Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 11 - Evidence - June 16, 2016
OTTAWA, Thursday, June 16, 2016
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-217, An Act to amend the Criminal Code (detention in custody), met this day at 10:30 a.m. to give consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning and welcome colleagues, invited guests and members of the general public who are following today's proceedings on the Standing Senate Committee on Legal and Constitutional Affairs.
Today, we start our hearings for our study of Bill S-217, An Act to amend the Criminal Code (detention in custody).
This bill was brought forward by our chair, Senator Runciman, who will be speaking to us about his bill during our first hour; and he is joined at the table by Michael Cooper, Member of Parliament for St. Albert ± Edmonton and a well-known jurist in that jurisdiction; and Shelley Wynn, who is the widow of RCMP Constable David Wynn, whose tragic death in January 2015 and the circumstances surrounding it served as the impetus for this bill.
Thank you for being with us today. The floor is yours, Senator Runciman.
Hon. Bob Runciman, sponsor of the bill: Thank you very much. I appreciate the opportunity to speak about what I consider to be a simple but potentially important amendment to the Criminal Code. The bill is just three clauses, and in my opinion, the heart of the bill is in clause 2. I'll deal with each clause in order and then provide some background about the events that led me to introduce this legislation.
Section 515 of the Criminal Code lays out the rules surrounding judicial interim release or what we generally refer to as bail.
Paragraph 515(10) lists the reasons justifying detention in custody: to ensure the accused's attendance in court, for reasons of public safety and to maintain confidence in the administration of justice.
Clause 1 of the bill amends that third aspect — maintaining confidence in the administration of justice. Specifically, it adds two criteria: the fact that the accused has failed to appear in court in the past and the fact that the accused has previous convictions or is awaiting trial on other charges at the time.
Section 518 of the Criminal Code deals with the evidence the justice may consider during a bail hearing. As part of that, the section authorizes the prosecutor to lead evidence to prove that the accused has previous convictions, is awaiting trial on charges other than the ones before the court on that day, has previously failed to appear in court or has breached bail conditions.
As currently worded, the code says the prosecutor may lead such evidence. Clause 2 of Bill S-217 changes "may'' to "shall.'' In other words, this bill would ensure it is not an option whether or not to tell the justice about the accused's criminal record during a bail hearing.
It also explicitly requires the prosecutor to lead evidence to prove that the accused has failed to appear in court in the past. This, in my view, is essential information for a proper determination on bail. It is generally introduced, I am told. As part of this process, I spoke with a senior justice of the peace in southwestern Ontario, and he indicated he has not seen an instance when this kind of evidence isn't presented, but this bill will make sure that it is always introduced.
The third and final clause of the bill amends section 719 of the code. This is following a Supreme Court decision that occurred after my bill was introduced, and I give credit to our analysts. They drew this to my attention and questions about the constitutionality of the clause. As a result, I had the clause analyzed by a former Crown attorney who helped us with the bill's development and by the Office of the Law Clerk, both of whom assured me the court decision did not make the clause unconstitutional.
In my view, the court's decision changed the landscape when it comes to pretrial credit, and I think the clause would now have a limited impact at best. It is not directly related to the circumstances of Constable Wynn's murder and could muddy the waters going forward in the legislative process. As a result, when we get to the clause-by-clause consideration, I will ask honourable senators to vote to defeat that clause.
That's an overview of the bill. I want to take another minute or so, Mr. Chair, to explain why I think the bill is necessary.
It was drafted in response to the murder of RCMP Constable David Wynn and the wounding of Auxiliary Constable Derek Bond in Edmonton in January last year by a violent repeat offender who killed himself later that day.
I know we are all honoured to have Constable Wynn's widow Shelley with us this morning. By any reasonable assessment of Shawn Rehn, the individual should not have been on the street at the time. He faced hundreds of charges as an adult; his record contained dozens of convictions, some for violent offences; and he routinely failed to attend court. He had served a number of jail terms, including two stints in federal penitentiary. At the time of his death, he was facing 29 charges and was under two firearms and weapons bans.
Rehn was arrested in September of 2014 on a number of charges, including possession of a prohibited weapon. There was also a warrant for his arrest for charges from the previous year when he had failed to attend court.
There is no question he could have and should have been detained in custody on any of the existing grounds — to ensure his attendance in court, to protect public safety and to maintain confidence in the justice system — but he was released on $4,500 bail.
I have read the transcript of the bail hearing and it is shocking, to say the least. Nothing was said about his lengthy criminal record or his blatant disregard for court orders. There was no consideration given to keeping him in custody because the justice of the peace who presided over the hearing had no idea of Rehn's horrendous record. He was released from jail, committed more crimes, failed to appear in court, and four months later he shot and killed Constable Wynn.
By changing the word "may'' to "shall,'' this bill will ensure that justices presiding over bail hearings are provided with the information they need to make a good decision. The bill does not place any additional burdens on prosecutors, nor does it undermine judicial discretion. It merely ensures that vital information, information that should be readily available, is introduced during bail hearings.
That sums it up, Mr. Chair. Thank you very much.
Hon. Michael Cooper, Member of Parliament, St. Albert ± Edmonton: Thank you, Mr. Chair, and to all senators. It's my pleasure to be here. I am the sponsor of Bill S-217 in the house, a bill that I think is much-needed legislation and that arises from a tragic event that has had a profound impact upon the St. Albert community that I represent.
As Senator Runciman alluded to, Constable Wynn was shot and killed in January 2015 outside of a St. Albert casino. Constable Wynn, as an RCMP officer, put himself on the line every single day to keep our St. Albert community safe, and Constable Wynn paid the ultimate sacrifice with his life.
It is a tragedy and an outrage any time a police officer is murdered in the line of duty, but the murder of Constable Wynn is all the more terrible and all the more outrageous because it was completely preventable.
As Senator Runciman alluded to, Constable Wynn's killer was out on bail at the time of the killing, notwithstanding that the individual had dozens and dozens of criminal charges laid against him. He had somewhere in the neighbourhood of 50 prior criminal convictions, 38 outstanding charges and numerous failures to appear. Yet he was out on bail, on the loose in our community, because that information had not been brought forward at the bail application hearing.
If there ever was a textbook case of someone who should have been behind bars rather than out on the streets in the community, it is Constable Wynn's killer.
I don't think there is anyone who could reasonably say that information with respect to past criminal convictions, outstanding charges and failures to appear is anything but relevant in the context of a bail application hearing. Indeed, section 518 of the Criminal Code provides that the Crown may lead such evidence for the purpose of a bail application hearing.
Yet, in this specific case, that information was not disclosed. Had it been disclosed, as it should have been, there is little doubt in my mind that Constable Wynn would be alive today and his killer behind bars where he belongs.
I would submit that the killing of Constable Wynn highlights a glaring loophole with the bail application process. Bill S-217 seeks to close that glaring loophole by simply requiring the Crown to lead such evidence.
I want to make clear that Bill S-217 does not impose any undue burden upon the Crown. It does not impose any new burdens upon law enforcement. It does not impinge upon the discretion of a judge or justice of the peace at a bail application hearing to make a determination on the question of bail, having regard for the specific facts and circumstances of the individual case.
Bill S-217 simply requires that information that is relevant and material in all bail application hearings be brought forward to better ensure that those who are accused who make bail attend at court, to ensure that the safety of the public is protected, to maintain public confidence in the administration of justice and to ensure that something like that what happened in St. Albert in January 2015 never happens again.
