Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for November 18, 2010
OTTAWA, Thursday, November 18, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), met this day at 10:34 a.m. to give consideration to the bill.
Senator John D. Wallace (Deputy Chair) in the chair
[English]
The Deputy Chair: Good morning and welcome to committee colleagues and our guests.
I am John Wallace, a senator from New Brunswick and the deputy chair of the Standing Senate Committee on Legal and Constitutional Affairs. The matter before our committee today, which will, of course, be given very serious and thorough thought and review, is Bill C-464, an act to amend the Criminal Code, commonly referred to as justification for detention in custody. This is a one-clause bill that, if enacted, would amend one of the provisions governing the granting or denial of judicial interim release, more commonly referred to as bail and found in section 515 of the Criminal Code.
More specifically, clause 1 of the bill would amend section 515(10)(b) by adding the words "any person under 18 years of age'' to this section with respect to the granting or denial of bail for those who have been charged with an offence against a minor.
In other words, Bill C-464 would serve to highlight for justices the need to specifically consider whether the detention of a person who has been charged with an offence is necessary for the protection and safety of minors when considering whether detention is necessary for the protection and safety of the public generally.
The provisions governing whether bail will be granted to persons accused of a crime and detained by police officers following arrest are primarily found at sections 515 to 523 of the Criminal Code.
Generally, if a person accused of a crime has been detained by a peace officer following arrest, the justice, that is either a Justice of the Peace or a provincial court judge, must, in principle, release the accused at the bail hearing after he or she has signed an undertaking without conditions. If the Crown wishes to have an accused detained pending trial or wishes to have conditions imposed on an accused before he or she may be released, the prosecutor must provide justification for requesting this. In other words, the onus is on the prosecutor to justify the continued detention of the accused or his or her release on conditions.
This bill was first introduced in the House of Commons in the previous parliamentary session and then reintroduced at the start of this session. Bill C-464 was first introduced in this session in the Senate on March 23, 2010 and was referred to this committee on June 22, 2010. The committee is beginning its hearings on Bill C-464 here today.
To discuss this bill in greater detail, I am pleased to introduce to the committee the Senate sponsor, the Honourable Senator Tommy Banks. He is accompanied by the sponsor of the bill in the House of Commons, Mr. Scott Andrews, Member of Parliament for Avalon in the province of Newfoundland and Labrador.
We will begin by hearing opening remarks from Senator Banks followed by Mr. Andrews.
Also with us today to answer any technical questions that members may have about the bill are, from Justice Canada, Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section; and Laura Hodgson, Counsel, Criminal Law Policy Section.
Once Senator Banks and Mr. Andrews have delivered their opening statements, we will proceed to questions from committee members.
Senator Banks, the floor is yours.
Hon. Tommy Banks, sponsor of the bill: Thank you, Mr. Chair and honourable senators, for this opportunity. Mr. Andrews is the author of this legislation as well as its sponsor in the House of Commons.
I think I heard you say, Senator Wallace, that this bill has a reference to persons who are charged with crimes having to do with a minor person, although I may have misunderstood that. In fact, the bill has to do with whether bail will be granted in a case of any person charged with a crime, the granting of which bail might have an effect upon a minor person who is involved, often family members.
There is currently a case in Newfoundland involving with a man named David Folker who could potentially, in some ways, have a relationship to the case that gave rise to Mr. Andrews' legislation. Anyone who has ever lost a child for any reason knows that it is backwards; that is not the right order of things.
My interest in this matter was piqued when my wife and I attended, at the urging of a film critic, a film at the Edmonton International Film Festival years ago called Dear Zachary: A Letter to a Son About His Father. I have obtained copies of that film and sent it to every member of Parliament, including every member of the House of Commons and of the Senate, and latterly again, to members of this committee. I commend your attention to it because, despite the fact that it is a film, and it is polemic in some ways, it is still the most compelling testimony that could possibly be made, more compelling, I would modestly suggest, than anything that either Mr. Andrews or I could say in favour of the actions and the effect that the present bill would have.
The present bill is nothing more than a red flag. It calls the attention, we hope, of a court to the question of whether the granting of judicial release, whether the granting of bail by a justice in the case of a crime having been charged against a person might have an effect upon children.
In this case, in the case that gave rise to this, which is the case of the murder of Zachary Turner, it is arguable, I think, that had the full facts been known to the respective judges in the case, particularly to the judge who granted bail, the last granting of bail, to Dr. Shirley Turner, had the Crown been aware of all of the circumstances that might have led to a danger to a child — in this case her child — had the prosecution argued strenuously against the granting of bail and had the court been fully cognizant of the facts that would have led a reasonable person to think that there might be a danger to the life of a child involved, it is unlikely that bail would have been granted; and it is unlikely that the subsequent events that resulted in the deaths of two people would have happened. The inquiry that was undertaken in Newfoundland after the fact determined precisely that and said, in fact, that if bail had not been granted in that particular case, this inquiry would not be necessary.
I urge your positive consideration of this proposed legislation because I believe that it could do some good, and I believe that it can do no harm. On the assumption that you may have had a chance to either listen to what I have said before about this bill in the Senate or that you might have had a chance to view that film, I will eschew setting out the story of Zachary Turner's murder and revert to questions because I think it is most valuable that we should have time for questions. I will now ask Mr. Andrews, the author of the legislation before you, to speak to it.
Scott Andrews, M.P., sponsor of the bill: Thank you, Mr. Chair, members of the committee. First, let me thank you for inviting me to appear before this committee to discuss Bill C-464. It has been some time since the bill has been before the Senate, and I am pleased the committee has cooperated and, with a change in your schedule, accommodated the progress of this bill. I especially want to thank Senator Banks for his continued interest and dedication to the legislation. As you know, Senator Banks sponsors the bill in the Senate, and his cooperation is very much appreciated.
After significant research and consultation, I first introduced Bill C-464, an act to amend the Criminal Code, referred to as justification for detention in custody, in the House of Commons on October 23, 2009. Second reading followed on December 4, 2009. The House of Commons Standing Committee on Justice and Human Rights approved the bill with only one minor amendment proposed by government, and it was accepted by all parties on March 16, 2010. Only a few days later, I was fortunate enough to have Bill C-464 approved in the house at third reading. I am humbled at all stages of the progress of this bill so far. Bill C-464 has received all-party support, and I believe it is an indication of the importance of this bill and the support to ensure that some of the most vulnerable in our society are protected.
I want to take a few minutes to explain the background behind this bill, how I got started and let you know about the people and their tragedies that compelled me to use my first opportunity of a private member's bill to try to make a difference.
All of us in Newfoundland and Labrador and many people across the country heard about the terrible story of the murder of a young up-and-coming doctor in 2001, Dr. Andrew Bagby. He was murdered in a Pennsylvania park, and at that time, police in the United States questioned Dr. Shirley Turner of St. John's, Newfoundland on her connection to this horrific crime. Soon after, Dr. Turner fled to Newfoundland and made known her pregnancy with the child of the late Dr. Bagby. Court proceedings followed, and Dr. Turner fought to stay in Canada. Soon after, Zachary Turner was born and grandparents Kate and David Bagby moved to Newfoundland to file for custody.
