EVIDENCE

Standing Committee on Justice and Human Rights NUMBER 106 1st SESSION 42nd PARLIAMENT Wednesday, September 19, 2018 Le mercredi 19 septembre 2018 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE September 19, 2018 Committee Edited Evidence * Table of Contents * Number 106 (Official Version) Official Report * Table of Contents * Number 106 (Official Version) Témoignages * Table des matières * Numéro 106 (Version officielle) 106 19 09 2018 2018/09/19 15:30:00 House Of Commons Comité permanent de la justice et des droits de la personne Standing Committee on Justice and Human Rights JUST Chair Mr. Anthony Housefather 1 42

(1530) [ English ]

The Chair (Mr. Anthony Housefather (Mount Royal, Lib.)) :

I call the meeting to order. Good afternoon, everyone. It is a great pleasure to welcome you all here as the justice and human rights committee continues its study of Bill C-75 . Today we have an incredible group of witnesses. For our first panel, I am very pleased to welcome the Canadian Bar Association, represented by Tony Paisana, the L and LR coordinator. Welcome. You'll have to tell me what L and LR stands for.

Mr. Tony Paisana (L & LR Coordinator, Canadian Bar Association) :

Law reform and.... I can't even remember.

The Chair :

Law and law reform...?

Mr. Tony Paisana :

It's legislation and law reform coordinator.

The Chair :

Fantastic. Ms. Kathryn Pentz is the vice-chair. We also have Mr. Michael Johnston, barrister-at-law. Welcome.

Mr. Michael Johnston (Barrister-at-Law, As an Individual) :

Thank you so much. Good afternoon, everyone.

The Chair :

As you all know, each group will have approximately eight to 10 minutes, but I won't cut you off until you reach 11 minutes. The Canadian Bar Association, you're up.

Mr. Tony Paisana :

Thank you for the invitation to present the Canadian Bar Association's views on Bill C-75 . The CBA is the national association of 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today. Our section's membership represents a balance of Crown and defence lawyers from all parts of the country. Personally, I predominantly practise in criminal defence in Vancouver.

I have become particularly interested in issues affecting court delays after acting as counsel for Barrett Jordan at the Supreme Court of Canada. I am joined by Kathryn Pentz, a chief Crown attorney from Nova Scotia who also acts as vice-chair of the criminal justice

section in our organization. We have provided the committee with an executive

summary of our comprehensive 40-page submission. It can be found by clicking on the hyperlink included in our executive

summary. I commend this larger document to you. Its thorough analysis of the 300-plus pages in the bill could only be briefly summarized in the 10 pages of the executive

summary. This larger document includes detailed references to source material, statistics and explanations for our 17 recommendations. My opening statement will focus on two overall perspectives that have informed aspects of our position on Bill C-75 . First, we say that evidence-based reforms are far preferable to hurried, or what some may even characterize as knee-jerk, criminal law policy. Second, omnibus bills like Bill C-75 hinder the ability of important bodies like this one to investigate and study each proposal.

They also negatively impact the public's ability to understand and participate in this important debate. Let me begin with evidence-based reforms. For any practitioner or experienced committee member, it becomes fairly clear fairly quickly, I would suggest, when a proposed amendment is evidence-based as opposed to hurried in response to a public outcry. As you will see from our submissions, we applaud the government for making meaningful reforms to several areas, including in particular the bail process and the administration of justice offences regime.

These reforms are connected to empirical study, they are consistent with recent case law, and they are logical. Other proposed reforms, however, such as nearly abolishing the preliminary inquiry and introducing police evidence by way of affidavit, are very different. They are different and largely indefensible because they are not evidence-based, they are inconsistent with case law, and they lack internal logic, in our respectful view.

For example, watching the testimony of officials earlier this week, it struck me as rather remarkable that no meaningful data could be offered to justify the curtailing of preliminary inquiries. Similarly, no study or evidence could be cited to explain why or how the introduction of what has been suggested to be routine police evidence is causing delays currently. These sorts of reactions to Jordan, with respect, do not pass the smell test, and quite rightly have been criticized by various stakeholders who have come before you. The second general point I will address concerns the omnibus nature of Bill C-75 .

As we did with the previous government, the CBA is critical of this government's use of omnibus legislation. The bill is quite large. In our brief we address no less than 14 different areas of the system affected by this bill. There are substantive and procedural changes to various topics, ranging from abolishing peremptory challenges—a subject that on its own is so important that you might expect a bill devoted to it alone—to simple changes related to technology in the courtroom. Some reforms are front and centre.

Others are buried in the bill, such as the coming into force of a highly problematic rebuttable presumption in human trafficking cases. The other problem we've identified with omnibus legislation is that it does not allow for incremental implementation and change, something that might be very useful in trying to reform court delays without unduly eroding protections afforded to the accused.

There are indeed great reforms in this bill, which, if correlated with ongoing efforts to resolve delay, may well alleviate the pressure on the system without having to cast aside important tools that have proven their worth over time and that, if cast aside, will only lead to further and new charter challenges and pretrial applications—in other words, more delay. There are smart, focused reforms available to address delay that do not require the wholesale removal of procedural protections.

(1535) We offer two such suggestions here in our submissions on Bill C-75 related to elections in murder cases and electronic appearances for non-contentious hearings. We are happy to address other proposals the CBA has offered, most recently on the Senate study on delay, and we have brought with us our brochure or pamphlet of the top 10 ways to reduce delay that was offered to that committee. These included proposals related to reforming sentencing law, suggestions regarding whether Crown approval standards should be implemented nationwide and other practical solutions that can address the problem at hand.

With that general introduction, I now turn to my colleague to address some more specific concerns that we have identified with respect to Bill C-75 .

Ms. Kathryn Pentz (Vice-Chair, Canadian Bar Association) :

Thank you. As my colleague mentioned, we've made 17 detailed recommendations. Some are suggestions to slightly improve existing proposals and others reflect our more serious concerns. I'd like to focus my comments on two areas: the curtailment of preliminaries as well as the admission of what is called “routine police evidence”. The restriction on preliminaries is said to be justified as a means to achieve court efficiencies, yet research has shown that at most 2% of all court appearances are used for preliminary inquiries.

From the perspective of front-line practitioners—both Crowns like myself and defence counsel—we do not see a system overburdened with preliminary inquiries. Further, the proposed amendment arbitrarily limits preliminary inquiries to those charged with offences carrying a maximum of life imprisonment. We say this is arbitrary because some offences that carry maximum penalty of life, like robbery, for example, are extremely broad and can encompass conduct far less serious than other offences precluded by this criteria, like aggravated assault, some firearms offences and offences related to organized crime.

These offences can be far more serious than those that happen to carry a maximum of life imprisonment, particularly those that carry mandatory minimum penalties. There are those who argue that in the era of full disclosure, preliminary inquiries are unnecessary. But the reality is that even with full disclosure, the viability of a Crown's case is not always readily apparent. What a witness says in a statement to the police or in a meeting with the Crown is not necessarily what that witness will say on the stand.

The other reality is that accused often believe that witnesses will not testify, particularly if that witness is a close associate. There's no possibility of any discussion of resolution until the witness takes the stand. To illustrate the value of preliminary inquiries, I have two examples. Recently in my jurisdiction, a preliminary inquiry was held in a sexual assault case. The victim was the only witness and her evidence was very strong. Defence counsel have now opened discussions for a guilty plea.

The preliminary took about an hour and a half and now has a potential of resolving the case, saving a trial in Supreme Court, which would have taken in excess of a week. In another case, again of sexual assault, the case rested on DNA evidence because the complainant could not identify her assailant. At preliminary inquiry, the defence cross-examination of the forensic evidence exposed some irregularities in the report. The problems did not preclude the admissibility of the report at the preliminary, but could well have been fatal if the Crown had only discovered it at trial.

As it was, the Crown was able to correct the deficiencies and was successful in obtaining a conviction. The preliminary inquiry is an important tool that makes an invaluable contribution to the effective and efficient operation of the criminal justice system. For example, it provides an opportunity to explore pretrial motions like

section 276 applications and O'Connor applications that otherwise would be litigated mid-trial, running the risk of delays. A second major concern we have is that Bill C-75 proposes to allow for routine police evidence to be introduced by way of affidavit or solemn declaration. If an accused wishes to cross-examine the police officer, then an application must be made. We see this

section as fraught with difficulties. The definition of “routine police evidence” is so broad that it would potentially allow the Crown to call virtually any aspect of an officer's testimony by affidavit. If the accused wished to cross-examine, as undoubtedly they would, they would have to give notice of intent. In the absence of an agreement, the court would then be called upon to adjudicate. In this process as well, the defence would necessarily have to expose aspects of its strategy in order to justify calling the witness.

Such a process would expend more court resources than simply calling the officer, and will have the exact opposite effect of what Bill C-75 hopes to achieve. It would add more delay. There are also some practical problems with this proposal, which we highlight on page 13 of our full submission. Who will draft the affidavit? Will it be the already overburdened Crowns and police officers? How will the trier of fact weigh affidavit evidence that conflicts with viva voce testimony? How will juries be instructed to deal with affidavit evidence?

To conclude, the CBA recognizes the need to streamline aspects of the criminal justice system in response to Jordan. We believe that such reforms must be evidence-based and must be presented in a way that allows for meaningful debate by this committee, practitioners and the public. We offer slight improvements on existing proposals and oppose other proposals altogether.

(1540) With respect to some non-delay-related amendments in the bill, such as the jury selection process, we encourage further study. Thank you for the opportunity to present. We will be happy to respond to any questions.

The Chair :

Thank you so much. Mr. Johnston.

Mr. Michael Johnston :

My name is Michael Johnston. I am a citizen and a barrister-at-law and, as often as my clients' cases and causes permit, I am a jury lawyer. Before speaking about Bill C-75 and jury selection, I did want to take a moment to thank you for extending to me this incredible democratic opportunity. Not every country gives its citizens a voice in the legislative process. Not every political system is prepared to hear evidence that may call into question the wisdom of a proposed course of legislative action.

Providing citizens with a voice and providing citizens an opportunity to be meaningfully involved in acts of government bespeaks a vibrant democracy. In spirit, Bill C-75 seeks to give citizens more of a voice. Bill C-75 seeks to put more citizens in the jury box, to have more citizens involved. Insofar as that spirit is in Bill C-75, it's to be acknowledged and celebrated. However, it takes more than good intentions to make good legislation. I think we all know that there's a saying about where good intentions alone might sometimes take you.

Bill C-75 's measures with respect to jury selection seem a bit perfunctory. They require, in my respectful submission, greater deliberation and calibration to achieve the stated objective, and most importantly, in some cases outright elimination, because if you're going to do something, you must have evidence that there's a problem and have evidence that this is going to achieve the solution. Trial by jury needs to be better understood in terms of how the provinces and the federal government interplay to achieve a representative jury role.

