Justice Committee on March 27th, 2023

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Just to be clear, I was not asking you for the measurements but only for what sort of data is missing—what the gaps are.

Maybe I could go over to Mr. Arnet-Zargarian. Can you comment on that?

[Garen Arnet-Zargarian]

It's hard to say what's missing. It's a difficult question to answer. I would repeat some of the points you raised, such as knowing how long a person on average will spend in pretrial custody.

I think, importantly, we talked about the culture of adjournment. That and the question of who is responsible for that have been the subject of some discussion here. It's a difficult debate to engage in. I think it misses the issue. Instead of pointing fingers, we should be looking at why a case is being adjourned. Is it because of a lack of court resources? Is it to find housing? Is it to find treatment? Is it defence unavailability or Crown unavailability? That can help us focus on where we can eliminate one of the barriers to accessing justice—that being the right to reasonable bail in a reasonable time.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Mr. Arnet-Zargarian. I have another question for you.

You said in your testimony—and I've also read some of what you've written—that any policy we would introduce on bail reform must align with a consistent direction from the Supreme Court of Canada that reasonable bail is the norm and detention in jail is the exception, but certainly there is room for some exceptions.

I'm thinking of the person who has now been accused of murdering Constable Pierzchala. He was a repeat violent offender. He had been charged and, I believe, convicted of intimate partner violence in the past. He was out on bail pending trial on similar types of charges. Certainly that should have been an exception.

What are your comments on that?

[Garen Arnet-Zargarian]

I think I want to come back to one way in which I have described the bail hearing—it's not my own description, but it's a common description—that it is an imperfect risk assessment. I tried to find the actual transcripts, but I couldn't find them before this. As I understand it, and I may be paraphrasing, it was described as iffy or as a close call on the bail review that led to that release.

What does that tell us? It tells us that this individual did not necessarily need an additional reverse onus to be detained. That may not have made the difference. It was already very close. Without knowing what the specific judge was looking at in that case, it's hard for me to say that, well, this would have led to circumstances that could have saved the officer's life.

The challenge we face in bail is that we're not able to say whether this was a right or wrong decision. It's a risk assessment. What the judges are all striving to do is achieve that balance of protecting the public but upholding our constitutional rights.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we will go to Ms. Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Hello to all the witnesses. Thank you for being here for what is probably our last meeting on the matter.

Mr. Arnet-Zagarian, I have concerns about public safety issues and the constitutional right to bail.

British Columbia's attorney general recently issued a directive to amend the B.C. prosecution service's policy on bail. Among the key changes to the policy is the removal of a provision advising Crown counsel not to seek detention unless an appropriate sentence upon conviction would include incarceration.

I would like to hear your thoughts on that: will this improve the bail system?

[Garen Arnet-Zargarian]

Just for reference, there was a previous policy whereby the Crown prosecutor would consider, if someone were unlikely to face a jail sentence, whether they should seek detention. I would say that this should give us some concern. The fact that someone could be detained on extremely minor matters, or relatively minor matters, simply because they are a public safety risk gives us some concern. In my submission, it's not consistent with the theme of the guidance from the Supreme Court of Canada, and it leads to the obvious problem that someone could serve a longer time in jail than they would ever be sentenced to.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

What leads people to breach their bail conditions? What could be done to ensure better compliance with bail conditions?

[Garen Arnet-Zargarian]

I think it's such an individual exercise to see who will follow their conditions, and how and why. One of the challenges that I think will face this committee is that a lot of this is in the provincial jurisdiction, but what we need is co-operation between governments, because this issue is simply too important.

We need to look at providing these resources that we know can address the underlying root causes of criminality. Housing, drug treatment, mental health treatment—all these aspects are very broad. They are broad terms, but we need to dedicate our resources to preventing this from ever happening. As part and parcel of that, it will help prevent future breaches, including increased supervision and increased access to treatments, hopefully before they are involved in the criminal justice system, but afterwards as well.

We're never going to be able to help every single person prevent any breach, but that will go a long way.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

I agree with you: the more services there are to help those people, the better it will be for everyone.

What is the impact of detention, regardless of the duration, on individuals with addiction or mental health issues, for instance?

[Garen Arnet-Zargarian]

That's an excellent question.

Previous speakers, Dr. Nicole Myers and others from various organizations, have talked about the statistics and the impacts of pretrial detention. For individuals with those types of concerns, pretrial detention centres are harrowing places. They are for anyone, but particularly for them. Going through withdrawal symptoms in that kind of an environment or undergoing a mental health episode is a threat, not only to their own safety but also to the safety of all the others in there, whether staff or fellow inmates.

It's not going to be a solution to the problem. It will likely make matters worse for that individual, for others and, just as importantly, for our society when they come out.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

We'll next go to Mr. Fortin for two and half minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Ms. Webb, in your opinion, in the case of firearms offences, should we be stricter with regard to bail? If so, what criteria should the courts consider in such cases?

[Melanie Webb]

Fortunately, the Criminal Code already has specific provisions for offences that involve firearms. That is actually codified in the bail provisions.

I know that one of the proposals—I think, at large, this may have been alluded to in the premiers' letter more generally—is whether or not there should be another reverse onus, for example, on possession of a firearm. Without specifically coming down one way or another as to whether or not there should be a reverse onus on that specific offence, we address in our submission the fact that the circumstances of possession offences can actually vary. There can be cases in which it's fairly clear cut that someone may be responsible, certainly, for possession of a firearm. There are others in which there is a much more tenuous connection between the person charged and the actual item. The person may simply be an occupant in a vehicle, for example. The person may simply be an occupant of a household.

Generally speaking, I think it's fair to say that any time there are accused persons who come before the court and are charged with crimes of violence, crimes involving offences in which there has been use of a firearm, it is very much an uphill battle for that person to be released.

I would just strongly encourage this committee not to be swayed too much by anecdotal evidence that has been suggested, I think, in prior meetings. Generally speaking, if you were to go into bail courts in Toronto, for example—Toronto and Peel are very, very busy bail courts—you would see that, day in and day out, experienced judicial officers are very well aware of the principles of bail. They are very well aware of the need to balance public safety and confidence in the administration of justice. By and large, they carry out that responsibility very well.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Ms. Webb.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Mr. Garrison, you have two and half minutes.

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

Thank you very much, Mr. Chair.

I want to go back to Mr. Arnet-Zargarian.

In a lot of the public debate on bail, there's been discussion about so-called repeat violent offenders and their ease in getting bail. Of course, I think you will probably agree with me that there is no such category in the law. That makes it hard.

[Garen Arnet-Zargarian]

No, there is not.

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

However, in your experience with regard to those who might colloquially fall into that category, do you find that it's easy for them to get bail?

[Garen Arnet-Zargarian]

Certainly not. To put it bluntly, that's really not the case. You have to come with a comprehensive plan. Again, these things are always on a spectrum. If you have someone who has a series of recent serious violent charges, that's more than an uphill battle to release. That's almost a foregone conclusion of being detained.

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

I would ask Mr. DelBigio the same question.

[Greg DelBigio]

In my experience, these people are being detained.

Listen, transcripts are available from bail hearings. If people can point to specific bail hearings and say “this bail hearing illustrates a problem”.... I urge people to get the transcripts to understand concretely what it was that took place at the bail hearing and why a person was released. These kinds of decisions should not be made on the basis of impressions, emotions or guesswork when data is available. The data of transcripts is available. I urge those who suggest that there's a problem to obtain and present the transcripts that illustrate a problem.