During the court proceedings, Dr. Turner was granted bail, and Zachary remained in her custody with the grandparents being provided supervised visitation. On August 18, 2003, Dr. Turner took her own life and the life of 13- month-old Zachary while on bail. Dr. Turner jumped into the Atlantic Ocean at Conception Bay, and she and Zachary both died.
Since that time, Kate and David Bagby have been presenting their story and seeking reform on bail legislation in Canada. I was fortunate enough to have Mr. and Ms. Bagby join me and appear before the House of Commons committee as witnesses earlier this year.
It is important that I also acknowledge the ongoing efforts of our friend, Kurt Kuenne. Mr. Kuenne was a close friend of Dr. Bagby and his on Zachary Turner and was the producer of the documentary Dear Zachary: A Letter to a Son About His Father, to which Senator Banks referred. It has played throughout Canada and across the national media. I can assure you that it is near and dear to Mr. Kuenne's heart, and he has used his talents to have the story told and to promote legislative reform.
Approximately two years ago, I received an invitation to attend a special screening of the documentary for senators and members of Parliament in Ottawa. At that time, I had the pleasure to meet and talk with Kate and David Bagby and Kurt Kuenne for the first time. While watching the documentary and listening to their personal stories had a profound impact, it was shortly after that that I knew my first-ever private member's bill would try to advance the efforts of bail reform in Canada.
Obviously, I had to quickly come up to speed on the process and procedures for a private member's bill and options for amendments to the Criminal Code of Canada pertaining to bail. We had to balance the Canadian Charter of Rights and Freedoms and the need to have our court system reflect the requirement to protect the safety of minors while those accused of serious crimes are being considered for bail.
After consulting with Mr. and Ms. Bagby, discussing my intentions with colleagues and working with the legislative branch of the House of Commons, I introduced Bill C-464 in October of that year. As you know, the bill is entitled An Act to amend the Criminal Code (justification for detention in custody).
In summary, the bill when enacted will an amendment to the Criminal Code to provide that the detention of an accused in custody may be justified where it is necessary for the protection and safety of any person under the age of 18.
From the very beginning, Bill C-464 has not been about me. As you know, MPs can create private member's bills for two reasons: one, to make a political statement knowing it will not go anywhere, or, two, if they believe realistic change can be made and are hopeful that their actions can make a difference in our communities.
This bill is an accomplishment that reflects the strength and determination of David and Kate Bagby, parents of the late Andrew Bagby and grandparents of the late Zachary Turner. As Senator Banks can verify, these two amazing people used their strength and determination to attract the attention of decision makers and have them focus on the need to bring about change to the current bail legislation. It is in memory of Andrew Bagby and Zachary Turner that we move this bill forward and do everything in our power to prevent this from happening to another family.
I have pledged my support to the Bagbys and all Canadians who want legislative reform within the Criminal Code. Hopefully, legislative change will strengthen bail requirements and achieve a common goal, namely, that no one has to witness and live through the devastation of losing loved ones through circumstances that are later determined to have been preventable.
Following this tragedy, the Government of Newfoundland and Labrador indicated a review and investigation of the circumstances surrounding the death of Zachary Turner. Dr. Peter Markesteyn was appointed to conduct a review and report findings to the provincial government. Dr. Markesteyn has extensive experience in the conduct of child and adult death reviews and has consulted to the Justice Canada. His professional experience includes many years of teaching in the faculty of medicine at several Canadians universities, including the universities of Alberta and Manitoba and Memorial University in Newfoundland. He has also been retained as a consultant by the Royal Canadian Mounted Police, RCMP, training division in Regina; the Atlantic Police Academy in Charlottetown; and the Canadian Police College here in Ottawa.
Dr. Markesteyn conducted an exhaustive investigation over a 15-month period, and at the end, reached two conclusions, to which Senator Banks alluded: one, Zachary Turner's death was preventable; and, two, Zachary Turner was in his mother's care when he should not have been.
Although Dr. Markesteyn was not mandated to review federal legislation concerning bail conditions, the provincial minister of justice at the time did bring those findings to the attention of the federal minister. When reviewing this bill and this circumstance, this was the only aspect of federal law that could be changed to try to make a difference in the lives of young people who are in protection.
As I have continually stated, from a tragic ending, we are bring this new beginning of bail reform so that no other family will have to go through the devastation that Kate and David Bagby have gone through. We have made considerable progress on the bill, and it my hope that such progress can continue as we move this through the Senate.
For the past two years and since this bill has been introduced, I have heard from many stakeholder groups, including the Canadian Resource Centre for Victims of Crime and proponents of the proposed Cordon's law in British Columbia, which deals with legislative reform and restraining orders regarding children. In addition, I have been contacted by individuals who have gone through or are going through similar tragic situations. I can assure you of their support for and keen interest in the progress of this bill.
Once again, I would like to thank Senator Banks for his support. I want to thank the committee's members for their interest in the debate on this bill, and I look forward to answering your questions.
The Deputy Chair: Just before turning to Ms. Desaulniers and Ms. Hodgson, I want to say that you are to be applauded — both you and Senator Banks — for doing all that you can to address the indescribable sorrow and tragedy that has happened from this event and for trying to prevent that in the future.
We will have the discussion about the bill. I will not pre-judge the discussion, but I applaud both of you for taking the initiative that you have. The sorrow and tragedy is beyond description for all of us, so thank you for that.
Senator Banks: To help focus the questions, it might be helpful for members to know that when we were looking at how to go about this, we first went to the knee-jerk big hammer. We looked very carefully and consulted with many people in the legislative branch and elsewhere to find out exactly how far we could go and what the safest route to take would be — the most efficacious, but consistent with other legislation, the Constitution and the Charter. As Mr. Andrews has said, we think this is it. We think that on the best advice, which we were very careful to obtain.
The Deputy Chair: Thank you for that. Ms. Desaulniers, Ms. Hodgson, do you have any opening comments that would you like to make?
[Translation]
Anouk Desaulniers, Senior Counsel, Criminal Law Policy Section, Justice Canada: Mr. Deputy Chair, we are at the committee's disposal to answer any technical questions there may be. My colleague, Laura Hodgson, who is in charge of this file at Justice, will mainly be able to answer your specific questions. I will be pleased to try to assist the committee if there are any more general questions.
[English]
The Deputy Chair: Thank you; we appreciate you being here today. We will now turn to questions from our committee members.
Senator Runciman: I take it from your presence here that the Minister of Justice supports the legislation, is that correct?
[Translation]
Ms. Desaulniers: Frankly, I cannot answer that question. We were asked to appear to answer technical questions. My remarks here today cannot substitute for the minister's testimony.
[English]
Senator Runciman: I missed that, but I will take it as a yes.
I want to compliment you both for bringing this forward. I am very supportive, even though as you said, senator, it may not have a significant impact. However, just the possibility that it could help in the future makes it worthwhile.