Thank you, Mr. Chair.
The Deputy Chair: Ms. Wynn, do you wish to say a few words?
Shelley Wynn, as an individual: Yes, I would.
I would first like to thank you for giving me this opportunity to be here today. Thank you, Mr. Cooper and Senator Runciman, for making this such an important part of your job.
I am not here to talk about the specifics of the bail hearing or Shawn Rehn — and trust me, I have read every single document that there is out there on him. I'm here to help you see how I have to live my life, every second of every day, without my husband. I'm here to show you that changing that one simple word could save another family from literally going through the hell that I have gone through in the past year and a half.
In the next couple of seconds, I'm going to ask you to close your eyes for four seconds for me. In those four seconds, I want you to think of the one person in your life that you spend every day with; the person you see before you go to sleep; the last person you see at night; the first person you see every morning when you wake up; the person that you do everything with during the day; the person that does everything for you during the day; and the person that you planned to spend the rest of your life with, making new memories and following your dreams.
So I'll ask you to close your eyes: one, two, three, four. Open your eyes. That's exactly how long it took for Shawn Rehn to take away my husband: four seconds. That's exactly how long it took for him to take away the last person that I saw at night, the first person that I saw in the morning. That's how long it took for him to take away the father of three sons.
I want you to take a moment and think about what it would be like to lose that person in four seconds. Just gone — everything gone.
This is a picture of Constable David Wynn. This was taken on his graduation day in July 2009 at Depot for the RCMP. This is how you know David. Dave was so proud of being a Mountie, and he was honestly the true meaning of a Mountie. He loved his job. That was probably one of the proudest moments of his life, on that day, and probably the proudest moment for his family, as well. I think that he showed that he loved his job in everything that he did every day to protect the community of St. Albert. I think you can ask anyone in St. Albert, and they would agree with that.
This is another picture of David Wynn. This is my husband. This is the David that I knew. This is the David that his family and friends knew. This was taken on one of the last fishing trips that he had with his sons, in Alberta, the fall before he was killed. Fishing is something that Dave absolutely adored. From a young boy growing up on the Miramichi, you would find him with his dad, in the water, fishing, and it was something he couldn't wait to share with his three sons.
These are our three sons: Matthew, Nathan and Alexander. This was taken that same fishing trip with Dave. This was probably one of the happiest moments of Dave's life, because this was the moment that he had waited for: to be able to take his sons fishing, just like his dad did with him.
This is Dave with his mom, Catherine Wynn, with his sisters, Dawn Sephton and Mona Wynn.I always told Dave that he was the luckiest man on Earth to have these three women in his life, because they supported him in anything he did — any dreams that he had. They were truly the three women who moulded him.
He was an extraordinary man, and I got to share my life with that extraordinary man.
In those four seconds, a constable was taken away from his community, a husband was taken away from his wife, a father was taken away from his three sons, and a son and a brother was taken away from his mother and sisters — in four seconds.
Every day I wake up wishing that I could take those four seconds back, but I can't. There is nothing I can do to change that.
Every day I have to live my life alone, not have Dave by my side enjoying the moments we were supposed to have together as a family and as husband and wife.
Every day his children have to experience new things and new milestones without their dad. This Sunday is Father's Day. They don't have a father to spend that with. They don't have any more chances to make new memories.
In preparing for this today, I had to bring back a lot of emotions and things that I thought I had dealt with, endless hours of counselling. As you can see, it's always going to be there; it's never going away — especially the moment that I had to tell my three children that their father wasn't going to make it. That is something that I have to live with every single day of my life, and that is something that I wish on no one, absolutely no one.
Changing this one simple word could save a lifetime of happiness for somebody else, and that somebody else could have easily been you. Dave was the unfortunate one that happened to be there that night, but it could easily have been anybody else.
Shawn Rehn should not have been on the streets. He should not have been let out after that bail hearing. He had been given chance after chance over the years, and it was very evident that he was not going to turn his life around. I believe that if his history was brought forth, he would not have been back on the streets, that four-second altercation would not have happened, and my husband may still be here today.
I'd like to leave you with one last thought. It's something that I think Dave lived his life by every single day. The first is three simple words: Live each day. Dave lived every day like it was his last. He enjoyed every moment of every day, always following his dreams. At the age of 30-some years, changing careers, I thought he was crazy, but that was his dream.
The second is to laugh, every chance you get. Those who know Dave will tell you that's probably one of the things they're going to miss the most about Dave: his laugh.
The last is to love each other like it's the last time you'll see that person, which is exactly what he did when he walked out the door that night before he went to work. Dave loved his family, and he made sure that they knew about it every single day, with just a simple hug and an "I love you'' before he left.
The Deputy Chair: Thank you, Ms. Wynn. That was perhaps the strongest testimony we have ever heard to change the law.
Senator Runciman, you have been successful in the past two years in changing two laws in the Criminal Code with previous bills that you have introduced and that have been passed in the Commons, and this will be your third success story, I'm sure.
We'll start our questioning with Senator Sinclair.
Senator Sinclair: Senator, I was looking through the material that's been provided. We have not been provided the transcript from the magistrate's hearing. I assume it was a magistrate's hearing. Is that what you said?
Senator Runciman: Yes.
Senator Sinclair: We don't have that transcript in front of us, so we don't know what he was told or not told or who was telling him. Do you have more information about that?
Senator Runciman: I have a copy of it. I can provide it.
Senator Sinclair: There are two areas that I wanted to ask about. Was there somebody actually making an application to withhold him in custody and the magistrate ruled otherwise? Is that what happened?
Senator Runciman: No. There was an RCMP officer representing the Crown. Defence counsel appeared via phone, and the conversation took place with the justice of the peace, who I understand is now a provincial judge, and the constable who was representing the Crown. I gather, in terms of first appearances, it has been quite common in Alberta for RCMP officers to represent the Crown.
Senator Sinclair: It's common everywhere in Canada outside of urban areas. Based on my experience working in the justice system, almost everywhere where there is no resident Crown attorney, police officers do the bail application. I'm curious whether there is any information as to whether the police officer who appeared for the Crown at the bail application accessed CPIC to look for the record of the accused before the hearing. Do you have any information on that?
Senator Runciman: No, I have no evidence of that. I understand there was a review. Because of the circumstances, the Alberta government initiated a review of bail proceedings. From what I have seen, there was nothing referenced with respect to any attempt to access CPIC on the part of the constable. The only recommendation that stands out from that review is the recommendation to the Alberta government that police officers should no longer represent the Crown at bail hearings.
Senator Sinclair: That is a recommendation that goes back 30 years. It means the government will have to hire more Crown attorneys, and they're not likely to do that.
My question is this: Police officers clearly have access to CPIC, which is the Canadian Police Information Centre computer system. They would have had access to his criminal record, clearly, so the police officer would have been able to access it easily. Do we have any information as to why he didn't do that before he appeared for the Crown?
Senator Runciman: Perhaps Mr. Cooper, who represents that area, may have information that I do not.
Senator Sinclair: Do you know?
Mr. Cooper: I don't have further information.
Senator Runciman: I don't know if you were just given the transcript of the bail hearing.
Senator Sinclair: I was just given it, but of course I haven't have time to read it.
Senator Runciman: It's rather brief, and I think the briefness of it indicates the casualness of the approach taken during the hearing.
Senator Sinclair: Yes. It wouldn't disclose whether the police officer had access, unless he told the magistrate that he did look and he didn't see it.