There needs to be a better understanding of how challenge for cause informs and works with peremptory challenges. Ultimately, trial by jury isn't something that just happened overnight. In many ways, trial by jury started before the Norman Conquest, with trial by compurgation. Over the last thousand years, trial procedure has slowly evolved through trial and error. The provisions that have persisted over time, I would suggest to you, aren't there just as historical vestiges, but stand the testament of time.

Bill C-75 with respect to jury selection comes along 48 days after the government's very public declaration of disagreement with a verdict. Forty-eight days to study provisions and otherwise come up with solutions, from my most respectful perspective, simply isn't enough time. As a result, in my respectful submission, much of what Bill C-75 proposes in terms of jury selection is a legislative rush to judgment, and while the bill lacks a rational connection between its noble objectives and its actual measures, there nevertheless are some things that can be advanced here today, in my most humble opinion.

We know that there is unfortunately a great problem and a tragic problem of overrepresentation of aboriginal people in our criminal justice system. Correspondingly, there is under-representation in the jury boxes. What is the correlation there? It is criminal records. Criminal records are used to exclude tax-paying citizens, citizens who have a right to vote in federal and provincial elections. Criminal records that don't disqualify them from those civic responsibilities and duties do disqualify them from sitting on a jury. Up to 3.8 million Canadians have a criminal record.

Criminal records are used both by the provinces and by the federal government to exclude up to 10% of the population. Now, if Bill C-75 wants to rid itself of discrimination in the jury selection process, this is the lowest-hanging legislative fruit. Get rid of criminal records as a vector for excluding citizens, and if you want to exclude citizens because you think they're biased, produce the evidence. We have provisions already in place to deal with that under paragraph 638(1)(

b) of the challenge for cause provisions. That being said, Bill C-75 is noble in its spirit. It already contemplates modifying paragraph 638(1)(

c) to narrow the exception. It wants people who have gone to jail but who have served only one year of jail to be eligible for jury duty, thus changing it, obviously, from the one year that it currently is to two years. Parliament wants people with criminal records to be involved. It wants to give these people a voice, but remember what I said about this interplay between the provinces and the federal government. Unfortunately, Parliament's intention to have people with a criminal record who have served one year in an institution, for example, is going to be frustrated by the fact that almost every province excludes people with a criminal record, for much lower reasons.

(1545) In Ontario, if you've been convicted of an offence that was prosecutable by indictment, that leads to automatic exclusion. Those are easy areas for the government to come into and create a basis whereby it says that across the country you can only be excluded for this reason. Justice Iacobucci, in his report, actually appreciated the interplay between the two levels of government. He made a recommendation that I submit you can adopt and take one small step further. I'm suggesting that

section 626 of the Criminal Code say that nobody in Canada—or no citizen—is subject to exclusion from jury duty merely because of a criminal record, or simply say that the criminal record exclusion should parallel that of the federal government. They did that with respect to provinces that were excluding spouses of doctors or other people who were otherwise ineligible. I appreciate that I am almost at the end of my time. I have two other areas that I want to briefly address. Most importantly, I want to speak about challenge for cause in

section 640 of the Criminal Code. This is a small provision that has otherwise been tucked away in this omnibus provision, and perhaps not many people have even spoken about it, but this is a criminal law provision that has existed almost in its exact form since 1892. Jurors who are either unsworn or sworn have been entrusted to decide if a challenge for cause is true. This is also important in terms of giving citizens a voice and encouraging citizen involvement. Jurors pick themselves.

When they ultimately determine that a juror can sit on a jury, the jury that ends up sitting is a reflection of the choices of the litigants and the jurors themselves. This piece of legislation proposes to have judges completely overhaul that situation and be the sole people to make that determination. There's no evidence that there was ever a problem with this challenge for cause procedure. There's no evidence that this is going to actually provide any form of meaningful solution or that it will even expedite matters at all.

In my most respectful submission, there is no good reason to interfere with the challenge for cause procedures. They fulfill a very important role in terms of ensuring for a defendant—for whom the right to trial by jury exists—that the body is an independent, impartial and representative one. I would most respectfully submit that this idea to change the challenge for cause procedures is totally unsubstantiated and without merit. It should be eliminated unless there's some reason offered in terms of continuing on with

section 640 being modified. Finally, l want to say something about peremptory challenges. As a jury lawyer, I'm somebody who is often in a situation where I'm facing unrepresentative jury pools or jury panels. There are many situations. Most recently, I ran a four-week judge and jury trial where my client was an Ethiopian Muslim, and his co-accused was a Muslim. There were not many blacks or Muslims on Ottawa's jury panel, I assure you.

We had to exercise, almost to the full extent of our abilities, the challenge for cause and the peremptory challenges in order to get the 12th juror, who was the only visibly racialized juror. I say that because peremptory challenges are important to protect the rights of the accused. Often what seems to be lost in all of this conversation is that trial by jury is a benefit that exists for the accused person. There are two reports that have been cited by the ministry of the Attorney General, when this legislation was tabled, seeking to justify this legislation.

As a lawyer, however, I always like to look at the actual source. I commend to you to look at the Manitoba inquiry report, which is being cited as the basis for this removal. In 1991, it was suggested that these peremptory challenges should be eradicated because of the discrimination that they allowed. At the time, however, it also made an additional recommendation. The additional recommendation was to change the way in which juries are selected so that there could be some greater questioning of potential jurors. You can't just nitpick, and I respectfully ask this committee to consider that.

If you are going to go so far as eliminating peremptory challenges, I would say that Justice Iacobucci, when he studied this in 2013, came to a non-partisan, determined and decided conclusion that it was good to keep them but to provide some oversight by way of something akin to an American-style Batson challenge. I'm sure I've exceeded my time at this point, but I'm happy to answer any and all questions with respect to jury selection or anything else. I thank you kindly.

(1550) The Chair :

Thank you very much, Mr. Johnston. We're going to move to questions. Mr. MacKenzie.

Mr. Dave MacKenzie (Oxford, CPC) :

Thank you, Mr. Chair. Thank you to the panel for being here today. I found all of your opening remarks remarkable because they hit the nail on the head for most of what we've been hearing during the last few days. Mr. Johnston, you mentioned one issue, one trial that turned out to be controversial perhaps because of the jury pool. We also recognize that it was not a long time ago. To make the massive changes that we're trying to make, you're right that it does take a whole lot more research and looking into fixing the problem rather than addressing it in a quick manner.

I think that's where your comments are coming from. Would I be right in that? You believe it needs to be changed, but we need to spend some time to do it.

Mr. Michael Johnston :

We absolutely need to calibrate the system at all times. A system such as our trial-by-jury system requires modernization. It requires analysis to ensure that it's achieving what it's supposed to achieve. But of course we need a better understanding of it. It has been since 1980 when the Law Reform Commission made a comprehensive study of this. We need a non-partisan understanding of trial-by-jury because, while trial-by-jury exists in our democracy, it isn't informed by democratic decisions. It's not subject to, let say, public opinion. In fact, it's supposed to guard against the exact opposite.

Therefore, I very much agree with you. We need a non-partisan understanding of the system before we start pulling planks away.

Mr. Dave MacKenzie :

Sometimes common sense seems to be lacking and it's more important that we do things in a hurry in this place. I think you're absolutely right. We need to take our time and do it right as opposed to making wholesale changes in a hurry.

Mr. Michael Johnston :

I agree, sir.

Mr. Dave MacKenzie :

As to the other area that I'm interested in, Ms. Pentz, I think you made mention of the preliminary inquiries. I spent a little time in law enforcement and preliminary hearings are not common. They're very few. I don't think we've had anybody give us any statistics on it, but I would suggest that far more often a preliminary inquiry results in a trial not taking place. There's an adjudication by the Crown and the defence that takes place before it gets to the court and it's frequently resolved in the manner in which you've indicated. One side or the other will say, “We needn't go to trial.” Would that be your experience, or am I alone in that?

Ms. Kathryn Pentz :

No, that certainly has been our experience. As I mentioned, the statistic that we could find said it was less than 2% of court time. I gave an example of a case where the witness was very strong and the case is now in resolution, but there have certainly been cases where the Crown has put a key witness on the stand and that witness has just been so vague and equivocal that it's quite apparent we have no realistic prospect of conviction. Just by looking at the statement we've received from the police, or even meeting with the witness, that's not always evident.

Putting the witness on the stand and finding out what they're going to say can be key to resolving matters, whether it's withdrawing a charge or having a guilty plea.

(1555) Mr. Dave MacKenzie :

Sometimes it's the reverse. You'll end up with a very strong witness where they may not have appeared to be so strong on paper.

Ms. Kathryn Pentz :

In some cases, yes, sir.

Mr. Tony Paisana :

If I can just add one thing to that discussion, on page 14 of our main submission, we do cite a study that was conducted of legal aid cases in Manitoba. It showed about a 75% clearance rate after a preliminary inquiry.

Mr. Dave MacKenzie :

Again, just on the ground, I would have said that would be accurate. My other area is the one about police evidence by affidavit. From my background, I don't honestly see the need to put that into legislation. I've been gone from it for 20 years, but in the past, the Crowns and the defence would sit at pretrial discussions about what both sides wanted to see, so the elimination of police witnesses by that process, where the evidence may or may not be included in this, would be accepted at trial.

It may be something very minute, but by putting this in, I think—correct me if I'm wrong—we're putting something in legislation that could very well end up derailing a court hearing and taking far more time than trying to eliminate it by this process. Would your experience be that Crowns and defence will sit and make those decisions?

Ms. Kathryn Pentz :

Yes, sir, exactly, and that saves a great deal of time. As we mentioned in our report, that evidence is now admitted often and regularly by way of admissions. For instance, if it's an officer who had minimal contact with an accused in terms of a statement, the defence will concede you don't have to call that witness, or if it's an officer who peripherally touched or handled an exhibit, you don't need to call that witness. Those admissions are made every day. In this procedure that's being recommended, defence would then have to make the application. As we say, that's just another step in the proceeding that's going to clog the system.

Mr. Dave MacKenzie :

Thank you. Mr. Cooper.

Mr. Michael Cooper (St. Albert—Edmonton, CPC) :

Chair, how much time do I have?

The Chair :

You have 30 seconds left.

Mr. Dave MacKenzie :

Oh, sorry.

Mr. Michael Cooper :

In that case, I'll....

The Chair :

Hopefully we'll have a chance for a short snapper for you at the end. Go ahead, Mr. Fraser.

Mr. Colin Fraser (West Nova, Lib.) :

Thanks very much. Thank you all very much for being here. I appreciate your presentations and the briefs that you submitted. I understand that, from the CBA's point of view, the way this bill deals with administration of justice offences in combatting court delays is well received. Having a diversionary sort of process that administration of justice offences could go through seems like a good idea, and I appreciate your submissions on that. One thing I'm wondering about, though, is that you recommend a change to that to allow flexibility to the Crown when dealing with situations....

