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.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Finally—I know I'm almost out of time—I want to go to Ms. Webb.
We've heard a lot of talk about how the Supreme Court has said people should be released at the earliest opportunity, on the fewest conditions. How do we square that with the very large number of people in pretrial detention in this country?
4:45 p.m.
Counsel and Communications Officer, Criminal Justice Section, The Canadian Bar Association
Thank you for that. I realize that I have very limited time to address that question.
There's one thing I want to note, which I don't think was mentioned earlier. During the early days of the pandemic in 2020, there was a great, concerted effort between the Crown and the defence bar to try to consent to release and to fashion conditions that were reasonable to try, particularly when there was a lot of uncertainty. There was no vaccine available, and the conditions of jails, aside from being very poor generally, were certainly not amenable to people who were residing in closed spaces and unable to self-isolate.
I would say that after the initial months of 2020, there has been a bit more of a reversion back to greater opposition to bail and opposition under reasonable conditions, so maybe I'll just suggest that I think we are seeing a bit of a swing. I can't speak to all jurisdictions in the country necessarily, but I have seen that, and again, I'd really refrain from making anecdotal remarks, but that has been the general experience, certainly in the golden horseshoe area in southwest Ontario.
Thank you.
4:45 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you.
Thank you, Mr. Garrison.
That concludes the first panel.
I want to thank all three witnesses, especially the ones from Vancouver. Thank you for appearing and for coming down.
I will now suspend for about one minute to do a couple of sound checks, and then we'll begin the second round.
4:50 p.m.
Liberal
The Chair Liberal Randeep Sarai
We're back for the second hour of the study on the bail system.
I want to welcome our witnesses.
We have Michael Spratt as an individual. He is a partner at Abergel, Goldstein and Partners.
We have Sylvie Bordelais, attorney-at-law, from the Association des avocats in Quebec.
We have Kevin Davis, mayor of the city of Brantford.
Welcome.
For those who didn't hear me before, I use cue cards, so when you are down to 30 seconds, I will raise this one, and, when you're out of time, I'll raise the red one. Just be mindful of time.
Hopefully you will put your headphones on the right channel so you can hear and, on Zoom, Ms. Bordelais, just make sure you have your interpretation to the right language so you can hear everyone.
Monsieur Fortin, I've been told that the sound checks have been done, so we'll begin.
March 27th, 2023 / 4:50 p.m.
Michael Spratt Partner, Abergel Goldstein & Partners LLP, As an Individual
Thank you.
My name is Michael Spratt. I'm a specialist certified by the Law Society of Ontario in criminal law. I'm a partner at AGP Law here in Ottawa. I have been practising exclusively criminal law since 2005.
Every discussion about our bail system must start with the fundamental constitutional principles that have been enshrined in the Charter of Rights and Freedoms, the presumption of innocence and the right not to be denied reasonable bail without just cause.
We must remember that people denied bail are presumed innocent. We should not seek to punish people before they have been found guilty. Pretrial detention is punishment of the worst kind.
I want you to imagine a jail so devoid of humanity that guards stand idly by while a pregnant woman gives birth in her cell, a jail so lawless that guards can brutalize inmates and then cover up the abuse with impunity, a jail so overcrowded that inmates are forced to sleep in a damp shower cell, a jail so dirty that clothing and bedding are stained with urine, feces and blood, and where there are bedbug infestations and other unsanitary conditions that lead to untreatable infections. This isn't hyperbole. This is reality.
More than 70% of Ontario's jail population is made up of individuals awaiting trial. We lock people up because they are poor, homeless, addicted, sick or marginalized. Sadly, rehabilitation programming, addiction counselling and mental health treatment are non-existent for most of inmates on remand.
The dirty secret of the justice system is that people usually come out of jail in worse shape than when they went in.
Our jails are increasingly expensive factories of suffering that interfere with rehabilitation, cut accused people off from family and community support, result in homelessness and unemployment, and make our communities less safe.
Most disturbingly, pretrial detention results in a perverse incentive to admit guilt to escape those horrendous jail conditions, rather than wait months for a trial. I've seen this on many occasions.
Any study of the bail system should examine these issues. We do need to talk about reform, but I expect that's not the type of reform or the types of questions you'll be asking me about.