Senator Runciman: There's no reference to that at all.
Senator Sinclair: The other question I have is this: As you say, the accused was on bail at the time he shot the police officers, yet there were numerous warrants for his arrest for failure to appear in court. Do you know how many warrants for his arrest had been issued?
Senator Runciman: I would have to look up the number. I can find it for you. It was a significant number.
Senator Sinclair: The media information I had said he was subject to at least 10 warrants for arrests. Does that sound right to you?
Senator Runciman: I think that sounds right.
Senator Sinclair: It seems to me that maybe the problem here is that there is still no proper warrant execution system in most jurisdictions in Canada. People who are released on bail, breach their bail and a warrant is issued for their arrest are not normally arrested through a warrant execution team; they are only arrested if a police officer happens to encounter them.
Senator Runciman: I think that's what happened in this instance. Constable Wynn was checking licence plates, which was a routine practice of his, and found there was an outstanding warrant with respect to the individual who was in the casino. That's when he and the auxiliary officer approached Mr. Rehn and the shooting occurred.
Senator Sinclair: Do you think it might be worthwhile for us to look at recommending changes to the code to require governments to establish warrant execution teams when warrants are issued?
Senator Runciman: I think it's worthwhile raising when we have the Canadian Association of Chiefs of Police appearing later.
Senator Sinclair: They themselves want one, but they want the resources for it.
Senator Runciman: They want the resources as well. I think it's worth exploring.
Senator Sinclair: Our colleague will probably be able to speak to that better than me, but I have heard that many times from police officers.
The other question I had is: If a hearing officer did have that information and yet exercised his discretion to release, could this situation still have occurred?
Senator Runciman: There is no question about that. One has to believe, given the history of Mr. Rehn — a criminal record as long as your arm, two bans on weapons — that if the justice of the peace made a release decision under those circumstances, with that knowledge, they would have been absolutely negligent in their duty. No question about it.
Senator Sinclair: As a judge, I know of many people with lengthy records who were released through consent of the Crown because some kind of a side deal was made somewhere, and it was never disclosed to the court. I was curious as to whether there was any information around here to suggest that that might have been the case with regard to Mr. Rehn. Do you have any information about that?
Senator Runciman: If you look at the transcript, it seems like, in terms of a deal, there was very brief conversation between the Crown representative and the defence attorney who was there via phone. It seemed that decision and that conversation was very brief in terms of reaching agreement on how they would approach it.
Senator Sinclair: Just one final question, sir, if you don't mind, and it has to do with the suggestion that this is not going to create a more onerous duty on the part of the prosecutors.
I'm a little concerned that if you make it mandatory for prosecutors to do this and they fail to do it, this could become a disciplinary issue for the prosecutor, or a potential employment default problem for the prosecutor. Are you concerned at all about the fact that you might be creating either legal liability, civil liability or even employment liability here?
Senator Runciman: No. I'm not concerned about that, because I know talking to, as I mentioned earlier, the chief JP in southwestern Ontario, who has been a JP for 14 or 15 years, he hasn't bumped into a situation where the Crown has not utilized the opportunity to make that information available to the justice or the judge sitting in the bail hearing.
I'm sure there are a lot of instances, if you look at the code, where if the prosecutor fails to proceed as directed, they could be subject to the kinds of proceedings you suggested. In this instance, a mistake like this, it's fair to say, can cost the life of a good man and a police officer that cared about his community. That's my primary worry, something like that happening again in the future.
Senator Sinclair: Ms. Wynn, I want to assure you of my deep condolence for your loss, and to your family as well. Thank you very much for being here.
Ms. Wynn: Thanks.
Senator Sinclair: Mr. Chair, I have to leave to take a picture with a young boy who won an essay writing contest about me.
The Deputy Chair: Thank you, Senator Sinclair.
We are going to have to try to shorten up our questions for the remainder of the hearing, but we will get to everybody who wishes to ask questions.
Senator McIntyre: Thank you all for your presentations.
Ms. Wynn, my warmest sympathy for the loss of your husband. It's such a tragic event; no question.
Senator Runciman and Mr. Cooper, congratulations for sponsoring this very important piece of legislation. That said, Senator Runciman, as you have explained, the bill does not interfere with judicial discretion. It is based on the principle that the judge should have access to proper information. That wasn't done in the Rehn case and, unfortunately, Constable Wynn paid for that mistake with his life. Once again, congratulations for bringing this bill forward.
Mr. Cooper, you're sponsoring this bill in the house. Have you had any feedback from the opposition parties as to whether or not they will support this important bill?
Mr. Cooper: I have had some informal conversations. The feedback I have received has generally been positive. I have no insight as to whether the government will support the bill or not.
Senator McIntyre: What stage has the bill reached in the house?
Mr. Cooper: It is going through the Senate first.
Senator McIntyre: In the Senate first.
Mr. Cooper: In the Senate first because of where I ended up in the lottery for private members' bills. We saw this as a way to get this legislation passed in a much more expeditious fashion.
The Deputy Chair: Given the successful history of Senator Runciman in introducing bills and getting them passed, this is the correct and fast method of getting legislation passed, in my opinion.
Senator Jaffer: Ms. Wynn, I want to also convey my condolences to you, your three sons and your husband's mother and sisters. When you go back, may I respectfully ask that you tell your sons that their mother represented them well, and we heard your message well. You're a very courageous woman.
Ms. Wynn: Thank you.
Senator Jaffer: Thank you for being here. Ms. Wynn, after this tragic event happened, were there and are there continuing to be services from the government to help you and your sons?
Ms. Wynn: Sorry?
Senator Jaffer: Continuing services to help you and your family. If you don't want to answer, that's fine.
Ms. Wynn: There were. This is a whole other separate issue.
Senator Jaffer: We will talk privately.
Senator Runciman and Mr. Cooper, thank you very much for introducing this bill.
Mr. Cooper, before I ask the questions, I want to publicly thank you for helping me unite a family in your region from the Congo.
Mr. Cooper, Senator Sinclair covered this, but from what I understood, it wasn't a prosecutor. It was in front of a JP. It was a police officer. I understand — I have done quite a bit of work on this — that even the accused, Mr. Rehn, was not in court that day. It was just the accused's lawyer who was there.
Do police officers still act as prosecutors in your region? I understand that Minister Ganley said we have to not only improve the system, but to avoid unintended consequences. I'm wondering if you have had conversations with the Government of Alberta, and what have they put in place, and what does she mean by "unintended consequences''?
Mr. Cooper: I think the answer to your first question is yes, that still occurs in the province of Alberta. There has been a recommendation from a review of it that it not occur.
I don't know the specific context in which Minister Ganley made that statement, but I think that if you review the transcript in this particular case, what we saw was a very casual approach to the bail application hearing, and as a result, corners were cut. Evidence that should have been brought to the attention of the justice of the peace was not, and ultimately, Shawn Rehn was let on the loose, with the lethal consequences that followed.
Senator Runciman: I believe Shawn Rehn was present.
Senator Jaffer: I have some material here. You have the transcripts of that.
Senator Runciman: Yes.
Senator Jaffer: Senator Runciman, I want to thank you once again for this bill. I have been looking at 515(10)(c) quite a bit. I know you have been looking at it and studying it more than I have. When I read 10(c), it basically just covers the present offence. It goes on about the gravity of the offence, the conviction.