You propose basically that, if there's physical harm to a person, that would not be allowed. Then you talk about emotional harm, and that's not really known, so delete that, or if there's property damage, take that out and just leave it up to the Crown for flexibility. Am I reading that correctly, that basically what you're saying is, unless the breach is associated with physical harm to a person, you think the Crown should have the ability to put it through diversion? Is that right?

Mr. Tony Paisana :

Yes, you're right. We do applaud the government for introducing a measure to divert these sorts of cases. As we cite in our main brief, there are about 78,000 such cases every year. Not all of those are related to bail and failure to appear, but many are. Essentially the way we see it working with this bill is that there are four disqualifiers: if the breach caused physical harm, emotional harm, property damage, or.... The last one's escaping me now, but in any event—

Mr. Colin Fraser :

Economic loss.

Mr. Tony Paisana :

Economic loss, yes, thank you. What we propose is eliminating all except the physical harm, because there are other ways you can address those other issues, should they be so significant that they do not warrant this sort of response. We can't lose sight of the fact that this is totally discretionary in the hands of the police or Crown. They're the ones who are going to decide either up front or at some point after the person has been charged whether to afford that person the benefit of diversion.

If the emotional harm or the economic loss or property damage is significant, they can opt not to use the diversionary regime. There may well be cases where those sorts of things are present but are the very types of things that you want to get out of the system. The example we provided in our submission is this: Two friends get into a fight and one is put on a no-contact order and he phones and is sort of drunk and, in an apologetic state, tries to apologize to the person, and this upsets the victim.

That's understandable, but those are the sort of low-level administration of justice offences that could very well benefit from being diverted into a system where conditions can be tinkered with.

(1600) Mr. Colin Fraser :

Right, thanks for that answer. Ms. Pentz, I'll ask you a question. One of the things we heard dealing with preliminary inquiries is that it takes up very little court time, and I think you put it at 2%. Some other witnesses have said 3% of court time. Isn't the problem the delay that's caused by having to set a hearing and then that hearing not having to proceed, and then having to set a trial date, and it pushes back or stretches out the length of time that a matter goes to trial? It's not so much the court time, but it's the length of time that it requires to set all these things in place.

Oftentimes there are large delays as a result, because the court schedules are so busy. Wouldn't you agree with that?

Ms. Kathryn Pentz :

One of the things that we noted in our brief was that there isn't a large.... Although you've quoted the percentage of court time, I believe it was 75% of offences that were eligible for preliminary inquiries did not opt for preliminary inquiries. Certainly, it does sort of push the envelope back, but since the other provisions have been put in place in terms of streamlining preliminary inquiries, there has not been, in our experience, a major issue in terms of the timeline. We also have to remember that there are other mechanisms that the Crown can use to speed things up.

In a worst-case scenario, if we feel there will be timeline problems or if it's being abused, we can certainly prefer a direct indictment. The Crown can admit statements by way of paper copies, and the court can certainly curtail what it considers to be a vexatious cross-examination. There are certainly cases where preliminary inquiries are set and then they don't go ahead, but those are not what we have seen as the bulk of the cases.

Mr. Colin Fraser :

Thank you. I want to turn now to victim fine surcharges. I appreciate that you support giving discretion back to the judges, which was changed in 2013, making it mandatory for the imposition of victim fine surcharges. You talk about making a change, though, to the bill, to allow the court discretion to not impose them for administration of justice offences. Why would that be needed if we're going back to giving the judges the discretion to not impose them if they create hardship anyway?

Mr. Tony Paisana :

This point is in response to this secondary discretionary feature that's been built into the regime, whereby administration of justice offences are stacking up and creating a large fine. There is specific discretion to reduce the fine in light of that stacking, but there exists no equal mechanism for non-administration of justice offences. I agree with you that it might be redundant if we expand the discretion generally to everything and get rid of this one specific example, but if you're going to extend this secondary discretionary feature to administration of justice offences, then we see no reason why it should not be expanded to substantive offences that are stacking up in the same way.

The Vice-Chair (Mr. Murray Rankin (Victoria, NDP)) :

Thank you very much. It's my turn. I want to say thank you to all three of you for your excellent presentations and your great briefs. I want to, in fact, help drill down on a couple of recommendations that, understandably, you didn't have a chance to get to. I would first like to say, to the Canadian Bar Association, that page one of your executive

summary has quite a succinct

summary of where you stand. You say, “other proposals, including those to curtail preliminary inquiries and introduce 'routine police evidence' by way of affidavit, would exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections”. I thought that was a very good

summary. In fact, to you, Ms. Pentz, your anecdote about preliminary inquiries in the province of Nova Scotia was precisely what Mr. Star, a defence lawyer in Nova Scotia, said to us yesterday. I thought that was very helpful. As I said, I would like to talk about things that you didn't have a chance to talk to. The Canadian Bar Association has given us 17 recommendations. I'd like to talk about number 15, in which you recommend that the choking and so-called supermax penalties be deleted from Bill C-75 . You say those are, “particularly unnecessary”. I wonder if you could elaborate.

(1605) Mr. Tony Paisana :

With respect to the choking, what we understand Bill C-75 will accomplish is to create a third route of liability for assault causing bodily harm and/or assault with a weapon—that's the way it's defined—and sexual assault. Instead of proving bodily harm and/or assault with a weapon, those offences would be made out by

an act of choking, regardless of whether or not there was bodily harm, or a weapon used. It would be treated in a way akin to the way in which those offences are treated. We say it's redundant because choking is already a form of assault. If the person has been assaulted by way of choking, they will be convicted of that offence under

section 266. That will be deemed an aggravating factor at sentencing, just given the way the assault took place. Therefore, it is redundant to create a whole new offence at a time when we're trying to streamline and simplify the Criminal Code.

The Vice-Chair (Mr. Murray Rankin) :

Thank you.

Mr. Tony Paisana :

With respect to supermax offences, it's a similar problem. Choking someone, domestic violence, and multiple convictions are already considered aggravating factors on sentencing, and will be taken into account on sentencing. There is no need to create a supermax penalty regime.

The Vice-Chair (Mr. Murray Rankin) :

Do you wish to add to that?

Ms. Kathryn Pentz :

In relation to the choking aspect, I would note—it's fairly dated now, from May 2006—that the Uniform Law Conference of Canada also looked at this issue in terms of making choking a distinct offence. They concluded, as we have now, that it's encompassed under

section 266. They also noted that it can be encompassed under

section 268, aggravated assault, in terms of endangering life, if the choking is extreme. Their conclusion was the same one we reached: It did not necessarily need to be a separate offence.

The Vice-Chair (Mr. Murray Rankin) :

I'll get to Mr. Johnston. I would just like to ask one more. Your recommendation 16 is that clause 389, which enacts the rebuttable presumption in human trafficking cases, be deleted from this bill. Why?

Mr. Tony Paisana :

We made submissions in 2014, regarding the first incarnation of this, which was Bill C-452 . You will see that some parts of that brief are reproduced in our brief here. The rebuttable presumption is vulnerable under paragraph 11(

d) and

section 7 of the charter, as a violation of the right to be presumed innocent. We do not think it will be saved under

section 1, because there does not exist enough evidence to show that the

section 1 test will be fulfilled. If you are habitually in the company of someone who is exploited, it does not necessarily follow that you are responsible for the exploitation. In fact, you may imperil various people who are in the company of people who are exploited but who are not themselves exploited but who happen to be in the area. We provided an example in our original brief about a worker who was being paid but whose co-worker is not being paid and is being exploited. That person could be at risk of a human trafficking conviction because of this rebuttable presumption.

The Vice-Chair (Mr. Murray Rankin) :

Thank you. Mr. Johnston, you were passionate about trying to expand the jury pool and we heard a lot about that yesterday as well, regarding the representativeness issue. Yesterday, we heard a suggestion that health cards are preferable to property rolls because, by definition, those that don't own property wouldn't be brought in. Today, you've suggested that criminal record holders should be added to the list in order to expand the pool, thereby adding 10% of the population, which is quite remarkable. We also heard yesterday that permanent residents ought to be included, as they have a sufficient connection to the community to be included. Would you agree with those other suggestions?

Mr. Michael Johnston :

I would agree with the other suggestions. I know that some people talk, for example, about increasing juror participation by allowing jurors to volunteer, as opposed to mandating them by way of subpoenas or juror notices. That being said, there are many ways that we could create or encourage greater juror participation and I would adopt all of those.

The Vice-Chair (Mr. Murray Rankin) :

I only have 30 seconds. On challenges for cause,

section 640, you're very clear. We've had it since 1892. Essentially, you're saying that if it ain't broke, don't fix it. However, we've heard a lot of people, although you're not one of them, who say we ought to agree with the bill and abolish peremptory challenges. Yesterday, Professor Roach said that if we remove peremptory challenges, maybe we need to beef up challenges for cause. If we chose that route, would you agree?

(1610) Mr. Michael Johnston :

I would not agree because peremptory challenges provide an accused person with the ability to challenge the fairness of what is transpiring. We know that the jury pool and panels are constituted by the provincial governments. They are randomly constituted and they ought to be randomly constituted. The accused has to have some say in who ultimately ends up in the pool. Just by looking at the individuals, there could be any number of reasons why someone can feel it proper to challenge a person peremptorily.

More importantly, there is a residual ability for prejudice to surface during the challenge for cause process. As potential jurors are being challenged and they're being asked if they're racist.... These are situations in which people who may not have been acrimonious to your cause or your opponents cause actually develop that level of prejudice. It would provide an opportunity to use a peremptory challenge in a proper way.

The Vice-Chair (Mr. Murray Rankin) :

Thank you. Go ahead, Ms. Khalid.

Ms. Iqra Khalid (Mississauga—Erin Mills, Lib.) :

Thank you, Chair. Thank you to the witnesses for coming in today and for your very detailed briefs. I'd like to ask the Canadian Bar Association a question. You talk in your brief about video conferencing and technology and the amendments to that. The idea behind Bill C-75 , in my opinion, is to reduce delays in the court system. You're recommending two amendments to those provisions. Can you explain your rationale behind that?

Mr. Tony Paisana :

Yes. These can be found at page 18 and forward in our brief. We have recommended two changes. One is about the provision that has been put in to suggest that reasons should be offered by the judge to decide not to use technology. We think this is unhelpful because it provides a confusing paradox with the other provision in the bill, which suggests that the presumption should always be in-person attendance. What does that look like practically?

You have an application for someone to appear by teleconference and then there's a suggestion that this might not be appropriate and that we should stick with the presumption of in-person testimony, yet the judge is now required to give reasons to justify that, although that's the presumption. It's a bit confusing and conflicting, so we suggest that you remove that provision, as it appears at various parts requiring reasons to not allow for video conferencing or teleconferencing.

The second suggestion is that these various proposals about video and tech should be limited, generally speaking, to non-contentious hearings. We do not want to unduly erode the right to face one's accuser and to have in-person hearings. This is meant to be a fix for remote communities and communities that would benefit from this sort of thing, where there is no other alternative.

Ms. Iqra Khalid :

Mr. Johnston, do you have any comments on the use of technology and video conferencing, as you have experience in running trials by jury and trials in general?

