Justice Committee on March 20th, 2023

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

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

That was perfect timing.

Next, we'll go to Ms. Normandin.

Welcome to the committee today, Ms. Normandin.

[Christine Normandin, Bloc, Saint-Jean, QC]

I'd like to thank both witnesses for being here.

Mr. Bytensky, I'd like to hear your comments on Mr. Stamatakis' proposal to come up with a definition for “repeat offender”. Would there really be any advantage to that, given that at every bail hearing, judges already have a list of the person's priors and current cases? That's also the only context in which reputation evidence can be heard.

[Boris Bytensky]

I don't know that it will change anything simply because of the fact that a reverse onus bail or a Crown onus bail in, let's say, a gun case really doesn't change the outcome. We'll have to prepare the same, and judges will more or less apply the same principles.

If you have somebody who does or doesn't meet a definition that we can establish, a judge or a justice of the peace will still know that person has a lengthy history of prior offending. However we come up with a definition, it's probably going to involve some degree of prior offending for violent crimes.

If you have a bail hearing involving that type of individual, most judges are going to take the risk of reoffence very seriously and you'll be hard-pressed to come up with bail for that person unless you have an excellent plan in place and can satisfy the court that the individual is not a substantial likelihood to reoffend. It doesn't matter, honestly, whether it's a Crown onus or a reverse onus because my job as a defence lawyer will be exactly the same and the submissions I'll make will be exactly the same.

Having a definition in place I don't think will solve anything, although it may help people in the public understand a little bit about how judges do their work, which does have a benefit in terms of public awareness. I'm not sure it will have a benefit for public safety.

[Christine Normandin, Bloc, Saint-Jean, QC]

You talked about delays in getting bail hearings. How long is the delay in Ontario right now?

[Boris Bytensky]

Unfortunately, one of the real problems we have throughout Canada is gathering data that's reliable. Data has been notoriously poor, but I can tell you from the cases that I've litigated, only, and some of the cases we know of. We have two cases in Ontario. I did one and it was a 24-day delay. We have the Simonelli decision, where criminal organization charges were stayed for approximately about the same. I think it was a 23-day delay in getting bail hearings.

Another case that I did was an eight-day delay in getting bail hearings, and just so it's clear, it's not people who are adjourning their matters because they aren't ready. It's for people who come to court ready to proceed, and the court says, sorry, we don't have time. In the Manitoba cases, such as in Balfour and Young, you had delays in the six-week range in some cases, which are not uncommon.

It is absolutely typical to be unable to proceed on the day that you want to proceed. I'm not talking about the serious gun case. I'm talking about the regular, routine case. In most jurisdictions in Ontario that I'm aware of, it's a real challenge to get a same-day bail hearing if you're ready to go. You're often told to come back the next day, and even 24 hours in custody for those individuals is a very big price to pay, which is why one of the suggestions we made that you might consider is some form of interim bail provision, which is totally out-of-the-box thinking but it would help even the playing field if it were ever adopted.

[Christine Normandin, Bloc, Saint-Jean, QC]

I imagine there must be more habeus corpus applications in connection with that, given the steady increase in delays in getting bail hearings.

Thanks to the former Bill C‑75, police officers have more flexibility in terms of release. Is this tool being used properly? Professor Myers recommended that police officers be given more resources to make better use of it. That would also take some pressure off the justice system.

I'd like to hear your thoughts on this.

[Tom Stamatakis]

From my perspective, police officers are using that tool. We are exercising those authorities more frequently now than ever before, but we're talking about a type of offender who's different from what I've made submissions on. I accept my friend's submissions with respect to being careful not to create situations where people lose their jobs or that have a significant impact, but that's not what I'm talking about here. We're talking about repeat violent offenders who have demonstrated over and over again that they have no regard for public safety, whether we're talking about police officers or Canadians, and they're being released. We need to do something different.