From what I read, what you want to add to that is the past. I was wondering if you had given thought to whether there may be another place or another section, because what you are asking is about putting in the past record. I was wondering if this was the right place and why you chose this section to add this to.
Senator Runciman: We did consult on this, and somewhat comparable legislation had been introduced in the house during the last session. We consulted a former Alberta Crown attorney, and we relied on his advice with respect to where this should be incorporated in the proposed legislation.
Senator Jaffer: Thank you.
[Translation]
Senator Dagenais: Madam Wynn, may I extend my sincere condolences to you. I was myself a police officer for 39 years, and your testimony touched me deeply. When you put on your uniform before going to work, you cannot stop yourself from thinking that you might not come home at night. I was lucky I came home every night for 39 years. I lost colleagues at work, friends, and I understand your feelings. I cannot say any more; I am a bit emotional, I have to admit.
I have worked with the Canadian Police Information Centre, where we were always told that the individual we arrest is a file. A police officer's first reflex is to go to the suspect, to arrest him and then to check into things. I am sure that your spouse did his work as he was supposed to do it.
That said, my question is for Senator Runciman. Could the fact of linking a defendant to a previous case for which he is awaiting trial — and I will come back to the current issue — be considered a breach of the presumption of innocence? I would not go so far as to say that justice is permissive, but do the police not have the responsibility of providing the judges with certain tools?
Before giving you the floor, I want to congratulate you, Senator Runciman, for introducing this bill which I strongly support.
[English]
Senator Runciman: I guess that was a question to me with respect to presumption of innocence. A bail hearing is not a trial, and a Crown is allowed to introduce evidence that perhaps would fall under your concern, but I think in a bail hearing this is appropriate. They have the right to do this essentially now, and in most cases they do follow those guidelines. That's certainly been the test for me in terms of people I talk to with respect to providing this kind of information to the court.
This, as I said, is a very minor change. It's occurring, by and large, in every court. Every Crown is providing evidence. We have expanded it somewhat, but this is simply going to make it mandatory that this be delivered so that the justice who is making those decisions is fully aware of the implications.
Senator Joyal: I would like first, Ms. Wynn, to extend my personal condolences and sympathy for you and your family, for the plight that you have gone through and the difficulty you have to adjust to in the present circumstances.
My question is to Senator Runciman, and maybe Mr. Cooper. I understand that section 518 as presently drafted gives the judge capacity to determine. Section 518(1)(a) says the justice "may.'' So the justice has the initiative, as it is in (d), the justice may take into consideration. In (d.1), the justice may receive; (d.2), the justice shall take into consideration. That section is where he has an obligation, and then (e), the justice may receive. So the justice has only one obligation, which is (d.2):
the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence;
If I understand the way the section was conceived originally, the justice is faced with a situation and he may by himself take initiative to get additional information, except when there is a specific obligation to be concerned about the safety or security of the victim or witness to an offence.
That remains as is, but your bill proposes to change (c), that is, the responsibility of the prosecutor. Presently, the prosecutor may, as much as the judge. When you read the responsibility of the prosecutor, all these subparagraphs, (i), (ii) and following, are under the good judgment of the prosecutor. He is not compelled to report on any of the subparagraphs. He may or he may not, and he incurs no responsibility if does not.
Senator Runciman: Yes.
Senator Joyal: Because, as you stated, it's not an obligation.
You propose to make it a responsibility of the prosecutor to come to the justice of the peace or the magistrate and to report first on those facts.
Senator Runciman: That's right.
Senator Joyal: Then the magistrate would have no other choice than to look into those facts and appraise them in relation to his decision if the accused should be admissible to bail or not.
Did you have any representation made by a prosecutor that it would be better for the system, for the safety of the bail system, to have that kind of obligation that they would have to report on? Have you had any representation or been made aware of any representation that they are concerned by the fact that not all needed information would be made available to the justice of the peace, to your knowledge?
Senator Runciman: No, I haven't, no.
Senator Joyal: Nobody has ever drawn your attention to the fact that the system, because it has optional disclosures, in fact leaves an open door to a situation such as the one Ms. Wynn has been living? Is this the first time that somebody identified the loophole in this system?
Senator Runciman: To my knowledge.
Senator Joyal: Mr. Cooper?
Mr. Cooper: I would answer similarly to Senator Runciman. I have not received a direct representation.
Senator Joyal: Yes. Nor have you had any information made available to you that the magistrates have realized that they might sometimes take decision without all the information in front of them? They also have a responsibility, in a way. They have the direct responsibility in relation to the victim or witness, but somebody has to have the responsibility for the public.
Senator Runciman: I agree. We can't cover all the bases in this. When you read the bail transcript, I think there is some question about the whole process. We can be critical of the fact that the information wasn't laid before the justice, but the justice didn't pursue it either and didn't ask questions that many of us, if we were in that position, might have inquired about.
Senator Joyal: Of course. Yes. Because any reasonable person in the position of a magistrate has to appraise the obligation that he has to perform under the system. But he also has a general responsibility, even though it's not stated in section 518. A magistrate has a responsibility, certainly, to make sure that he doesn't release somebody who could be a public danger.
Senator Runciman: If you read the bail transcript, at the outset, the JP is saying, "Mr. Rehn, you come before me with eight new charges and warrants for your arrest on seven criminal matters.'' That's right there in front of her — not to mention the history of this individual.
Senator Joyal: That should have rung a bell to any reasonable person.
Senator Runciman: Absolutely.
Senator Joyal: I totally support your bill; no doubt about that. But I wonder if the system is efficient enough to cover the responsibility, or to reassess the responsibility, of the magistrate in the circumstances, even though, as you said, we're not in trial.
Senator Runciman: I've wondered about this for years, and we were going to have people who can talk about CPIC and access to CPIC, but we talked about the Ontario system in terms of getting away from a paper-driven justice system. There has really been no success in that regard. However, it seems to me that there should be a system where the judge should have a computer in front of him, and when the individual appears, they simply look it up and there it is, sitting right in front of them.
Why that sort of thing hasn't occurred — I'm talking about integrated justice in Ontario. We're going back 15 or 16 years. There's been very little progress and millions of dollars spent.
There are all kinds of challenges within the system itself in terms of appropriate and timely communication.
The Deputy Chair: As we move forward, let us keep our questions and answers short.
Senator Joyal: I learned from you.
The Deputy Chair: I have learned from the chair to try to keep things in order, although, because we started late, we will run over a few minutes.
Senator Plett: First of all, Mr. Cooper and Senator Runciman, I also want to thank you for bringing this tremendously important piece of legislation forward.
Ms. Wynn, thank you for being here and baring your soul. My condolences. Ms. Wynn, you mentioned your husband being adventurous and starting a new career in his mid-30s. My son joined the Calgary Fire Department at the age of 35 or 36 — a similar spirit, I guess. But thank you very much for being here.
I just have a couple of comments and a very brief question. I want to just simply express my opinion on the question that Senator Sinclair posed about whether you are concerned about the prosecutors being liable if they don't fulfill their mandate. I certainly am not. I believe that if they fulfill their mandate and do what they need to do, then they will be not held liable; they will simply be doing their job. So that is how I feel.
I believe the bail hearings are much too fast because of the lack of information being brought forward. You go in and out of a bail hearing in 15 or 20 minutes or half an hour. As we see here, you're out in the street, and you are able to go and continue your life of crime.
Mr. Cooper, are you concerned that if prosecutors do their job, that they will be held legally liable for anything? All they need to do is what they are asked to do as per this legislation.
