Justice Committee on Feb. 4th, 2026

[Peter Grbac]

What I would say is that the secondary grounds for detention in the Criminal Code under subsection 515(10) provide that detention is “necessary for the protection or safety of the public”, including victims or witnesses. This could lead to potential confusion in the Criminal Code.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

For these reasons, I am going to oppose this motion, and I would urge members to oppose it and instead vote in favour of clause 14 of the bill, which would direct courts on how to apply the principle of restraint in order to ensure the protection of the public.

[The Chair, Liberal, James Maloney]

Thank you, Ms. Lattanzio.

We will go to Mr. Baber and then Mr. Lawton.

[Roman Baber, Conservative, York Centre, ON]

Thank you.

In my first year of law school, I remember, the professor asked us, “What do you think prevails—common law or statute?” The answer is very clear. It's statute that prevails over the common law.

If we were to adopt Mr. Brock's amendment, the principle of restraint would be overridden.

Now, I know what the officials are going to say in response: “You may have a charter issue here in that the Supreme Court may have interpreted the principle of restraint as subsumed under the charter.” Well, that's fine, but you can't have it both ways. We already see, in proposed paragraph 493.11(2)(c), that we would get away from the principle of restraint. We would oust the principle of restraint for certain offences. This leads me to believe that you see room in trying to oust the principle of restraint, and you're probably going to leave it to the courts to figure out whether things pass constitutional muster or don't.

This means the suggestion made by our Liberal friends that, somehow, we'll be overriding the Constitution if we repeal the principle of restraint is incorrect. This is just a basic legal argument that I'm making.

I see Matthew Taylor nodding his head.

I know this is technical, but I'd like to get clarification that what I just stated is correct. We can oust the principle of restraint by statute. We don't know where this would land on charter issues. In any event, the legislation in its present form already circumvents the principle of restraint for certain offences, so let the courts decide whether or not Mr. Brock's amendment is constitutional, given that the Liberals are essentially doing the same thing.

[Matthew Taylor]

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.

[Roman Baber, Conservative, York Centre, ON]

Mr. Taylor, I'll go back to Ms. Lattanzio's question.

Her question to the panel went like this: Even if the Conservative amendment were adopted and the principle of restraint ousted—let's say with Mr. Brock's amendment—would it still survive by virtue of common law?

I submit to you, respectfully, that the answer to that question is no, it would not. You might suggest that it might still survive if there were charter litigation that sought to uphold the principle of restraint.

Am I right so far?

[Matthew Taylor]

Absolutely. The Constitution, the charter and the charter jurisprudence would continue to operate.

If I can just add one—

[Roman Baber, Conservative, York Centre, ON]

I apologize, Mr. Taylor.

I'm going to separate my questions. I want to be very clear on this.

This is part one. Before we get to the Constitution, we're not going to have the common law apply if it is ousted by statute. On that, we have consensus, but you're going to say that here, the common law is the charter, and the principle and repeal of the principle of restraint might be inconsistent with the charter. I say to you that is okay, fair enough, but then that cuts both ways in terms of paragraph 493.11(2)(c), which, as currently drafted, seeks to oust the principle of restraint for certain offences.

What I'm saying to my Liberal colleagues and the officials here is that the argument that, somehow, the Conservative amendment would be ultra vires and would not be consistent with the charter is not a fair argument, because then you could say that the Liberal section, as drafted now for certain offences, would also not comply with the charter.

Mr. Taylor, as one professional to another, I believe that I'm making a fair suggestion.

[Matthew Taylor]

I'd offer two things in response to that.

The first is that the entire bail framework in the Criminal Code is structured in a way that is based on restraint. You would have heard testimony last week about how the latter principle operates and you go from the least restrictive to the more restrictive conditions. That is in effect a reflection of the principle of restraint and the notion of an accused being released without conditions if they don't pose a flight risk, if they don't pose a public safety risk or if their release wouldn't involve confidence in the administration of justice.

I think the entire system is premised on restraint. I would go back to what I reiterated earlier: The principle of restraint need not be viewed in opposition to public safety considerations or detention. If you look at it in that way, some of the other amendments that are included in Bill C-14 are not inconsistent with the principle of restraint. They're very much consistent with the principle.

[Roman Baber, Conservative, York Centre, ON]

Thank you, Mr. Taylor.

Again, I suggest to my Liberal colleagues that Parliament is supreme and that we have an ability to prescribe bail, subject to various constitutional limits.