Mr. Michael Johnston :

I do, but I'm generally opposed to the use of technology where people want to have trials and have witnesses attend by teleconference or telelink. I'm often in opposition to such a method, because for me a criminal trial is a slow and deliberative process where I believe it's important for jurors, for example, to have a real feeling and appreciation for what a witness is testifying to. I respectfully feel that the ability to assess the witness is just better in person, in the flesh, viva voce, as opposed to by video link. Perhaps I'm a relic of a bygone era, but it's just my personal preference for witnesses to be there in person.

Ms. Iqra Khalid :

That's interesting. Thank you. I want to touch on CBA's note on intimate partner violence. We've heard evidence before that instead of promoting or really protecting women who are being abused, the reverse onus provision would take them a step back, because they will not be reporting crimes as much. What is your take on that? I know you've really detailed it out, but could you please speak to that?

(1615) Mr. Tony Paisana :

With respect to bail, we oppose the reverse onus predominantly for two reasons, but we don't disagree with the evidence you've heard, and there was testimony from earlier witnesses about the fact that this may encourage under-reporting, which is a troubling feature that we obviously take issue with. Our primary consideration in opposing that amendment is that it's redundant, because the other amendment that Bill C-75 brings in is a mandatory consideration by the justice of whether or not that person has a record for this sort of thing already, and whether or not the allegation involves intimate partner violence.

What that practically means is that the judge will be forced to turn his or her mind to those issues already, without the need for a reverse onus to highlight the particular importance of intimate partner violence. We also say it's constitutionally vulnerable, because the cases that have upheld reverse onus provisions in bail have focused on different contexts, like drug trafficking, which encourages the accused—if they are legitimate drug traffickers—to violate the terms of their bail because it's very lucrative and sophisticated and hard to get out of immediately.

That's not to say there aren't other considerations in the domestic violence context, but it's not an even fit in terms of trying to rely on those cases to justify this reverse onus.

Ms. Iqra Khalid :

Thank you. Under-reporting is really a big issue in the context of gender-based violence, and it's something that's really difficult to tackle. Do you have any proposals within this framework that would encourage more support for women in our justice system?

Mr. Tony Paisana :

From my personal perspective, money allocated to victim support services is never wasted. As much as we become a bit desensitized to acting in criminal courts and cross-examining and seeing these tragic stories, we can't lose sight of the fact that victims are often going through this process for the first time. They need that support, and the easier it is for them to get that support, the more people over time will be encouraged to come forward.

We are obviously worried about the presumption of innocence and measures that infringe upon that, but there's lots of room for improvement outside the courtroom that won't require those sorts of compromises. That's where the focus should be, and the criminal court should not be the answer to all of society's ills, in my respectful view.

Ms. Iqra Khalid :

Thank you.

The Chair :

However, because we have the Canadian Bar Association and it's not yet 4:30 p.m., we have a chance to do some very short snapper questions for the next 10 minutes. Who on the committee has a short question they'd like to ask? I see Mr. Nicholson and Mr. Cooper. Anybody on that side? Mr. Fraser and Mr. McKinnon. They need to be very short questions. If you have more than one, do them all at once so they can be answered. No longer than two minutes per question, back and forth. Mr. Nicholson.

Hon. Rob Nicholson (Niagara Falls, CPC) :

Ms. Pentz, you were talking about preliminary inquiries, and you gave the example of a case where it was a sexual assault and the preliminary inquiry actually speeded up its resolution. I have spoken with people who have gone through this process. Sometimes these victims of sexual assault and abuse find that having to go through the preliminary inquiry and then the trial makes them feel that they themselves are, in a sense, put on trial twice. This increases their suffering. Have those people approached you as to how difficult it is?

Ms. Kathryn Pentz :

There is certainly that concern, and there are certainly those cases where the victim has come forward and said that they found testifying twice had been stressful for them. In some cases some witnesses find it's almost a rehearsal for the trial and they find it useful. When a witness is testifying I think it's important for the Crown and for the court to make sure that witness is not abused during their testimony, that the questioning is not abusive, and that they stick to the relevant points.

If that is done, then certainly it can make it an easier process for the victim, but there's no denying that testifying on sexual matters is traumatic. The more you do it, certainly, the more difficult it is. There is that concern, but from our perspective it's a “throwing the baby out with the bathwater” type of thing. There are pros. Yes, we can't deny there are those people who come forward—

(1620) Hon. Rob Nicholson :

Just one subquestion, with respect to getting rid of the peremptory challenges, you think this will hurt, ultimately, indigenous and racialized people. Is that your stand?

Mr. Tony Paisana :

It is. It is our view that racialized accused can use the peremptory challenge to create a more representative jury. We appreciate the position that has been taken on the other side of things, but I do want to mention one thing. This debate, quite rightly, has focused on the overrepresentation of indigenous people in the system and under-representation on juries. However, peremptory challenges have a far more practical application in some cases.

The one anecdote I can think of is the example I had in a recent jury selection, where I had an accused who was facing a charge where the defence was going to be reasonable alternative inference, a fairly complicated instruction for a jury, where you have to explain circumstantial evidence and the difference between speculation and inference. I was concerned that jury members who were not that proficient in English would not be able to understand the instruction that well, and that it may harm the truth-seeking function.

Even though I had a racialized accused, I was using the peremptory challenge to pick off some people who showed that they did not have a very strong grasp of the English language, even though they were of the same race as my client, because I expected that they would not be able to understand the instruction to the extent that I would hope they would. These sorts of considerations are sometimes being lost in the analysis.

The Chair :

Got it. We'll have Mr. Fraser, Mr. Cooper, an then Mr. McKinnon.

Mr. Colin Fraser :

Thanks very much. Just to the CBA again, I note that in your brief you support the reclassification of offences provisions, but you note as well what appears to be an almost unintended consequence that we've heard in regard to law students and articling clerks appearing in court for

summary offence matters, which they're allowed to do right now so long as they have maximum penalties of six months. You make the suggestion that this could be remedied by just amending the

section to reflect the new maximum of two years less a day. Do you have any concern with law students and articling clerks taking on cases that have maximum penalties now of two years less one day? If you do, how do we grapple with that or make a change that perhaps doesn't have that unintended consequence of having, perhaps, inexperienced counsel handling cases that could see somebody going to jail for two years?

Mr. Tony Paisana :

I appreciate the concern that you've identified. That being said, almost every

summary conviction offence will now have two years less a day, so that number is somewhat misleading in that sense. We've offered a second recommendation in respect to sentencing. I think this is one thing that provincial law societies should be looking at, as opposed to the Criminal Code. This is a thing that can be regulated in terms of what provincial law societies permit articling students to do, what sorts of offences they should be permitted to work on, separate and apart from restrictions in the Criminal Code. I think it might be something that's not necessarily a problem, but I take the point.

I also take the point from a previous witness about the maximum sentence, that if it's used too often there may be collateral consequences. It's something else that we agree with. It should be considered if this is to be passed.

Mr. Colin Fraser :

“Collateral consequences” meaning inflationary sentences.

Mr. Tony Paisana :

Inflationary sentences, immigration consequences, and U.S. border....

Mr. Colin Fraser :

Got it. Okay, thanks.

The Chair :

Mr. Cooper.

Mr. Michael Cooper :

Thank you. To the CBA, on page 8 of your brief you note that the reclassification of offences could result in further delays in provincial courts. Could you just elaborate on that point?

Mr. Tony Paisana :

Summary conviction offences can only take place in provincial court. Of course, 99% of all criminal cases already take place in provincial court. With the elimination of preliminary inquiries, you can expect more judge-alone trials in provincial court. There's a stacking of problems that may create an overburdened provincial court system. I appreciate that appointments are not in the jurisdiction of this body but we have identified that as a concern, and all the more reason not to tinker with preliminary inquiries, frankly.

The Chair :

Thank you very much. Mr. McKinnon, you have the last question.

Mr. Ron McKinnon (Coquitlam—Port Coquitlam, Lib.) :

I was going to ask Mr. Fraser's question, but I have a related question to hybridization offences. This bill classifies more than 115 offences as hybrid offences. Do you think that's an appropriate list? Do you think it should be increased or reduced? What do you think in terms of the process of hybridizing these offences?

Mr. Tony Paisana :

We support the hybridization of offences because it offers greater discretion to Crown counsel, and also widens the scope of particular sentences that may be available with certain offences. The conditional sentence order, in particular, is an important example of that. Conditional sentences are often unavailable for an offence where there has been bodily harm and a 10-year maximum, for example, or where the maximum penalty is 14 years. When you reduce the maximum sentence by way of

summary conviction to two years, the CSO becomes available. That could be a very important negotiating tool when speaking to the Crown. Also, I have heard in my personal experience of Crown counsel not wanting to go the

summary route because they feel six months is too low and they don't think it appropriately reflects the seriousness of the offence. We support the hybridization because it provides that flexibility. However, we have recognized the inflationary ceiling problem that might exist and we have recommended a “for greater certainty” clause to make sure that does not happen.

(1625) The Chair :

I saw Ms. Khalid put up her hand. Mr. Rankin, we didn't get into your questioning this round. Are you okay?

Mr. Murray Rankin :

I'm fine.

The Chair :

Ms. Khalid, you have time for one short question.

Ms. Iqra Khalid :

Thank you so much, Chair. It is a very short question. You mentioned also in your brief the vagueness around the term “dating partner” in the context of the definition of “intimate partner”. I haven't been able to see if you've provided recommended wording for the definition. If that's possible, could you please send us some wording?

Ms. Kathryn Pentz :

You're quite correct. We didn't recommend any wording. Our concern with it is, what is a dating relationship? If you went out on one date with someone, does that constitute a relationship? If you dated someone 10 years ago, is that a dating relationship? Our concern was that it doesn't necessarily establish the trust relationship that we feel is integral to a spouse or a common-law. We did not consider alternate wording, but it is certainly something we can discuss.

Ms. Iqra Khalid :

Thank you kindly.

The Chair :

For clarity, my understanding of your brief is that you propose that we strike the words “dating partner”—

Ms. Kathryn Pentz :

Yes.

The Chair :

—from the definition. Got it. Thank you so much for your testimony today. It was very helpful and incredibly appreciated. I'm going to call a very short recess and ask the members of our next panel to please come up. We're going to want to start, because we have a vote right after.

(1625) (1630) The Chair :

We will bring this meeting back into session. We are joined by our second panel. By agreement of the witnesses, they're going to go in the following order. We will start with Cheryl Webster, who is a professor from the University of Ottawa. We will then go to Tony Doob, who is professor emeritus at the centre for criminology and socio-legal studies at the University of Toronto. We will finish with Jane Sprott, who is a professor at Ryerson University. Then we'll have questions. Welcome, everyone. Ms. Webster, the floor is yours.