I am curious about some of the things that occurred here though. I did not see the documentary, but I saw a Dateline episode, I think — NBC, with Keith Morrison — which was very moving in itself. I came away with strong feelings of respect for the parents of the murdered doctor, and how they fought to save the life of the child; they were very concerned throughout that process about the safety of their grandchild.
I am curious about the process, the reverse onus that applies in the bail hearing for a murder charge. It seems to me, if you look at the law, the individual charged must provide a compelling reason why he or she should be released on bail. What happened in that process? You were talking about a different set of rules under extradition. Did reverse onus not apply in this situation?
Senator Banks: My understanding — and correct me if I am wrong — is that reverse onus does not apply in bail; and that absent a compelling argument to the contrary and against it, based upon the concept of the presumption of innocence, bail must be granted. My understanding is that the onus is on the Crown — and perhaps we could adduce a question from the officials about this — to argue that on the basis of the three extant reasons, which have to do with the likelihood of the person appearing in future court appearances, the possibility of harm done to others or the bringing into disrepute of the application of justice. It is the Crown's onus to argue why bail ought not to be granted.
However, I am not a lawyer, so I will defer to others to answer that question. Perhaps the officials can tell me whether I am wrong.
The Deputy Chair: Ms. Desaulniers or Ms. Hodgson, would you care to comment on that?
Laura Hodgson, Counsel, Criminal Law Policy Section, Justice Canada: Under our Criminal Code, the Crown generally has to show reason why the accused should be detained. We have a presumption of release, but we also have a reverse onus in our Criminal Code for certain offences, and murder is one of these. The accused must establish why he or she should be released. They are listed under section 516 and also under section 522.
In extraditions cases, our Extradition Act, through section 18 and section 20, incorporates our Criminal Code. This provision of our Criminal Code is incorporated into extradition matters. Without speaking to the specifics of the case, there was a reverse onus in the circumstances of this case, I believe.
Senator Runciman: The onus was on the accused to provide a compelling reason why she should be released. It seems to me this was a tragic mistake by the judge, with respect, and I am not sure how we deal with that other than perhaps providing more guidance.
I am also curious about the prosecutors in this situation. We can talk about how effective or aggressive they were, but was there a Crown appeal of the bail decision?
Mr. Andrews: If memory serves me well, it was frustrating how this all transpired through the courts because it was tied up with the extradition process, and the bail was thrown into this.
Those questions would be better asked to David and Kate Bagby because they followed this process right through. I think it was a combination of many things that went wrong — from child welfare, which is a provincial issue, to them not getting the information from the courts.
It was a combination of many elements that led to her release on bail. One part was that Shirley Turner tried to commit suicide while in custody. That information never reached the judge. Many things went wrong.
Senator Runciman: That is a failure of the Crown as well. Clearly, she was a flight risk. I was told she had eight restraining orders against her. This is a true tragedy. There is no question about it.
I know this is a provincial area. It seems to me the fault lies with the Crown. I am not sure what has occurred in Newfoundland and Labrador in the wake of this. Hopefully there has been some kind of a Crown directive with respect to how they approach these cases and ensure that, at the very least, there is an appeal when a judge makes a tragic decision such as this one.
Senator Banks: You are right, Senator Runciman. That was where the onus lay — I appreciate being corrected. It was a failure of the Crown to assiduously oppose bail in this case. We are not certain whether that was because the Crown was not in full possession of all of the facts, which came out later, which may have been the case, or for any other reason.
We looked at how we could put into law somewhere a further obligation, onus or direction to prosecution that they are obliged in circumstances such as this to do things, which in this case, for whatever reason, were not done. We found that there is no way to do that. In no law in any way that we could find can you compel prosecutors to do something.
Senator Runciman: I think you could through a provincial directive from the Attorney General of the province.
Senator Banks: We are talking about federal law, however.
The Deputy Chair: Senator Banks, your intention was to create an increased obligation on the prosecutor to have to do something else, take something else into consideration in circumstances where bail is being sought. With the addition of the words "or any person under the age of 18 years,'' do you believe that does require a new obligation on the prosecutor's part as opposed to clarifying what really exists today?
As I understand it, today with the existing section 515(10)(b), the issue is where detention is necessary for the protection or safety of the public. Of course, the public would include those under the age of 18 years. When we look at where the law is today and where you propose to take it, does it really create another obligation on the Crown? Perhaps I just misunderstood your comment.
Senator Banks: I do not think it does. We would have liked to have done that, but we found that we cannot do that in federal law.
The Deputy Chair: Right.
Senator Banks: We are hopeful that this little red flag will cause the justice to ask the question. It is belt and suspenders, because you are right in that it talks about the general public. This amendment specifically references children. Our hope is that it is a red flag that will cause a judge to ask that, in addition to the other three questions about bail.
The Deputy Chair: It would make it pretty much impossible for the circumstances of the child or someone under the age of 18 to be forgotten in the process with that addition.
Senator Banks: That is the hope.
Mr. Andrews: As Senator Banks said, we tried to bring that in with a hammer. However, if we did that, we were breaching a whole bunch of Charter issues. We wanted to do something that would not go there but would give the judge the opportunity to deny bail if he or she thought it would protect minors or children.
Senator Joyal: Welcome to our committee. My first question is for Ms. Desaulniers and Ms. Hodgson, and I will have another one for the others.
My first question is about the interpretation given by the court in past decisions in relation to section 515(10)(b) of the Criminal Code. I ask my question strictly in terms of the rules of judicial interpretation. In your opinion, is the proposed amendment that we have under consideration this morning necessary for the interpretation of the section, or will it complicate its interpretation or even risk interpretation that could be detrimental to the whole scope of paragraph 515(10)(b)?
I should say that I ask that in setting aside all the objectives that the two witnesses we have this morning are proposing to us as being socially desirable.
[Translation]
Ms. Desaulniers: There are two parts to your question. In response to the question whether the bill is necessary, if you are asking whether it is essential, whether it addresses a problem that has been identified, a legislative shortcoming that has been identified, the answer is no, the bill is not essential. I believe that was even agreed earlier in the speeches that were made.
However, if your question is whether the bill is useful, yes, the results of the bill could be useful in the sense that, as was pointed out earlier, it would help remind the Justice of the Peace, who has to make a decision on release, more specifically to bear in mind the matter of the safety of children, whether it be the children of the accused or children in general. I hope that answers that part of your question.
As to whether this may pose a problem of interpretation, the clause already includes examples of what is meant by the notion of the public; it already refers to witnesses, victims. So here another vulnerable group would be added to this list of illustrations, and, to my knowledge, there has been no problem to date in saying that we have tried to identify the notion of the public by adding illustrations. On the contrary, it is quite simply to send a message and to point out specific groups that nevertheless fall within the general concept of the public.
[English]
Senator Joyal: That is the interpretation I was led to because, as you know, the text of the present section mentions quite clearly "necessary for the protection or safety of the public, including. . . .'' In other words, it is an enumeration that is illustrative of where the attention of the judge has to focus in evaluating the protection or safety of the public.