Mr. Cooper: I couldn't have said it better myself, Senator Plett. I concur fully that it is really the duty of the Crown to bring forward this type of evidence, which is relevant and material, in order to make it a determination as to whether the individual is suitable for bail under section 515 and the test set out therein.
Senator White: Thank you to the witnesses and my condolences, ma'am.
Senator Runciman, in essence, we are trying to put into policy and practice a new list of expectations — or at least that everybody understands the rules that we expect Crowns to follow. That's really all we're doing.
To be fair, in hundreds of communities across this country, RCMP, SQ, OPP officers and municipal officers are actually performing the function of a Crown. Very few of them are legally trained in the sense of a lawyer, and most of them have done this and have the short list of things they follow.
My perspective — and correct me if I'm wrong — is that we just want to make sure we're not missing something and that we are putting all the information before the magistrate, not just the information that we think we have on the individual. That's all we're asking, is it not?
Senator Runciman: That's right. In most instances, that occurs. That's certainly been what we have heard since I've been involved in this. I don't see that as a difficult challenge.
I don't know if this occurs currently. My uncle was a police officer in Brockville. He later became the deputy chief and then a magistrate, when you didn't have to be a lawyer to be a magistrate and a provincial judge. Too bad those days are gone.
Senator White: Another discussion.
Senator Runciman: In any event, they had court officers at the municipal level who conducted first-appearance bail hearings and other matters as well.
But having this check list, if you will — these are the things you do when you are appearing. It becomes matter of fact that this is your assignment for the week, day or month, and that's the sort of thing you do every day when you make your appearances. It's straightforward.
Senator White: To follow on that, I can tell you that I'm sure, in this case, the police officer who handled the bail case feels that he or she missed something, and this would have been an opportunity. It's also a checklist that the magistrate can follow and say, "You haven't brought this forward. Is there anything?'' Creating a safeguard on the system is all we're trying to do here.
Senator Runciman: Good point.
The Deputy Chair: We have time for two very quick second rounds. I would like to just ask one question of Senator Runciman — to back up his argument and whether he agrees with me. In the Criminal Code, before you get to subsection 515(10), which is the section dealing with the detention of an accused being justified, there is subsection 515(9.1) of the Criminal Code. It states:
. . . if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
How are you supposed to know somebody has a criminal record and make that judgment unless you have a requirement that the criminal record of the person be presented to the judge? So that's another reason.
I often wondered, why, if you had that (9.1) and if somebody has previous convictions, and that's the reason why the judge is going to hold that person and not release them on bail, and the judge has got to put it in writing — how on Earth does a judge get the criminal record of the accused if the Crown prosecutor or the police officer does not present that record?
So it's another justification for your bill.
Senator Runciman: Thank you. And, sitting around this table, you'd think it would be a matter of fact for the justice to ask that question as well. There is no question about it.
The Deputy Chair: Exactly. Keeping in mind that, under normal circumstances, you look at your case law, and the record, the previous convictions and whether somebody has violated a condition of a previous release, and that is always considered by the court in bail hearings. It's just in these unusual circumstances of this case, and possibly others to come, that you're closing that loophole.
Senator Jaffer: This not so much a question. Senator Runciman, in the report on Shawn Rehn done by the Alberta Crown, they set out that on both dates, the lawyer appeared on his own and a warrant or hold was issued. The judges ordered a warrant because the accused had not shown up. That's just another record —
Senator Runciman: Another record of failing to appear, yes.
Senator Joyal: The chair has illustrated a point I was trying to make in my first questions. What are the responsibilities of the justice of the peace? In some circumstances, he has no choice but to look into the record of the person, so it seems clear there is an obligation at the point when the judge orders the detention.
I don't think you will be surprised to get the usual question, Senator Runciman. Do you have any perception or doubt that your amendment impinges on the presumption of innocence of the person?
Senator Runciman: No. I did discuss that earlier with Senator Dagenais, and it's a bail hearing, not a trial. Prosecutors are able to introduce quite a range of information about the accused and the circumstances that bring that individual before the court. I don't see it in that vein at all. I don't see it as jeopardizing the question of innocence or guilt.
Senator Joyal: You know the corollary, to avoid that there be a Charter challenge on the presumption that we all know is protected by the Charter.
Senator Runciman: This evidence is routinely delivered. The legislation is saying you must deliver it. We do not know in how many instances this doesn't occur, how casual these bail hearings are in some circumstances and fortunately haven't had the tragic results we've seen with Dave Wynn.
I certainly support Senator White's view of having a checklist. This is the sort of thing that should be routine for both the sitting judge and the prosecutor.
The Deputy Chair: Thank you, witnesses, for your very excellent presentations in support of this bill.
Continuing our consideration of Bill S-217, An Act to amend the Criminal Code (detention in custody), our witnesses for this next segment are David Truax, Superintendent of the Ontario Provincial Police; Rae Banwarie, President of the Mounted Police Professional Association of Canada. He is joining us by video conference from Surrey, B.C. We have John Muise, Director and Public Safety, Canadian Centre for Abuse Awareness. We also have before the committee two legal counsel, first for the Royal Newfoundland Constabulary, Rachel Huntsman; and Legal Counsel for the Ottawa Police Service, Lara Malachenko.
We will begin our hearings with a statement from Mr. Truax.
David Truax, Superintendent, Ontario Provincial Police, Canadian Association of Chiefs of Police: Thank you. First, on behalf of the Canadian Association of Chiefs of Police, I'd like to offer our most sincere condolences and sympathies to Constable Wynn's spouse, family, friends and police colleagues across the country.
We are here today as representatives of the Law Amendments Committee of the Canadian Association of Chiefs of Police, and we are speaking on behalf of the president, Chief Clive Weighill, as well as members of the CACP.
Police officers discharge their obligations with professionalism and dedication in often dangerous situations for their lives, as demonstrated by the tragic events in St. Albert in January of 2015. In this context, those who commit crimes repeatedly or do not comply with their conditions of release often pose a significant safety risk to the public and to the police officers called upon to interact with them.
In order to deal with these people according to the law, the various stakeholders of the criminal justice system must have the relevant information before them when deciding their provisional release, remembering that the purpose of a bail hearing is to apply the criteria set out in section 515(10) to the facts of the accused's case.
Bill S-217 proposes, in particular, to strengthen the rules of the Criminal Code to make sure that offenders whose detention is necessary will not be released for lack of information about them. Our presentation will address issues that directly concern police work, namely the changes proposed by clause 2 of the bill, which refers to paragraph 518(1)(c) of the Criminal Code.
We support the objective of this measure. However, we wish to draw the attention of honourable senators to some unexpected impacts of this change and proposed legislative alternatives that would achieve the desired objective without compromising public safety or increase the delays that overwhelm our system of criminal justice, as the CACP has already discussed before this committee earlier this year.
The Alberta report prepared by Nancy Irving in February of 2016 devotes several pages about what should be in the contents of the bail packages prepared by police agencies and how best to ensure the information's accuracy and availability. The report underscores how CPIC material is outdated and how difficult it is to obtain information from other provinces or jurisdictions.
The Alberta report recommends that police and prosecution services explore opportunities to increase information- sharing among the provincial jurisdictions, including information on criminal convictions, outstanding charges and release orders.
Public safety can be put at risk in the absence of complete and accurate records. The need for quick access to accurate records is perhaps the most important in the arrest, release and bail stages.
