Justice Committee on March 27th, 2023

[The Chair, Liberal, Randeep Sarai]

Welcome to meeting number 56 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 pursuing 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 and also using the Zoom application.

I have just a few remarks for the witnesses and members. Please wait until I recognize you by name before you speak. For those on Zoom, use the “raise hand” function to identify yourself if you wish to speak, and then activate your mike. Please mute yourself when you are not speaking.

Regarding interpretation, for those in the room, just make sure you put it on the choice you want—English, floor or French audio. The same goes for those joining via Zoom: Please select your desired channel.

I use a couple of cue cards just for those who don't know. When you're down to 30 seconds, I will raise the yellow 30-second cue card, so try to keep an eye out for that. When you're out of time, I'll raise the red one, and I'll just ask you to wrap up within a few seconds of that.

That being said, we have three witnesses in the first hour. We have Greg DelBigio from the Canadian Council of Criminal Defence Lawyers, online, I think. We have Garen Arnet-Zargarian, a member of the board of directors for the Criminal Defence Advocacy Society, here in person. We also have Melanie Webb from the Canadian Bar Association, criminal justice section, via video conference.

Welcome. You each have five minutes, beginning with Mr. DelBigio for five minutes.

[Greg DelBigio, Lawyer, Canadian Council of Criminal Defence Lawyers]

Thank you for the invitation to appear.

The study of bail is hardly new. In 1965, Professor Martin Friedland studied the problem of pretrial incarceration and published his results in his book, Detention Before Trial. The Charter of Rights and Freedoms came into force in April 1982. In that document, bail was guaranteed through paragraph 11(e), providing that any person charged with an offence has a right “not to be denied reasonable bail without just cause”.

In 2012, the national symposium on reinventing criminal justice studied bail and published its report and recommendations. Under the heading “Symposium Recommendations Aimed at Reducing the Remand Population and Improving the Bail Process”, the report states, “Symposium participants emphasized the importance of this early stage of a criminal proceeding and the need to allocate resources at the front end of the criminal justice process.”

Bail was once again studied in 2016 by the steering committee on justice efficiencies and access to the justice system. In that 2016 report, the committee wrote:

Accurate issue identification and effective reform depends upon a foundation of reliable evidence.... Our review of available data shows that there is a dearth of comprehensive, objective and reliable information about the bail process that would permit strong inferences or accurate conclusions about its operation.

The absence of reliable, objective, comprehensive data about various aspects of the diverse bail processes across this country has hampered the accurate identification of issues and conversations about reform....

The report did note and make a recommendation about the benefits of bail supervision as opposed to incarceration.

Bail was considered by the Supreme Court of Canada in 2017 in the case of Regina v. Antic, a case I'm sure all of you are familiar with. In that decision, the court referred to Professor Kent Roach and his work, and to where he observed, “Although the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era.”

In Antic, the court also recognized that pretrial custody affects the mental, social and physical life of an accused and his family. It may also have a substantial impact on the result of the trial itself.

Again, in 2020, the Supreme Court of Canada considered bail in the case of Regina v. Zora. In that case, the court observed that judicial officials making bail decisions are required to give particular attention to the circumstances of the accused persons who are indigenous or who belong to a vulnerable population that is overrepresented in the criminal justice system and disadvantaged in obtaining release. In other words, the court recognized that there are people who are caught in the criminal justice system—who find themselves in the system—and are disadvantaged and overrepresented. As a result of the disadvantage, they are disadvantaged in obtaining release.

In Zora, the court observed that there is a culture of risk aversion that contributes to courts' applying excessive conditions.

I am not an elected official; I'm a lawyer. I can't comment on what might motivate elected officials to suggest that bail reform is needed, that streets might be unsafe, or that more people should be denied bail and held in jail while presumed innocent. However, to be clear, I am in favour and do recommend that informed discussions about important issues—as opposed to attention-seeking quotes and headlines—are always good.

I don't suggest that everyone charged with an offence should be granted bail. I do suggest that using jails to address what are often social problems arising from considerations such as homelessness, addiction, mental health challenges and poverty is regressive. I do say that frontline prosecutors are already well equipped to oppose requests for bail in appropriate circumstances. Frontline judges are well able to grant or deny bail as is appropriate. Appeal courts are well equipped to review bail decisions.

If reform is considered, I urge that it be evidence based and use statistics, not guesswork or impressions. How many people are currently in pretrial detention and for how long? Why are they detained? Is it the primary, secondary or tertiary consideration? How many people who are released on conditions breach them? What offences are they committing?

If people are released and offences are committed, was it because of a system failure, or does it reveal a gap in the existing law?

If there is a concern that people are being released and committing offences and that this is revealing a problem, I urge you to study the transcripts of their bail hearings so you can understand accurately what it was that took place and why the people are on the street.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Now we'll go to Mr. Arnet-Zargarian for five minutes.

[Garen Arnet-Zargarian, Member of the Board of Directors, Criminal Defence Advocacy Society]

Thank you for the invitation to address this committee.