We have been told by Justice Canada that in some other private members' legislation that we had under consideration, those bills were not necessary because the elements were already included in the broad definition of the objective of the section under consideration.
However, the way I read section 515(10)(b), it does not seem that it would open the door for a judge to restrict the rest of the interpretation of the safety of the public on the basis that there would be only three groups of persons that would be under the objective of protection, namely, the victims, the witnesses or the persons under the age of 18.
I want to have confirmed by you that my own perception and reading of this section was not, in fact, jeopardizing the overall objective of the act, which is protecting the safety of the public, generally.
Ms. Desaulniers: I think you are exactly right. The two concepts currently in the provision — the witnesses and victims — have not to my knowledge been interpreted as being a limited list that would, therefore, limit the notion of "the public.'' They are merely illustrations and perhaps red flags, as was mentioned, to a Justice of the Peace as to who among other persons are included in the notion of the public. However, that wording is not intended to be limiting.
Senator Joyal: My other question is about the various factors that the judge hearing the request would have to take into consideration. It was quite clear in the present case that the woman under arrest was suffering from a mental disorder. If one attempts to kill oneself, it is because one suffers from psychological problems of a certain magnitude. If someone has in the past tried to avoid the justice system, that would be a very serious element to consider, in my opinion, when deciding whether to grant bail.
I refer you to the case of R. v. Rondeau of 1996. The judge listed the various factors that he wanted to take into consideration in order to deny bail, and one of them was the person's mental condition. Then, of course, there is the past judicial record and family history.
It seems to me that in the present case, those three factors among those listed in the case of R. v. Rondeau were all present. The mental condition of the person was certainly a factor; being that she was accused of killing her husband, suddenly a problem in that family existed; and the fact that she was trying to avoid the justice system was another important factor to consider.
When I read section 515 of the Criminal Code, it seems to me those good elements for a judge to take into account before deciding are not necessarily listed in sections 515(10). The jurisprudence has identified them, but when you read section 515, you do not find those factors. Section 515(10)(a), (b) and (c) list three sets of factors, but none of those include the ones I just read to you, which were identified in 1996 as being essential factors for a judge to take into account and the Crown, of course, to bring to the court in the adjudication of bail.
At Justice Canada, are you not concerned that section 515(10) should be amended to include another set of factors to give the court direction on where to go or what to consider before granting bail?
[Translation]
Ms. Desaulniers: Section 515(10) of the Criminal Code states the reasons for detention in custody: (a) the risk that the person might not appear in court; (b) the safety of the public; and (c) the risk with regard to the public's perception of the administration of justice. These are the three reasons provided for in that section. What you are talking about are the factors on the basis of which it may be determined whether or not the reason has been proven.
So when you refer to the person's condition, mental health, that is a factor that may be relevant; if that person suffers from mental health problems, one may be inclined to think he or she may not appear in court. That fact may be relevant to the first reason. It may also be relevant to the second reason provided for in (b), that is to say that, if that person suffers from mental health problems, he or she may be more likely to reoffend. So you have to draw that distinction here.
Your question is very relevant, but from the way subsection (10) has been designed, its purpose is simply to provide for the reasons for detention in custody and to give the court the flexibility to choose the factors that are relevant to its decision to assess whether or not a reason has been proven.
Senator Joyal: As far as you know, when Crown attorneys receive instructions on factors that must be identified when they object to the release of an accused, do they have a clear idea of those various factors that they must consider when arguing one of these paragraphs, (a), (b) or (c), of subsection 515(10) of the Criminal Code?
Ms. Desaulniers: I know that a number of directives point out to prosecutors the issues they must bear in mind. A number of jurisdictions in Canada have special instructions with regard to spousal abuse. Prosecutors are well trained to recognize certain specific issues, and spousal abuse is one of them; alcoholism is another. The simple answer to your question is yes.
Senator Joyal: But you do not have any examples of those specific provisions that prosecutors must take into consideration in release cases?
Ms. Desaulniers: No. Every province has special instructions for its prosecutors. I remember that, in Quebec, we had provisions respecting spousal abuse. I know from my discussions with my provincial colleagues that there are similar directives in the other provinces. I do not have the document to hand, but I know it is a document that can be obtained.
Senator Boisvenu: Thank you, Mr. Chairman. Thank you very much, Mr. Banks, Mr. Andrews. In Canada, we will never have enough spokespersons for the victims of crime. I want to emphasize that I have some concerns about the bill. My first concern is this: will a positive provision be established for children? That is my first question?
Is a favourable prejudice being established for children and victims? I believe the entire issue of spousal abuse, in which husbands are often charged first with physical violence, is dropped during the period between the first violent acts and the trial, and that will often result in the murder of the woman.
I am thinking of people who have psychiatric problems, who will be referred to Pinel for psychiatric assessment. Psychiatric assessment is often requested on an emergency basis. When a psychiatric patient is treated, urgency and professionalism do not go together. Assessments will often favour the criminal over the victim. Are we establishing a favourable prejudice for children?
[English]
Senator Banks: In a way, I hope so. That relates to the question that Senator Joyal first asked, which is, does this do harm by focusing undue attention on these people as opposed to those people? I will relate to what I said earlier.
Does this do harm? I hope that it does not, and I think that the officials have said that in their view it does not; that is to say, it is not prescriptive. It does not circumscribe any particular interest — and one assumes that all of the interests are within the purview of the justice who is considering whether to grant bail.
I will ask Mr. Andrews to comment on your question as well. It is also in relation to the second question of Senator Joyal. I am sure that there are other circumstances in situations that do not involve children, but it is inconceivable to us in this particular circumstance how it is possible that the circumstances of Dr. Turner escaped the attention of the prosecution, the Crown and the justice who was involved.
The arguments that were made, to the extent that I can remember them, for the granting of bail did not take into account the existence of Zachary Turner. They were made on the basis, if I recall correctly, that — and some of it was based on the evidence of a psychiatrist at the time who was involved in this case and gave testimony — that she was unlikely to escape, that she was therefore likely to present herself on the next occasion that would be required in court, and that she did not — and it is indescribable — constitute a danger to others.
My short answer to your question is that I hope that the additional focus that this would bring in this and other similar cases, including the one to which I alluded earlier that is presently before the courts in Newfoundland, simply means that a justice reading the amended provisions of the bail section of the Criminal Code would perhaps be constrained to ask the Crown whether a child is involved, as opposed to a witness or a victim or someone who is even more obvious than that. Is there a child involved, whether related specifically to the family or not? Is there a child involved who, innocent of any other kind of connection with any of the goings-on, might be affected by the granting of bail in this case?
I hope that, by amending the act and putting that little red flag in, a justice might some day be constrained to ask the Crown whether any children are involved in the case and whether that would not work a hardship or make any less important all and any of the other considerations that the justice would be taking into account.
The short answer to your question of whether this puts a particular focus on children is yes.
Mr. Andrews: The senator talked about the psychiatrist. There is a whole separate story behind what happened there, about how the accused manipulated the system to get around that as well.
