Thank you for the questions and comments.
I might approach it a bit differently, and I hope this helps you all in your deliberations.
You're certainly right that statutory language that clearly ousts the common law will take precedence over the common law. If Parliament passes legislation that intends to change a rule of common law, it can do so.
I might draw your attention, though, to the principle of restraint in section 493.1, in particular the last part of that provision. The comments made by Mr. Brock earlier are all very true and accurate, in terms of “on the least onerous conditions that are appropriate in the circumstances”, but it's important to remember that, at the very end, it also says, “while taking into account the grounds referred to in subsection 498(1.1) or 515(10)”.
I would say to you that the principle of restraint is not a principle in opposition to public safety or the other grounds for which detention might be appropriate, such as flight risk or confidence in the administration of justice. As discussed last week at committee, the grounds are clear. If there is a need to detain for public safety, that is what the Criminal Code mandates.
The principle of restraint doesn't say, “notwithstanding the existence of that ground, you should release”. It's quite the opposite. The principle of restraint says that, in appropriate circumstances, release should be favoured where there isn't a ground for detention and where the risks posed by the accused can be managed safely in the community.