Evidence of meeting #5 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 system.

A recording is available from Parliament.

On the agenda

Members speaking

Before the committee

Donkor  Director of Advocacy, Canadian Association of Black Lawyers
Kish  Co-Executive Director, Canadian Association of Elizabeth Fry Societies
Webb  Chair, Criminal Justice Section, The Canadian Bar Association
Rahim  Director, Criminal Justice Program, Canadian Civil Liberties Association
Latimer  Executive Director, John Howard Society of Canada
Roskamp  Chief, St. Thomas Police Service

The Chair Liberal Marc Miller

Good afternoon, everyone.

I call this meeting to order.

Welcome to meeting number five of the Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and the motion adopted on September 23, we are continuing our study on bail, sentencing and the handling of repeat violent offenders.

Today’s meeting is taking place in a hybrid format. I do note that every member is here, but we'll have, I believe, one witness appearing remotely in the second hour.

Before we continue, I would ask all in-person participants to consult the guidelines written on the cards on the table. These measures are in place to help prevent audio and feedback incidents.

Rhéal Fortin Bloc Rivière-du-Nord, QC

Mr. Chair, the interpretation is not working. What you are saying is too important for us to miss out on the interpretation.

The Chair Liberal Marc Miller

Is the translation working?

Rhéal Fortin Bloc Rivière-du-Nord, QC

I think my earpiece isn't working.

The Chair Liberal Marc Miller

We'll just pause and fix it.

I'll pick up where I left off.

Before we continue, I would ask all in-person participants to consult the guidelines written on the cards on the table. These measures are in place to help prevent audio and feedback incidents, and to protect the health and safety of all participants, including the interpreters. You will notice a QR code on the card which links to a short awareness video, for those who may have forgotten the instructions.

I have a few comments for the benefit of witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic, and please mute yourself when you are not speaking.

For those on Zoom, at the bottom of your screen, you can select the appropriate channel for interpretation: English, French or floor. For those in the room, you can use the earpiece and select the language of your preference.

I remind you again that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. Members attending by Zoom should normally use the “raise hand” function, but we are all here in person. The committee clerk and I will do our best to maintain the order of speaking. We thank the members for their patience and understanding in this regard.

I want to address one issue since Bill C-9 has been referred to this committee.

The minister is prepared to appear as early as next Thursday. Obviously, with legislation taking precedence, I assume it is the preference of this committee to move forward on that study. I'm assuming I'm not preparing anyone for a disappointment of him not being here. I will also assume, unless someone objects, that we continue this study instead of doing something that is a little irregular and bring in witnesses on Bill C-9 before the minister appears. All signs seem to indicate from the Liberals' side that the minister will indeed be here on Thursday.

Mr. Brock, please go ahead.

3:35 p.m.

Conservative

Larry Brock Conservative Brantford—Brant South—Six Nations, ON

We do understand that, in principle, government bills take precedence at all committees. It's a long-standing tradition. However, I think we can accomplish two matters at the same time.

I believe it would be the Conservative team's preference—I haven't spoken to my Bloc colleague yet—to run concurrent studies, so that the week is divided between doing the bail and sentencing study that we just nicely got started and devoting a significant amount of time to Bill C-9. I don't see any reason why we can't run both at the same time. We could look at one day of the week for Bill C-9 and one day of the week for our current study that we started last Thursday.

That would be our collective preference. I don't know what Monsieur Fortin's thoughts are. I'd hate to stop the momentum, given that this is such a pressing and growing concern in Canada. I don't want this to resume in December or even after the Christmas break.

If the Liberal government promises, which we heard today in the House repeatedly, come to fruition, within a few weeks we are expecting to see a bail and crime bill that ultimately is going to land here at justice as well. I think we really need to put enough resources into both studies, as both studies warrant our immediate attention.

The Chair Liberal Marc Miller

Do we want to talk this out now? We do have a full slate of witnesses today. We can table this discussion until Tuesday, if that's better.

3:40 p.m.

Conservative

Larry Brock Conservative Brantford—Brant South—Six Nations, ON

That's fine.

The Chair Liberal Marc Miller

I think we do have some more time on Tuesday, but let's think this through. Perhaps if people want to speak with Monsieur Fortin and see what the thinking is there.... These are both priority items, so let's table that discussion until Tuesday.