When this was brought before our House of Commons committee, the bill spoke specifically of minor children of the accused. As we discussed it in the Commons committee, the Conservative Party proposed an amendment to broaden it to include all minor children so that we would not be constrained to one group of minor children. We are broadening the definition to include all minor children to take many things into consideration.
[Translation]
Senator Boisvenu: As you will understand, my concern is really for the principle of precaution. When judges release a criminal, they have before them the Charter of Rights and Freedoms and the Criminal Code. The Charter of Rights and Freedoms is more often used to recognize the rights of the alleged criminals than the principle of precaution, which is acknowledged in the Criminal Code for victims and their families.
Fifty per cent of murders in Canada are caused by a spouse or former spouse; that is enormous. It is enormous. I am not a lawyer; I do not have Senator Joyal's knowledge, but, at the same time, is there not also a reason to protect children, to confirm this concept of precaution in the Criminal Code?
I repeat, too many women are murdered by their spouses and former spouses. And if we had exercised precaution, those individuals would still be alive today, just as little Zachary would still be alive today if we had exercised precaution.
Is there no reason, through this exercise, to protect children and also to have a concern for women? I believe that, in our society, we often protect the right to freedom of the spouses and former spouses more than women's right to live.
[English]
Mr. Andrews: That is exactly the struggle we had in coming up with something that would accomplish our goal. We knew that denying bail altogether to anyone who had minor children would not withstand a Charter challenge. We would have liked to have gone further in that direction. However, we knew that it would not accomplish our goal, so we had to compromise and make a small step forward.
Senator Banks: It may be for others at other times to go further than this, Senator Boisvenu. We chose, in the present instance, as Mr. Andrews has said, to take the first small step. My impression of the application of the precautionary principle as an overarching consideration in the law of the bail section of the Criminal Code is that it would have to be overarching, and I do not know whether it would then become prescriptive. I do not know whether you want to say "wives'' or "spouses.''
We did not want to go that far because every time we went beyond where we are, we bumped into a potential Charter challenge, and we were told that there was a very grave danger of it being struck down if we left that concept in. We have done what we know will be safe and will raise that red flag.
The Deputy Chair: Thank you, Senator Boisvenu. Does that conclude your questions?
[Translation]
Senator Boisvenu: I have a final comment. There is a section in the Charter of Rights and Freedoms that concerns security of the person. Yes, there is a section that refers to the right of criminals or alleged criminals to the presumption of innocence, but it should never be forgotten that the Charter of Rights and Freedoms also contains a section on protection of the public. I wanted to remind you of that.
Senator Carignan: This bill is very interesting, very important. You have singled out a specific issue with a specific example. I believe these situations can arise much more often that we imagine.
When we introduce an amendment or draft a bill, I like to try to cover the situation and solve the problem, not just have an interpretation or an amendment that addresses only part of the problem.
Allow me to explain. Section 515(10)(b) of the Criminal Code states that, "where the detention is necessary. . .''. Even if there is a reverse onus, the necessity is nevertheless quite important. It is what I consider a heavy burden.
So we quite frequently have people who are released and nevertheless constitute a danger, to a degree lower than the necessary level, but who may nevertheless constitute a danger.
My wife is a family law expert and practises only family law. So I have often heard or spoken with her about issues in which she had spouses or parties who were charged. She felt that there was a risk for the children, but there were court delays, problems of access to the accused's file, as a result of which she did not necessarily have all the tools to take quick action to obtain interim custody or supervision orders or supervised visitation rights, which involves risks for minors.
Can you consider the possibility of also amending paragraph 515(4)(e.1) of the Criminal Code which concerns release conditions? We can well understand that that may not be necessary, but that the judge understands there are nevertheless risks and, at that point, could at least impose a condition prohibiting all contact with the child or, where he is dealing with minors, require that person to be accompanied by another person or a reasonable adult.
If you look at section 515(4) of the Code, it states:
(e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence;
That is somewhat the same principle, the same persons contemplated; here you have considered adding "or any person under 18 years of age,'' so that judges, even where they find this unnecessary, but where there is a risk, can at least set conditions and reconcile the freedom of the individual at risk and the time it takes to conduct the judicial proceedings to obtain custody or supervision of a child by a significant person for that child — a grandparent, in the situation you referred to, the Protection de la jeunesse or a spouse. This is especially true since Criminal Court judges are also dealing with the criminal's case, which is not necessarily easy in a family law case, with regard to accessing the criminal's entire file.
I apologize. That is a long question, with a long preamble.
[English]
Senator Banks: That is a good question. I will ask Mr. Andrews to amplify, but, yes, when we were first looking at this, I looked at that possibility. I thought, and got advice, that the discretion that is given to the justice prevails in the section that the proposed amendment would amend. He or she retains that discretion to impose the conditions of bail that are set out in the earlier sections, and the proposed amendment would allow the justice to do that and would not constrain the justice from doing that. It simply would be a red flag to call attention to the fact that perhaps conditions ought to be attached to the bail. We thought that it was caught by the present amendment.
Mr. Andrews: To elaborate, it was a challenge. It started with the Markesteyn report, which did a whole study on this. It had a lot to do with family law and child protection, child welfare, and how this got tangled up into that. That was mainly provincial in nature.
When we looked at the aspect of bail — because that was what it sort of surrounded— that is what we put our focus to. I do not know if Senator Banks did some research on that part, but I did not go that far. When we looked at it, we were trying to keep this around the bail; because if bail had been denied because of this, it would not have happened. That is where we focused, but it is something that is of interest.
[Translation]
Senator Carignan: Ms. Desaulniers, do you too have an answer to the question whether we can amend or adjust to ensure overall coverage? At first glance, at least for me as a lawyer, I do not see how a judge could set conditions for a minor.
Ms. Desaulniers: Section (4)(d) of the Criminal Code expressly provides for the power of a justice to prohibit an accused from directly or indirectly communicating with any person — and here an illustration is given: victim, witness or other person identified in the order. If at the time the accused is released, the justice finds that contact between the accused and the child could be dangerous, he or she may definitely prohibit any direct or indirect communication. Furthermore, paragraph (f) of that same section grants the justice the power to direct any other condition he deems reasonable. The justice has very broad power to fix any condition. The only limit, naturally, is the constitutional right of an accused not to be deprived of his release under reasonable conditions.
Senator Carignan: Going back to your premise, you were asked whether the amendment we are introducing is essential, and you said: "The answer is no.'' Then you said: "Is it useful? The answer is yes,'' because it will help send a signal to the judge that we want special attention paid to this counter situation. Should we also raise a red flag with regard to release conditions?
Ms. Desaulniers: The justice who, at the release stage, comes to the conclusion that it would be necessary to impose a condition to protect a child, as he will be reminded by section 515(10)(b), then has before him all the necessary tools to impose reasonable conditions to protect the child. The flag will have been useful at the initial stage in saying: can the conditional release be granted? Have I considered the safety of the children? And if the accused can in fact be released, again considering the safety of the children, what conditions should be imposed? At that point, the initial red flag will already have had an effect. And the judge had before him all the necessary powers to impose useful conditions.
