Justice Committee on March 20th, 2023

[The Chair, Liberal, Randeep Sarai]

Thank you.

On behalf of the justice committee, I want to thank you for your testimony and your time with us today.

I'm going to suspend for a few minutes. We're going to have our next witnesses sound-checked and brought in. We'll also have with us the witness who we were not able to have in the last round.

[The Chair, Liberal, Randeep Sarai]

We are back to continue our study on Canada's bail system for the second hour.

We're welcoming Jillian Rogin, assistant professor, faculty of law, University of Windsor, via video conference. We have Ms. Marie-Pier Boulet, Association québécoise des avocats et avocates de la défense, also via video conference. We have Catherine Latimer, from the John Howard Society of Canada. We have the Honourable Bronwyn Eyre, Minister of Justice and Attorney General.

I'm glad to have you here for the next round.

We will begin with Ms. Rogin for five minutes.

[Professor Jillian Rogin, Assistant Professor, Faculty of Law, University of Windsor, As an Individual]

Thank you so much for inviting me to speak today.

In addition to being an assistant professor who writes about the bail system in Canada, I'm also a criminal defence lawyer. I worked as duty counsel in the criminal courts in downtown Toronto for a number of years.

If restrictive bail measures, pretrial custody, prisons and policing were capable of ameliorating crime, we would live in a crime-free society. The reality is that all of these things create criminality rather than alleviate it.

We have 40 years of data, reports and jurisprudence indicating that Black and indigenous people in this country disproportionately bear the brunt of harsh and punitive criminal laws, including bail laws. Making bail laws more restrictive will work to further entrench systemic racism in the bail system and will cause more harm and further exacerbate the pretrial mass incarceration crisis that we are currently experiencing in Canada.

Pretrial custody itself causes harm and violence. In fact, it is so dangerous that it is literally a matter of life or death. Since 2010, 280 people have died in pretrial custody. Imagine what our bail laws might look like if each and every time one of those people died, Parliament convened a committee to discuss bail reform.

There were 711 deaths that involved police use of force between 2000 and 2022, which is more than 30 deaths per year on average. We have to ask ourselves why this committee is considering bail reform now. Whose lives matter and what are our priorities?

The approximate cost of keeping people in provincial and territorial jails is $259 per day, per inmate. That's approximately $94,000 per year, while the amount provided to an Ontario disability support program recipient is just over $1,000 per month or approximately $13,000 per year. Again, what are our priorities and whose lives matter? Victims of crime should be outraged that we invest so heavily in prisons and restrictive bail laws that do nothing to alleviate crime or violence, but rather cause it.

Restrictive bail laws will equal more prisons and more investment in prisons and policing. Indigenous, Black and racialized people, people with mental health issues and people who live with substance abuse issues will be disproportionately impacted by any such changes to the bail laws.

We know this, as my colleague Professor Jones has already explained it to this committee. In fact, the way he was treated when he did so was emblematic of the way the bail system itself operates. It treats indigenous and Black people as presumptively suspect, untrustworthy and not credible.

I implore you to base any decision you might make on the wealth of reports, data and jurisprudence we have that indicate that restrictive bail laws cause harm. The Manitoba justice inquiry, the Commission on Systemic Racism in the Ontario Criminal Justice System, the CCLA report, John Howard Society reports, the Ouimet report, the Wyant report and the “Broken Bail” report, which were conducted by experts in their fields and based on research, all indicate that restrictive bail causes harm.

We have swaths of evidence about racism in the criminal legal system, including the bail system. Black, racialized and indigenous people are subjected to racial profiling, are overcharged and are more likely than their white counterparts to be denied bail and be subjected to onerous conditions of release. Any bail reform that aims to make bail laws more restrictive will further entrench the existing racism. We know this.

There are changes to the bail system that could be made that will alleviate violence, as Mr. Bytensky indicated. Investing in affordable and adequate housing, investing in health care, investing in the creation of livable wages, increasing social benefits—investments in social infrastructure will make us safer.