I'm a criminal defence lawyer in Vancouver, and I'm here on behalf of the Criminal Defence Advocacy Society, an organization of defence lawyers from throughout British Columbia.

This committee has an opportunity to meaningfully improve Canada's bail system, uphold constitutional rights and protect the long-term safety of our public. This should not be an either-or proposition; nor will it be a quick fix, but it is necessary.

As the honourable Minister Lametti has said, when making important decisions such as this, the devil will be in the details.

This committee has already heard some of those details, and I will not repeat all the statistics or all the data, but they are staggering. For the past 30 years, crime in our country has steadily declined, yet our pretrial jails have grown overcrowded with those presumed innocent. Even a few days in pretrial custody can jeopardize a person's employment, their housing and their community connections, and it can increase the risk of future offending.

The courts are bogged down with minor matters, administrative breaches and a culture of adjournment that has been described as “an entirely unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system”. There is a lack of legal aid funding for defence counsel and often an absence or sparsity of disclosure at an early stage. Community supervision resources are understaffed and underfunded.

Finally, indigenous people, racial minorities, the poor, the homeless, the drug-addicted and the mentally ill are all overrepresented in our jails. For the past three years, the pandemic has also eroded many of the social supports upon which people in these groups rely. It is perhaps no coincidence then that it is in this same time frame that these concerns regarding repeat violent offending have come to the fore.

These facts all combine for one troubling reality. Our court system is overwhelmed, and our society is in crisis. Reverse onuses will not solve that crisis. New rules and definitions for repeat violent offenders will not protect long-term public safety.

Bail decisions are inherently imperfect risk assessments. Reverse onuses do not tell a judge anything they don't already know about the caution needed when a defender who's facing newfound charges comes before the court. That person already faces an uphill battle to release, regardless of such a label. However, reverse onuses risk a one-size-fits-all approach that may threaten the right to reasonable bail.

A person who may otherwise be a consent-release candidate may face delays, even of a matter of days, to prepare a release plan. They may face pressure to agree to excessive conditions, and they may face pressure for a hasty and sometimes wrongful guilty plea. History suggests that unfortunately this will have the greatest impact on those same marginalized groups. Finally, adding reverse onuses would run counter to the clear direction from our Supreme Court of Canada in Antic and Zora.

Legislative reform alone will not cure what ails this justice system; nor will it protect our society in the long term. As this committee has heard, effective bail reform requires a multidisciplinary approach to understand and, more importantly, prevent the root causes of criminality. CDAS encourages this committee to consider how the federal government can support the following measures: first, increasing community health resources and social services, particularly in rural and northern regions; second, creating non-police mental health crisis response teams; third, decriminalizing the possession of a small amount of drugs and providing a safe drug supply to those who are addicted; fourth, mandating timely disclosure at bail hearings; and fifth, continuing to uphold the direction from Antic and Zora that pretrial release is the norm and that detention is the exception.

In Antic, the Supreme Court of Canada opened its decision by describing the interrelation between the right to reasonable bail and an enlightened criminal justice system. An enlightened criminal justice system must be forward-looking and not overly swayed by the emotions and tragedies that are, unfortunately, its stock and trade.

On behalf of CDAS, I urge this committee to favour data over emotion, to favour progress over regression, and to favour the long-term safety of Canadians over short-term reactions to tragic events.

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Arnet-Zargarian.

Now we'll go to Melanie Webb from the criminal justice section of the Canadian Bar Association.

[Melanie Webb, Counsel and Communications Officer, Criminal Justice Section, The Canadian Bar Association]

Good afternoon. Thank you for the opportunity to appear before you today on this important issue.

The Canadian Bar Association represents approximately 37,000 lawyers, students, academics and jurists across Canada. Our mandate includes seeking improvement in the law and the administration of justice. The criminal justice section is made up of a balance of Crown and defence counsel from every part of the country. Many of our members also frequently represent and provide advice to complainants and families of victims of crime during the course of criminal prosecutions.

I serve as the communications officer for the CBA criminal justice section, and I have been a criminal trial and appellate lawyer for the past 15 years.

In 2018 the CBA supported many of the amendments to the bail regime proposed in Bill C-75. The CBA submits that when considering any further proposals for bail reform a nuanced approach is appropriate. Any changes contemplated to the bail provisions must be evidence-based, consistent with constitutional rights, and consistent with the long-standing principles outlined in the lengthy line of bail cases from the Supreme Court of Canada.

It bears reminding that all persons who come before the court charged with an offence are presumed innocent until proven guilty. This is a constitutionally protected right. That presumption continues to apply no matter the subject matter of the offence and whether or not they have a prior record or outstanding charges. That presumption continues to attach to all persons at every stage of the criminal justice process, including the bail stage.

The culture of bail has often been referred to as being one of risk aversion, yet the Supreme Court has reminded us repeatedly that pretrial detention should be the exception and not the rule. That said, there will be times when detention is warranted, and detention is indeed ordered in bail courts across the country. Our jails are over capacity in many areas with people detained pretrial.