It is important to note that delays do exist between a conviction being rendered in court and details being accessible through CPIC. Additional information relating to outstanding charges where the individual is awaiting trial may be available through other law enforcement databanks, local police records or local court records.
I will now get into the specifics of Bill S-217.
Imposing a duty on the prosecutor to present evidence concerning criminal record, pending charges, failure to comply with a bail condition or to attend court when required is a way to ensure that the police, the prosecutor and the judge shall give such circumstances the attention and importance required.
Apart from the question concerning the obligation to produce evidence, which we will return to in a moment, the bill provides that the prosecutor should establish the fact that the accused has a criminal record, pending cases, breach of conditions or failures to appear in court.
With respect to the proposed amendment under section 518(1)(c), the obligation to provide or lead evidence requires further discussion and contemplation, we suggest. We would therefore seek further clarification in terms of what this specifically entails.
With the added wording of "the prosecutor shall. . . lead evidence to prove the fact. . . .'' in paragraphs (i) to (iii) and (v), it is unclear as to what the prosecutor is being required to do in order to lead this evidence. For example, will they be required to call evidence through the investigating officer? Will affidavit evidence now be considered? Or will the introduction of a criminal record, along with any other information regarding the circumstances surrounding previous and current allegations, suffice?
If these amendments contemplate the Crown leading evidence and proving the facts akin to a trial as opposed to obtaining relevant documentation from the police and presenting it to the court — for example, by reading in this information — it is conceivable that this evidentiary requirement may significantly lengthen bail hearings, with further added pressure on police resources, and create further adjournments that could prove to be counterproductive in a system that is already strained and operating at full capacity.
Presumably, these requirements will apply in consent release situations as well. The proposed prosecutor's obligation to produce such evidence will fundamentally alter the way that bail hearings are conducted. It may lengthen bail hearings, necessitate additional adjournments and mean more time in remand and more police resources. It will also, no doubt, create added pressures on police resources if in fact police officers are going to be required to testify at every bail hearing and be required to put together more detailed briefs sooner.
In addition, it's important to consider that the current evidentiary burden at the bail hearing stage is a standard of balance of probabilities, and elevating the criteria to prove a fact can conceivably raise the burden. For example, the rules of evidence, such as hearsay, are more relaxed at the bail hearing stage than at trial, but imposing a requirement to prove a fact may suddenly create a higher standard of proof and can, in effect, impact issues of admissibility.
Section 518 of the Criminal Code sets out the nature of the inquiries and the types of evidence that can be called at the bail hearing. This section not only sets out the evidence that the prosecutor may lead but also permits the justice to make such inquiries of the accused as he or she considers desirable. By permitting the justice to make inquiries, we submit that section 518 imposes a shared responsibility on both the prosecutor and the justice to ensure that all relevant and necessary evidence is led when deciding the issue of detention or release of the accused.
While it's important to highlight what evidence the prosecutor can lead, we submit that it is equally desirable to legislate that the justice is also permitted to make these same inquiries of the accused. After all, under certain circumstances, the accused is arguably in the best position to speak, under oath if requested, to his or her criminal record, outstanding charges and failures to appear.
We propose an amendment to section 518(1)(a) that would follow the essence of 518(1)(c) in that the section should specifically set out that the justice is permitted to question the accused on his or her criminal record, outstanding charges and failures to appear, along with any other inquiries that the justice considers desirable. By specifically setting out these inquiries, we submit that these important circumstances would be considered by the presiding justice when he or she is making the decision to hold or release the accused.
Upon consideration of these issues, we propose that this shared approach be contemplated to enable the police to continue to assist the Crown by obtaining and providing the prosecutor with relevant information, where reasonably possible, and that inquiries be made on the part of the justice to allow a more complete analysis of the situation before them. Such a joint, collaborative approach may assist towards positive change and avoiding tragic outcomes in the future.
Because of the constraints that we've previously discussed and the objectives of Bill S-217, we believe that legislative amendments would be useful to highlight the need to benefit from the fullest possible information concerning the accused's criminal record, pending criminal charges and failure to comply with conditions or attend court.
Secondly, these measures should be feasible and consistent with the proper administration of justice to ensure their effectiveness and sustainability in the interests of the safety of all Canadians.
Lastly, we offer sincere thanks to this committee for allowing the Canadian Association of Chiefs of Police the opportunity to offer comments and suggestions on Bill S-217.
The Deputy Chair: Thank you, Mr. Truax. I let you go over time because what you were suggesting was very interesting. You had a suggested amendment to the bill relating to the fact that you're suggesting the judge can initiate a conversation with the accused to determine the accused's previous record. Could you give us a copy of that suggested amendment?
We will go to our second witness, the Mounted Police Professional Association of Canada, by video conference, Rae Banwarie, President.
Rae Banwarie, President, Mounted Police Professional Association of Canada: Good morning, honourable members of the Senate committee, fellow attendees, MP Cooper and Ms. Wynn. Our condolences to your family. I was in St. Albert in March of this year doing follow-up work in regard to the tragedy that happened last year to try to find and put measures in place to assist our members in that area and in that detachment.
I am Rae Banwarie, President of the Mounted Police Professional Association of Canada, and I am a current serving member of the RCMP.
Thank you for the opportunity to address the committee today regarding Bill S-217, which we believe is a very important piece of legislation.
The Mounted Police Professional Association of Canada is a national, not-for-profit police association and is comprised of regular serving members of the Royal Canadian Mounted Police in every region of the country. I am here to express MPPAC's support of Bill S-217. We see Bill S-217 providing judges and justices of the peace with all relevant information when making bail decisions and resulting in more protection of officers and improved public safety nationwide.
Impetus for this bill introduced by Senator Runciman was the tragic killing of our member, RCMP Constable David Wynn, in St. Albert, Alberta, in 2015. We're pleased that Senator Runciman and MP Cooper are providing leadership in this situation.
The events surrounding Constable Wynne's murder have been highly publicized, and as a fellow RCMP member, I believe they warrant repeating today. Constable Wynn's untimely death was at the hands of career criminal. Shawn Rehn. Mr. Rehn was out on bail at the time of the murder, despite outstanding arrest warrants relating to 29 Criminal Code charges arising from four different offence dates. Mr. Rehn's criminal record contained significant charges and 55 convictions, including convictions for violent crimes and failing to appear.
Mr. Rehn was granted bail in September 2014, four months before Constable Wynn's death. At the bail hearing, Mr. Rehn's lengthy criminal record and consistent pattern of ignoring bail orders was brought to the court's attention but no application to cancel his bail was sought under 524(4) of the Criminal Code. After Mr. Rehn's release, he failed to appear in court and, on January 17, 2015, he killed Constable Wynn.
Constable Wynn left behind a wife and three sons. The loss of our brother is still felt today by many of us and fellow police officers nationwide.
It's always tragic to lose a fellow RCMP member or any member of any police agency in this country. In Constable Wynn's case, the tragedy is compounded by the possibility that his death could have been prevented had the justice of the peace been given a more comprehensive review of Mr. Rehn's criminal record, failure to attend court and outstanding criminal charges.
MPPAC supports Bill S-217 because it would ensure that all relevant information is placed before a judge or a justice of the peace, giving him an opportunity to consider the full facts and make an informed decision that is in the best interests of both the public and all police officers, including the RCMP.
Bill S-217 requires a prosecutor to lead evidence of all an accused's criminal record, his or her failure to attend court, to obey past court orders and other outstanding criminal charges, giving our decision makers a comprehensive, detailed overview of all the information they need to make informed decisions on the bail or release conditions.
