Justice Committee on March 27th, 2023

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

Thank you, Mr. Chair.

To begin, I would like to thank the witnesses for being here. As my colleague Ms. Diab said, we are very grateful. We are studying a very important matter and this could be our last meeting to hear from witnesses, so your testimony is important.

There are two ways of looking at things, as you may know, since you are important players in the judicial system. According to the basic doctrine, release is the rule and detention the exception. Some people maintain that detention is necessary in certain cases because releasing the individuals would be dangerous.

I believe it was Mr. Arnet-Zagarian who said earlier that use of a firearm in the commission of an offence is an important factor. Similarly, it is difficult to justify the release of repeat offenders because of their risk to reoffend.

In my opinion, detention is necessary in some cases, while in others, individuals should be released. Those are my thoughts so far. I heard earlier that it is really a case-by-case approach and that the court has to decide in light of the evidence submitted. I think that is wise.

That is a long preamble to my question, which pertains to the fact that the court's decision may vary over time based on a number of elements and the legislation adopted.

For example, the Parliament of Canada recently enacted Bill C‑5, which abolishes minimum mandatory sentences for certain offences, specifically those involving a firearm. The minimum mandatory sentence imposed for the deliberate discharge of a firearm has therefore been abolished. There is of course still a maximum sentence, and a stricter sentence can still be imposed, but as legislators we decided that the minimum sentence would no longer apply to this type of crime.

Mr. Arnet-Zagarian, in your opinion, will that impact how the court rules on releasing an individual or not?

[Garen Arnet-Zargarian]

Thank you very much for the question.

To make sure my answer is clear and coherent, I will answer in English.

I'm glad you asked this question. I heard you ask this question of another witness earlier, and I thought it was a very important one.

You address the issue of bail hearings being very much case by case. Different facts will impact the outcome. I think the abolition of mandatory minimum penalties has focused each sentence on the case-by-case issues.

To briefly answer your question, no, it has not been my experience that removing mandatory minimums has led to less harsh sentences or to judges treating certain crimes as less serious. The common law already explains that the way judges must treat this is by examining the maximum sentence. Removing mandatory minimums does not, in my sense, send any messages that certain crimes are not as serious as they were before. It recognizes only that a different array of circumstances can lead to the commission of an offence.

To use the example of possession of a prohibited firearm, it is very unusual to see any sentences well below the previous three-year mandatory minimum. That still, in effect, is being treated, at least in B.C., as a de facto mandatory minimum.

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

Would you not agree that the legislator has nonetheless sent a message to the courts by abolishing minimum sentences? Abolishing them means something. It was done for a reason.

In recent months, particularly in Quebec, there have been cases in which the judge has sought the lawyers' opinion on the abolition of the minimum sentence. The defence will of course argue that this means that the offence is not as serious as it was before, while the prosecution will say the opposite.

Does abolishing minimum sentences not have an impact? Does it not send a clear message to the courts? If not, what was the purpose? In your opinion, why did we abolish these minimum sentences if there is no impact?

[Garen Arnet-Zargarian]

The impact is that it recognizes the different circumstances that can lead to that offence. It's not at all saying that broadly this offence is less serious. It's explaining that, depending upon the circumstances leading to this commission, including the actual facts that led to it and the facts of the specific offender, a different sentence will be appropriate.

In my respectful view, and based on my experience, it's not at all sending the message that a crime is less serious.

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

If I understand correctly, Mr. Arnet-Zagarian, you are a defence lawyer. Let's assume you were representing an individual charged with a firearms offence. Appearing before the judge, you seek bail for your client, while the Crown prosecutor argues that it is a serious crime, that a firearm was used, and that your client must be detained in the interest of public safety.

Would you not remind the judge that there is a trend in rulings and that the legislator has decided that minimum sentences are no longer applicable in such cases? Would you not make that case?

[Garen Arnet-Zargarian]

No. I don't think I'd be very successful if I were to do that. I'll say that.

[The Chair, Liberal, Randeep Sarai]

Be very brief.

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

You might not be very successful, but would you plead that?

[Garen Arnet-Zargarian]

No, I would not. I don't think so.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Next is Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

I'm glad to have the opportunity to drag us back to the topic in front of us, which is actually bail and not mandatory minimums.

Mr. DelBigio, you mentioned bail supervision programs being recommended since 2016. I wonder if you could talk about what you believe the impacts would be of having more bail supervision programs available.

[Greg DelBigio]

Bail supervision programs can help address risk. To the extent that risk arises because of instability in a person's life, either through housing issues or addiction issues or poverty issues, all of those things can be addressed through bail supervision rather than jail.

Jail is a very, very blunt tool through which to address risk, and it should be an absolute last resort. It's not cost-free. It's not financially cost-free. It's not socially cost-free. I think there are people who have done cost comparisons of monitoring people in jail as compared with out of jail. I suspect that the out-of-jail monitoring costs less financially. It's certainly socially advantageous.