Of the people who are currently in prison on remand, 70.5% have not been convicted of any crime. In law, they are entitled to the presumption of innocence. In many ways, I find it an affront to the constitutionally enshrined right to the presumption of innocence that this parliamentary committee is considering bail reform in response to a horrible tragedy but one where there has been no trial, no conviction and no understanding of the circumstances that led to the tragic death of Constable Pierzchala.

The fact that we're here today speaks volumes about the problems that plague the bail system.

Thank you. I will end there.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Rogin.

Now we'll go to Ms. Boulet for five minutes.

[Marie-Pier Boulet, President, Association québécoise des avocats et avocates de la défense]

Esteemed members of the Standing Committee on Justice and Human Rights, thank you for inviting me to participate in this study you are conducting on the Canadian bail system.

As president of the Association québécoise des avocats et avocates de la défense, or AQAAD, I'd like to tell you about the judicial experience of AQAAD's members, who practice criminal law across Quebec.

Based on our judicial experience, we can confirm that we have struck a balance when it comes to bail. The higher courts, including the Supreme Court, review the enforcement effect of the criteria in the Criminal Code on a regular basis, almost every two years. One need only think of the Zora, St‑Cloud and Antic decisions, among others. Almost like clockwork, they check to see whether decisions made in a lower court have the desired effect. My comments so far have been on the adjudicative side. The procedural perspective is something else and I will come back to that later.

In reviewing a brief submitted to you by Families for Justice, I note that the situations reported therein do not reflect the problems with the pre-trial release system. These situations should not be used to generalize or make those in the system feel guilty. We need to look at the real numbers. By the way, I especially like what my colleague Ms. Rogin said earlier and the fact that my colleague Mr. Bytensky always refers to the numbers.

I don't wish to talk about the numbers today, because the AQAAD really wants to share its knowledge about realities on the ground. At the same time, we strongly doubt that these numbers show that people on bail are committing more crimes, including crimes as serious as those described in the brief. The AQAAD doubts that and also points to the timeliness of the data reported in Professor Myers' brief, which reveals a scourge of excessive pre-trial incarceration.

Society clearly wants to see criminals incarcerated, that is, it wants people to be found guilty of a crime. However, that same society should not want to put innocent people in prison.

In St‑Cloud, the current chief justice of the Supreme Court of Canada reiterated what the higher courts have been saying since 1990:

With respect to the perception of the public, as we know, a large part of the Canadian public often adopts a negative and even emotional attitude towards criminals or [potential] criminals. The public wants to see itself protected, see criminals in prison and see them punished severely. To get rid of the criminal is to get rid of crime. [Is that truly an equation?] It [unjustifiably] perceives the judicial system … and the administration of justice in general as too indulgent, too soft, too good to the criminal. This perception, almost visceral in respect of crime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, persons charged with certain types of offences would never be released [as opposed to others]. Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about our system of criminal law and capable of judging and proceeding without emotion that the application of the presumption of innocence, even with respect to interim release [an expression that must be repeated incessantly], has the effect that people, who may later be found guilty of even serious crimes, will be released for the period between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that of the lowest common denominator.

So that portion of society has no new ways of thinking or new reflexes in that area. The system must be able to withstand direct attacks on the presumption of innocence, a principle that leads to nothing less than the miscarriage of justice if it is challenged. We're talking about someone doing prison time for nothing here, because they will end up being found not guilty.

In our view, and based on judicial experience, the best thing to do if we're looking to secure public safety is to verify, or rather monitor, that the interim release conditions are met. It's clear to us that this are not adequately monitored, if it is at all, compared to those that come with a conditional sentence, for example.

Therefore, when the court issues conditions of release, they literally do nothing to protect the public if law enforcement doesn't check to see if the conditions are being met—

[The Chair, Liberal, Randeep Sarai]

Ms. Boulet, I'm going to have you wrap up quickly.

[Marie-Pier Boulet]

The same thing goes for checking up on plaintiffs, as we discussed earlier.

This concludes my opening remarks. Thank you for your attention.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Boulet.

We'll next go to Ms. Latimer for five minutes.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much.

It's a welcome opportunity to present the views of the John Howard Society on bail issues in our country. We regret the tragic death of the police officer at the hands of someone who had been released on bail and was not respecting the conditions.