For today's panel, we do have three people with us.

From the Canadian Association of Black Lawyers, we have Theresa Donkor, director of advocacy. From the Canadian Association of Elizabeth Fry Societies, we have Nyki Kish, associate executive director.

Welcome.

I remind the witnesses that they have five minutes for their opening statement—I'll allow some flex at the end as it's going on—followed by questions from the members of the committee in the order that we've predetermined in previous meetings.

Without further ado, Theresa, the floor is yours for your opening statement.

Theresa Donkor Director of Advocacy, Canadian Association of Black Lawyers

Thank you.

Good afternoon. Thank you to the chair and committee members for inviting me to speak on behalf of the Canadian Association of Black Lawyers, CABL.

We at CABL share the government's desire to make our communities safer, especially Black, indigenous and marginalized communities that disproportionately bear the weight of crime, policing and punishment. However, enacting legislation that lacks evidentiary support will not make our communities safer. While we've seen police agencies and other stakeholders urge for stricter bail and sentencing laws, we have yet to see empirical evidence that those stricter laws will achieve the public safety goals they aim to address.

What empirical evidence we do have paints a different picture. I want to share four examples with you.

First, a couple of weeks ago, on September 11, the Toronto police announced that shootings and firearm discharges are down 40%, auto theft has decreased by 33%, break and enters have decreased by 13% and homicides have dropped 51% from this time last year. That is incongruent with the rhetoric that our communities are becoming more violent and less safe.

Second, the 2024 Canadian Civil Liberties Association report on pretrial detention found that almost 80% of people in our provincial and territorial jails are legally innocent, awaiting bail or trial. That number has more than doubled over the last 40 years. That is certainly not indicative of a catch-and-release system.

Third, Statistics Canada reported that there were over 200,000 adult criminal court cases in 2022-23. Fewer than half of those cases resulted in findings of guilt. This highlights why the charter-protected right to a reasonable bail is so important.

Fourth, a 2017 Statistics Canada report noted that there's no evidence that mandatory minimum penalties deter crime. Rather, some studies demonstrate that they lead to increased costs to the justice system and that lengthier sentences may actually increase recidivism. This shows that some of the proposed reforms, the ones that remove judicial discretion, may simply cost more money to taxpayers, and yet will not make our communities safer.

The reality is that we do have issues with our criminal justice system, but they are not the same issues that are continually broadcast by the media. Some of us witnesses here today have practised or are currently practising as criminal defence lawyers. What we see is increasing delays in having bails and trials heard in a reasonable time, a right that is enshrined in our charter. We see that our jails are overpopulated. We see dangerous and inhumane living conditions in these jails, which judges have described as “disheartening, if not appalling”; “deeply concerning”; “punitive and cruel”; “wholly unacceptable”; and “consistently failing to meet minimum standards established by the United Nations”. These are the same jails that house presumptively innocent people before they are found guilty of any offence.

These are the issues that erode public confidence in the administration of justice, and these pressing issues won't be fixed by stricter bail laws or stiffer sentences. We recommend that the government invest in more data collection so that more effective, evidence-based reforms are achievable. We recommend that the government appoint more judges to address concerning delays and provide more funding for legal aid to promote access to justice. We recommend that the government consider policies that make social services and mental health programs that address the root causes of crime more accessible.

While we know that there are cases where individuals reoffend while on bail, as even the police associations acknowledged here last week, that occurs with only a small number of offenders. We should not be making sweeping reforms based on outliers, and we certainly should not be making reforms that will inevitably fail constitutional scrutiny. We need to be engaged in criminal justice policy-making that is rooted in research, consultation and evidence.

We are pleased that this committee has undertaken a study of bail, sentencing and handling of repeat offenders as a step forward in this approach.

On behalf of CABL, I welcome any questions this committee may have for us, and I thank you for your time.

The Chair Liberal Marc Miller

Thank you, Ms. Donkor.

Ms. Kish, go ahead.

Nyki Kish Co-Executive Director, Canadian Association of Elizabeth Fry Societies

Thank you for inviting us, for we too share in our country's collective desire to increase community safety and agree that we need cross-sectoral collaboration to do so.

It is visible to all of us who walk through any downtown core in Canada that we have serious social problems, and at the Canadian Association of Elizabeth Fry Societies, we think about public safety every day as we support women and gender-diverse people at all stages of justice involvement: pre-, during and post-incarceration.