Senator Carignan: I have no further questions, Mr. Chairman. I do not necessarily agree with the answer in that, yes, the judge has all the tools, but, in actual practice and in the heat of the action, when the judge renders decisions, and in view of the speed and number of files that Crown attorneys handle — and we often see Crown attorneys who tell us about their heavy caseloads — it does not necessarily reassure me to see that the red flag will only be at that stage and will not also be provided for under paragraph (4)(e.1), particularly since we placed the red flag there; we would be removing an (e.1) and the tools are nevertheless there to protect the victims and the witnesses, but we felt the need to put it in (e.1). It seems to me that, since this is the same wording, the same individuals, I believe that, as a matter of concordance, we should add another flag here. I believe it is up to us as members of a legislature to decide that matter.
[English]
Senator Baker: Senator Carignan is saying to have the same condition as you have in the Criminal Code now in various sections — a condition, for example, that someone not be permitted near a firearm — that is in law for 10 years; not permitted to own this, not permitted to go somewhere, that is in the law. Senator Carignan has raised a very interesting point.
I would like to ask for clarification, before I get to the main witnesses, would the Justice Canada representatives not admit that section 515(10)(b) of the Criminal Code has been adjudicated many times by the Supreme Court of Canada, and the standard is set? The judges and prosecutors follow what is set in law, which is what the Supreme Court of Canada's interpretation is, of every word that is in section 515(10)(b) right now, and that is what rules the day.
My recollection goes back to R. v. Morales and R. v. Pearson. You are nodding your head; you know these cases. That is where every word in section 515(10)(b) was taken out and analyzed. Would the witnesses agree that that is what the judges and the prosecutors look at when they get to section 515(10)(b)?
[Translation]
Ms. Desaulniers: Yes, definitely. The courts that apply the act and the prosecutors who plead base their arguments on the text of paragraph (b), absolutely.
[English]
Senator Baker: Exactly. Phrases such as "substantial likelihood'' and "protection or safety of the public'' have been clearly defined by the Supreme Court of Canada, and instruction has been given to judges and given thereby to prosecutors on what those words mean. There is a clear meaning. I wanted to get that on the record because a judge can only adjudicate on what is before the judge and what the law is; not only what is written but what the Supreme Court of Canada has ruled.
I want to congratulate the witnesses for their initiative here. Their original wording was "minor children of the accused.'' Is that right? That is what you just said.
Senator Banks: Yes.
Senator Baker: Well, "minor children'' in Canada is someone under the age of 18. That is the definition. You are accomplishing exactly that in the amended version. The only thing that you do not have is "of the accused.'' Is that correct? You have expanded that.
In effect, what your original motion was is satisfied in that a minor child is defined as someone under the age of 18. Is that correct?
Mr. Andrews: Yes. When we brought it before committee, it was satisfied that the minor would be defined as a minor. The government members proposed this amendment to clarify and to broaden it. We were thinking just of the accused, but on debate in the committee, the government proposed an amendment to broaden it to all minor children because there might be other minor children involved in a family situation that do not belong to the accused. It might broaden it a little. That was a compromise made in committee.
Senator Baker: To Justice Canada, the wording that they suggested of "any person under the age of 18 years'' is a fairly common phrase, is it is not? That appears in many pieces of legislation and in several places in the Criminal Code, so there is no argument or dispute over what that means.
Ms. Desaulniers: It is found currently in sections 171, 172 and 718.2 of the Criminal Code; that is right.
Senator Baker: Absolutely. I see where "under the age of eighteen years'' appears in section 718.2 of the Criminal Code, yes. It is there, and it is clear.
I put this question to the witnesses. Now there will be a clear new direction given in this section to judges, courts and prosecutors. Here is a new element being placed into the law whereby they now have a duty to look at persons under the age of 18, and they will go back to this committee meeting, they will go back to the House of Commons and say, "What is the purpose of it? What did they mean?'' Thereby, you have accomplished what you have set out to do. Would you agree with that?
Senator Banks: That is our hope.
Senator Baker: There is no "hope'' there; you have accomplished that.
I would like Justice Canada to verify whether when this is incorporated here, the judges will look at this and ask, "What was the intent of that? Why was it put there?'' They would thereby go to even conditions of release if the person is released and perhaps not give custody of a child to someone who is under charge in a jurisdiction. Would the justice officials agree with that?
Ms. Desaulniers: I respectfully submit that this bill would not introduce a new notion in the current paragraph (b). The notion of children is already included when this paragraph speaks of the public. As is the case currently with the mention of victims or witnesses, these are illustrations of various groups that are already included in the public in general.
If you are suggesting that this bill would introduce something new in this provision, I would respectfully submit that that is not the case. However, as mentioned earlier, this bill would remind the Justice of the Peace of the need, among other things, to consider the safety of children.
Senator Baker: That would also apply to the provincial court judge.
Ms. Desaulniers: Yes.
Senator Baker: It is one and the same, is it not?
Ms. Desaulniers: Yes.
Senator Baker: No, you are not introducing a new element because everyone is a member of the public. That is true, but it turns their minds to that age, and they will go back to the reason for the amendment to the Criminal Code. Do you agree that it will accomplish the same effect?
Ms. Desaulniers: I am not sure. I agree that it will serve perhaps a useful role in reminding Justices of the Peace or provincial court judges of the need to consider the safety of children as members of the public, as well as witnesses and victims.
Senator Baker: They will go back, and they will sometimes take your words as an official from Justice Canada to effect reasons for judgments. They would go back and actually use this committee as a reason. I just wanted to get that on the record. What you have accomplished here is incredible, as far as changing the law is concerned. I congratulate you.
Senator Banks: That is why Mr. Andrews and I were pleased by the government's expanding because there are situations in which children are involved — and they are very often not 18 years of age but rather 6 years or 6 months of age — who are not children of the accused. They are in that place, and they might be the neighbour next door, a cousin, a nephew or a niece. They might be part of a common-law relationship, for example, for which, if we had continued to say "children of the accused,'' it would be a different definition. Is this a child of the accused? Other questions are involved. We welcomed the government's intervention in that respect.
Senator Joyal: In the same vein, can we expect that Justice Canada will invite the provincial Attorneys General to issue new instructions to the Crown to ensure that they will take that into account in the future and not at the first level, the fact that it is already included in the act and does not change anything?
[Translation]
I know that is a trick question.
Ms. Desaulniers: As you know, our minister definitely does not have the authority to tell the provinces how to instruct their prosecutors. But when the act comes into force, if it does, it will be brought to prosecutors' attention. And that clearly sends a message that Parliament will want sent.
[English]
Senator Banks: I know a couple of Crown attorneys, and I will mention it to them, Senator Joyal.
[Translation]
Senator Joyal: So we can reasonably expect that the useful effect of this bill should normally be brought to the attention of Crown attorneys. I understand that they are under the responsibility of the provinces, but we should at least ensure that prosecutors receive the usual notice.