Dr. Cheryl Webster (Professor, University of Ottawa, As an Individual) :

Thank you, Chair. Over the last decade there have been multiple studies conducted on the bail process and pretrial detention. Their conclusions have virtually all been in one direction, that bail is in urgent need of attention. As such, the government should be applauded for proposing legislative reform. Indeed, any attempts to fix our broken bail system are a good thing, and the current legislative proposal targets several of the key concerns. My worry is simply that they address the symptoms rather than the underlying causes of the problem.

As such, they are unlikely to fix what might reasonably be seen as a genuine crisis. In my eyes, here is what I think has happened. Our current state of bail is the product of the adoption over the last 20 or 30 years of a risk-averse mentality, which has slowly permeated the entire bail system, ultimately redefining the very notion of what it is that we are trying to accomplish. In 1971, bail was envisioned as a

summary procedure to expeditiously determine the liberty of the accused until trial and ensure, above all, his or her attendance in court. Within our current risk society we have for all intents and purposes abandoned this primary grounds of detention and elevated the secondary grounds as the principal focus in determining whether an accused should be released. The principal role of the bail process has become one of limiting to the greatest extent possible any risk to public safety that accused persons might represent.

However, given that we have yet to perfect a means of distinguishing with complete reliability those who will in fact offend once released on bail, our heightened concern with risk management has translated in practice into a strong reluctance on the part of all criminal justice players to exercise discretion to release. Release decisions are now conceptualized in terms of being either right, the accused doesn't commit a criminal offence while on release, or wrong, the accused commits a crime while in the community, rather than simply the best decision made at the time with the information available.

Decisions about release are now seen as a product of a particular individual who, in the case of a tragic incident, will be personally held responsible. Not surprisingly, the principal decision-makers in the bail process have chosen to play it safe by either opposing bail, passing along the decision to someone else, or eventually releasing the accused, albeit with multiple constraints. At the front line, police are laying a greater number of charges despite declining overall and violent crime rates. Further, they are detaining a greater number of cases for a bail hearing.

Once in court, the bail process is taking longer, with a greater number of adjournments, a greater degree of case processing, and ultimately requiring a greater number of days spent in remand awaiting a determination of bail. Of those eventually granted bail, more onerous forms of release are being preferred and a greater number of conditions are being imposed, often with the need of a surety.

Not surprisingly, a greater number of accused persons are violating bail conditions, predominantly committing acts that would ordinarily constitute non-criminal behaviour rather than new substantive offences, and the police are laying a greater number of administration of justice charges in response. With reverse onus provisions for accused persons who have violated a court order while on bail, the likelihood of being granted bail a second time is significantly reduced.

Even in those rarer cases in which the accused is re-released on bail, additional and even more onerous conditions are often imposed, further enhancing the likelihood of another return to bail court on a breach. With the accumulation of an even lengthier criminal record, the likelihood of being granted bail for a future offence, even for a minor crime, is further reduced. We've effectively enhanced the proverbial revolving door of the criminal justice system, this time with individuals who began the process still presumed innocent. Don't misunderstand my position.

I'm not suggesting that no one should be detained until trial. On the contrary, detention is in many cases the appropriate response in order to ensure that an accused will appear in court or provide public or individual safety.

(1635) My point is that we're presently defaulting to detention, or at least delayed release, rather than ensuring that we're putting the right people in prison while quickly releasing those for whom we simply worry about reinvolvement without any substantial basis, or those whose risk will not substantially affect public safety. In brief, we've lost the correct balance between the rights of still-innocent people and the rights of the community at large. The cost of our current risk-averse practices are not trivial.

Fiscally, the enormous financial costs of operating an increasing number of bail courts rival only those of housing all of these accused in pretrial detention for longer periods of time. Institutionally, the effective management of this population has become a serious challenge for remand centres, particularly with regard to prison overcrowding and the corresponding risk of prison disturbances. Administratively, their increasing numbers and lengthy processing times have significantly contributed to widespread court delay issues.

For the individuals accused, even short periods in remand have devastating effects, limiting their ability to defend themselves, maintain employment, provide for family dependents, etc. Morally, a greater number of people being held in custody before rather than after being found guilty is clearly problematic. Even in terms of public safety it's—ironically—difficult to argue that we're better protected. Violent crime has been declining since the early 1990s.

A non-trivial proportion of accused sent to bail court have committed minor, non-violent offences or have simply breached a bail condition for non-criminal behaviour. Further, most research shows that federal offenders on conditional release are very unlikely to commit new offences, much less violent offences. There is no reason to believe that those released on bail would be any different. In terms of remedies, solutions will need to be transformational. Our current bail system is a result of a particular mentality, driven largely by a climate of risk aversion and risk management.

The problems are both endemic and systemic in nature. In fact, they are feeding off of each other in what amounts to a vicious circle. What is needed is an approach that will break this feedback model by challenging the underlying mentality. Here lie my concerns about the proposed legislation. In my mind, they can be loosely characterized as tinkering with the current bail system, and are synonymous with other recent and even large-scale efforts to reduce the remand population. These initiatives have shown some success, but the magnitude of improvement has been small and, in some cases, short-lived.

To bring about systemic change, a different mindset is needed that will force all key players to reconceptualize bail as it was originally intended. Let me use the legislative proposal to expand police discretion as an example. I applaud that attempt to reduce the number of cases detained by police. In Ontario, almost half of all criminal cases start in bail court. Notably, only 30% of them have any violent charges. This is a serious problem, and any reduction in the strain on bail court would be positive. The challenge is to change the culture of police decision-making. My concerns are twofold.

First, I'm not convinced that police will regularly use this expanded discretion, given that there continues to be no real attempts to reduce individual or institutional risk if the case goes south. I see little that will encourage, if not force, police to behave differently from the past. Second, even if police decide to release, I worry that they will impose multiple conditions to minimize their own risk.

Given that the conditions at their disposal are very broad and most accused will accept anything to avoid prison, and particularly with no lawyer present to counsel them at this point, I also worry that the latter approach will not always be reflected. With many, potentially very onerous conditions, breaches will still be the norm and the vicious circle continues. Both police responses strike me as completely understandable within our current risk culture as no one wants to be caught holding the proverbial hot potato.

Until we address the cause rather than the symptoms of our broken bail, current legislative changes, at least as they are presently crafted, may simply not be enough.

(1640) Thank you.

The Chair :

Thank you very much. Mr. Doob.

Dr. Anthony Doob (Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual) :

Thank you very much. In 1997 there were about 3,800 youths serving custodial sentences in Canada. By 2015 this was down to about 500. There are lessons to be learned from the changes in Canada's youth justice system that have relevance for the areas of Bill C-75 that you've asked us to speak about—namely, bail and the administration of justice charges. In the mid-1990s, it was broadly accepted that we incarcerated too many youths, but it took us 20 years to get to where we are now. The goal in part was to screen minor cases out of the court system.

It meant that the courts and youth corrections could deal more effectively with the more serious cases. I suggest that one of the goals of the proposed changes in bail and administration of justice charges contained in the bill is to be more selective in the manner in which we deal with cases. How did we do this with youths? First, there was a broad and growing consensus in this case about what the system should be all about. Second, the consensus was reinforced by legislative changes.

Third, the legislative language in youth justice changed from what might be called “aspirational” provisions, where the intent was clear but the decision-maker was not required to change. It shifted toward what might be called “operational” directions, where more firm guidance was given.

Fourth, governments reinforced the importance of changes in the legislation by instituting educational processes that ensured that people knew that a real change in approach was required—in other words, that the behaviour on the part of those in the criminal justice system had to change in order to comply with the intent of the change in law. My concern regarding the proposals in Bill C-75 on bail and administration of justice offences is not that I don't agree with what I believe are its goals. It is that I don't think these goals will be achieved.

As you probably know, we have not been as successful in controlling the use of pretrial detention for youths as we have been with sentencing. The original restrictions in the Youth Criminal Justice Act on the use of pretrial detention were not as directive as the restrictions on the use of sentenced custody. Even though the legislation relating to pretrial detention for youths was improved in 2012, no apparent change in the decision-making process actually occurred. The law changed, but practice did not. In 2003 about 41% of the youths in custodial facilities were in pretrial detention.

By 2015 this had increased to 56%. Let's turn now to the proposed changes in the handling of administration of justice charges and bail. I read the proposed changes to

section 16 of the Criminal Code with one question in mind: Will it be necessary for anyone to change what they're currently doing as a result of these changes? Obviously, there are some sensible principles. It is useful to state clearly that primary consideration should be given to the release of the accused at the earliest reasonable opportunity and so on. But such a statement is not dramatically different from the current provisions.

What in this legislation will force or at least strongly encourage police officers, Crowns or judicial officials to change the manner in which they determine what constitutes best practices? I say this in the context that the police officer is encouraged to place conditions on an accused person that are reasonable to prevent the continuation or repetition of the offence or the commission of any other offence. This would seem to encourage extra conditions that are likely to lead to something discouraged in the legislation—namely, additional administration of justice charges when extra conditions are not followed.

At the moment, the arrest and bail laws are complex and do not give clear direction. My reading of the Supreme Court's decision in Antic was that the justices simply restated, in plain language, what the Criminal Code says. Plain language is good, but subsequent court decisions suggest that it may not be sufficient. Proposed

section 493.2 says that a judge or justice shall give attention to the circumstances of aboriginal accused and other vulnerable or overrepresented accused people. Later, in proposed changes to

section 515, restraint is again mentioned. Clearly, the idea is that all people, especially indigenous and other disadvantaged accused, should be beneficiaries of restraint. Why not require that reasons be given for escalating the restrictiveness of release orders beyond a simple undertaking without conditions?

(1645) Similarly, if it is deemed necessary to impose conditions or a surety, why not require reasons? For indigenous and other disadvantaged people, why not require those suggesting or imposing the conditions to indicate why such conditions are both necessary and possible for the person to follow? In other words, if you want to focus the decision-maker's mind, say so. Require justifications for restrictions on freedom. There's another problem, however. The Criminal Code, as amended in Bill C-75 , would be giving directly contradictory messages.

On the one hand, legislation would state that innocent people should not be imprisoned unless there is good reason to do so. However, at the same time, the list of the so-called “reverse onus” offences is being expanded in the bill. When the current bail laws were put in place in the early 1970s, there were no reverse onus offences. The expansion of the list since the mid-1970s has been gradual, and I would suggest, without empirical evidence of the need for change. Most, if not all, of the reverse onus offences are ones that you would expect courts to take very seriously anyway.

The problem in expanding the list, especially at this point, is that the message is clear. A decision to detain is the preferred and safest choice in the short run for those concerned about risk, notwithstanding sections such as the proposed statements concerning restraint. These two areas of the Criminal Code—administration of justice charges and bail—clearly need attention. My most important worry about the current set of proposals is that they won't be effective in creating the intended changes. I'll finish with some statistics that illustrate the importance of this issue.