As an RCMP officer who has been in the force for 19 years, I witness countless occasions of offenders reoffending or breaching bail or their other conditions.
As front-line RCMP officers, we execute our duties by arresting reoffenders and informing appropriate agencies, whether it's parole or probation officers, of every arrest and every breach of probation conditions. This is one of the many requirements of our job. Whether this information is brought before the court rests with Crown counsel.
If an accused's criminal record, failure to attend court, disobedience of court orders or outstanding criminal charges are never brought to the attention of the court, these serious matters cannot be taken into account when deciding whether or not to grant bail or release the offender on conditions of bail, et cetera. This puts both the public and every police officer at risk.
Bill S-217 would guarantee that this critical information is brought before the court in any of the aforementioned occurrences.
This bill would also expand the grounds for the justification of detention in custody, and include the fact that the accused has failed to appear in court in the past and that she or he has previously been convicted of a criminal offence or has outstanding criminal charges.
Ultimately, we see Bill S-217 as a win for every police agency across Canada, for victims impacted by crime and for improving public safety nationwide. Thank you.
The Deputy Chair: Thank you for your testimony.
We now go to John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness.
John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness: Thank you, honourable senators.
Good morning. My name is John Muise. I am the volunteer Director of Public Safety at the Canadian Centre for Abuse Awareness, a charitable NGO that is dedicated to the eradication of child abuse. The CCAA provides support for survivors and victims of abuse, and it does not accept government funding.
My professional experience is relevant to the topic at hand, so I will note it briefly. I was a police officer with the Toronto Police Service for 30 years, and this included six years seconded to the Ontario government's office for the victims of crime, an arm's-length advisory agency providing policy advice to members of cabinet.
After retiring from the police service in 2006, I joined the CCAA initially in the same capacity as I appear today. In 2009, I was appointed to the Parole Board of Canada as a full-time board member, and during my five-year term I adjudicated numerous parole decisions for offenders serving penitentiary sentences. All of these decisions involved a detailed risk assessment. This experience is particularly relevant to the discussion of this bill.
The CCAA supports passage of this bill. That's why I took the time to come here in person. It is good, targeted legislation that would address a shortcoming in the current law by providing clear expectations for the Crown and court.
I would like to address some possible areas of concern you may have.
Number one, the first section of the bill's summary, subsection (a), reads as follows:
This enactment amends the Criminal Code to
(a) expand the grounds for the justification of detention in custody;
In our view, this is actually an overstatement of its reach. The proposed legislation, in our view, does nothing more than require the Crown to enter evidence relevant to a pretrial release and for the court to consider it. We believe it does not expand the grounds. This is the kind of evidence that has been used for years to decide pretrial release. During your clause-by-clause consideration, you may want to consider changing the word "expand'' to "clarify'' or to remove the section altogether.
Number 2: As you know, section 518(1)(c) includes a wording change from "may'' to "shall.'' There may be concern that this removes prosecutorial discretion. However, in my opinion, at this point in the criminal justice system process, the Crown's duty is clear: to provide the best, most easily attainable evidence about an offender's risk as it relates to the primary, secondary and tertiary grounds to hold somebody.
It's hard to argue that criminal history, current charges, commission of a section 145 offence — like escape custody, unlawfully at large, fail to appear and fail to comply with release conditions — aren't relevant and essential to an assessment of risk. Discretion still lies with the court, after taking into consideration all of the information above that was provided by the Crown.
When I reviewed offender files at the federal parole board — and I looked at literally thousands during my tenure — what did I first look at? It was the same document each and every time: the criminal record, commonly called the FPS sheet. What did I drill down for in that FPS sheet? The length, density and diversity of the criminal history and the existence of so-called administrative entries: offences such as fail to appear and fail to comply with conditions. This is risk assessment 101. Previous bad behaviour is a very good predictor of future similar behaviour, and these administrative entries — they are criminal offences, actually — are essential to good decision making, whether it be by the Parole Board or a court in deciding pretrial release.
Let's talk about the case this bill arises from: the senseless murder of an RCMP officer in Alberta. I'm told the offender was out on more than one release or bail and that he had a long, dense and diverse criminal history, including section 145 entries. That suggests an ongoing offence cycle.
Had the Crown been required to provide this kind of essential information — "Your Honour, here is the criminal record; Your Honour, here is the CPIC printout'' — and the court was able to consider it, I believe it's very possible the decision made that day might have been different.
Number 3, I know court delays are a concern for this committee and other parliamentarians. As you know, there is a report entitled Justice Delayed: Unclogging Canada's Courts on the Senate's website. In our view, this proposed legislation would not create any further delay. The FPS sheet — the criminal record — and the CPIC printout, which shows outstanding charges and other pertinent information, such as "this guy is a high-risk offender,'' are both keystrokes away. Many courthouses have police satellite offices equipped with CPIC access. Failing that, small-town Crown is a phone call away to the local cops. Any delays should be measured in minutes. I hope this helps to address some concerns you might have.
Before I conclude, the CCAA suggests one additional amendment in addition to the amendment to the summary. Section 515(10)(c) should include a specific reference to section 145 to sync it with the wording in 518(1)(c). This may have been an oversight when the bill was previously introduced. As you know, section 145 encompasses a variety of offences — escape custody, unlawfully at large and fail to comply with release conditions — not just failing to appear.
In closing, the CCAA believes this bill is a protective measure that will enhance public safety. There is nothing, in our view, that is punitive about it. Public safety should trump expediency. As I stated regarding the tragic Alberta case, had this proposed legislation been in place, the outcome might have been different.
Senator Runciman and MP Cooper, thank you for introducing this bill. And to all of you, thank you for allowing me to speak on behalf of the CCAA. This bill deserves all-party and independent member support. If the CCAA can assist in any way going forward, we will. I look forward to answering any questions you have. Thank you.
The Deputy Chair: Thank you, sir; and thank you to the other presenters as well.
We'll start our questioning with the sponsor of the bill, Senator Runciman.
Senator Runciman: Thank you very much. I have a couple of quick questions for Superintendent Truax.
I was surprised by the submission. I think your organization has read a lot into the change of one word, essentially. I believe this bill is asking the prosecutors and the Crown to do what they already do. From the research I have done and the people I have talked to, by and large, this is the sort of information that prosecutors already provide. We know that in the tragic case of Dave Wynn, that's one instance where it did not occur. We don't know how many others are similar.
I see this as a rather modest change, and you've been reading into it all sorts of implications with respect to delays, police overtime and those sorts of things. I have great difficulty with that. Crowns have been introducing evidence of previous records and outstanding charges for decades. This simply ensures that they do introduce that information, which they are already allowed to do. I am having great difficulty with your submission here.
Mr. Truax: If I may respond, senator, with all due respect, the Canadian Association of Chiefs of Police just wants to raise these particular issues for the members of the committee. I can assure you that the law enforcement agencies across this country will fulfill their duties and provide to the prosecutor any and all information available to them. We believe that making some minor changes in the wording — such as "the justice may'' to become "the justice shall'' — can bring positive impacts in relation to ensuring that all relevant information is considered, in the interest of the safety of all Canadians.
