Madam Speaker, I appreciate the opportunity to rise to speak at second reading debate on Bill S-217, an act to amend the Criminal Code, detention in custody.
The Senate public bill was introduced in response to the tragic events in Alberta in 2015. I want to again express my deepest sympathies to the family of Constable Wynn and to expressly thank Shelly Wynn, David Wynn's wife, for her testimony before the Senate committee. The pain to the officer's family, RCMP colleagues, and the St. Albert community and beyond is immeasurable.
I also want to indicate at the outset that I support the objective of the proposed bill. Decision-makers in the bail process need all relevant information to make timely and appropriate decisions as to who should be released on bail. Ensuring this is not a simple task. It requires up-to-date information management systems and fully trained prosecutors, police, and justices.
Unfortunately, I am not of the view that the bill before us today meets its objective. I am concerned that the Senate public bill would create policy and legal implications that could result in a bail system that would not function properly for anyone.
The Criminal Code provides the framework for determining whether an accused is released or detained prior to trial. After an arrest, police may decide to release the accused with or without conditions. If not released by police, the accused is brought before a justice for a bail hearing. In some cases, the crown will consent to the release of the accused on certain conditions. However, in other cases, the justice will decide to detain the accused or release him or her, often after imposing conditions, such as a curfew or an obligation to report to police. These important decisions about pre-trial release are made daily in countless courtrooms across Canada.
When making any amendment to the bail provisions, it is important to note that the bail process varies widely from jurisdiction to jurisdiction. Some jurisdictions, such as New Brunswick, use only judges to make release decisions. Other jurisdictions, such as Ontario, heavily rely on justices of the peace in their bail courts.
There are also significant differences in who attends the bail hearing. Alberta, for example, where this tragedy occurred, is the only jurisdiction in which police officers assume the role of prosecutor at most first-appearance bail hearings. I understand that this practice occurs to a much lesser degree in parts of Saskatchewan and British Columbia. It was, in fact, a police officer who consented to the release of Mr. Rehn, the offender who ultimately killed Constable Wynn.
In response to this tragedy, the Alberta government has conducted a full review and continues to examine the role of police officers in bail hearings. The amendments proposed in Bill S-217 were not recommended in the Alberta report, nor have they been raised by the provinces and territories, which have been extensively reviewing the bail process.
The bill before us, Bill S-217, proposes two amendments to the Criminal Code bail provisions.
Clause 1 proposes expanding the grounds on which the courts rely to determine who should be detained prior to trial. Currently, under the Criminal Code, there are three general grounds under which bail can be denied: first, if the accused is a flight risk, meaning the accused may not show up for court; second, for public safety reasons; and third, to maintain confidence in the administration of justice.
Bill S-217 would expand the third ground to specifically include consideration of an accused's criminal record and outstanding charges.
If we ask anyone working on the front lines in our criminal courts, they will tell you that the criminal record and outstanding charges are key considerations in almost every case and at almost every stage of the bail process. From the moment someone is stopped by police, right up to considerations on bail pending appeal, the record of the accused is assessed. These factors are automatic considerations under the first ground for detention, that detention is necessary to ensure that the accused attends court, and also under the second ground, that detention is necessary to ensure that the public is protected.
Injecting consideration of the accused's record specifically into the third ground for detention, as suggested in Bill S-217, creates uncertainty for the multiple other bail provisions that do not specifically reference the criminal record.
The Supreme Court of Canada, in the 2015 case of the Queen v. St-Cloud, has recently considered and clarified the constitutionality of these grounds of detention.
This bill would open the provision to new judicial scrutiny and interpretation after the Supreme Court has just settled it. Clause 2 of the bill proposes to remove crown discretion from section 518 and require crowns to lead evidence to prove the fact of prior convictions, outstanding charges, failures to appear, or offences against the administration of justice at bail hearings.
Currently, under section 518(1)(c), the crown is given broad discretion as to what evidence can be led at bail hearings, as well as how evidence is presented to the court. Bail proceedings that are high volume and conducted on short notice require this flexibility.
By mandating crowns to provide specific evidence and raising the evidentiary burden with the words “to prove the fact”, Bill S-217 may unnecessarily complicate and lengthen the bail process; crowns may require adjournments to formalize evidence; and hearings could take longer. No one in the criminal justice system, including victims, would benefit from excessive delay and the staying of criminal charges.
Similar concerns about the proposed amendments creating delay and resource issues were raised by the Canadian Association of Chiefs of Police when they testified before the Senate committee on this bill. These concerns would most likely also be echoed by prosecutors and defence counsel, the front-line workers in our justice system.
Legislative changes, such as those suggested, require fulsome consideration of these important perspectives. As part of her mandate to review the criminal justice system and, more specifically, the bail process, the Minister of Justice is working with stakeholders, including her provincial and territorial counterparts, to make this critical component work effectively so that all Canadians, including our first responders, are appropriately protected.
Our government is also working to enhance the efficiency of the bail system. No one wants to see serious criminal charges stayed because of unreasonable delay, which is what can happen if bail decisions are not made in an effective, timely way.
It is a complex issue that has no one single answer and involves all actors in the criminal justice system.
While I think that the Senate public bill's proposed amendments are well-intentioned, they are not the solution to this complicated issue. Rather, they would import delay and confusion and would likely have unintended legal and operational consequences for the bail process.
I want to be clear. Bail is a critical stage in the criminal justice process. As this tragedy in St. Albert demonstrates, decisions made at bail can have far-reaching, devastating consequences.
While I appreciate its objective, the government does not support the bill. Effecting meaningful change would require a comprehensive response that considers stakeholders' perspectives and fully assesses the legal and policy implications for the bail process.