Criminal law reform, however, that is motivated by a single tragedy incident too often does not address the real problem. In our view, another reverse onus provision will not fix our broken system. It is our hope that the death will be the impetus for a comprehensive reform of the dysfunctional pretrial release and detention system in Canada.

Our hope is that the reforms are empirically based and address both the respect for the presumption of innocence and the right to reasonable bail while serving to protect the public over the short and long term. It appears our current system is failing on both fronts.

The presumption of innocence has been a principle of our criminal justice system since the Magna Carta. Most first world justice systems include this presumption and the attendant right not to be punished prior to the conviction of a crime.

High pretrial detention rates raise concerns among international human rights bodies and others that rights are being violated in a country's justice system. Compared to other countries, Canada's proportion of pretrial detention prisoners to total prisoners is shockingly high. In England and Wales it's 11.7% and in the United States it's 22%, while Canada's pretrial prisoners amount to 38.7% of the total prison population, according to 2017-18 data. Compared to other developed countries, that proportion jeopardizes Canada's reputation as a country that takes the presumption of innocence and rights to reasonable bail seriously.

Hopefully this study of bail will get an explanation of why the legislative provisions lead to such high rates of pretrial detention. Delays and inefficiencies in the system could lead to prisoners being detained for longer periods of time than in other developed countries. That is a serious deprivation of liberties. Delays in the system could also be leading to people who are released on bail being subjected to liberties-limiting conditions for longer periods than necessary.

Trial processes may be taking too long in Canada. Courts are bogged down with low-level offences, including administration of justice offences. Most effective alternatives to the criminalization of addiction, mental illness, homelessness and poverty would make the criminal justice system more efficient and allow it to focus on the more serious offences.

In 2018-19, of the 310,000 cases of decisions in adult courts taken across Canada, about 119,000 were not guilty findings. How many of those were subjected to pretrial detention or had liberties restrained due to bail conditions? While those detained and convicted tend to have the days in pretrial custody deducted from the proportionate sentence, there is no offset for the innocent for their deprivation of liberty prior to the charges being dropped or being found not guilty.

Would the number of cases clogging down the system that result in acquittals and charges being dropped be reduced if Crown attorneys rather than the police lay the charges? The issue does not seem to be the need to keep more people detained in pretrial detention but the need to focus detention on those who pose a flight risk or an immediate risk to public safety.

On principle, the John Howard Society opposes reverse onus provisions. If a person is to be denied liberty, it should be the state that persuades the judge that it is necessary. Risk of future criminality is very difficult to predict accurately, and while past conduct is one of the better indicators of future behaviour, studies show that after five years of being crime-free after completing the sentence, the risk of a person with a criminal record committing another offence is about the same as the risk posed by someone who's never committed an offence.

There is undoubtedly a risk posed by people who are in an active violent crime cycle. The person—referred to by your witness Robert Davis—who breached his current bail conditions, was in possession of a handgun and was nevertheless re-released on bail, should be studied to find out why. Did the Crown fail to persuade the court to detain? What evidence was presented? Was there a reverse onus that was applicable?

On the other hand, how many are defaulting into pretrial detention due to homelessness, mental illness, addiction, no access to counsel, no surety and no community bail supervision or alternative programs. Courts are bogged down with low-level crimes and administration of justice offences and offences connected with mental illness and addictions.

Community-based alternatives would provide greater efficiencies, and we know that the community-based bail verification supervision programs work well, are less expensive than detention and counter the systemic discrimination against the marginalized in the criminal justice system. There should be greater investment in them.

Studies are clear that time spent in pretrial detention increases the risk of future crime. Even short periods disrupt stabilizing employment, housing, health and treatment regimes, child care responsibilities, education, social networks and families. Custody in provincial jails, pretrial, expose people to violence, deny them access to rehabilitative programming and often limit their access to medical treatment. It is a harsh experience. Too many people die in pretrial detention.

In conclusion, John Howard hopes there is a comprehensive reform to our bail system.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Latimer.

Lastly, we'll go to the Honourable Bronwyn Eyre, Minister of Justice and Attorney General, via video conference.

We're glad to have you back. The floor is yours for five minutes.