I'm not going to sit here and suggest that I have all the answers, but if we came up with a definition, for example, maybe we could deal with the issue that comes up out of Bill C-75, for example, where for administration of justice offences there is no record for that. A judge, in fact, dealing with a person who repeatedly breaches conditions may not know that person has repeatedly done that over and over again. I don't know.

All I'm saying is let's create some kind of better guidance for the people who are dealing with these difficult cases so that we are targeting the right people, those repeat violent offenders, not someone who has made a mistake or has not demonstrated a complete disregard for public safety or the rule of law in this country. That's the point I'm making.

Can we come up with something, for example, where a judge would be informed with respect to the impact on victims and those kinds of things? I can give many examples. We've talked about the police officers who were killed in the last number of months, but how about the police officers who were shot? How about the co-workers who are affected? How about the dispatcher or the communications operator who is never going to come back to work because of feelings of guilt, and all of the other ramifications of dealing with those issues.

It's not just with respect to police. What about those people who are dispatching when citizens are killed or seriously harmed? There is a huge impact, and we have to get ahead of it somehow.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next, we'll go to our six-minute round with Mr. Garrison.

You have six minutes.

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

Thank you very much, Mr. Chair.

Thank you very much to both witnesses for being here today.

I want to start with Mr. Stamatakis.

I have to say, you must have become the longest-serving president of your association in its history by now. I don't know if that's true or not, but I certainly appreciate all the time you've devoted to advocacy on public safety issues.

I think your suggestion on guidelines is very interesting. I wonder how you envision that working, since guidelines aren't normally legislated. Who would do that? Would we end up with 13 different sets of guidelines? How do you envision that working?

[Tom Stamatakis]

I'm not suggesting it would be easy. I realize that the federal government has a role and that provinces also have a role. That's one of the challenges in this country, generally speaking. My friend here alluded to it in terms of data collection, so that we can better understand the scope of the issue and what the issues are.

We see it right across the whole criminal justice space but also the policing space, in terms of how we collect data nationally that can better inform what we do, whether it's in a policing context or whether it's in the context of the criminal justice system and how we're prosecuting and managing bail hearings, for example.

I don't think it's going to be easy, but I think we can get together and somehow come up with something that will help address what I see as a gap, a shortcoming, for a very specific type of offender. I'm not talking about a broad-brush “let's treat everybody this way”. I'm talking about people who are wreaking havoc in our communities and where there's a real cost.

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

Would you see, perhaps, having federal and provincial ministers sit down together to write a standard or a model definition that could then be applied in each jurisdiction after that?

[Tom Stamatakis]

It could certainly be something that could flow from our federal, provincial and territorial ministers' meetings. They meet regularly. They do come up with policy direction from those meetings. People smarter than I am could come up with some kind of a legislative amendment.

This is something that we can do, whether it's with respect to what I suggested around creating a definition or it's using the existing provisions around sureties and making sure that there is a consequence so that it's not a free pass, particularly where they know these breaches are occurring. I think it's a combination of things. There's not just one simple solution to this problem.

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

You've raised, once again, the question of monitoring conditions for those who are on bail. I accept your argument about resources. As a former police board member myself, I know that police never have resources for this.

Are there other alternatives that we could and should be using to supervise those who have conditions placed on their bail? Are those widely available?

[Tom Stamatakis]

Absolutely. Electronic monitoring is an area in which I think we could do a better job. Electronic monitoring is used differently by different provinces, with varying degrees of success. There's lots of technology out there that we can now utilize better to track and to ensure that people are complying with conditions when they are released on bail. That's one area for sure.

We can do a lot of education, for example, around...and I'm just spitballing here because you asked me the question. We have Crime Stoppers right across the country. We could do a lot of education around better reporting when people who are released on bail breach a condition.

There are a number of things that can be done to better educate the public, which my friend suggested as well. They would all have a positive effect in terms of making sure that people who should be on bail are on bail, and that those who shouldn't be aren't.

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

I'll turn to Mr. Bytensky on the same topic.

One of the things that happen in Ontario is community-based bail supervision programs. What's your experience with those? Are those helpful in getting more people released?

