Evidence of meeting #56 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was system.
A recording is available from Parliament.
4:05 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Generally, a bail review, if there is an initial detention, is often successful where an initial application for bail wasn't successful. Would you agree with that?
4:05 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
I don't have statistics on that.
4:05 p.m.
Conservative
4:05 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
Anecdotally, it's hard to say. It would really come down to the specific cases. Being very candid, in my own experience I haven't seen a trend of it being more or less likely. It all comes back to, obviously, what the issues are for that person. There are going to be some for whom it doesn't matter how many treatment centres they may have access to; they're just not going to be released.
4:05 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
That's fair enough.
I'm going to ask you a bit about.... You talk about data over emotion—
4:05 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
4:05 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
—and I don't know about you, but I presume that everybody on this panel would agree that we're most concerned about public safety, and public safety is impacted by interpersonal violence and firearms. Those are two of the key aspects. I'm putting aside intimate partner violence for now, but those are two aspects. Would you agree?
4:05 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
I'd agree with that.
4:05 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
If the bail system is to be reformed.... We talk about data, and my understanding, sir, is that there has been a 32% increase in violent crime and almost a doubling in gang-related homicides, particularly with firearms.
If we talk about that data, I take it we can agree that if we're going to focus anywhere, that would be a place to say, “Do you know what? We're going to be dealing with violence and with firearms getting into the wrong hands.”
Do you see where I'm going with that?
4:10 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
Certainly, and what we do for those extremely serious types of crimes has to be a focus of this committee.
I think that the difficult balance is going to be in striking the right approach of targeting those crimes, which are clearly dangerous to society, while not having what I'll call “bycatch”, which includes the people who should not be included in those.
4:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
You'll get no argument from me. There's definitely a difference in somebody who's a chronic shoplifter or breaking into cars, as opposed to somebody who possesses a weapon as a tool of the trade.
4:10 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
That's right.
Just to briefly conclude on this point, one of the proposed reverse onuses is for section 95(1) offences. The courts have clearly said, at that spectrum of the offence, that a tool of a criminal's trade is a serious and dangerous offence, but not every offender will be in that.
That's one of the examples of the risk, where we could catch someone who should not be involved.
4:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
If you are carrying a loaded firearm, generally it is a weapon and is a tool of the trade, I would argue. In any event—
4:10 p.m.
Member of the Board of Directors, Criminal Defence Advocacy Society
Maybe I would just point to paragraph 82 of the Nur decision, which talks about the other end of that spectrum, which is the responsible gun owner who would fall under that, but—
4:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
You wouldn't get any argument from me on that paragraph.
4:10 p.m.
Liberal
March 27th, 2023 / 4:10 p.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you very much, Mr. Chair.
Welcome to our witnesses. Thank you for coming today as we continue our study on bail reform. It may be one of our last sessions today, so we very much appreciate the immense experience that you all have and that you're all sharing with us.
Ms. Webb, I want to ask you, as you have 15 years experience yourself personally, but also with the Canadian Bar Association, among its various members who would have tremendous experience. You said the Canadian Bar Association supported Bill C-75. I wasn't there at that time.
Can you describe what Bill C-75 did and the impact it had on our bail system, in your opinion?
4:10 p.m.
Counsel and Communications Officer, Criminal Justice Section, The Canadian Bar Association
Yes. Bill C-75 implemented a number of changes, not only to the bail regime but to many other aspects of the criminal justice section. We made extensive submissions on this. We supported many of the amendments on the bail regime. We felt that they would lead to more expedient hearings, while still being consistent with the existing case law and constitutional concerns.
For example, we supported the codification of the restraint principle—the ladder principle—which was already codified in the Criminal Code, as well as section 493.1, which directs the judicial officer to give primary consideration to releasing the person at the earliest reasonable opportunity and with the least onerous conditions appropriate in the circumstances. I'm referring again to the restraint and to the ladder principles.
Section 493.2 required consideration of the overrepresentation of indigenous people on trial, as well as other vulnerable populations that have been overrepresented and disadvantaged in the criminal justice system.
We also supported changes that would explicitly discourage the use of cash deposits and sureties. That's based on many judgments and reports over the years that have commented on the overreliance on surety bail as a form of release.
We also supported the diversionary mechanisms, including judicial referral hearings. I should note, just based on my own experience, that I don't think we have seen that used as much as it could have been.
We also supported, in particular, the expansion of police powers, which would allow police to release an accused on arrest. This would reduce overall the number of bail hearings and, hopefully, the number of people in detention and custody.
We also noted that Bill C-75 made it a bit more difficult for people charged with domestic violence-related incidents who already had a record for such violent offences. That was something we made submissions on as well.
That was the overall import of the changes to the bail regime as a result of Bill C-75.
4:10 p.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you very much for that. It's very helpful to have all of that clarified.
You said, and other witnesses have said, that any amendments that are to be made need to be made based on evidence and on statistics.
My question to you is, do you have evidence from the Canadian Bar Association or from anywhere else that you or others would have gathered that suggests to you that we should be making amendments? If so, what types of amendments should we make?
4:15 p.m.
Counsel and Communications Officer, Criminal Justice Section, The Canadian Bar Association
The Canadian Bar Association, as far as I'm aware, does not collect statistics. We have in our submission made reference to statistics from Statistics Canada, which are accessible online. We included those specifically to provide some clarity regarding whether or not there has been an increase in crime and, if so, in what kinds of crime and what the reasons might be.
I can't speak specifically.... I'm not a criminologist. I'm not a statistician either. I am simply a criminal defence lawyer and someone who participates quite actively in issues on law reform and advocacy.
However, we would suggest that if there are going to be changes to the bill regime, we do not react. Again, I would echo the words of my colleague, Mr. Arnet, that we do not react based on emotion and that we do not react instinctively to very tragic and emotional events, but that we look at the literature. For example, I felt that the brief submitted by Dr. Nicole Myers earlier on in these committee meetings was very helpful. I felt that might be a very good source as a starting point.
4:15 p.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you for that.
Mr. Greg DelBigio, can I ask you the same question? You also alluded to the fact that it should be evidence-based.
I appreciated that you started with how the study of the bail system is not new, that, in fact, it's decades old.
Do you have any recommendations for us on this committee as to what amendments we should make? What kinds of evidence or stats have you or people around you seen, based on your experience?
4:15 p.m.
Lawyer, Canadian Council of Criminal Defence Lawyers
We don't keep statistics. We're just not equipped to do that.
In my experience, sitting on various committees and attending various meetings where these issues are discussed, it's always the government's institutions that are best able to gather statistics. Of course, what is kept depends upon what you want to measure. It takes time to gather statistics, and it takes competence with respect to how to do it.
However, I think these issues.... We're talking about people's liberty. If you are thinking that more people should be in jail while presumed innocent on a pretrial basis, and if it's suggested that there is a need for that, I suggest that this justification should not be found on impression. It should be found on demonstrated need as found in statistics.
4:15 p.m.
Liberal