There have been calls to add more reverse onus offences on bail. There is already a long list of reverse onus offences in the Criminal Code, but regardless of whether or not a particular offence is a reverse onus or a Crown onus, Crowns are well equipped with the tools necessary to argue, where appropriate, that the accused should be detained or that the accused has not shown cause why they should be released. It is not uncommon for someone to be detained on Crown onus offences. Practically speaking, whenever serious violence is alleged to have been caused by the accused, and especially in cases involving firearms, the reality is that it is very much an uphill battle for an accused to be granted release, regardless of who the accused is.

It is by no means easy and by no means simply catch and release, as some have suggested.

Where the Crown is of the view that the lower court erred in granting release, the Crown may bring a bail review in short order to review that decision, and when an accused reoffends while on bail, the Crown may apply for the revocation of bail. These are not unusual or exceptional situations, and the Crown can successfully argue these cases where appropriate.

As the Supreme Court reminds us, the setting of bail is very much an individualized exercise. The law already provides for the consideration of a wide array of relevant factors that are taken into account by experienced judicial officers in every bail hearing. Modifying the language of the bail provisions of the code will not prevent tragic events such as the recent officer-related shootings or violent crime on the public transit system. Instead, a focus on addressing the root causes of crime, including providing greater resources to social supports that would help marginalized and vulnerable populations, would be more productive. We emphasize especially that this requires particular attention to those suffering from mental health issues, substance abuse issues, poverty and insecure housing.

Thank you for your time, and I look forward to answering any questions you may have.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Webb.

We'll begin our first rounds of questions. These are six-minute rounds.

We will begin with Mr. Caputo for six minutes.

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

Thank you, Mr. Chair.

For full disclosure, I've dealt with Mr. Arnet-Zargarian and Mr. DelBigio in my prior work. They're both obviously well-respected members of the bar, and I anticipate that Ms. Webb would also come with the label of being very well respected at the bar, given her work with the Canadian Bar Association.

Mr. Arnet-Zargarian, my sense is that you're on the ground a lot, if you will, and by that I mean that you're at 222 Main Street in Vancouver, which is known as a fast-paced court. Is that accurate?

[Garen Arnet-Zargarian]

Yes, and it's probably even faster paced at Surrey.

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

Yes, these are fast-paced courts that often deal with or triage bail hearings. This is part of your life.

[Garen Arnet-Zargarian]

Absolutely.

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

Before I get into the bail review, would you agree that Zora and Antic fundamentally changed how we look at bail? Would you agree with that?

[Garen Arnet-Zargarian]

I think that in many cases, they either changed it or reinforced what many were already practising, that the right to reasonable bail must be protected, and jealously so. I would say, yes, for some it did change that, and for many others it reinforced what we already knew.

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

As a defence lawyer, you see trends, obviously. You know different judges, and you see trends. Would you say that it's harder now to get bail or easier now to get bail post Zora, for instance?

[Garen Arnet-Zargarian]

I don't know that there is a trend of being harder or easier. I think really what the focus has become is what the least onerous conditions are. Some people who weren't going to get released before Zora probably still aren't going to get released. To answer your question very briefly, I don't think I've seen a specific trend of bail courts becoming more lenient. If anything, they've likely become more focused.

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

The consequence of that focus, though, for instance, might be six conditions instead of 12. Everybody doesn't get hit with an intoxicants provision and that type of thing.

[Garen Arnet-Zargarian]

That's fair, yes.

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

Part of that focus—and we could debate the rightness or the wrongness of this—has been to favour release, given Antic and Zora. Would you agree with that?

[Garen Arnet-Zargarian]

I think it's been a focus on reminding ourselves that we need to look at the conditions that are truly necessary for the specific grounds at issue. The one that we're most concerned about today is the secondary ground, protection of the public, so, again, it's been a matter of, first of all, are there conditions upon which this person could be released that will not put public safety substantially at risk? If so, what are the least onerous ones? In practice, it may end up being that, like you said, the person would be released without a blanket alcohol prohibition or without a blanket area restriction.

I don't think I have data to support every single point here, and I think that's one of the issues the committee has—that we don't have all this data on bail, but I don't think—at least in B.C., in the jurisdictions in which I most often practise—it's led to a trend of people being more likely to be released; it's just more focused conditions on those risks.

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

Thank you.

I'm going to ask you a bit about the Myers decision, which I'm sure you're familiar with. Myers was a decision that considered bail review sections, and those are automatic reviews on an indictable offence at 90 days. Do you agree with that?

[Garen Arnet-Zargarian]

Yes.

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

Generally, there's often a change in circumstance on the accused's behalf at that 90-day threshold, in that treatment is now available or has been lined up, something like that.

[Garen Arnet-Zargarian]

That is certainly part of the approach.

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

Your job as a defence lawyer is to set up that treatment or to arrange a surety, something like that. Is that correct?

[Garen Arnet-Zargarian]

It typically falls to the defence counsel to do all of the legwork. We'll, say, find a recovery house, find treatment and those kinds of things, yes.