In Ontario, in the year ending this past June, 46% of the 208,000 cases that were completed in Ontario's provincial courts started their court lives in bail court. As Professor Webster has just pointed out, bail cases are not necessarily all serious cases. In fact, only 31% of these bail cases involved crimes against the person. Another indication that these cases are not necessarily serious is that 40,000 of these bail cases, or 42% of them, in the end had all charges withdrawn or stayed at or before trial. How serious could these cases have been if all charges are withdrawn or stayed?

I'm not confident the changes in Bill C-75 will make much of a dent in those numbers. I hope I'm wrong.

The Chair :

Thank you. That was perfect. You finished on such a note that I wasn't sure if you were going on to another page or not.

Dr. Anthony Doob :

Do you mean that I hope I'm wrong?

The Chair :

I thought you were going to say something about hoping to be right. Professor Sprott.

Dr. Jane Sprott (Professor, Ryerson University, As an Individual) :

Thank you. I've been asked here to comment on Bill C-75 and the amendments related to bail and administration of justice offences, or failing to comply. Much of my research over the past decade has been around the Youth Criminal Justice Act and issues around bail and bail release conditions. With respect to the amendments focused on the YCJA and bail within Bill C-75 , the focus appears to be both on conditions placed on youths and on responses when a youth fails to comply with such conditions.

Similar to my colleagues here, I think both issues desperately need to be addressed, and I applaud any efforts to try to address these problems. The research tends to find that there are numerous broad-ranging conditions placed on youths, and many times those conditions appear to be crafted with broad social welfare aims that go far beyond the purpose of release conditions. Girls may be especially likely to be subject to such conditions.

The use of these broad welfare or treatment-based conditions is problematic for a variety of reasons, one of which is that the accused is legally innocent at this stage and very little is known about him or her, so however well intended these broad therapeutically focused conditions are, they're unlikely to achieve their desired goals and can actually do more harm in a variety of ways, one of which is setting the youth up for failing to comply. Not surprisingly, the more conditions placed on a youth and the longer the youth is subject to them, the more likely failing to comply charges will occur.

The thrust of the amendments within the YCJA is in the right direction. Bill C-75 aims to prohibit the imposition of bail conditions as a substitute for mental health or other social welfare measures. Bill C-75 also attempts to remind justices that bail conditions can be imposed only if it's necessary to ensure court attendance or for public safety, or if the condition is reasonable having regard for the circumstances of offending behaviour, or if the young person will reasonably be able to comply with such a condition.

Bill C-75 also attempts to address responses to failing to comply with conditions, such that various alternatives to charging have been presented within proposed

section 4.1. This is all in the right direction, but again, similar to what both Professors Webster and Doob have said, I fear this may not achieve much change in practice. Learning from the successes of the YCJA, we see that for change to occur, as Professor Doob has mentioned, there needs to be education and training around the changes, and the changes need to be operational or directive, rather than somewhat vague aspirational goals. For local on-the-ground practices to change, people need to know about the changes and understand the intent of them.

Part of the reason why the YCJA has been so successful in selectively using court and custody was undoubtedly due in part to the fact that it was an entirely new piece of legislation. A new act signalled new practices. In effect, it forced a new mindset. In addition, there was considerable education with considerable training for those administering the law years before the act came into force. This was likely indispensable not only in ensuring broad buy-in for the act. It also likely helped ensure operational support from those on the ground administering the law.

The same needs to be done here, or nothing is likely to change. Moreover, although it's all in the right direction, the amendments are still somewhat vague, with little directive guidance. Again, learning from the success of the YCJA, the greatest successes have been linked to the sections that have the clearest operational directives, rather than aspirational goals. Assuming, for example, that police and Crowns already believe they're engaging in best practices and pursuing charges for failing to comply only when necessary, it's not clear if the proposed alternatives to charging within proposed

section 4.1 will be enough to change those current practices, especially if there's little by way of education or training about the changes and the intent of them. Similar issues arise with respect to the imposition of conditions. It's not clear if the proposed amendments related to the imposition of release conditions will lead to greater restraint. There's actually very little guidance or direction.

(1650) In this case the entry point for much of what has been happening with respect to release conditions is through the Criminal Code and the ability to add on any other reasonable conditions as the justice considers desirable. It's not entirely clear how the proposed YCJA amendment—with yet another statement that conditions be reasonable, having regard for offending behaviour—will reduce the number or range of conditions placed on young people. If there is a desire to restrain the imposition of conditions placed on youths, then Bill C-75 should probably directly address that.

Moreover, I share the same concerns as my colleagues with respect to the expanded police discretion. It's a question mark if they use it, but if they do, it may well lead to an increase in the use of conditions, the very thing that at another level there's an attempt to restrain. I suppose my points are then threefold. First, if there's any hope of changing release conditions there has to be education and training. Do not think that if you pass law everything will necessarily change to fall in line with what Parliament intends.

Second, if the desire is for restraint in the number and range of conditions placed on youths, then that should be directly addressed, rather than additional aspirations to be reasonable. If expanded police powers to impose conditions are provided for, they may actually be used. Building in more procedures around responding to “failing to comply” offences seems to me to be focusing a little more on the symptom of the problem rather than the problem itself, and that's the use of conditions.

Finally, as Professor Doob has mentioned, the limits put on bail conditions are much more specific for youths than that for adults. If putting on broad-ranging sometimes intrusive therapeutically based conditions is seen as inappropriate with respect to youths, I question why that's not also the same for adults. If it's important for justices to consider whether a youth can actually comply with a condition that's going to be imposed, why is that not also relevant for adults?

Similar issues exist in the adult system, but the problems are profoundly more difficult since the Criminal Code legislation is far less directive than the YCJA and, indeed, more ambivalent and at times, as Professor Doob has pointed out, contradictory with respect to bail. There are very valid arguments that, again, following the YCJA example, it may be time to completely rewrite adult bail laws. That may necessitate the change in mindset and practice more so than the continued tinkering with amendments.

Perhaps it's time to rethink what we want to accomplish with the use of conditions and engage with the evidence to date on the impact and collateral consequences of these conditions, but more generally you might want to learn from the success of the YCJA, which suggests if you really want to see change you need to be directive and you need to educate those administering the law about the change.

(1655) The Chair :

Thank you very much. Mr. Cooper.

Mr. Michael Cooper :

Thank you, Mr. Chair. Thank you to the witnesses. I'll begin with Professor Doob. Perhaps I didn't hear you correctly. I sort of half heard you. Perhaps I could just get your clarification at the outset on your submission that perhaps written reasons should be provided with respect to the imposition of conditions.

Dr. Anthony Doob :

If conditions are being put on—we're in the bail process generally—one of the concerns is that conditions lead to administration of justice charges. When we're putting restrictions on people's freedom of action when they are legally innocent people, I think we should be able to justify them. Reasons need to be given. I think that this shouldn't be seen as too onerous a requirement on the justice who's doing it because, presumably, the law should require them to know why they're doing it.

My concern, from having sat in on many bail cases, is that it seems as if any good-sounding, therapeutically sensible condition that people can think of is put on the person. Why not have this? Why not have that? They're all good-sounding things. There's the standard, almost stereotypic requirement of saying, “He was charged with an offence at the time that he apparently was drunk, so why don't we put an alcohol prohibition?” We know that's not likely to be very useful. Why doesn't he seek treatment? Why doesn't he do various other kinds of things? I think we need to say restrictions should be minimal.

They should be put there for a good reason. If we don't have a good reason, we won't be able to provide it. If we do have a good reason, it's not very onerous for the justice.

(1700) Mr. Michael Cooper :

Do you not see that with the backlog we already have in our courts, it's going to result in even more of a backlog from a practical standpoint? You cited a large volume of cases that go through bail courts. How is that practical?

Dr. Anthony Doob :

It's practical for two reasons. You'll have a witness in the next

section who has probably sat in bail courts and done systematic observation of bail courts more than anybody else in this country, but I think that when you do sit in on bail courts, you realize that bail courts are not well run. I did some work on bail courts a very long time ago, in the 1970s. What was interesting about the bail courts in the 1970s compared to now is that the bail provision was really a

summary process. The person would go in. The Crown would indicate why conditions needed to be put on somebody. Those conditions would typically be agreed to. It was typically a single appearance. What we know now is that it is relatively rare for it to be a single appearance. What we see in the bail process is an elongated process that wasn't contemplated and didn't exist in the 1970s when, essentially, the present bail laws came in. I understand your point, but I think that the problem of congested bail courts is more complicated than just saying that it will be necessary for the justice to justify the reasons.

Mr. Michael Cooper :

Speaking more broadly on the issue of administration of justice offences arising from orders issued by bail courts, do any of you have any data as to how much court time is actually consumed by administration of justice offences? This is not necessarily directed to Professor Doob but to anyone on the panel who wishes to answer it and shed some light on it.

Dr. Anthony Doob :

I don't think of any of us have data on the actual time.

Mr. Michael Cooper :

A lot of these are really tag-alongs, in terms of how they are dealt with.

Dr. Anthony Doob :

That's right. I think that's an important thing. As Professor Webster said, in terms of bringing somebody back who has been released on bail with an administration of justice charge, I think that there is often a substantive charge, so the administration of justice charge is an add-on and probably isn't going to add that much to the process. I think that the problem is more those cases where the only new offence that's coming in late is an administration of justice charge. I don't know offhand. We did some work on that for the Ontario government, but I just don't remember offhand what the number of those was.

It was non-trivial, but I think that you're right to say that most of them would be associated with a substantive charge.

Mr. Michael Cooper :

Thank you.

The Chair :

Mr. Boissonnault.

Mr. Randy Boissonnault (Edmonton Centre, Lib.) :

Thank you very much. Mr. Doob, thank you for making the law accessible to somebody who didn't go through law school. I really appreciate your briefing, and I wish I could have audited one of your classes, audited some of your work. I really appreciate your comments. When it comes to LGBTQ people who are overrepresented in the justice system, or indigenous people, or racialized people, in terms of your recommendation of requesting that the bail provisions be both necessary and possible for the person to follow, and your other recommendation of requiring that the reasons be given for any escalation, how would that work practically?

Dr. Anthony Doob :

I would go back to the presumption of innocence and that it's the responsibility of the Crown to demonstrate why conditions should be necessary. It's relatively easy to see, for example, that somebody should not contact the person who they apparently victimized. It's easy to say we have a victim and it's important for us to protect that person and, therefore, you have this restriction. I think the problem happens when those restrictions become very broad.

I remember a case in Toronto, this is years ago, where a person was apprehended by the police and their concern was that he was basically a predator against young children. One of the pieces of evidence they had was that he had a map with locations of various schoolyards and playgrounds. The problem was that the restrictions that he had on him was that he shouldn't be within a certain number of metres of the playground or schoolyard. If you look at that and start looking at a city that has a fair number of schools and playgrounds, you see how restrictive those kinds of things are.

I think that a justice who addressed him or herself to a condition like that might see the problem. The other anecdote I'll tell you about is that I've sometimes seen, especially in small town courts, somebody get up and really question the need for particular kinds of conditions on somebody, a member of the family or somebody for whom they were going to be a surety, because they knew that it was going to be very difficult for that person to comply with them. We have mechanisms to question things, informal mechanisms. Those informal mechanisms don't work in court.