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

Would you believe that a greater availability of bail supervision programs would help address the overrepresentation of indigenous people and marginalized people in pretrial detention?

[Greg DelBigio]

I have no doubt, because part of a submission on bail, as a defence lawyer, is to propose a plan that is going to give a judge comfort that a person is going to be stable in their lifestyle, such that they can abide by bail conditions. If that stability does not otherwise exist, and if it could be provided through bail supervision, then that is going to increase the chances of people getting bail and being successful while on bail.

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

Thank you.

I want to turn to Ms. Webb.

We've had some before the committee.... Certainly in the media there have been some allegations that judges or Justices of the Peace don't always have full information about the person being charged when they're making bail decisions.

Can you comment on whether that's been your experience or the Bar Association's experience? Do judges actually have the information they need, and does that include administration of justice offences?

[Melanie Webb]

Yes.

I'll speak as a defence lawyer having had experience in bail hearings. Certainly in Ontario the practice is that a Crown in a bail hearing will invariably supply the court with a list of the accused's criminal record, a list of any outstanding charges. We even have Crowns who will supply occurrence reports, which may go to establishing a pattern of continuing criminal conduct, and that, of course, can be a bit controversial, obviously, to the defence.

It is not unusual for judicial officers, Justices of the Peace or judges on bail review to make various inquiries of the Crown and the defence during a hearing to satisfy themselves of any lingering concerns or questions that they may have.

We allude to this in our written submission, but we're not aware of any evidence that there is some kind of widespread problem that judicial officers are routinely receiving less than adequate information or that this is an issue that requires specific correction in the code.

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

Is there any indication that administration of justice offences previously would not be available when it's appropriate to the person making the decision on bail?

[Melanie Webb]

That, of course, would all be known to the Crown as well, and certainly that often figures prominently in Crown submissions. Administration of justice offences will show up on a criminal record.

Of course, I don't think I need to remind this committee of the discussion that's made by the Supreme Court in, for example, the Regina v. Zora decision, which talks about the issue of administration of justice offences that can actually make it far more difficult for people to attain bail.

We don't actually see any indication that this is some kind of significant issue that causes problems for judicial officers in making informed decisions.

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

Thank you very much for clearing that up.

I want to go to Mr. Arnet-Zargarian. I want to go back to the question of bail supervision programs and their impact, both on individuals and on community safety, and ask you a similar question to what I asked Mr. DelBigio before.

[Garen Arnet-Zargarian]

Is that about whether this would help reduce the rates of overincarceration?

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

It's both overincarceration and the contribution to public safety and to public views about confidence in the justice system.

[Garen Arnet-Zargarian]

My short answer to those is yes to both.

I'll say that in B.C. we don't have quite the robust kinds of programs that we have in Ontario, with the John Howard Society. Just to speak anecdotally for a second, I've had the privilege of liaising with the John Howard Society for a client who's based out of Toronto, with B.C. charges. I was resoundingly impressed with how comprehensive their services are and the kind of assistance they could provide to other similarly situated accused, who have no resources and perhaps mental health problems and addiction problems.

Some of the challenges we see in forming a bail plan that, first, is realistic and, second, will actually protect public safety are issues such as overcrowding in recovery houses, a lack of availability of those houses, and a lack of supervision. In other words, you're left in this predicament whereby you're presenting to the court what may be an ineffective plan. These types of programs could certainly greatly assist that.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Next we'll go to Mr. Van Popta for five minutes.

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

Thank you, Chair, and thank you to the witnesses for being here.

I think this will be a question for Mr. DelBigio, but perhaps some of the others would comment as well.

You noted that there is a lack of data around pretrial incarceration. We heard that from other witnesses as well, and I would like to have your comments on that. What sorts of statistics and data should we have that we do not have at the moment? I know some of our earlier witnesses pointed out that more than half of the people who are incarcerated at the moment are in pretrial incarceration.

I'm wondering how long they are there and how many people eventually get bail. We've also heard evidence about a culture of adjournment. How much of that is the cause of lengthy pretrial incarcerations?

My question, generally, is this: What data should we have that is missing at the moment as we parliamentarians try to establish public policy around this?

[Greg DelBigio]

Certainly there is some data with respect to how many people are held pretrial, but if you're trying to drill down into public safety, I think it's a different kind of data, particularly if it's about public safety with respect to what happens when certain people are released on bail. Really the data you would need is about whether, upon rearrest, the system was operating as it should, and whether the new arrest is simply an unforeseeable risk, or reflects some sort of problem with the original bail hearing that maybe could have been corrected by way of an appeal, or reflects a gap in the existing laws governing bail.

Certainly I suggest that the existing laws governing bail give prosecutors all the tools they need to oppose bail in serious cases. When people are out on bail and they are picked up and charged with new offences, that does not necessarily mean the existing laws aren't working.

How do we measure that? Again, because I'm a lawyer and not a criminologist or a statistician, I can only guess with respect to how best to measure that, but I think there are people who are in the business of measurement who could probably answer that question better than I can.