Assuming this bill is passed by Parliament, we can reasonably expect that the Attorney General of Canada will draw the attention of provincial attorneys general so that they can instruct their own Crown attorneys, drawing their attention to the fact there will now be a specific reason that they should take into account in their submissions on whether or not an accused should be released.
Ms. Desaulniers: I can tell you that, at every meeting we have with the provinces, including every meeting of the Coordinating Committee of Senior Officials — there are two a year; there will be one next week — we inform our colleagues from the provinces of bills introduced and legislation that has come into force, including private members' bills. Like the others, this bill will be presented to our provincial colleagues.
Senator Joyal: I do not think that whether it is private or public will change anything. This is an amendment to the Criminal Code, period.
Ms. Desaulniers: Absolutely.
Senator Joyal: Regardless whether it is public or private in origin, the effect is the same. The effect is not diminished by the fact that it is a private member's bill.
Ms. Desaulniers: You are absolutely right.
[English]
Mr. Andrews: I know you asked about the Minister of Justice. When I spoke to the Minister of Justice about this particular piece of legislation and the department's support, he indicated that there would be a period of time after Royal Assent before the provinces would formally adopt it. I am not familiar with how that works, but he indicated that there is a process.
Senator Banks: I want to ensure we understand that an act of Parliament is an act of Parliament is an act of Parliament.
The Deputy Chair: Thank you for that, Senator Banks.
[Translation]
Senator Chaput: I need some clarification. I've heard the expression "the criminals'' a number of times, and I was wondering: this is a bill whose purpose is to justify detention in custody, where that is necessary, for the protection of victims, witnesses and other persons. I agree with the objective of protecting the victims, but, at that stage, has the individual already been convicted? If not, should we not then refer to preventive detention and not use the word "criminal''? Can you explain that to me?
Ms. Desaulniers: The release addressed in section 515 involves persons who have been charged with an offence but who have not yet been convicted. We should indeed refer to those individuals as accused, not convicted individuals. I hope I did not use those words. If I did, I apologize.
Senator Chaput: I do not know who used those words, but I am listening carefully and, as I am a lawyer, I felt the need to clarify that point.
[English]
The Deputy Chair: I have a question that I will, perhaps, direct to Senator Banks. Section 515(10) of the Criminal Code establishes the grounds that have to be proven if the detention of the accused is to continue, if bail is not to be granted. The three grounds are fairly broad. Your bill would propose to amend one of the three. However, they are fairly broad and would seem to involve considerable judicial discretion still, in that it is up to a judge to decide if those grounds are satisfied. In the case of Zachary Turner, there is continuing concern about how that discretion was exercised.
I am wondering if you would consider that the intention of your bill is to, in some way, further restrict judicial discretion to avoid that situation recurring — in other words, to create clarity so that there is a reasonable limit on judicial discretion.
Senator Banks: I am a big fan of judicial discretion because I understand it is not possible to write a law, a rule or a contract able to contemplate and take into account every eventuality and aspect that might happen. In my limited experience, that is certainly true with respect to criminal law.
I am opposed to anything which would, in any way, ever restrict judicial discretion. I would not characterize Mr. Andrews' bill as restricting judicial discretion. I hope it can be characterized as slightly broadening the purview of one of those three conditions that must be taken into account by a justice when considering whether to grant bail.
I hate to keep using the metaphor, but I intend it to be a red flag; it is a reminder. However, it does not restrict in any way the discretion of the justice, in my view.
The Deputy Chair: Would you not agree that if the bill passes, the practical implication is that it would require a justice to make that inquiry as to whether any children under the age of 18 would be impacted? It would require that to be part of the process. That does not exist today. Today, the judge could choose to exercise discretion and not pursue that.
I do not wish to get into an academic debate here, but it appears to be a restriction on the discretion that exists today, which would be to not even inquire as to whether any children aged 18 or under could be impacted by the bail application.
Senator Banks: I do not have the expertise to answer the question as to whether any of the three conditions — one of which this seeks to amend — can be characterized as requiring a judge to do something as opposed to permitting a judge to do something. I do not have the expertise to determine that.
It is not our intent to require anything of a justice. It is our intent to simply say to a justice, in effect, "Please, in your consideration, take this into account.'' That is an entirely amateur answer to your question, senator.
The Deputy Chair: Ms. Desaulniers, would you agree that this provision, were it included in the Criminal Code, would require a justice to make that inquiry as to whether any children 18 or under could be impacted?
Ms. Desaulniers: They are already required to make this assessment.
The Deputy Chair: As part of "the public,'' yes.
Ms. Desaulniers: When I answered Senator Baker's question about whether this introduces something new, perhaps I would have better framed my answer by saying that this bill would not change the state of the law. If you are suggesting that it may limit judicial discretion, I would say that it does not because it does not change the state of the law.
It does introduce something new in that it introduces a flag or a reminder that was not there before. Perhaps there is indeed something new, but it does not change what the law is. Justices currently must consider the safety of the public, and the public includes persons under the age of 18.
The Deputy Chair: Thank you very much for that.
[Translation]
Senator Joyal: Ms. Desaulniers, I would like to go back to the conceptual difference between sections 515(10)(b) and 515(4) of the Criminal Code on the authorized conditions. I am going to explain to you how I understand the interpretation that should be given to 515(10)(b), which we are amending. Section 515(10)(b) makes it possible to deny release for reasons related to the protection and safety of the public in certain circumstances. So we are denying release.
In the case of section 515(4) of the Code, release is authorized under certain conditions and those conditions are enumerated in paragraphs (a), (b), (c), (d), (e) and (f).
What is surprising is that grounds related to the protection and safety of the public are raised in order to deny release but are not specifically mentioned for the purpose of conditional release. Unless you rely on section 515(4)(f), which states: "comply with other such reasonable conditions specified in the order. . .'' So in denying release, the protection and safety of the public are decisive grounds that the judge must consider, whereas where the individual is granted conditional release, the judge has no more specific obligation with respect to the protection and safety of the public than any other reason that he may want to consider.
Ms. Desaulniers: Section 515 is generally constructed as follows. It provides that the rule is release.
Senator Joyal: As a result of the presumption of innocence?
Ms. Desaulniers: Indeed, and also because of the constitutional right to be released provided for under the authority of paragraph (11)(e). However, additional powers are provided for a justice, knowing that, first of all, the court must release; but it states, however, that you may impose certain conditions, and some are cited as examples, because ultimately the last paragraph, (f), provides for all the conditions that are necessary and appropriate. Everything that precedes constitutes examples of what might constitute necessary and appropriate conditions.
Then, subsection (10) creates the exception of saying that release is the rule. However, it may be necessary to deny release for the following three reasons.
So that is how the scheme is constructed. In practice, when the courts have to determine what conditions are appropriate or necessary in order to release someone, they will obviously always have safety of the public in mind. That is the first concern of a judge who releases.
I agree with you that that was not expressly provided for in subsection (4). Here again, as they say, the rule at the outset is release.
Senator Joyal: In the same way as in the case of denial of release, consideration is obviously given to the protection of victims, witnesses and the public, that is of every other class of persons who might represent a target for the accused.
