Justice Committee on March 20th, 2023

[Boris Bytensky]

Yes, it doesn't happen in my experience correctly in the summary conviction arena. We don't do a very good job of keeping those timelines in place. It definitely does happen and really is as a result of the Myers decision by the Supreme Court of Canada for indictable offences. It is common to convene bail proceedings, or at least bring them before the court, for those charged with indictable offences after 90 days.

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

Myers really changed this, because in the past, people would have to, in my experience anyway, go to great pains to get their matter scheduled. There's probably been a fiftyfold increase since Myers on these section 525 bail reviews.

Would you agree?

[Boris Bytensky]

Yes.

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

When we're talking about bail and the issues of bail, I suppose the bail hearing is really the first step. The whole point that Myers pointed out, and this is going back a while since I've read the case, is that the whole point of section 525 is that people don't languish in pretrial custody.

Do you share that sentiment?

[Boris Bytensky]

That's the philosophy behind Myers, to make sure we haven't forgotten about you while you're in jail and that your case is moving through system. That's the backbone of that 525 power.

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

Right, and any reasonable defence lawyer is going to get a transcript of the initial bail hearing and they're going to look at the reasons for detention. Part of your job is to advocate for your client, so you're going to look at that and say, “Where were the deficiencies in the bail plan?” Is that accurate?

[Boris Bytensky]

To be perfectly candid, if there are deficiencies in the original decision, I don't need to wait for a 525 hearing. I can bring my own bail review, and I won't wait for a 525 hearing to be convened. To be perfectly blunt, 525 hearings are not regularly used to review and change bail outcomes.

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

When I said “deficiencies”, I meant deficiencies in the application, as in the accused didn't have a treatment that.... A lot of the time, when somebody does do a 525 hearing, their bail plan is much more beefed up. Is that accurate?

[Boris Bytensky]

No, because 525 hearings are not properly funded by legal aid almost entirely throughout Canada, and lawyers don't have the resources in most cases, or detained people don't have the resources, to put together great plans. The better plans come through the defence-initiated 520 bail reviews that the defence can bring at any time. I think that's when the better plan comes to fruition. It's not so much in the 525.

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

That's interesting. To clarify....

Am I out of time? I'm sorry.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

Next, we'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

Thank you to both of you. It's a very important discussion, and it's fascinating to have your respective perspectives on this.

I'll start with you, Mr. Bytensky. I take it that you practice here in Ontario, so obviously your views will be based on your experience here in this province.

Do you have a sense of whether the bail system is lenient or not properly functioning—let's just say that—from your perspective? How would you define or classify the current bail system?

[Boris Bytensky]

I think the bail system can do a lot to do better. I'm trying to find the right words to say it politely. In many ways, the bail system is broken, but not in the way that I think much of the public thinks it is. It's not broken because dangerous criminals continue to get bail. That may be something that people have a legitimate right to complain about, but, in my respectful view, the bail system's broken because it can't get timely bail hearings to most people who want to have timely bail hearings. They sit in jail waiting for their day in court and can't get one because we don't have the necessary resources to provide them that. That is a significant failure of the bail system in my view.

Can we be more lenient? Yes. Should we release people without sureties more often, at least in Ontario? Yes. We can do a lot better in some smaller ways, but timeliness of bail proceedings is an incredible black eye in my view. It's not just an Ontario problem. It's a problem throughout the country, whether it's the 24-hour hearings that were the subject of the Supreme Court's commentary in the late 1990s from Newfoundland and Labrador or the same problem continuing in Alberta and more recently in Manitoba and Ontario. I can't speak for every province and territory, but my understanding is that it really hasn't been fixed anywhere.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

The challenge you're highlighting—and I think you've said this before—is a challenge around resources, and that's around the administration of justice, which is a provincial domain rather than a federal responsibility. I'm hearing that the issue is more how quickly a bail hearing can take place versus the actual decision that comes out of a bail hearing.

[Boris Bytensky]

Yes. They're tied together, though, because what happens today—and it happens almost always in Crown onus offences—is that a prosecutor will say to an accused, with a complete absence of a balance of power, “We will agree to bail on the following terms,” and they will ask for a series of conditions that the accused is asked to agree to in order to be released that day. An accused faces the choice of staying in custody to wait for their bail hearing when they can seek more appropriate or lenient bail conditions, or they can agree to something that's being proposed and offered to them as a “consent”.

When the system is imbalanced, we get bad bail outcomes even on consent matters, because really we don't have true equality of bargaining power in those circumstances.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

We'll go to Ontario. In the prosecutorial guidelines, the Antic decision and the ladder approach were codified. “Codify” is a strong word, but it was stressed that the Crown follow that approach. Do you see that happening in practice?

[Boris Bytensky]

It's not happening as often as it should. It's codified in the bail protocols that Ontario drafted as a result of the COVID pandemic, but they continue in place today. It specifically incorporates the ladder principle, as of course Antic does, as does the Criminal Code.

Bail court practice is based on what bail court has always done in the past. The number one rule about what happens in bail courts is how we've always done it. It's not so much what the law says. It's not so much what any particular case says. It's inertia. We don't change things that we've always done, because we've always done it that way. Unfortunately, that's what we end up with. We don't have the ladder principle applied as evenly as it should be. I don't have statistics, unfortunately, but that's my experience from watching bail courts for almost 30 years now.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Mr. Stamatakis, some time ago there was also an issue raised that there was very little conversation taking place between police officers who were responsible for laying charges and the Crown as to whether appropriate charges were being laid and whether the evidence was sufficient or not.

There was a pilot that was done in Ottawa whereby a duty counsel was placed at the police station on Elgin Street so that there could be more upfront conversations and appropriate charges laid, which would help to facilitate the entire process, including bail. Do you have any thoughts on that type of upfront process and whether we've seen a positive impact on decision-making by police and by Crowns?

[Tom Stamatakis]

I'm not familiar with the Ottawa situation that you're describing, but in my own service, we had a Crown embedded in our service for that specific purpose, in Vancouver. In my experience, it was hugely beneficial. You ended up with better outcomes because you had communication.

I know that the Province of British Columbia just made an announcement around putting together police officer, Crown and probation officer teams to better manage these issues, and that is a step in the right direction. We get better collaboration and more continuity around how these matters are dealt with when we have dedicated Crowns, dedicated police officers and dedicated probation officers managing these important issues.

[The Chair, Liberal, Randeep Sarai]

Thank you—

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Excuse me, Chair.

I just want to say very quickly, Mr. Bytensky, that I saw you nodding in approval. I take it that you agree with that assessment.

[Boris Bytensky]

Yes, I do—

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

That's appropriate. A yes-or-no answer, please.

[Boris Bytensky]

I'm a lawyer. I can't say yes-or-no answers.

[Voices]

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