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.