The current discussion about bail and firearm offences has been driven by some very high-profile tragedies, like the killing of OPP officer Pierzchala, and most recently the shooting deaths of the Edmonton police officers, constables Jordan and Ryan.
It can be easy to ignore important facts in the face of such tragedy, so I briefly want to start with some facts.
The first fact is that crime statistics are very complicated.
The second fact is, historically speaking, that we live in one of the safest periods in Canadian history. Violent crime rates have been declining for years, and we've seen an 11% drop over the last 20 years.
There has been an increase in the rate of firearms-related offences since the year 2000, but the use of firearm offences in homicides has remained relatively stable over the last 20 years. According to StatsCan, there was a decrease of almost 10% in gang-related homicides in 2020 and a 5% decrease in firearm-related violent crime in 2021.
The third fact is that there is not an increasing trend of on-duty police deaths.
The fourth fact is that pretrial detention increases rates of recidivism.
The fifth fact is that Bill C-75 did not contain catch-and-release bail policies. There is no such thing. This type of language is a political grift.
Bill C-75 legislated recent decisions from the Supreme Court, like the principles of restraint, and actually let police officers impose stricter bail conditions when they release individuals. It also reversed the bail onus for many offences that involved intimate partner violence.
The sixth fact is that firearm offences are taken very seriously in our courts. In my experience, the police rarely release those accused, unless the accused is a fellow police officer; Crowns rarely consent to that release, and bail hearings are always lengthy and hotly contested.
The seventh fact is that reverse-onus bail for firearms offences is most likely constitutional and might prevent some offences.
The eighth fact is that it won't deter offences, just as increasing sentence length doesn't deter offences.
The ninth fact is that reverse-onus provisions in firearm bail would not have prevented the deaths of Officer Pierzchala, Officer Jordan or Officer Ryan.
The solutions to be found are not in changing bail law but in looking at increased funding for access to justice, upstream social supports and bail enforcement.
There is a crisis in our bail system, but not the one that you think. Our bail system is not overly lenient. The catch-and-release slur is not true. Recent legislation did not cause the recent tragedy, and I urge you to look at the realities and the evidence and not use the criminal justice system as some sort of political wedge.
4:55 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Spratt.
We'll go next to Madame Bordelais for five minutes.
4:55 p.m.
Sylvie Bordelais Attorney-at-Law, Association des avocats et avocates en droit carcéral du Québec
On behalf of the association of prison law lawyers of Quebec, I wish to thank the committee for inviting us.
In Quebec, prison law lawyers are a small group who, for more thank 30 years, have represented persons in detention, in prisons and penitentiaries alike.
Today, I will focus on individuals in detention awaiting court proceedings, because these are people who have been denied bail or who have waived bail. So as not to repeat what our defence colleagues have already explained, I have decided to focus primarily on what happens in detention facilities when persons presumed innocent are detained.
The following figures are from the website of Quebec's ministry of public safety. They provide an overview of the situation and its evolution over time. I must point out, however, that as a result of COVID‑19, the numbers for 2020‑2021 are much lower because the authorities tried to limit the spread of the virus by not overcrowding jails. So I will not review all the data since you certainly have access to it.
The figures for 2020‑2021 show that 26,139 people were incarcerated, or roughly 378 out of 100,000 residents, of which 50% were defendants, 10% had mental health problems, more than 37% were on prescription drugs, 11% were women, just over 4% were indigenous, and close to 3% were Inuit.
In 2018‑2019, before the pandemic, 25,555 people were incarcerated, of which 12% were women, 4.4% were indigenous, and 3.5% Inuit. Among them, 8% had physical health problems, 11% had mental health problems, 35% were on medication and 2.6% were at risk for suicide. Ninety-one percent were unmarried, 76% did not have a diploma, 59% lived alone and 36% had a criminal record.
The most common offences leading to incarceration were breaking and entering and breach of bail or probation conditions, drug possession and trafficking, and theft over $5,000. In 55% of cases, they were acquitted, 43% of the defendants remained in custody after a trial or a guilty plea, and 2% received a sentence in the community.
The average length of stay in pretrial detention was 55 days, specifically, 24% and 22% at the two institutions in Montreal and 12% at the Quebec City prison.