We understand prisons, and so we worry about how strongly current discourses are calling for us to use prisons as the tool to solve our social problems.

Expanding upon the sentiments of previous police witnesses, we simply won't improve public safety and solve the problems at hand by only changing laws that get rid of bail and increase sentence length. We will be back at this same table in five and 10 years, for we cannot change laws without duly addressing what those laws will do in society, which will be to send more people into expensive and dysfunctional prisons.

Our system can't handle increased incarceration. Ours is already one of the costliest prison systems globally, where, despite our federal system having one of the highest ratios of staff to incarcerated people, our institutions remain harmful both to those kept in them and to those working in them. Prisons are costly, counterproductive and responsible for significant ongoing public dollars being paid in continual damages and in broad peripheral, social and economic costs.

We have acknowledged as a country that punishing people doesn't work since 1938, when the Archambault report was released, which recognized then that sending young people into prisons causes them to be more likely to be recruited into further criminal activity and that rehabilitation and reintegration are what work. Today, some 87 years later, conditions in prison are as dangerous and unproductive as ever.

I don't say this to pit the experiences of the incarcerated against the needs of victims but to underscore that this approach does not work for anyone.

People are leaving prisons worse than when they arrived, and this must be part of our conversation, for it contributes to our ongoing problems. People return to the community with untreated and worsened addictions or addictions they developed in prison, with chronic physical and mental health issues, and with no money. Each of these factors decreases a person's ability to become a contributing member of our community and costs Canadians.

We know what works, and it is community investment and vocational opportunity. These things can shrink our prison problems and populations so we can meaningfully respond to those people who do pose real risk, but we are continually up against public calls that imagine a responsible prison system is one that is soft on crime.

I offer that there is wide stakeholder agreement here suggesting otherwise, and that it is not a soft-on-crime approach but a responsible and smart approach to understand that what happens to people in prison has an impact on public safety. Unless we are prepared to incarcerate people forever and want to build endless specialized prisons, we need to implement solutions that go beyond incarceration, focusing on cross-sectoral and community-led solutions that work, such as Ontario's bail verification and supervision program, which operates at a fraction of the cost of incarceration. In the Peterborough region, for example, it's just $1,100 per person per year, as opposed to the almost $90,000 per person per year it costs to provincially incarcerate them. This lowers public safety risk and provides individuals with support and supervision on bail and keeps them out of prison.

Right now, our prison system is overwhelmed. It cannot meaningfully respond to the very small number of people who do pose risk, because there are few off-ramps for people who do not need to be incarcerated and because prisons are being tasked with responding to an influx of unmet community needs, such as our addiction and mental health crises. Certainly, if we weren't unproductively incarcerating so many who could be better served in treatment facilities or who are incarcerated lengthily where they could much sooner become contributing members of our community, and for all of the indigenous women who simply need support to heal from intergenerational trauma, then the professionals in our system would have much more capacity to meaningfully respond to those small numbers of people we are trying to address here.

We need a responsive system in both directions: one that can respond to risk but also provides opportunities to let people move forward and be well. I know it seems intuitive that when we see violence from previously system-involved people we would lock them up for longer, but to every call being made for failed three-strikes policies, for femicide to raise murder convictions to first degree and for more reverse onus, we could discuss further how these policy responses will fail at solving the problems they seek to.

I'll close with a question: How many people would not have committed new crimes post-incarceration had they not been swept up into a dysfunctional prison?

I offer the words, which I'll never forget, of a previous farm manager from a transformative justice agricultural initiative in British Columbia. He was a repeat offender who learned from childhood, as he told me, to be a better criminal in prison and continued this for 20 years until he was given one good opportunity, and that was a chance to farm. He learned to grow food and then grew food for and with victims of crime, and he said to me, “Nyki, I would never hurt this community. I would never harm a community that I'm part of, and I've never been part of a real community before.”

Thank you for your questions.

The Chair Liberal Marc Miller

Thank you, Ms. Kish.

Ms. Webb, the floor is yours.

Melanie Webb Chair, Criminal Justice Section, The Canadian Bar Association

Thank you.

Good afternoon. Thank you for the invitation to speak to you today in your study of these important justice issues.

