boris Bytensky]

Thank you very much, Mr. Chair. I'm sorry about that.

I welcome any questions.

[The Chair, Liberal, Randeep Sarai]

We'll begin the first round for six minutes.

I've been informed that Minister Eyre will not be able to come now, but we're going to try to have her at 4:30 for the next round.

We'll begin with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to our witnesses who were able to join us today. We appreciate your testimony here and your taking the time to meet with us.

Mr. Stamatakis, we've heard and seen it over and over. We've listened to the calls from provincial attorneys general and provincial premiers unanimously calling for bail reform. You made an interesting point when you spoke about not wanting just a blanket, tough-on-crime approach but a targeted approach.

I think what is on everyone's mind—or should be on everyone's mind—are repeat, violent criminals who use guns and who have been able to quickly get bail repeatedly. Unfortunately and tragically, but also, I feel, preventively, they have committed crimes while on bail.

Can you expand on what a more targeted approach would look like?

We've heard from the Toronto police some alarming statistics about individuals who receive bail for a firearms offence and, while on bail, commit another firearms offence, and they received bail again for that offence. At some point, we need to draw a line for repeat, violent firearms offenders.

What would a targeted approach look like to you? If I may, what are some of the areas you would like us to focus on if we were to take a targeted approach?

[Tom Stamatakis]

Thank you for the question.

That's why one recommendation of ours is to somehow define what a repeat violent offender is and to create that framework that adjudicators presiding over these bail hearings can operate within, so we are addressing that specific concern.

I want to emphasize that we are talking about repeat violent offenders. We're not trying to suggest that we should take a blanket approach to anyone who's been charged with an offence in a bail proceeding.

I agree with my friend that underlying all of this.... That's why you'll see from my submissions that I'm careful not to use the term “bail reform” or point to one specific change that will resolve the problem. Underlying all of this, I think, is a resource challenge. It's a resource challenge in the courts and I think it's a resource challenge for the police when it comes to following up on people who are released on bail with conditions and then breach those conditions. It's not having the capacity track those individuals to make sure something's done about what they're doing in the community.

I think it's about defining what a repeat violent offender is. I think it's creating a framework around that, so we can give some guidance to justices of the peace or judges who are presiding over these bail hearings. It's about providing the resources so the Crown can properly prepare for these cases, so we are using the existing provisions more effectively and not releasing people like you described.

Every police service in most major cities across this country can provide you with those same kinds of examples. My home service is in Vancouver. I was having conversations in advance of this appearance. Vancouver can also provide you with a list of similar examples where people were released on bail, offended, were before a judge again, were released on bail and offended again. That's what we're trying to address.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

I want to delve into something you mentioned. It is this idea of.... Sometimes people reading the paper will see that the person's been released on bail and there are all these conditions. They take some comfort in the conditions that are set out in the release, but those conditions are only as good as the ability we have to enforce them.

Could you speak a bit to your experience or the experience of your association members when it comes to the resources to follow up on some of these bail conditions that we see?

From what we've seen and heard in the testimony of others, all too often there are not the resources to enforce those bail conditions.

[Tom Stamatakis]

There are not the resources. There is no police service right now that has the capacity to, in a meaningful way, track a violent offender released on bail to ensure they're complying with their conditions. To do that requires a significant allocation of resources and it has a significant impact on budgets. You're allocating resources you now can't use for some other important service you're providing to the community, or you're not responding to something else because you're reallocating resources.

It does happen, on occasion, that surveillance teams are assigned to track a particular offender when there's a significant risk to the community, but there are huge implications to that.

[Rob Moore, Conservative, Fundy Royal, NB]

Absolutely.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

We'll go to Ms. Dhillon for six minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair.

Thank you to both of you for coming today to testify. I'd like to start with Mr. Bytensky.

My first question is regarding your testimony. You said bail courts are not lenient in Canada.

Can you provide us with some examples, please?

[Boris Bytensky]

I simply rely on the fact that, in Ontario, almost 77%, I believe, of the people who are in our provincial jails have not yet been convicted of any crime. They're people who either are waiting for bail hearings or have been denied bail.

