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—