While the death of incarcerated persons is not always publicized, we must not forget the case of a young man who was supposed to be released after a judge granted bail but instead died on Christmas Eve 2022 while in the custody of Quebec’s correctional services. A bit earlier that same year, another individual in the pretrial custody of Quebec’s correctional services was killed by a fellow inmate. This highlights the particularly difficult detention conditions in certain provincial facilities.
According to the data obtained by TC Media, there were 73 violent deaths in Quebec correctional facilities between 2010 and 2015, with suicide being the main cause of offender death. According to figures I mentioned, in 2022‑2023, 43 individuals had attempted suicide and 7 individuals had died as of October 21, 2022.
I was unable to determine whether this occurred equally among inmates and those awaiting trial, but this happens at all detention centres, including women, regardless of the prison population. This points to the profound distress of individuals placed in prisons, particularly in view of staff shortages, leaving the inmates in conditions that are akin to torture. I would also remind you that class actions pertaining to solitary confinement have been been won, in particular because this kind of treatment, which is akin to torture, is still used in some provincial prisons.
Currently, judges are selected on the basis of their expertise. That is why I maintain they must be given the necessary latitude to decide who should and should not receive bail.
5 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Ms. Bordelais.
Now we'll go to Mr. Davis, mayor of the city of Brantford.
5 p.m.
Kevin Davis Mayor, City of Brantford
Thank you very much, Mr. Chair. I thank you for inviting me to this committee hearing.
I am the mayor of the city of Brantford. I was elected in October 2018, after having practised law for 38 years.
I was a civil litigator. I did not practice criminal law, so I'm not coming to you as an expert in criminal law. I don't pretend to be.
However, I'm here to speak on behalf of my community and many of the residents in my city, who are very concerned about what they see as a deterioration in social order and what they're experiencing in their daily lives. Fortunately for most, it does not involve exposure to violent crime. We read the headlines. We see it. There is violent crime that occurs in our community, but what most residents see in their daily lives is a very visible increase in what I'd call non-violent crime.
They see their cars being broken into multiple times. Their homes and property are being vandalized and stolen. They see open drug use and open drug dealing. They see our local police service—led by Chief Davis, who I believe testified at this committee earlier this month—doing an excellent job investigating and making arrests. We're a relatively small city, so people are generally known. They're seeing the people who commit these types of crimes being released multiple times, even in the face of many prior breaches of probation and breaches of prior release orders.
I can give you a couple of examples. I know the committee has distributed some of these slides, which are actually from Chief Davis and the Brantford Police Service. They refer to 10 of what the police service calls the most prolific offenders. There are a couple there.
There's an example of one who had, at the time this survey was done, 73 substantive charges, nine failures to comply, 25 breaches of probation, multiple releases—in excess of 20—but continued to commit admittedly non-violent offences.
It was interesting. Last year we had an individual in the court system who pleaded guilty to several break and enters. He actually remarked during his sentencing that he had been arrested eight times in the previous 12 months. He felt the system bore some responsibility for his crime spree, for failing to keep him in custody. An offender mentioned that.
We had another individual in our downtown—seen on multiple surveillance videos across social media—who destroyed $70,000 in plate glass windows. He was arrested very quickly. He was then very quickly released. He then went out to destroy another $20,000 worth of plate glass windows later in the day. He was rearrested and released, but then his spree was brought to a halt because he committed a more serious criminal offence, so he was detained.
I realize I'm giving you ad hoc incidents, but this is what citizens are experiencing on a pretty much weekly and daily basis. They're becoming disillusioned with the judicial system. They're losing confidence in the judicial system. Yes, they use words like “revolving door of justice”, but that reflects a perception that the judicial system is not protecting them and not protecting their property.
I'm very much concerned, as a lawyer, about what that will do over time. It's a gradual erosion of the value of the rule of law and of the fact that the law applies to everyone equally, that there are consequences for those who break the rules, and that people should not take the law into their own hands.
In fact, Chief Davis just commented in a newspaper article this week in Brantford that he's very concerned about this growing frustration that residents have with the judicial system, and bail in particular. He's very much concerned that there's talk on social media of vigilantism. He's very much concerned that over the course of time, if the erosion continues—of the faith people have in the judicial system—it could lead to that. We would obviously hope not.