I think that the responsibility is that if we're putting conditions on people, we should know why we're doing it. Remember that there is a presumption, it seems to me, as a non-lawyer, that people should be released without conditions. The starting point in the ladder that the Supreme Court described in Antic is that a person should be released without conditions. Probably most of the time when that happens, that's sufficient. The problem is that we load up the person with conditions and set them up for failure.

(1705) Mr. Randy Boissonnault :

I think Mr. McKinnon and I feel in esteemed company with you as the non-lawyers on this side of the bench. Is your issue with the reverse onus provision or the fact that the list is now becoming larger?

Dr. Anthony Doob :

It seems to me that the list becomes longer as a concern about a particular problem becomes more salient. If I were aware of data—and I am not aware of any such data—that suggested that it was necessary to be more restrictive on people of a particular kind who are charged with particular kinds of offences because they're less likely to show up for court or they're more likely to commit other kinds of serious offences and so on, I would be more sympathetic.

The list as it has developed is sometimes because of individual cases and sometimes because of a simply broad concern about this being a serious thing, so one of the things we're going to do is we're going to show how serious it is by making a reverse onus offence. It seems to me that we do have to go back to first principles. The bail laws as they came in in the early 1970s were there to change a very serious problem that we had then. There are people who were studying the bail laws before 1971 like Professor Friedland, who has gone back into court and looked at things and said that we need to start again.

I think the three of us can start taking positions that are consistent with that. We've made it complicated. We've given the message that any time a person commits an offence while on bail, it necessarily means that the wrong decision was made. It's easy to say that after the fact, but if you said that in medicine, there would never be an operation carried out on an individual person because sometimes there are terrible consequences that are unforeseen. What we want to do is correct wrong decisions. We want to address the decision-making process. The outcomes, we have less control of.

(1710) Mr. Randy Boissonnault :

I have a quick question. Ms. Sprott, you said we should be looking at training and looking at education. Are you suggesting we legislate that or is it a clear message to us that the funding...and a clear message from Justice has to be that this will be undertaken?

Dr. Jane Sprott :

Yes, I would think that it's a message that the funding...and that it has to be undertaken by Justice, very similar to what happened with the Youth Criminal Justice Act. It just seems spectacularly successful in that.

Mr. Randy Boissonnault :

Thank you.

The Chair :

Thank you. Mr. Rankin.

Mr. Murray Rankin :

This is a really eminent panel. I'm really grateful to all of you for being here. I'm well aware particularly, Dr. Doob, of your eminent career in criminology. You started, Professor Doob, talking about your experience with the youth justice legislation, and moving it from aspirational to operational. You then said that you agree with the goals of Bill C-75 , but you're not sure that it's actually going to change the behaviour. You said that we have to change the behaviour if we're going to make any difference, and then you said in some cases the bill simply restates what the case law is, for example Antic.

How do we do that in a meaningful way? You gave one example of how we could do that when you said that we could require reasons to be given if we're going to use more sureties, more conditions, or more onerous conditions. Isn't it, however, likely that will just amount to a judge checking a form or there will be some standard rote language, like what we have with jury charges and so forth? You check a box, you feel good, but nothing really changes. I'm just giving you an example of one of your suggestions, and I'd love you to elaborate.

Dr. Anthony Doob :

I said when I finished my comments that I hoped I was wrong.

Voices: Oh, oh!

Dr. Anthony Doob: I think the reasons are a good start. It may be an inadequate start, but we're talking about the legislation that's before us now rather than talking about education, large education processes or starting anew. My preferred solution to this would actually be to start over with bail. We've been modifying the bail system since a couple of years after the amendments came in in 1971. One of the advantages of being old is that I can remember that. We started changing that, and I was impressed with the success that we had with the Youth Criminal Justice Act.

The Young Offenders Act before that act had been changed a number of times, most notably in the mid-1990s, to say all the sorts of things that everybody seemed to agree upon. The Conservative, NDP and Liberal members all together seemed to agree on the general principles of what it should be doing. That was changed a number of times before that, most recently in the mid-1990s, and things didn't change very much. I remember when the government announced that it was going to bring in the Youth Criminal Justice Act.

My first feeling—and, again, here I was wrong—was that it was not really necessary because what the government wanted to accomplish could be accomplished under the Young Offenders Act. The government of the day went forward with a new act and everybody realized that this was a new game and it was a new set of rules. There was the education that went along with it. Going back to really answering your question, I think that if we really want to change what is occurring with bail, we would start from scratch.

Not today, because we're not going to do it today, but we'd start with a process—and it wouldn't have to be a big royal commission-type process—through which we'd say, “What do we do with these sections of the Criminal Code and how do we accomplish what we want to accomplish?”, which would be to detain people who are risky people and to release the rest of them. Let's start from there with the general principles, and let's think about how to do it and come up with something new, and then do a good job of making sure that those in the criminal justice system know about it.

(1715) Mr. Murray Rankin :

Thank you. Professor Webster, I'm hoping you don't mind my doing this, because we have the benefit of having you here, but your name was taken in vain yesterday by the Criminal Lawyers' Association—

Dr. Cheryl Webster :

Yes.

Mr. Murray Rankin :

—regarding some research that you did on preliminary inquiries. In their brief, they referenced it. I'm going to read two sentences that you allegedly wrote and see if you still agree with them.

Voices: Oh, oh!

Mr. Murray Rankin: They said this, quoting you:

Within this context, it is notable that our data—while somewhat dated—suggest that the preliminary inquiry appears to change the “trajectory” of cases in ways that help to reduce the use of expensive court resources.

Then you go on:

...preliminary inquiries do not appear to account for a large portion of the courts' business and, as such, are unlikely to contribute substantially to the problem of court delay.

Are those your words, and do you agree with them still?

Dr. Cheryl Webster :

They are my words. I'll skirt the question in this sense: Do I still believe it? Those words were written based on a study that Professor Doob and I did.

Dr. Anthony Doob :

In the early 2000s....

Dr. Cheryl Webster :

Yes. It was 15 years ago, if not more. In terms of the data we had at the time, keep in mind that it was a national dataset. It was very complete, with 2.2 million cases and so on, so it did give us some confidence. Our analyses did suggest exactly as you've described. I was just thinking about the first one, about changing the trajectory of cases. We saw, for example, that in nine of the 11 jurisdictions for which we had data, cases with a preliminary inquiry were resolved in provincial court, avoiding that need to proceed to superior court, which we know to be more costly, more resource-intensive, etc.

They were being rerouted through either a discharge, a guilty plea, or a re-election back to provincial court. We also found that in two of the four jurisdictions for which we had data, there was a non-trivial number of cases resulting in at least one of the charges in the case being dismissed following a preliminary inquiry, again suggesting that it still has a weeding-out process, weeding out the weak cases. In terms of the second statement, which was about cost, obviously the preliminary inquiry has some cost in terms of time and court appearances.

The prior speaker indicated that very few cases take advantage of the preliminary inquiry. It is used very rarely. It's hard to imagine how it would be very costly in terms of appearances—

Mr. Murray Rankin :

It's designed to deal with the Jordan principle and court delay. Your conclusion was that it's unlikely to contribute substantially to the problem of court delay.

Dr. Cheryl Webster :

Yes.

Mr. Murray Rankin :

You looked at 2.2 million. That's a large study.

Dr. Cheryl Webster :

Absolutely.

Mr. Murray Rankin :

I acknowledge that it was earlier. That's why I wanted to take the opportunity to check it out with you today.

The Chair :

Mr. Rankin has to finance you to refresh the study.

Mr. Murray Rankin :

Sure. I have a cheque right here, Mr. Chair.

Voices: Oh, oh!

The Chair :

I interrupted you with a little joke only because you're at seven minutes and I have to go to the next questioner. Ms. Khalid.

Ms. Iqra Khalid :

Thank you, Chair. Thank you to the witnesses. I don't have a lot of legal experience, but I'm finding this study to be very fascinating. We've heard again and again over the past three years I've been on this committee that our bail system needs reform. As it's outlined right now in Bill C-75 , do you think it will address at least some of the challenges faced by our bail system? Will it reduce delays? Will it unclog the system in any way? Mr. Doob.

Dr. Anthony Doob :

No, I really don't think so. You know, raising consciousness about the presumption of release is a good idea. This process does that and so on. The problem is this. Most of those people who are making decisions in the criminal justice system are making them in good faith, I assume, according to what they think is the best thing to do. I don't think these are people who are doing things for bad reasons or who have any kind of bad motive. They have difficult jobs, and they're looking to do the best thing. I agree with Professor Webster about the risk problem.

If I were a young police officer, I think I would tend to push things up and let other people make difficult decisions as well, but I don't see anything that's going to change all of that. People are trying to do the best possible. I mean, obviously they have their own personal concerns in terms of releasing somebody who might commit a serious offence, so why not let somebody further along do it? That's my worry. I think it's very optimistic to think that this will make much of a change. I go back to the change that was made by the previous government to the Youth Criminal Justice Act bail provisions.

I happen to agree with a number of other people that the changes made in 2012 by the previous government to the youth bail laws were an improvement. If I took those two things and said, “Which would I choose?”, I would take the ones with the changes put in by the previous government in 2012. Did those make a difference? The answer is no. I mean, that's fairly clear. The data are fairly clear on that. Could they have made a difference if they had been sold in a different way, if people had been educated, if the importance of them had been told? Probably—or maybe—but they didn't.

I'm afraid that these provisions, as part of a huge bill, will get lost in the shuffle. These are not things that people really have to learn. They can continue doing exactly what they did before.

(1720) Ms. Iqra Khalid :

In what way, then, would we enforce a bail system that would bring all the players onto one page and say, “We all need to get with the program here”? How do you do it?

Dr. Anthony Doob :

I don't think you can do it solely by making minor modifications to legislation. If we want to change something, we should take the whole

section and say this is what we want to do. I don't want to make your work more difficult, but there are a number of areas of the criminal justice system that are like this, where we had some pretty good ideas in the beginning and then they either haven't worked out the way we wanted them to or we have changed things in a way that we need to start from scratch. This would be one of them. I would look at this one. Another one would be conditional release from penitentiaries. I don't think anybody is happy with the way in which conditional release from penitentiaries works. There are lots of problems in that.

You start and look at it; you study it. Again, it doesn't have to be a big process. It can be a focused process on those things. The three of us have looked at various sorts of things historically. We used to be able to do that. We used to be able to take a problem, study it, come in with a new set of provisions, and with serious agreement across all parties, change things. That would be what we'd want to do in these areas.

Ms. Iqra Khalid :

I'll turn a little to the reverse onus provisions and intimate partner violence. We have heard testimony over the past number of days that this would lead to under-reporting of violence by partners who are being abused. Do you agree with that? Any one of you can comment.

