Justice Committee on March 27th, 2023

[Michael Spratt]

Yes. We've seen this in bail cases like Antic; but we've also seen it in cases from the Ontario Court of Appeal, in R v. Morris, and the Nova Scotia Court of Appeal, in R v. Anderson. There are systemic issues with respect to overcriminalizing and overincarcerating racialized individuals, especially indigenous individuals. When we look at firearms specifically, we see it's easy to come at it from a downtown urban setting, although in many of those urban settings we've actually seen some decrease in gun offences over the last little while.

As I said, statistics are dangerous, and you have to be careful of small sample sizes.

I just got back from a circuit in the Northwest Territories, where the use of firearms, the culture of firearms and the types of people who have firearms are very different than down south.

If you have one-size-fits-all rules, it can lead to injustice for some people who don't and haven't traditionally fit into what we imagine the criminal justice system should be.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

My follow-up question to that is, have you seen, let's say, those who were indigenous or of the Black community...? What they are accused of is less severe, yet they are still denied bail compared to more violent crimes.

[Michael Spratt]

Yes. Our courts have been very clear at the bail stage and at the sentencing stage. If you are charged with a serious crime, just because you're racialized or indigenous, there isn't a “get out of jail free” card. In fact, there are very harsh punishments, but we do see a system bias.

If you are a rich, white kid from the Bridle Path or from Rockcliffe Park, your parents can set up private treatment. They can put down a large amount of money. They can take a day off work to come and bail you out. If you are a poor kid with a working class family, you don't have the same advantages, and we see that trickle down into the disproportionate incarceration of a variety of groups.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you so much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.

We'll now go to Mr. Fortin for six minutes.

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

Thank you, Mr. Chair.

I want to thank the witnesses for being here today. This is an important matter, and I do not think we will ever have heard too many points of view.

Ms. Bordelais, I listened to your description of the horrors of detention. You are not the only one to mention this, as Mr. Spratt and other witnesses also talked about it. I recognize that prisons are far from being a safe place where people can thrive. Clearly, that is not their purpose. I also recognize that there is a lot to be done to truly make prisons centres for rehabilitation.

That said, a large segment of the population is appalled by the rate of recidivism. We have to make sure that individuals who receive bail after being charged with serious offences, such as firearms offences, do not reoffend. I will spare you the stories of repeat offences, since you are probably as familiar with them as am I. This risk is worrisome to the public. My colleague Mr. Moore said earlier that all the provincial premiers are calling on the federal government to take action on this.

If we do not increase the number of individuals in pretrial detention, how can we address this demand from the premiers? We want to assuage public concern and make the facilities safer, without being stricter with people accused of serious firearms offences, among other things.

[Sylvie Bordelais]

Thank you very much for the question.

To begin, I agree with Mr. Spratt’s earlier comments since the reality in Quebec is indeed the way he described it.

Let me now provide a more specific answer. I think the importance of information is overlooked, that is, that there is unfortunately a tendency to focus on specific cases. That said, I am not suggesting that those are not serious cases. I do not in any way wish to minimize the pain of those who have lost a loved one or who are the victims of violence. Yet, there is a tendency to focus on this type of thing, creating the impression that the majority of those who commit serious offences are repeat offenders. That is not the case though, on the contrary, in fact.

Judges and Crown prosecutors are well aware of the public’s concerns. Individuals with a history of violence are treated much more harshly, and much greater attention will be paid if the person could get bail. So to answer…

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

I’m sorry to interrupt you, Ms. Bordelais, but my speaking time is very limited.

So would you tell the provincial premiers that federal legislators cannot or should not make any changes?

[Sylvie Bordelais]

No, that is not what I would tell them.

I would say they have to do two things. First, they have to take stock of the reality of the situation. Second, they have to be sure about what can be done up front. The individuals facing such charges have a record that needs to be considered. If applicable, and if the focus is on prevention above all else, perhaps…

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

I’m sorry, Ms. Bordelais. I do not want to be rude but I have just six minutes and more than half of that has been used up. Thank you.

Mr. Davis, I have the same question for you. As legislators, what should we do to respond to the premiers’ demand and assuage the public’s concern?

