Justice Committee on Oct. 2nd, 2025

[Melanie Webb]

I can only speak really from personal observation on that specific issue. I can indicate that in the urban centres like, for example, Toronto, it is evident walking the streets or taking a ride on the TTC that there are numerous persons who are mentally disordered, persons with substance use issues, who are inevitably caught. Some of them end up essentially being arrested, rearrested, released and not receiving the community supports that they need.

In Toronto we have the bail supervision program. We have resources, like the John Howard Society and the Elizabeth Fry Society, and we have people who unfortunately need a little more than that or maybe significantly more than that. The reality is that for people who are seeking adequate mental health services, they are often facing wait times of months, sometimes several months, before they can get the care that they need. Inevitably, that's, frankly, just not enough time for someone to get the treatment that they need before they might be reoffending and essentially caught up in this cycle over and over again.

We are very much in support of investment in health and social services at all levels of government. That requires proportionate investment from the provinces as well.

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

The Conservatives have promised in their jail not bail act to replace the “principle of restraint” in section 493.1 of the act with the principle of the protection of the public.

If the principle of restraint was removed from the Criminal Code, could it still exist in common law and be argued at bail hearings?

[Melanie Webb]

The principle of restraint is a long-standing principle that is well established in the case law. Bill C-75 simply codified it. That was well set out by the Supreme Court in the Antic decision. I'm sure many people in this room are familiar with that decision.

I, frankly, in the limited time that I have today, would not be able to adequately describe and explain why that principle of restraint is so important, but I would urge everyone to take a close read of the Antic decision, which would explain why the principle of restraint is so important.

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

In your opinion is the protection and safety of the public a criterion already considered in bail hearings?

[Melanie Webb]

It is.

Again, despite the fact that we return here, I think, every couple of years and we talk about potentially considering adding more language to the code or adding more things or factors that a justice should consider on a bail hearing, the reality is that we have experienced judicial officers across Canada who, regardless of whether it's written in the code, are already taking these important factors into consideration.

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

Finally, the Conservatives, including the members on this committee, have already suggested that fixing the bail system would require the use of the notwithstanding clause. Would you agree with that?

[Melanie Webb]

We would not agree with the use of the notwithstanding clause for reasons that are, I think, well set out in submissions that the CBA has made elsewhere. Frankly, we would focus on, again, trying to make our bail system more efficient so that we can focus on the offences and the crimes that are of serious concern to the public.

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

Thank you.

Ms. Donkor, you've spoken about the importance of fairness alongside public safety. From your perspective, what safeguards are most important to assure that bail laws are applied consistently and credibly in all communities?

[Theresa Donkor]

That's an excellent question.

I think that, for one, we need more resources in our courts. We need more resources and more appointments of judges so that we're not experiencing the delays we're currently seeing, especially in Ontario, but I also think that what's more important—or equally as important—is more funding, especially for legal aid. We see disproportionately that individuals with more resources, more access to sureties and more financial resources are the ones who are able to be released on bail as opposed to those from marginalized communities, who may not have the same resources and access to sureties.

That doesn't necessarily mean that they're any more dangerous or any more of a risk to public safety. They simply do not have the resources, and that certainly is an equity issue that needs to be addressed.

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

Thank you.

[The Chair, Liberal, Marc Miller]

Mr. Fortin, you have the floor.

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

Thank you, Mr. Chair.

Ms. Webb, Ms. Donkor and Ms. Kish, thank you for being with us today for this important study.

You said you followed our work last week. Therefore, you know that we heard from police officers, who made what I thought were some very sensible recommendations. It's also good to hear the other perspective, from the defence side. I'm listening to you and I appreciate your comments.

As is often the case in this kind of study, I think the biggest problem is sorting through all this. How do we navigate between the presumption of innocence and the rights of the accused in a trial, on the one hand, and public safety, on the other? The principle is to release people at the earliest opportunity, unless they do not meet some of the criteria. These include the possibility that they won't appear in court or that they are a danger to themselves or society. That part is fine; just about everyone can agree on these principles.

However, how do we sort through cases? That's the whole problem. We see repeat offenders being released and committing the same crimes. This week, in my riding, we learned that a repeat offender who had violated his release conditions for the 16th time murdered his spouse. That is unacceptable, but, honestly, I feel a bit powerless.

I'm going to start with a question for the Canadian Bar Association.

Ms. Webb, I know that for some aspects of the act, there is a lack of definitions and consensus right now. However, do you have any specific recommendations for us? How can we ensure that these principles are respected and that violent people are detained in prisons rather than released?

[Melanie Webb]

First of all, we need to start with the presumption that, regardless of someone's criminal record, the number of outstanding charges they have and their background, they are still legally presumed innocent until proven guilty. I think we all understand and accept that.

Notwithstanding that, we also must balance the protection of the safety of the public, including any complainant or witness. That is written right into the secondary ground in terms of the grounds that a justice must consider. There's nothing new there.

When we're talking about intimate partner violence, I think no one would disagree that intimate partner violence is a scourge upon society. Sadly, I think we need to do better to address what is causing intimate partner violence.

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

“How to do better?” This is the question.

[Melanie Webb]

Yes.

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

As I was saying, there are no clear definitions of “repeat offences”, “repeat offender” or “chronic offender” in the current version of the Criminal Code.

Would it be a good idea to establish them or could something else be done?

I apologize for rushing you, but we have very little time.

[Melanie Webb]

I can tell you that certainly there are repeat offenders who come before the court, but we need to be careful about unfortunate, tragic, outlier cases in which a fatality may occur or a homicide may occur. Unfortunately, our society is never going to be 100% secure against the dangers of that happening. All we can do is properly apply the law as it is set out. There will absolutely be people who are, unfortunately, too much of a risk to be released.

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

I apologize for interrupting you, but I think I have about a minute left. Thank you, Ms. Webb.

Ms. Donkor, I'll ask you the same question. What should we do, on the one hand, to keep violent and dangerous accused behind bars and, on the other hand, to apply the presumption of innocence and release those who should not be detained? How do we distinguish between the two cases? How can we get a clearer picture?

[Theresa Donkor]

In my opinion, the Criminal Code does already account for this. As Ms. Webb noted, we consider public safety in the secondary ground.

I do want to make clear, because I've heard some discussion around this, that it's important to not lose sight of the fact that the principle of restraint doesn't require that those charged with violent offences be released. That's simply not what the principle of restraint is.

The principle of restraint does not override the test for bail. The principle of restraint makes clear that a person should be released at the earliest instance possible under the least restrictive terms, where appropriate. We're still going through the test for bail. We're still going through the grounds. If it's not appropriate for that offender to be released because of their criminal record, because of violence, they should not be released. I do think that maybe perhaps some training in Ontario with justices of the peace that are—

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

Should we have a definition of “repeat offender” in the Criminal Code?

[Theresa Donkor]

Are you asking if that would be helpful?

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

Yes.

[Theresa Donkor]

I'm not sure how that would be helpful, because I think that's already applied.

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

Thank you, Ms. Donkor.

Ms. Kish, I have the same question for you. Would it be helpful to have a definition of “repeat offence”?

[The Chair, Liberal, Marc Miller]

Just briefly, Ms. Kish, because the time is up, please complete your thought.