In the case of subsection 515(4), the purpose is solely to protect, as stated in paragraph (4)(d), to refrain from communicating solely with the victims, witnesses or other persons, but, in other conditions, the public is not mentioned as one of the areas that could be the subject of a specific condition.
We find ourselves solely under the definition in paragraph (f), which is simply a general condition.
Ms. Desaulniers: In (e.1), we nevertheless have the notion of ensuring the safety of victims or witnesses. However, I agree with you that we do not have the more general notion of ensuring the safety of the public in general.
Senator Joyal: Exactly, because, when we have paragraph (e.1), as Senator Carignan said, we want to protect the safety of victims and witnesses, but if we protect other persons, you have to do so under paragraph (f). So that would be another thought process on the part of the judge with regard to paragraph (e), which specifically refers to the safety of witnesses and victims.
Ms. Desaulniers: Yes.
Senator Joyal: That is where there is a subtle distinction between paragraphs 515(d) and (b) and 515(4)(e.1), which refers protection of the public to paragraph (f).
Ms. Desaulniers: Indeed.
Senator Joyal: So, in this case, with regard to the question raised by Senator Banks and Mr. Andrews, if we want to protect persons under 18 years of age, we have to go under paragraph (f) as one of the options available to the judge to determine whether there is an impact, an additional danger or an additional restriction that should not be imposed on the accused to ensure the safety of a person under 18.
Ms. Desaulniers: I would qualify that by saying that, if the measure contemplated by the court to ensure the safety of a child is to order a prohibition from any direct or indirect contact, then we have the more specific clause of paragraph (d), which concerns the prohibition from contact. That is often the way the courts use to protect a person, to prohibit contact.
Senator Joyal: Yes, in the case of contact or with regard to place, which is identified in the order, from going to a place that is mentioned. That is the case, for example, of persons charged with sex offences involving children: they are required not to approach a school, playground or other place. It is with respect to the accused's mobility rights that a restriction is imposed.
Ms. Desaulniers: Yes.
Senator Joyal: But, once again, that is not related to the safety or protection of persons under 18 years of age.
Ms. Desaulniers: Indeed.
Senator Joyal: I am going to try to ask you the following question. To your knowledge — you have previously practised — are there a number of instances in the case law in which an accused is subjected to a condition, for example, or stripped of his ability to communicate with a certain type of public or a certain type of person in order to be ensured of release?
Ms. Desaulniers: In some cases, yes, an accused may be prohibited from associating with children under the age of 16. That is a condition that I have seen from time to time. I am trying to think of other cases in which a particular group has been targeted. I would say that children are probably the group most generally named as being the subject of a particular type of protection.
Senator Joyal: It seems to me I read about the case of a person — I am bringing this to your attention — who was charged with assaulting seniors at a retirement home and was subjected to a condition that he not approach seniors or persons with disabilities. That seemed to be possible.
Ms. Desaulniers: If I say children, that does not mean that other groups of individuals may not be the subject of a communication ban. Every case is different and every specific fact in a case can lead to specific conditions. In some instances, one can conceive of a prohibition from communicating with co-workers, sometimes a prohibition from entering such and such an establishment or store. Every case leads a justice to set a condition that fits the facts of the case.
Senator Joyal: So in your view, the clause as currently drafted in subsection (4) has been interpreted carefully enough not to require, as you said in your presentation, or to wave a flag at judges telling them to pay special attention to persons under 18 years of age?
Ms. Desaulniers: I can tell you that I co-chair the federal-provincial-territorial working group on criminal procedure. I meet with my provincial colleagues a number of times a year. No specific problem with regard to subsection (4) has been brought to my attention.
Senator Joyal: Thank you.
Senator Carignan: I do not know whether you often meet lawyers who specialize in family law. I see one virtually every day when I am not here.
During the break, I was able to contact her to confirm my apprehensions, and they are confirmed. What was explained to me is that, especially in the case of spousal abuse, the standard arrangement is not to communicate with the spouse, except with the authorization of a Superior Court judge, and thus to transfer jurisdiction to the Superior Court judge in family law.
But children are never mentioned. And it appears that criminal law judges automatically consider that this is not their jurisdiction. There appears to be a legal void with regard to the protection of children in the brief period of time between release and the moment when a significant person — because there has to be a significant person who has an interest in order to protect — undertakes a proceeding. There appears to be a void.
I noted Senator Joyal's comment on the matter of protection of the public, which convinces me even more of the need to wave a flag in paragraph 4(e.1). I do not know whether we can do that for this bill, perhaps that might delay its coming into force. Perhaps that is done elsewhere. It would be good to forward it to provincial attorneys at your meetings to inform them that there appears to be a void in the case of minors in spousal abuse cases.
[English]
Senator Banks: Maybe I have an overly simple view of these questions. However, I think and hope that the present amendment deals with one question: Shall bail be granted, yes or no? A justice determines that.
If the justice determines that bail shall not be granted under consideration of the present three pillars — and this adds an element to one of those three pillars — then the question of conditions that would be attached to bail is moot. If a justice deems that no bail will be granted, there is no question of conditions.
I do not think that this amendment before us has any effect upon — maybe it should — the conditions that a justice might apply if the justice determines that bail should be granted. I believe that the present amendment only deals with the simple question of whether bail shall be granted or not.
The Deputy Chair: Ms. Desaulniers, did you have a comment to make? Before Senator Banks spoke, I thought you did.
Ms. Desaulniers: No, I think this is accurate.
Senator Joyal: The only qualification I would make to your point, Senator Banks, is that it is true; I totally agree with the way you described the bill.
However, since the bill proposes to amend part of an overall section of the Criminal Code that deals with bail, it is fair for us to ask what the impact of the change in paragraph (b) of subsection (10) would or could have on the interpretation of the other subsections of section 515. That is essentially what we are trying to do here, to remain coherent in the understanding of what you propose.
I do not think you have seen any objection around the table to what you have proposed. It is for us to try to understand if the Criminal Code remains coherent and if it reaches the broader objective that you are pursuing, which I think is also to protect the child when there are conditions attached to the release of a person.
[Translation]
Senator Boisvenu: Please allow me to address this very important subject. Allow me to conclude on a humorous note. As you know, our government is working to provide better protection for the public, but that unfortunately has an impact on incarceration costs. I am pleased to see that it is our friends opposite who are introducing this amendment, which could have an impact on incarceration costs. So I hope they will support our measures as well.
Senator Banks or Mr. Andrews, do you have an idea of the number of people who could be incarcerated in Canada if this measure providing more protection for children were enforced?
[English]
Senator Banks: No, I have no idea, senator; but we must all hope — and I know that you will join me in the hope — that it will be fewer and fewer as time goes by.
The Deputy Chair: That concludes the questioning. I want to thank Senator Banks and Mr. Andrews for your presentation. Obviously, this is a very significant issue, and it was very well presented. Ms. Desaulniers and Ms. Hodgson, thank you so much for your input. It was very helpful to us.
We will meet as a committee again next Wednesday at 4:15 p.m.
(The committee adjourned.)