[Boris Bytensky]

They're outstanding, but they're limited in terms of the number of places that offer them and the number of people they can supervise. With declining budgets, there are fewer and fewer people who qualify. The eligibility criteria become tougher and tougher to meet.

The short answer is that they're wonderfully successful. The track records of these programs are very strong. They would be very useful. If I can make one point from an economic perspective, it would be how we fund the resources. I agree that the resources are a major problem.

In Ontario, approximately 7,500 people, give or take, right now are in pretrial custody. If we were to reduce that number by 25%, we could save about $150 million a year. That money could be reallocated to community-based programs that would help people stay out of the life of crime to begin with or, even if you want to ignore that aspect of it, you could dedicate that money to increasing police budgets for supervising bail or for doing all sorts of things.

We can put people in the community for a lot less money than we can put them in jail. The money that we would save by helping decarcerate our pretrial detention facilities could be used either for bettering the community or for supervising people on bail, or both. We would still come out many millions of dollars ahead.

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

In your presentation you talked about the longer-term public safety benefits from having more people released earlier with fewer conditions. Could you expand on that point?

[Boris Bytensky]

Sure. Jail is highly criminogenic. You spend a day in jail and you're going come out worse off than the day before you went in. You're going to become “hardened”, to use a word that may not fit everybody.

Anybody who spend six months in jail without bail is not going to commit a crime for those six months, but they're going to come out of it more dangerous than they were when they went in. As a result of that, as an overall society, we don't measure public safety only for the six-month period in time when one person is jailed for a set of charges. When that person's experience or journey through the criminal justice system ends, somebody else's begins.

Overall, if we talk about public safety and protecting lives, we will save more lives by giving more people community-based release plans than by incarcerating them and making them more dangerous to begin with...than any gains we realized from keeping that person behind bars for six months.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll now go to our next round of five minutes, beginning with Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair.

Thank you, Mr. Stamatakis, for your service and for appearing today.

Thank you, Mr. Bytensky. As a one-time defence lawyer, I know it's not always the most popular seat to be in. You probably get a lot of commentary. I do appreciate the fact that you're prepared to take the time here to tell us where you stand and your views.

Mr. Bytensky, I want to talk about something we haven't talked at all about here in committee. It's the principle of bail review. If you want to look at the Constable Pierzchala case, my understanding was that it was actually a bail review, although I haven't referred to it.

I'm going to summarize, and you can tell me if I'm accurate. You'll initially have a bail hearing when somebody comes into custody and the Crown seeks that person's detention. That has to happen by law, absent some nuanced circumstances. It's suppose to happen within 24 hours. Is that accurate?

[Boris Bytensky]

That's one of the main areas I spoke about. Yes, you're right. It doesn't happen nearly as often as it should.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Legally, it should happen. Sometimes there might be a remand for disclosure. In British Columbia, that was the case in what you were talking about, which I think everybody would agree is an unsatisfactory case, where there's not enough court time to deal with it. You have 20 cases on the docket. Twelve get heard and eight get bumped to tomorrow. It's something that happens, because I assume, in Ontario, adjournments are built into the estimate. Do you get what I mean by that? We assume the cases will collapse.

[Boris Bytensky]

I actually think that adjournments happen because we have a culture of adjournment in Ontario. People default to adjournment for all sorts of reasons. It's a complex issue, but ultimately it's a failure of the state to provide the resources to have timely bail hearings to the people who want them.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

The system as a whole.... We heard in the Jordan decision about that culture of complacency, which I believe Jordan was.... It's many years old now, but from what you're saying, this still exists.

Let's say somebody has been denied bail by a judge. That means they have been detained pending trial. One thing we haven't really discussed here is how section 525 of the Criminal Code operates. Correct me if I'm wrong here: A person who is detained on a summary conviction offence is automatically reviewed at 30 days of detention. A person who is alleged to have committed an indictable offence is automatically reviewed at 90 days. There is a positive obligation on the jailer and the Crown to bring this forward.

Do I have that correct?