We have heard again and again, from almost every witness who appeared before this committee, that the principle of restraint is very problematic. Notwithstanding the officials' advice, the reality in our courts is that the principal consideration is given to the principle of restraint.

We know this because of the bill itself. Proposed subsection 493.11(1) says, “For greater certainty, section 493.1 does not require the accused to be released.” Well, thank you for clarifying that there is no requirement for release, but proposed paragraph 493.11(2)(c), as drafted by the government, is very clear as to how this Liberal government interprets the principle of restraint. Here's what you say:

a justice or judge, as the case may be, shall not give primary consideration to the release of the accused at the earliest reasonable opportunity if the accused is one to whom [the following subsections apply].

In other words, you read the principle of restraint to mean that unless we're dealing with one of the subsections that you're trying to catch, a justice or a judge “shall” give primary consideration to the release of the accused. Your own legislation has tipped your understanding of what the principle of restraint is and that a justice or a judge “shall” give primary consideration to the release of the accused at the earliest opportunity. That's what I gather from your own language.

What Mr. Brock is saying is that this is exactly what causes the revolving door in our bail system, and this is precisely what the Conservative amendment, Mr. Brock's amendment, is trying to end.

I'm asking my Liberal colleagues to stop making the wrongful suggestion that somehow this would not oust a common law and the principle of restraint itself. No, I know it would not. If we believe that somehow the charter would be engaged here and charter rights would be infringed, then I would say to you that your very own legislation as drafted would also infringe the charter.

The question is the weighing exercise. The question is what a court would do, what the Supreme Court would do, when faced with this reality of a revolving-door bail system and crime and chaos on our streets.

Let's end the saga. Let's not revisit this in two years, in four years, in six years. Let's save a lot of lives. Let's end the practice that a justice or judge shall give primary consideration to the release of the accused for everything that does not fall within the narrow scope of the exceptions that Bill C-14 creates.

Thank you.

[The Chair, Liberal, James Maloney]

Mr. Lawton.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Thank you. I believe this will be for you, Mr. Taylor.

I just want to confirm. You adopt the same view that Minister Fraser has shared with the committee, which is that the principle of restraint in the Criminal Code is merely a codification of something that would exist if section 493.1 were not there. Is that correct?

[Matthew Taylor]

That's correct.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Okay. In that sense, do you believe that adding the clarification, as clause 14 does, will make any material change in the application of the principle of restraint?

[Matthew Taylor]

I think you would have heard last week as well that there is an acknowledgement that the codification of the principle of restraint has resulted in certain cases of individuals being released on bail when perhaps that may not have been appropriate.

We have heard anecdotally from the conversations we've had with our provincial partners that this is happening in certain cases. The objective with the proposed amendments around these clarifications is to try to address those situations.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

The view, then, is that the judges have been getting it wrong and that this will be a nudge that will help them understand how the law is supposed to be interpreted.

[Matthew Taylor]

I'm not in the courtroom in those cases. I can only report on the kinds of conversations we've had with some of our colleagues where those concerns have been expressed.

Yes, the idea is, again, to try to provide greater guidance to those responsible, whether they be prosecutors, justices of the peace or judges, when they are making submissions on bail and are determining whether bail is appropriate, and to have regard to certain principles, rules and concepts.

[The Chair, Liberal, James Maloney]

Shall CPC-4 carry?

[Roman Baber, Conservative, York Centre, ON]

I would like a recorded vote, please.

(Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])

[The Chair, Liberal, James Maloney]

I'm going to suspend for a few moments so that people can stretch their legs, and then we'll come back.

[The Chair, Liberal, James Maloney]

I call the meeting back to order.

We're on amendment G-2.

Ms. Lattanzio.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

This change is also consequential to the change proposed in G-5.

This motion would make a consequential amendment to clause 14 by adding section 524 on reverse onus to the list of reverse onus provisions captured under proposed paragraph 493.11(2)(c) of the bill.

Clause 14 includes an amendment to direct the courts not to give primary consideration to the release of an accused person who is subject to a reverse onus. The change would also ensure that all existing reverse onus provisions being proposed in the bill are captured under this clause.

I'm seeking unanimous consent for the vote on G-2 to be applied to G-3, G-4 and from G-6 to G-11.

[Roman Baber, Conservative, York Centre, ON]

No.

[The Chair, Liberal, James Maloney]

Shall G-2 carry?

(Amendment agreed to [See Minutes of Proceedings])

Shall clause 14 as amended carry?

[An hon. member]

On division.