Now, I'm not advocating for people to be kept in jail more often and more frequently. I have some other suggestions, albeit provided in a non-expert fashion, that I'd be happy to provide if asked questions.
I'm running out of my five minutes, but I wanted to, in my first five minutes, convey to you a general feeling from across my community. It's the number one complaint and inquiry I have gotten in the Office of the Mayor week in, week out over the four to five years that I've been mayor. There's no other issue that causes as many comments and directs so many comments to the mayor's office, asking that we do something.
5:05 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mayor Davis.
We'll now go to our first round of questions, beginning with Mr. Moore for six minutes.
5:05 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Mr. Chair, and thank you to our witnesses on this panel for your valuable input into this important study.
Mayor Davis, I'm going to begin by asking you a question.
I also bring greetings from your member of Parliament, Larry Brock, who's a regular member of this committee.
You've heard today that we've heard from some individuals who seem to take the approach, “Nothing to see here. There's no problem.” Incredibly, I heard a witness say there is no catch-and-release. I don't know what you call it when someone is caught and then released, other than catch-and-release.
Screaming from the headlines, in your own community, I see a release from the Brantford Police Service just today, Thursday, March 23, 2023. They say there was a home invasion robbery, and, “Investigation revealed that four male suspects, armed with firearms, entered [a] residence...assaulted, robbed, and forcibly held two...victims before fleeing the scene in a vehicle driven by [another] suspect.” Of the five suspects, four are in violation of a number of judicial release orders, including multiple firearms prohibition orders.
This is at the crux of the problem your community is rightly talking to you about and my community, in New Brunswick, is talking about. We're not talking about a vast number of offenders. We're talking about a small number of offenders who come into contact with the system, are irresponsibly let out on bail when they should be held in the interest of public safety, and then go on to commit another crime.
The Toronto Police Service provided us with statistics about individuals who are arrested on a firearms offence, receive bail, are arrested again while on bail for a subsequent firearms offence, and receive bail again.
When you talk about a revolving door—and I agree with you 100%—I wonder if you can expand on that. You may not want to go into details, but speak to this issue I just raised. Is this the type of thing your community is concerned about?
5:10 p.m.
Mayor, City of Brantford
Our community is very concerned about it. You heard previously from Chief Rob Davis and Chief Darren Montour from Six Nations. They're both very concerned about it in terms of public safety, and I think their concern is justified.
Has the system drawn a proper balance between protecting the public and protecting the rights of individuals who have not yet been convicted? There's a growing perception in the community—certainly in mine and in the surrounding area—that the balance is out of kilter, and that the interests of those who are clearly of a criminal bent, from their records, are receiving greater consideration than the interests of those who want to see themselves protected by the system.
When people lose confidence in the system, you see the broken windows of policing. If people see that there aren't consequences, they begin to question whether they should follow the rules, because that's what the rule of law is all about. If we depend on a rule of law system that says to somebody that you....
Let me get this straight. The rule of law depends very much on most citizens obeying the rules and acting as lawful, proper, responsible citizens. As soon as you have to police everyone, your system's going to break down. That's my concern. We are seeing a general increase in this kind of activity, whether it's very violent or whether it's non-violent, and it's causing people to question the administration of justice.
I wonder what's happened to paragraph 515(10)(c). Isn't that one of the three grounds? You never hear any conversation, or you hear very little conversation about that, but there seems to be lip service paid to it.
I'd suggest it would be worth it for the committee to look at that paragraph. Is there a need to expand the subsections to enhance it, so that it has greater importance and is a consideration?
Also, we've experienced in our community many problems with a surety system. Chief Davis, in the same article, talks about the prospect of professional sureties. The issue with sureties.... I think over time, the system has replaced incarceration with sureties who are supposed to monitor and control the behaviour of the accused. You have many sureties who don't take the responsibilities very seriously, because there really are no consequences in the system for those who do not do what they're supposed to do as a surety.
I certainly encourage the committee to consider tightening up the rules when it comes to sureties, to make that system more effective and more responsible.
5:10 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Mayor, you're not alone in this, in that we've seen all 13 premiers from across the country—they involve every party; this is not a partisan issue—at the provincial level, calling on the federal government to play its part in addressing what I consider to be a broken bail system. It's one that would allow repeat, violent offenders, particularly when it involves gun crime, to be back on the streets of your community and others across the country.