Dr. Anthony Doob :

To be honest, I don't think most people involved as victims or as offenders in most offences, maybe even particularly intimate partner violence, know whether something is a reverse onus or not. I don't think it is going to make much difference at the point of reporting or the processing of the case. I also am not confident that it would actually lead to what I presume is the intent of this, which is to detain more people, because Crown attorneys and judicial officials are very aware of the concerns about intimate partner violence. This one seems to me to be a gratuitous change that gives the wrong message.

Maybe it again goes back to the fact that I'm not a lawyer, but I think if I talked to people and said, “Who is the onus on, on release of somebody who is charged with a violent offence against an intimate partner?”, people wouldn't have a clue what I was talking about. Then if I explained it, they wouldn't have a clue as to what the answer was. I have lots of worries. That's not one of them.

(1725) Ms. Iqra Khalid :

Thank you.

The Chair :

Thank you very much. We're going to have bells ringing in about three minutes, so we'll have a very short question. Mr. Nicholson.

Hon. Rob Nicholson :

What do you mean? I can't understand why you say it sends the wrong message. The message of the reverse onus is to try to protect the victim. I think that's the message of the legislation we're sending out, that we want to better protect this victim of domestic violence. You say it sends the wrong message out. What is that?

Dr. Anthony Doob :

It sends the message that, first of all, we've been lenient in the past on these cases. It suggests that the courts have not taken them seriously. However, more generally, the reverse onus provisions undermine or challenge the presumption of innocence. I'm worried that the belief is that these are people who should be detained simply because they have been charged with an offence involving an intimate partner. My concern in general with that list is that I don't see it as coming from a careful analysis of the changes to the Criminal Code that are necessary. That's all.

Hon. Rob Nicholson :

Okay, thank you.

The Chair :

Are there any other short questions? If not, I want to thank this panel very much. As always, you've been incredibly helpful. Now we're going to recess, I guess, until right after the vote. If everyone could come back after the vote, that would be amazing.

(1725) (1830) The Chair :

We are reconvening with our third panel of the day. It gives me great pleasure to welcome to this panel Ms. Nicole Myers, who is a doctor in the Department of Sociology, Queen's University. Welcome. We also have Ms. Rebecca Bromwich, director, conflict resolution program, Department of Law and Legal Studies at Carleton. Welcome. From the Society of United Professionals, we have Mr. Garrett Zehr, external relations committee member, and Ms. Kendall Yamagishi, external relations committee member. Welcome to you both.

We also have the pleasure of moving Stephanie Heyens, senior criminal litigator, York Region, Legal Aid Ontario, into this panel from the fourth panel because she has a flight she needs to catch. We'll hear from all four, we'll do a round of questions, then we'll get to our next panel. I am sorry that we are late. It couldn't be helped unfortunately, with votes, but we're pleased to finally begin. Ms. Myers, you're first.

Professor Nicole Myers (Department of Sociology, Queen's University, As an Individual) :

Thank you, Mr. Chair and fellow committee members, for inviting me to speak to you today about the bail provisions as well as about shifting the process for administration of justice offences. As we've heard from other people before, but I will reiterate, since 2005 in this country, we have had more people in pretrial detention than in sentenced custody in our provincial and territorial institutions. The rate at which we've held people in pretrial detention has more than tripled in the past 30 years.

If we look at the overall proportion of those who are in custody across Canada federally and provincially, 37% of that population is in remand. However, looking only at those in provincial institutions, you'll see that this climbs to almost 59%. That means 59% of people in our provincial jails tonight have not been convicted of a criminal offence. In an effort to understand this problem, I have been studying the bail system in Canada since 2005. I have spent hundreds of days observing bail court, watching thousands of bail appearances happen.

I've done this mostly in Ontario; however, I have collected data across the country. I've also examined completed case files and conducted interviews with people who have gone through the bail process as accused persons, as well as people who have acted as sureties. I've also interviewed members of the defence bar, Crown attorneys, Justices of the Peace, judges, and representatives of community agencies that are involved in the bail process. It's from this position that I offer my comments today on the proposed changes.

I'd like to start by saying that I do agree with the comments that were made by my colleagues in the previous session, Professor Doob, Professor Webster, and Professor Sprott. Today I'm going to focus my comments on three different parts. One is around codifying the principle of restraint and the use of sureties, restraint and imposition of conditions of release, and creating a new process dealing with charges against the administration of justice. Before I lead into those comments, a bit of background is required. It's important that we recognize that most accused people are ultimately released on bail.

Most of the accused people who are released are released with the consent of the Crown attorney, meaning this is not the result of a contested show cause hearing. The Crown is consenting to the accused's release. However, that release is rarely unconditional. In Ontario, 76% of people released on bail require a surety in order to be released. This practice is not consistent across the country. Indeed, Ontario is a bit of an anomaly in the frequency with which it is relied on as a form of release.

Surety requirements can lead to a variety of delays in the bail process as it can take some time to find somebody who is deemed appropriate and is also willing to come to court and to take on this particular role. A surety requirement may be especially problematic for marginalized folks who may not have someone who can come forward in this role. The surety requirement may also delay the bail decision. It takes more appearances and more nights in remand, and may ultimately result in an individual being detained if they have been unable to find an appropriate individual.

Sureties are also generally required to be physically present in court. This is so they can hear the allegations. They may be called up to the stand to give evidence at a bail hearing, but they may also be questioned during a consent release. I encourage and support the codification of restraint and the ladder principle and encourage a restrained use of sureties. That said, I do have some concerns, not only with the continued use of sureties but also with the lack of structuring around that discretion about making this kind of decision, as well as with other kinds of conditions of release.

I'll come back to that in a moment. With regard to other kinds of conditions of release—not supervision in terms of sureties—we don't really know how well these conditions of release attenuate risk. Some likely do, but we do know that there are some problems with the number of conditions that are routinely imposed. Some of them may be problematic on their face; some may be difficult to comply with, especially for extended periods of time; and some conditions may be setting the accused up to fail.

Each condition of release creates a new criminal offence, increasing the risk that this accused person might be brought back into the bail process. On average in my work, I have seen 7.8 conditions of release imposed on accused people, and that has ranged from as low as one. I have never seen anyone released unconditionally. I've also seen an individual who had 34 separate conditions imposed on their release order. That means 34 new criminal offences for that particular individual.

The most frequently imposed conditions are to be amenable to the rules and discipline of the home, not to possess weapons, to reside with your surety, not to contact the victim or witness, to observe boundaries or no-go zones, to attend treatment or counselling, to abstain from the consumption of drugs or alcohol, and to abide by curfew or house arrest. Not all of these conditions are problematic. Some, however, are. Even if the conditions are not problematic as an individual, they may be as a collective.

We may be packaging a group of conditions that are incredibly onerous, restrictive, and difficult to comply with for an extended period.

(1835) In my work, I've seen that a great deal of conditions have no clear or logical connection to the allegations or the grounds on which the accused may otherwise be detained. We also know that the more conditions that are imposed and the longer an accused is subject to them, the more likely it is that the accused will be charged with failing to comply. An average time of case completion is around four months. This is a long period of time to be subject to a variety of conditions.

I again here support the codification of restraint in the imposition of conditions, but I would suggest that more needs to be done about structuring discretion on how conditions are going to be imposed. I would suggest that there should be a clear and rational connection between the condition and the allegations or grounds for detention. We should also be thinking about people's reasonable ability to comply with those conditions for the duration that they're subject to them.

To this end, in terms of the use of sureties as well as conditions, I think more needs to be done to guide the discretion of the decision-makers: of the police in deciding to hold someone for a bail hearing; of the Crown and the judicial officer in deciding to release, consent-release, or after a show cause; and about the kinds of conditions that are going to be imposed. If we're really interested in shifting bail practice, we have to start with the police as the gatekeepers to the court process.

More needs to be done to figure out how we can encourage police to exercise their powers of release and also to ensure that any conditions police are imposing are also reasonable. I'd also suggest that some thresholds should be established that might help guide the decision to release or to impose conditions. For example, we might want to think about this: if it's unlikely that an individual would be sentenced to a term of custody, perhaps that individual should not be detained at the front end of the process.

With regard to the release decision, if possible, we should be making this decision faster, with fewer restrictions placed on the accused. Again, most people are ultimately released. The faster we make that decision, the less time people will spend in pretrial detention with the negative consequences that come from that. We can also improve the efficiency of the court by not having the same people coming back over and over again before a bail decision is made.

I would encourage you to consider structuring the discretion more closely to the proposed amendments to the YCJA and how conditions for youth are going to be considered. I'll shift lastly to responding to the administration of justice offences. As you've already heard, despite overall declining crime rates and declining violent crime rates, charges against the administration of justice have been steadily increasing over time. Our criminal justice system expends considerable resources in policing, in incarcerating, and in processing these kinds of charges in court.

We have to remember that bail conditions largely criminalize behaviour that outside of the bail order is not a crime. By this I mean, for example, talking to a particular individual, coming home after a certain time, or consuming alcohol. Sometimes conditions that are imposed are clearly and closely related to concerns around public safety. However, this is not always the case. Restraint in the imposition of conditions is the starting place; it is what is most important if we want to see significant change.

My concern is that what we're doing with the judicial referral hearing is suddenly a parallel process that may end up reproducing the very challenges and problems that we are currently seeing. As it stands, it's unclear how and when the police are to make the decision to charge somebody versus send that person forward for a hearing, and the circumstances in which a judicial referral hearing cannot be used are so broad as to impact the meaningfulness of this new process.

Here again, I would invite you to look at what's being proposed for youth for those who are then found not guilty or have the charges withdrawn around failing to comply, and look back at what that has meant in terms of their case processing. The way bail is currently operating is an important problem that must be addressed. What is being proposed is a cautious start, and in some ways it does little more than codify what was there in R. v. Antic.

I would say that those are important things—this codification—and I've made a number of recommendations in my brief for areas that I think should be considered to avoid creating the very difficulties that this bill is trying to address. I think we need to step back, think very carefully about what we are trying to achieve in the bail process, and work towards shifting practices. The problems with bail are not new, and over time a culture has developed in the bail court. This culture is risk-averse; it is a nervousness or reluctance to be the one to make the release decision.

Providing additional structure or guidance on how these discretionary decisions are to be made may inspire a shift in current practices and help promote consistency in decision-making. However, clear guidance and education will be required if we're going to shift the way that bail has been being decided in the last number of years. Thank you.

(1840) The Chair :

Thank you very much. Ms. Bromwich is next.

Dr. Rebecca Bromwich (Director, Conflict Resolution Program, Department of Law and Legal Studies, Carleton University, As an Individual) :

Thank you, Mr. Chair. Honourable members of this committee, I want to begin not with numbers, but by reading an excerpt from a letter to the editor published in the Moncton Times & Transcript on November 2 of the year 2005. It reads:

Dear Editor: I’m writing this letter because I believe the community should know. I’m currently at the New Brunswick Youth Centre serving a rather long sentence for petty crimes. When the judge sentenced me, the community went way to