The Canadian Bar Association represents over 40,000 lawyers, students, academics and jurists across Canada. Our mandate includes seeking improvement in the law and the administration of justice. The criminal justice section is made up of a balance of Crown and defence counsel from every part of the country. Many of our members also represent and provide advice to complainants during the course of criminal prosecutions.

I am the chair of the CBA criminal justice section, and I am a criminal trial and appellate lawyer.

The CBA appreciates that bail reform and addressing individuals charged with and convicted of violent offences are top priorities for lawmakers. We share your commitment to public safety and acknowledge the importance of maintaining public confidence in the administration of justice. As we have stated before to this committee, any changes contemplated to the bail provisions must be evidence-based, consistent with constitutionally protected rights and consistent with the long-standing principles of bail set out in the existing jurisprudence.

Some have suggested that the rights of the accused are weighed more heavily than the rights of the complainant. The CBA is of the view that the bail provisions in the Criminal Code, when applied correctly, appropriately balance the concerns for public safety and the need to maintain confidence in the administration of justice with an accused's constitutionally protected rights, including the right to be presumed innocent until proven guilty. We suggest, however, that there is room for improvement in making our bail system more efficient. This would help focus more attention and resources on the most serious of offences, including crimes of violence.

Further, a large proportion of court dockets are taken up with accused persons charged with committing low-level, non-violent offences, persons who are often motivated by mental health or substance use issues. These persons are not receiving adequate supports to address these issues, even after being released on bail.

An inefficient and overburdened system means that the accused wait longer for their matters to be addressed in bail court. Pretrial detention centres become overcrowded with people awaiting both bail hearings and their trials. Detained accused will be more likely to be given enhanced credit on sentencing for harsh pre-sentence conditions if convicted of a crime. Overcrowding also leads to physically dangerous and highly stressful conditions for both inmates and correctional officers. Overburdened dockets mean that more cases, including those of persons charged with serious violent crimes, may be stayed as a result of court delays.

As this committee has already heard, the provincial jails are no places for rehabilitation. Jails are criminogenic, meaning that incarceration without rehabilitation can actually increase the likelihood that someone may reoffend and be jailed again.

In terms of inefficiencies in the bail system, some contested bail hearings take up more court time than a trial on the merits might take and may not finish the same day. Courts in busy jurisdictions will not reach all matters that require a contested hearing. Matters are adjourned day after day. This leads to surety attrition, as well as negative collateral consequences for accused persons in custody, including loss of housing and employment. For longer matters, there can be many procedural requirements that must be met before the bail hearing can even be scheduled.

We suggest that better case management and streamlining of bail processes generally would help prioritize high-risk matters over low-risk ones. Further research into tools to identify low-risk versus high-risk cases would also be helpful. We suggest two amendments to the code to streamline bail hearings.

First, we propose that it be clarified that all bail hearings can be conducted in a bifurcated manner that considers first the level of release appropriate and second the suitability of the proposed surety, if a surety release would be appropriate.

Second, we propose that leave of the court be required for either party wishing to cross-examine a surety or a witness at a bail hearing. In most cases, counsel are well-equipped to provide meaningful submissions, and justices are well able to consider the relevant grounds without needing to actually call evidence as if a full-blown trial.

I conclude with these final remarks.

Persons who have been detained pending trial, who are ultimately acquitted or who have their charges withdrawn will never regain those years of lost liberty. That is precisely why every person charged with an offence has a constitutional right not to be denied reasonable bail without just cause and it's why that right must be preserved.

Thank you. I welcome any questions that the committee might have.

The Chair Liberal Marc Miller

Thanks to all three of you.

We have the first round, which, as members know, is six minutes each for the Conservative Party, the Liberal Party and the Bloc Québécois.

We start off with MP Gill for six minutes.

3:55 p.m.

Conservative

Amarjeet Gill Conservative Brampton West, ON

Thank you, Mr. Chair.

I would like to start by thanking the witnesses for taking the time today.

For the last decade, government policies have clearly failed to address the exponential rise in crime. While it is essential that we guarantee judicial rights to the accused, we also have a duty to protect law-abiding citizens from repeat offenders.

The statistics are clear: Most serious crimes are committed by individuals with prior records. According to Public Safety Canada, between 2019 and 2022, 53% of individuals charged with homicide were on bail at the time of an offence.