[Bronwyn Eyre, Minister of Justice and Attorney General, Government of Saskatchewan]

Thank you, Mr. Chair, and thank you very much for graciously accommodating me this afternoon.

First, I would like to say that I was certainly very pleased to participate on behalf of Saskatchewan, with my colleague Minister Tell, in the federal-provincial-territorial meeting on bail reform 10 days ago, chaired by Minister Lametti and Minister Mendicino.

As Saskatchewan, we were pleased to hear federal Justice Minister Lametti announce a commitment to “move forward quickly on targeted reforms to the Criminal Code on bail”. We are also pleased that he called his commitment the result of “good faith collaboration by all levels of government to address the needs posed by repeat violent offenders.”

Certainly, we agree. The bail system, specifically around repeat violent offenders—let's be very clear about that—is in need of reform. As we know, the primary purposes of bail are maintaining public safety and public confidence, and these risk being undermined. Only one-third of Canadians now have confidence in our criminal courts. Police chiefs across the country are calling for reform. Sheriffs are being deployed to cities' downtowns. Provinces are having to devote and deploy additional resources to community safety. States of emergency are on the rise on reserves in Canada.

There is no question that social disorder and crime are on the rise. Of course, we have seen some tragic deaths—a number of people have referenced that of Ontario provincial police officer Pierzchala—over the past few months. In that case, as we know, the judge had serious concerns about release, and about which it's been written that even a bleeding heart could turn to stone considering some of the offences that had previously been committed in that case by that offender.

What's known as “catch and release” bail is part of a broader problem. The numbers point to that. In Saskatchewan in 2021, according to data from Statistics Canada, there were 15,274 incidents of bail violations. This is a 9% increase over the number of bail violations in 2020, which was 14,000, and a 30% increase from the number of bail violations in 2018.

Saskatchewan has expressed concerns with federal Bill C-75 passed in 2019, which established a principle of restraint that favours release on bail “at the earliest reasonable opportunity and on the least onerous conditions”.

At the FPT 10 days ago, I challenged these provisions in Bill C-75 and put forward potential amendments to the Criminal Code that would hold repeat violent offenders accountable, improve public safety and restore Canadians' confidence in the justice system.

Also, leading up to the most recent ministers meeting, Saskatchewan, with Manitoba, called on the federal government to expand reverse onus provisions in bail for crimes using knives and bear spray. As well, all Canadian premiers leading up to the FPT, including Saskatchewan, called for reverse onus on bail for those charged with violent gun crimes, as well as a broader review and bail reform. Certainly, provinces were united going into the recent ministers meeting that it is time to correct the balance.

As I referenced, Saskatchewan proposed a number of specific changes creating reverse onuses on bail for repeat violent offenders, strengthening language around the importance of community safety and requiring judges to provide written consideration of the impacts to public safety when releasing violent offenders on bail.

Our specific proposals, which were also provided to Minister Lametti at the FPT, include the following as they relate to Bill C-75 and section 493.1 of the Criminal Code.

We proposed changing the wording as follows. After “In making a decision under this Part,” we would add, “firstly taking into account the need for public safety,” and then carry on with “a peace officer, justice or judge shall give consideration”, removing the word “primary”. Then, after “to the release of the accused”, we would continue with the wording.

We also proposed changes to subsection 515(10) that there be included an express reference to “use of weapons and repeat violent offences, with or without a weapon, as grounds for consideration of detention”.

Finally, on reverse onus, we proposed, first, that a new reverse onus be created for weapons offences and a new reverse onus that targets violent offenders who have previously been convicted of a violent offence, with or without a weapon. Second, we proposed that the tertiary ground be amended, in subparagraph 515(10)(c)(iii), to include the use of “any weapon” as grounds for consideration of detention. Third, we proposed codifying the definition of weapons “prohibition order” to include a clause in a release order.

Fourth, and finally, we proposed requiring judges, when releasing someone accused of violence or weapons, to make a statement on the impact to community safety and consideration towards victims.

I'll leave it there, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll now go to our first round of questions, beginning with Mr. Caputo for six minutes.

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

Thank you, Mr. Chair.