Your police have done research. They've looked at some of the individuals. You said it in a way that it hasn't been said before. We rely on most people doing the right thing in Canada. No one is suggesting at this committee—that I've heard—that most people are doing the wrong thing. What we're saying is that there's a small number that has to be addressed, but that small number can have devastating consequences, for example, with Constable Pierzchala, who was killed over the recent holidays.
Do you want to speak a bit more to some of the suggestions or data that were provided around the prolific offenders you find in your community and what we can do to address that at the federal level?
5:15 p.m.
Liberal
The Chair Liberal Randeep Sarai
Unfortunately, Mr. Moore, we're over by a minute, but I'll give you 10 seconds.
Hopefully, in the next round, you'll be able to answer that.
5:15 p.m.
Mayor, City of Brantford
In 10 seconds, in terms of violent offenders, I believe Chief Montour and Chief Davis have both spoken extensively about that. They're better qualified than I am, and they're more experienced than I am to comment on that.
I talk about the interaction I have with residents on a weekly basis about what's happening in their lives—most of them—and what it is they're experiencing. What they're telling me is what they think about the justice system.
5:15 p.m.
Liberal
5:15 p.m.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
Thank you, Mr. Chair, and thanks to our witnesses for being here.
I'm going to start with Mr. Spratt.
You gave quite a horrific description of jail conditions—and this is in Canada. Can you talk to us a little more about what you mean by people coming out worse off when they are incarcerated?
5:15 p.m.
Partner, Abergel Goldstein & Partners LLP, As an Individual
Sure. I'm not a criminologist. I know you've heard from Dr. Myers and likely from some other criminologists who can provide the data that suggests that it is the case, but what we see in jails is a dehumanizing system that leaves people broken. Someone who is denied bail will lose their job, their housing and their connections with family. They are unable to maintain those connections, because it's expensive to make collect phone calls from jail. They're unable to set up treatment and counselling when they're released from jail, because they don't have those primary supports.
When you combine that with an utter lack of rehabilitative services for people on remand, it means that people who are held in custody.... We've known this for decades. From the Ouimet report, we know that we are risk averse when it comes to releasing people. What that means is that if bail is made too hard to get, if it's made too onerous, and if we use isolated tragedies to craft general legislation that applies to everyone, that's not the way we should be doing it.
We need to legislate generally and have that apply specifically, looking at the nature of the allegations, looking at the person's circumstances and looking at the supports available to them—because when you get it wrong on bail, the community suffers. If you're conservative and you're interested in dollars and cents, and we're looking at paying $80,000 a year to have someone in provincial remand, that should be troubling.
If you're someone who just cares about humanity, as I'm sure everyone does, it should be troubling that we treat people that way. If you're just worried about what your constituents and what the people in your community think, you should be concerned, because someone coming out of jail after those conditions puts your community in danger.
5:15 p.m.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
Thank you for that. I'd like to follow up on your comment about not making generalizations about the entire population because of some very specific, tragic cases.
Could you tell us a bit about the positive impacts of letting somebody out, an accused, rather than keeping them detained during the entire bail process?
5:15 p.m.
Partner, Abergel Goldstein & Partners LLP, As an Individual
I'll just go one step further. The problem about making generalizations based on specific cases is we don't even seem to have people who care to get the primary facts right about those specific cases.
On the tragic death of Officer Pierzchala, reverse onus would fix this, except it was his bail review. It was already his onus, so reverse onus wouldn't fix that.
If we're really interested in fixing it, we need to look at some larger systemic issues. When you have someone who's out on a well-supervised bail, that could be monitored by the police, that could be supervised via a bail program that has the access to justice resources that allow check-ins and support. That is a perfect way—while someone is presumed innocent, mind you—to assist in the rehabilitation. This is because it can be supervised; it can be monitored.
Rest assured, from everything that we've seen in court, our courts take serious violent offence seriously. When we look at prolific offenders and people with long records, we see that that is taken very seriously. Bail is the perfect time to make sure people aren't set back; in fact, it's a time to help people take a step forward.
5:20 p.m.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
Can you please talk to us about racial bias and the impact of that? You spoke about it during your opening statement.
