Evidence of meeting #15 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-14.
A recording is available from Parliament.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Okay.
When we talk about a rampant repeat offender, a prolific offender, as police say, someone who has been convicted multiple times and is terrorizing communities, you're of the view, or this government is of the view, that we cannot make bail denial automatic.
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
What I would say is that the Criminal Code is very clear that there are three grounds for detention. If those grounds of detention are present, as you know, the judge should order detention. That is the foundation of our bail system. To speak to your specific example, where there is a public safety concern and where the evidence presented to the bail court demonstrates that there is a public safety concern, the law mandates their detention.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
But we have seen prolific offenders, as police call them, given bail time and time again. Clearly, something is not working in this system.
The Conservatives had proposed a “three strikes and you're out” approach to this, where people who have repeatedly committed these offences over and over again would be denied bail. Is that something that was ever considered when Bill C-14 was being drafted?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Certainly, I would say that when we are supporting a government in the development of law reform, we look at all options. Three strikes laws we're familiar with in the United States, although it's a different context in the United States. It's more applicable in the sentencing context. We're aware of some of the proposals by the Conservative Party in this respect. Yes, we have given consideration to those as part of the general advice we would give to the government.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I think that's important context. You're not the decision-makers. It's safe to say, then, because you considered that, that the government that crafted and tabled the bill specifically did not think that one should be kept behind bars if one had broken the law and been convicted three times. They did not take that suggestion.
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Certainly, the bill before you is a reflection of what the government believed was the right response to strengthening the bail system.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
In your conversations with the minister, did he ever say how many strikes he thinks are enough and should actually result in someone being denied bail?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Obviously, I can't disclose the conversations we have directly with the minister, but I think it's fair to say that Bill C-14, as you've heard him say, is a clear response to a clear problem that has been identified around repeat violent offending in Canada.
If I can just quickly build on that comment, we know through the conversations we've had with the provinces, exactly to your point, that there are situations where, notwithstanding what the bail laws say, individuals are being released. That has shaken public confidence. It has, as you know, led to calls for significant law reform. A lot of what you see in Bill C-14 is a direct attempt to nudge the system, consistent with the charter, to look more closely at these issues.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I'll use a local example from my riding. St. Thomas had a case that I brought before this committee previously, where someone who was homeless—who had no fixed address—was charged again. They were a repeat offender. They were released on bail. One of their bail conditions was a curfew. They had to be in their home between 10 p.m. and 6 a.m., and the bail document said they had no home.
I realize this is a specific case, but is there anything in Bill C-14 that would prevent such an unenforceable bail condition from being granted?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
There is, actually. It's one of the components of the principle of restraint. That's already in the code. There are two elements to it. One is—
Conservative
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
It's already in the code.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
You're saying the law already didn't work. The existing law didn't work in that case.
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
The law requires that conditions be tailored and appropriate in every case, and that comes from the guidance we've received from the Supreme Court in Antic, Zora and many other decisions over the past 30 years.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I appreciate that, Ms. Moore.
If existing laws are not working, how can Canadians feel like new laws will? We went down this road with Bill C-48. Everyone thought it was going to be this transcendent law, but it actually didn't disrupt the status quo.
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
If I can answer that question, I think it is a real challenge to ensure that the laws, as enacted, are applied as intended. I talked a bit about how we're trying to support that work.
We have heard over the last number of years—going back to Bill C-75, then to Bill C-48 and now to Bill C-14—that there is a constant need to continue to calibrate the bail system within the confines of what is possible in Canadian law and having regard for the charter to ensure that those responsible for making submissions on bail proceedings and making determinations on whether bail should be denied are taking into consideration the right things when they're making those decisions. Of course, those decisions don't always get made correctly, but that doesn't mean the development of laws to try to nudge the system in the right direction shouldn't be done.
Liberal
The Chair Liberal James Maloney
Thank you, Mr. Lawton.