Thank you to all of our witnesses, whom we have both virtually and in the room. I know they're taking a lot of time on a very important issue.

Minister of Justice, I have to confess that I went to the University of Saskatchewan. That's where I met my wife and did my law degree, so I hope you enjoy that area as much as I did. I'm going to focus my questions on you.

Minister, the reality is that the 13 premiers of the 10 provinces and three territories have all, unilaterally, asked for bail reform. Is that correct?

[Bronwyn Eyre]

Yes, it is.

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

Those governments represented span the range of the political spectrum. By that, I mean we have an NDP government in British Columbia asking for bail reform. We have Conservative governments in Ontario and Alberta still asking for bail reform. This isn't something that appears to have been a partisan request from the provinces.

Would you agree with that?

[Bronwyn Eyre]

Yes, I would absolutely agree with that.

I think it was a very united message from not only the premiers in their letter to the Prime Minister, but also justice ministers across the country 10 days ago. Again, it's an all-government stand. Certainly, different partisan affiliations came to the meeting. It was a very united message. It's absolutely fair to say that was the message.

I think that message was very graciously received by Minister Lametti and Minister Mendicino. There was acknowledgement that a collaborative effort would ensue, coming from all levels of government. That there was an undertaking for—as Minister Lametti put it—a quick look at this is very important. We must not lose sight of the repeat violent offenders' subtext that both levels—premiers and ministers—were certainly trying to impart to their federal counterparts. That's the main subtext here.

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

Thank you, Minister.

You referenced a letter from the premiers to the Minister of Justice. Do you recall the approximate date of that letter?

[Bronwyn Eyre]

It was actually to the Prime Minister.

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

It was to the Prime Minister. I'm sorry. Did I misspeak? I apologize.

[Bronwyn Eyre]

It's all good.

Yes, I believe it was in January, but I don't know the exact date. It was quite recent.

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

I couldn't recall it off the top of my head.

That letter was the culmination of what premiers have been calling for, for some time. Would you agree with that?

[Bronwyn Eyre]

Yes, I would.

In that case, I believe, the letter was—if you like—spearheaded by Premier Ford, although, as I said, it was signed by every premier. It followed on the tragic death we referenced of the Ontario Provincial Police officer. Everyone acknowledged that was a particularly tragic symbol and reality of the bail situation in the country. I think the sense, in writing that letter, and also among ministers who went to Ottawa 10 days ago, is that, if the bail system isn't broken, it's getting close to being broken.

Bill C-75 in 2019, which is obviously relatively recent, was something that swung the pendulum too far. There needs to be a correction. Of course, everyone understands the underpinnings of the presumption of innocence, the reasons for bail and issues around remand and overpopulation. All those things are top of mind and of concern.

I think it's fair to say the ministers felt—and the premiers in penning their letter—that particularly around Bill C-75 and the “principle of restraint” language that it codified.... The language is very clear that it codifies. Tragically, in the case of the Ontario Provincial Police officer, dealing pre-that with the bail release, some of those precise sections arose and had to be grappled with by the judge. We know, in this case, there was a pretty tragic outcome.

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

I have two more quick questions for you, because I know I have about a minute left.

This issue of bail reform didn't simply arise on December 27. It was something that really brought it to the forefront, but the issue of bail reform had been on the radar of most of the premiers for at least the 18 months before that. Would you agree with that statement?

[Bronwyn Eyre]

Yes, I would. I think that was a culmination and an impetus in terms of the tragic events involving Officer Pierzchala, but I believe it certainly has been on the radar. In my remarks, I pointed to some of the statistics we're seeing in Saskatchewan around bail violations—a massive increase. I think it's fair to say that, while numbers range among provinces, there is an absolute acknowledgement, particularly post-2019 and Bill C-75, that the numbers have gone up exponentially. I think that is something we have to deal with, so—

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

Thank you.

I'm sorry. I didn't mean to cut you off.

I'll just ask you this very briefly. I have tabled Bill C-313. You talk about section 493.1. In my private member's bill, Bill C-313, we talk about what I would call a ratcheted-up reverse onus that, for serious gun offenders, would eliminate the principle of restraint.

Is that something you could see yourself getting behind?