[Kevin Davis]

As I said previously, I'm here to speak to the concerns that my community has and to a subject I don't think the committee has heard much about. That is non-violent crime and what's happening with respect to non-violent crime.

Lots of witnesses have talked about violent crime and gun-related crime. I don't have much to add to that beyond what you've already heard from our chief and the chief of the Six Nations Police Service.

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

Thank you.

[Kevin Davis]

I'm talking about a subset of that. My concern, as a lawyer, is people losing confidence in the administration of justice. Part of this is through the headlines they read in terms of violent crime—

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

Thank you, Mr. Davis.

Let me ask you another question quickly, if I may. In Ontario, your government recently spent $7.6 million on a special team to ensure that individuals accused of violent firearms offences are not granted bail.

In your opinion, should the federal government follow suit so that all provinces take the same approach? If not, should that approach be used in Ontario only?

[Kevin Davis]

If it's successful and it is having an impact on reducing violent crime, obviously you would hope it would be used across the country. You can't argue with success.

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

Thank you, Mr. Davis.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Mr. Garrison, you have six minutes.

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

Thank you very much, Mr. Chair.

I want to turn to Madame Bordelais.

You talked about quite disturbing conditions in pretrial detention in Quebec.

I wonder if you could maybe address the obvious: What impact do you think those conditions in pretrial detention and the large number of people in pretrial detention have on public safety?

[Sylvie Bordelais]

I would like to pick up on what Minister Lametti said about a commission that would review applications from individuals who claim they are the victims of a miscarriage of justice.

When a person is in a situation they want to get out of, they will plead guilty to any favourable offer, even if they did not commit the offence in question. That is probably what I find most bothersome and disheartening. Racialized persons, Inuit and women are more likely to plead guilty to offences that they did not necessarily commit, simply to get out the chaos they find themselves in. As a member of the public and a lawyer, I find this particularly problematic.

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

In your experience with the system, what do you think would be the best ways to reduce the overincarceration of marginalized and racialized people in the system? How can we get at this problem that seems to contradict the Supreme Court's decisions?

[Sylvie Bordelais]

Looking at racialized and indigenous persons and women in particular, they are not necessarily the ones who commit the most violent crimes. As to the Black community, firearms are sometimes involved. I will not elaborate on that however.

Let us begin with the facts. In the figures I mentioned, we see that reincarceration is most often the result of non-compliance with bail conditions. For example, if a person is asked to abstain and they do not abstain, they will ultimately be sent back to prison, even if there was no significant offence. If we began by considering prospective bail conditions, that might reduce the rate of reincarceration, especially if there is no repeat offence as such, but rather a breach of conditions.

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

Are bail supervision programs widely available to marginalized people in Quebec?

[Sylvie Bordelais]

I'm not sure I can answer that question.

I can tell you, however, that a person of no fixed address, with little money and who is unable to communicate easily with their lawyer will be at greater risk of breaching their bail conditions and failing to appear in court. As a result, that person will at some point breach their conditions and be incarcerated. This vicious circle means that the most marginalized, the poorest and those with the least education are those who are most often reincarcerated.

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

Thank you.

I want to turn to Mr. Spratt, along the same line of questioning, about the impacts of these conditions in pretrial detention on public safety. Maybe you can say a bit more about what you have observed.

[Michael Spratt]

One of the most disheartening things I've seen—and I think every criminal defence lawyer has seen—is individuals who are pleading guilty not because they're guilty or remorseful but because they will do anything to get out of jail. I think I would, given what I know about those conditions.

It's that sort of perverse incentive, which has been well studied in the context of minimum sentences, that is most concerning, because now you not only have individuals who have lost confidence in the justice system because of how they were treated, what they were forced to do and the conditions they were in, but individuals who, unfortunately, we disproportionally see as racialized and marginalized, and who now have criminal records, which makes it all the more difficult to get a job, to reintegrate into society, to volunteer and to be the prosocial individuals we and they want them to be.

It's this cyclical and self-fulfilling prophecy that really needs to be stopped. We need to do that through funding things like treatment, through bail supervision and through insisting that our municipal and other police forces allocate resources like that responsibly, so that if there is a bail breach and someone doesn't show up to court, we're alerted before there's a tragedy.