Given these alarming figures, what changes would you propose to ensure that individuals with a history of serious or violent offences are not released only to reoffend? How do we better balance the rights of the accused with the rights of the public to be protected from repeated violence?

My question is for all of you.

3:55 p.m.

Director of Advocacy, Canadian Association of Black Lawyers

Theresa Donkor

I'm happy to start, but I will leave time for my colleagues to respond as well.

I certainly appreciate the concerns about repeat offenders and I believe all in this room do appreciate those concerns as well.

I would start off by saying that I'm not sure that the empirical evidence supports the notion that there's a dramatic increase in crime, but I do see that there is a concern about repeat offenders. One thing that I would emphasize when we're talking about repeat offenders is what my colleague, Ms. Webb, emphasized, which is that prisons and jails have a criminogenic effect.

I listened to this committee's meeting last week with the police. I know that a lot of committee members have expressed that they have done ride-alongs with the police. I would encourage you all to do visits to our provincial jails and to our prisons as well. You will see the inhumane and dangerous conditions in those institutions and you will see how those conditions have a criminogenic effect.

If we truly care about keeping our communities safer, we need to be concerned just as much with rehabilitation as we are with punishment. The reality is that if somebody is spending years in a cage without any programming, without any supports and without any rehabilitation, they will come out more dangerous. If we really want to address these repeat offenders, we need to be hitting the root of rehabilitation and investing in rehabilitation to make our communities safer.

4 p.m.

Co-Executive Director, Canadian Association of Elizabeth Fry Societies

Nyki Kish

I'll just underscore what my colleague shared. It's not a coincidence that so many people causing harm have been system-involved previously because the system is a contributing factor in the behaviour post release.

4 p.m.

Chair, Criminal Justice Section, The Canadian Bar Association

Melanie Webb

Thank you.

I echo the comments of Ms. Donkor and Ms. Kish.

I noticed that Ms. Donkor, in her remarks, highlighted that Toronto police chief Myron Demkiw had reported that in fact there had been significant decreases in the numbers and rates of several serious offences, including homicides, shootings, discharges of firearms and robberies. I also took the opportunity to look at the statistics for the region of Peel and I found complementary decreases in rates of homicides, robberies, break and enters and auto thefts.

Respectfully, I echo the entreaty of Ms. Donkor that we really need to focus on rehabilitation. As we all know, and as I believe the president of the Canadian Police Association testified to last week, unfortunately, our provincial jails are no place for rehabilitation. That is what we really need to focus on.

Thank you.

4 p.m.

Conservative

Amarjeet Gill Conservative Brampton West, ON

I heard that you understand the prisons and the prisoners, but I would like to know from each of you, how many victims did you consult for your testimony here today?

4 p.m.

Chair, Criminal Justice Section, The Canadian Bar Association

Melanie Webb

I can indicate that I have personally represented victims of crime. I have had people who are close to me who are victims of crime. I have tried not to be insular. I can tell you that The Canadian Bar Association criminal section is a balanced section, which included the input of Crown attorneys who regularly interact with victims of crime and with complainants. It's with all of that background and experience that I am here today.

4 p.m.

Director of Advocacy, Canadian Association of Black Lawyers

Theresa Donkor

I echo Ms. Webb's comment. I am a criminal defence lawyer, but I also represent complainants in sexual assault proceedings, so I have certainly heard their perspective. I am here today not only speaking as a defence lawyer but also speaking as a Black woman. I am also speaking as a woman who has represented other women and other victims of crime as well. I do hope that, in my sentiment, you are hearing a holistic perspective, and know that I am speaking from a holistic perspective, not just from the perspective of the accused.

4 p.m.

Co-Executive Director, Canadian Association of Elizabeth Fry Societies

Nyki Kish

Similarly, our network always takes the opportunity to remind the public that many people who experience incarceration are, themselves, individuals who have been victimized by crime in their lifetimes.

4 p.m.

Liberal

The Chair Liberal Marc Miller

Thank you.

Please go ahead, Ms. Lattanzio.

4 p.m.

Liberal

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

Thank you, Mr. Chair.

Thank you to all three of you for joining us today on this important study.

Ms. Webb, the CBA has noted that bail laws are only as strong as the resources behind them. What are the most critical gaps you would see today in staffing, training or infrastructure?