The last set of questions comes from Ms. Lattanzio for five minutes.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
Ms. Wells, earlier you spoke about the importance of looking at what happens before someone even reaches the bail hearing. Can you expand on how Bill C-14 fits within that broader pre-custody picture and what it does and does not address at that early stage?
Senior Counsel, Criminal Law Policy Section, Department of Justice
My previous comments were more focused on Mr. Baber's question about credit for pre-sentence custody.
Bill C-14 doesn't have any proposals in it that would impact the current criminal law framework with respect to pre-sentence custody. I think the minister spoke very clearly, however, about the need to make investments upstream, before you get to the criminal justice system, in order to have the intended impact. It's not just law reform; it is also societal investments and enforcement capacity. To build on his remarks, all of that is critical in ensuring that criminal law ends up in a way so that Canadians feel protected and our charter rights are respected.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
When judges are deciding whether someone should be released or detained, public safety is a key consideration, of course. Can you explain how Bill C-14 reinforces the ability of the courts to detain an accused when there is a real risk to public safety?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
As mentioned earlier, the principle of restraint.... There would be clearer direction to judges. Currently, the principle of restraint says that it's subject to the grounds of detention in subsection 515(10) of the Criminal Code. This bill would actually spell that out a bit more clearly and direct courts to detain individuals if there would be risks to the safety of the public under the secondary ground of detention.
Part of ensuring that the courts are looking at the risk factors appropriately is also about ensuring that the reverse onus regime, for example, is meaningfully applied. Ensuring that there's a more robust screening process, which some of the proposals aim to address in this bill, will also help to ensure that public safety is better addressed.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
There's a lot of public confusion about what the reverse onus actually means. In practical terms, can you explain how the reverse onus works under Bill C-14, and what changes for repeat or violent offenders are suggested at bail hearings?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
A reverse onus at bail presumes that the accused should be detained pending trial and requires them to demonstrate to the court why they should not be detained, having regard to the grounds for detention. It doesn't mean that the accused will obtain bail or that the accused has to disprove the commission of the offence, but it shifts the burden of proof from the prosecutor to the accused and ensures better screening of the bail application that's before the court. It also reflects Parliament's intent that it ought to be more difficult to obtain bail in certain circumstances.
As mentioned, there were concerns that reverse onuses are being added but the reverse onus regime doesn't actually have any teeth; that it doesn't clearly spell out what the burden is that the accused has to meet; and that it is unclear what the relationship is between the reverse onus regime and other provisions in the code, like the principle of restraint and the ladder principle, resulting in some inconsistent applications across the country.
The bill would make it clear that, for example, the ladder principle doesn't apply to a reverse onus and that the starting point is not release when you're in a reverse onus situation, and it would clarify that the burden on the accused is to ensure they have a strong bail plan before the court that addresses the risk they pose, before the court could release them, if they're on a reverse onus.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Can you clarify for us the control of the ladder principle so that it's clear to all members on this question?
Team Lead and Senior Counsel, Criminal Law Policy Section, Department of Justice
The ladder principle governs the use of financial obligations or sureties at bail. The ladder principle was added to the code in 1972. I believe our colleague referred to the Bail Reform Act of 1972. It essentially requires courts to consider the least restrictive form of release first and then move up the ladder to consider more restrictive forms of release. The prosecutor has to justify at each rung of the ladder why a less onerous form of release would be inadequate to manage the risks of the accused.
The bottom rung of the ladder is release with no financial conditions. The second rung is a promise to pay. The accused would say that they promise to pay $100, for example, if they breach their bail conditions. The third rung of the ladder is release with a promise to pay and a surety. A surety is someone whom the accused would put forward to supervise them while they're on bail. It could be a family member. It could be a colleague. It could be a neighbour. The fourth rung of the ladder is a release with a deposit of money—what we refer to colloquially as cash bail.
The bill would clarify, as I said, that the ladder principle does not apply to reverse onus hearings. This doesn't mean that you start at the top of the ladder in reverse onus situations. It just means that you don't start at the bottom of the ladder. You don't start at the bases: no financial obligations, no conditions of release.