Throughout Canada, that number is a little lower, but still it's close to 70%. I can tell you from years of on-the-ground experience.... I mean, I appreciate some of the statistics that have been cited by police forces throughout this committee, which seem to suggest something different, but that is not my experience and it's not the experience of most of our members.

People facing allegations of violating their bail and having committed another serious crime while on bail for a serious crime have a real uphill battle to obtain bail. We tend to overcondition. We have something in the range of eight conditions on average that we impose on an individual when he or she is granted bail. We overuse sureties—although they don't in Saskatchewan. You may ask the attorney general who's testifying after me about how they're so successful in avoiding that.

Generally speaking, we make it very difficult for people to get bail, notwithstanding some of the public dialogue on the subject.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

That's like what you just said.

We've heard a lot of testimony about repeat or violent offenders. Would you say that a lot of people who are preventatively incarcerated or detained—not given bail—are first-time offenders or mostly repeat offenders?

[Boris Bytensky]

It can be both. Certainly, some people charged with very serious crimes are not granted bail, even without a prior record. We can think of people accused of murder and other very serious crimes, who may be denied bail even without a prior record.

However, the reality is that people accused of crimes and who have a record or outstanding bail orders.... The Criminal Code provides that bail will be granted, unless there's a substantial likelihood of reoffending. Some people undoubtedly constitute a substantial likelihood of reoffending. They are mostly, and certainly should be, kept in custody without bail. I don't think any criminal lawyer suggests that everybody should be released on bail.

The standards are already in the Criminal Code. They don't require revision. It's a case-by-case application. When a person's liberty is at stake, we should trust our jurists to apply the law fairly.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

You spoke about racialized Canadians being detained or overincarcerated. Are they overincarcerated at the bail stage, or is it after they've been convicted? Are even first-time offenders still incarcerated for minor accusations?

[Boris Bytensky]

My understanding is that it's both. There are figures that.... Again, I believe Dr. Myers, who testified, had figures for you in this regard. Certainly, in my experience and in the cases I've done....

The Balfour and Young case is one I litigated in northern Manitoba. It dealt with mostly aboriginal defendants and was a very shocking and eye-opening experience regarding bail challenges. It was specifically about bail. I should say that was a situation where everybody in the system was doing their utmost, working very hard and in absolute good faith. However, there was such a significant under-resourcing issue that the impact, the inability to receive timely justice, mostly for indigenous accused, was felt throughout the community in a very disproportionate way.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

What would you say about limiting the judicial discretion to impose individualized bail conditions, from what you've seen and in your experience and practice?

[Boris Bytensky]

Every accused is different and every crime is different. There really isn't.... It's not easy to come up with one-size-fits-all justice.

We came up with guiding principles, which are likelihood or the confidence that a person will attend in court for their hearing, lack of substantial risk of reoffending and a general public confidence criterion, which judges can apply depending on the facts of the specific case, whether or not it's a strong Crown case, whether or not there are serious allegations, strong evidence and a host of other related factors. These are applied on an everyday basis by judges and justices of the peace, who are trained to do exactly that.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you for that.

Can you tell us about the impact on the judicial system when somebody who may be innocent is accused nonetheless and detained without bail? Can you talk to us a bit about that, please?

[Boris Bytensky]

Sure. When somebody is taken into custody, they will often face loss of job, relationship, children—if there's any kind of ongoing family law court proceeding—and housing.

One need do no more than read the Balfour and Young decision, which talks about some of the horrible consequences. In Balfour and Young, there were two defendants. The charges were stayed against one and the other was acquitted. This was a post-trial proceeding, which was just a “cost against the Crown” application. It was, in effect, a public inquiry conducted into the bail system in northern Manitoba after both accused were already finished with their trials. Neither of them was guilty. Both faced horrible consequences, as do many others when they're denied bail and the charges are ultimately withdrawn or when they're found not guilty.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you so much.

I think I'm out of time.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.