Senator Runciman: I can tell you, from my experience on this committee, that once you enter into the field of interference, if you will, of judicial discretion, it raises all sorts of challenges, to say the least. I think we were trying to proceed here in a way that addressed, certainly, the Wynn tragedy, and to do it in a way where we could have change and we could have support across the political spectrum, if you will. I appreciate what you're saying, but that would be, to say the least, more challenging for me, as the individual sponsoring the legislation.
I have a question for Mr. Muise. You talked about the section 145 offences.
Mr. Muise: Yes.
Senator Runciman: I know that is something we did look at. Do you have the bill with you?
Mr. Muise: I do, yes.
Senator Runciman: If you look at clause 1, it reads: "the fact that the accused has previously been convicted of a criminal offence or has been charged with and is awaiting trial for another criminal offence; . . .'' The fact that the accused has previously been convicted of a criminal offence would, in my view, cover all offences in the Criminal Code, including section 145.
Mr. Muise: You're right. I agree, absolutely. Because it had been mentioned in 518(1)(c), I felt it bore repeating for emphasis.
Senator Runciman: You don't think it's critical to the —
Mr. Muise: No, I don't. If it stood, it would still be a quality bill, in our estimation. At the end of the day, if you have to provide the criminal record, then, yes, the court is going to get section 145 entries on that record, presuming that record is up to date. So, no, it's not a critical impediment. Having said that, if it was in, it would just sync it with 518(1)(c). I leave that to all of you during your clause-by-clause consideration.
Senator Runciman: Going back to Superintendent Truax and this whole issue of providing this information during a bail hearing, I know you have served for many years. How often in your experience or your knowledge, in any event, would this kind of information be withheld?
Mr. Truax: I wouldn't be able to provide you a percentage or specific statistics. Obviously the availability of up-to- date, accurate information is imperative. Obviously in a digital age, with a network across the country in relation to information being available, I think it's extremely important that the information be readily available and up to date in order to ensure that all relevant factors are taken into consideration by both the police and the Crown, as well as the presiding justice.
The Deputy Chair: Thank you. It's really surprising, Mr. Truax, that it's not available. I thought it was. Perhaps the police representatives on this committee — Senator Dagenais when we get to him — can tell us just what is available on the police computer and why it's not coordinated across the country.
Senator Jaffer: My first question is to you, Mr. Banwarie. Except for in Alberta, are police officers used to represent the prosecutors in the courthouse? I had never heard of that in B.C. Do you know of any other places where men you represent appear in the courthouse as prosecutors or representatives?
Mr. Banwarie: I believe it's the same for Manitoba. When I first got to West Shore, which was my first detachment outside of Victoria on Vancouver Island, on the weekends, we actually had a justice of the peace who would come to our detachment, and we would hold a hearing right then and there. Then it went to the provincial JJP centre where you had to phone in and do it by telephone. I do know in some areas, and other smaller detachments in the Prairie provinces, they do act as Crown and hold the bail hearing with regard to the case.
Senator Jaffer: Thank you. Superintendent Truax, when I was studying this bill, my biggest problem was not so much with the bill but the resources that are available to do this. That is really true for everything, but here more so than anywhere else. I read the Attorney General's report where he says for a new record to come in place it takes 27 days and updating a record of a person takes 334 days.
I don't want to get into the discussion of how many days it takes. The concern is that CPIC, which we have been discussing, is not current and it takes a long time to update things. There is no place the information is held that you can rely on, unless that person has just been in that province. Maybe you can give me more information.
Mr. Truax: The CPIC system, senator, would be the source of information that Canadian law enforcement agencies would go back to time and time again. Having that being accurate and up to date is absolutely imperative, especially as people are mobile across the country on any given day. It's important to be able to be aware of anything happening in another jurisdiction, per se.
I can't speak specifically in relation to the operation of the CPIC system. I'm not personally involved, nor is my police agency involved in that.
Senator Jaffer: However, in your experience, is it updated frequently, or do you know?
Mr. Truax: I would reference you back, if possible, to the report from Alberta, prepared by Nancy Irving, where the Alberta report points out a number of concerns in relation to the CPIC system.
Senator Jaffer: What pages?
Mr. Truax: It would be the top of page 67.
The Deputy Chair: Could you read a short portion of it, Mr. Truax?
Mr. Truax: Yes.
It is Canada's only national criminal-record database, containing information submitted by law enforcement agencies across the country. CPIC is supposed to provide those agencies with fast and easy access to a person's complete criminal record, wherever in the country the crimes occurred. Unfortunately, much of the information in CPIC is out of date, and has been for some time.
Senator Jaffer: Thank you. Mr. Muise, I was looking at your website and read that your organization works with residential school survivors. The media has started saying that prisons are the new residential schools. There are very large numbers of indigenous people in the prisons, almost 23 per cent. When I heard your presentation, I was surprised because of what I had seen on your website, your concerns about discrimination against people, especially bail applications.
Mr. Muise: The best way I can answer that is our position on this bill is that the best and easily available information that allows a court to make a decision about risk is given and that it shall be done. That's what this bill is about. Notwithstanding the residential system and the issues associated with the matters you have raised, a court needs to have basic, relevant information, and the Crown shall provide it. That's really where we're coming from. So notwithstanding the other issues, we help abuse survivors, and we know some of them are incarcerated too; but for us, this is about making sure that the court gets the very simple information that it needs: criminal record and a CPIC printout.
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Senator Dagenais: My question is addressed to Mr. Truax. Mr. Truax, you know that having police officers attend court is expensive, and police forces have budgets for that. We know that in remote areas, police officers may testify using the new technologies. In cities, they have to go to court. Have you thought of a new way of doing things so as to allow police officers to appear in court and deliver their testimony without necessarily having to be there physically, through video conferencing, for instance? This would also facilitate the work of police officers.
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Mr. Truax: It's imperative that we take advantage of technology. We do video remands today. Those pieces of technology are used to stop people from being mobilized and having to physically attend court. From my own career in remote locations in northeastern Ontario, having that ability to provide that evidence via video — most locations, many police agencies have that type of technology in place — will reduce the amount of required resources.
The other piece is maybe there is some type of affidavit or a statement that can be filed electronically as well, where that can be transmitted and brought before the bail hearing. That can be done, as you know, instantaneously with the press of a send button on the screen.
The video evidence piece I think is important for police resources, especially where they are not situated next door to the courthouse, for instance, and then as well being able to provide some kind of an electronic affidavit.
Senator Batters: Thanks very much, everyone, for being here. First of all, Mr. Banwarie, thank you for your support of this important legislation, and particularly because you and people in your association are obviously the ones who are on the ground. You see what actually happens at these bail hearings every single day. You know how quickly these bail hearings can happen. I saw that too when I was a practising trial lawyer, and I know that sometimes they are over very, very quickly. Would you agree that's part of the reason for the rationale here, to make sure that a mandatory step is in place? That way, when those bail hearings take place in a brief time frame, that step is not forgotten in haste?
Mr. Banwarie: Yes, and I'm very happy to see the impetus for the bill to ensure that the Crown gets the mandatory information. In all the prosecutions I have ever done, that was tombstone data. You always attached the criminal record. You always attached the other bits. That became the basis for whether they would be released, remanded or remanded with conditions. It's paramount. This is just a check, a solid piece of proposed legislation that will ensure the prosecutor or the justice or whoever it may be has that information. It is important, and it will prevent a lot of potential harm that could happen. In our member's case, he lost his life.
Senator Batters: Yes.
Mr. Banwarie: I go back to the situation that has been talked about. Had he been remanded, our member probably would be alive today.
Senator Batters: Absolutely.
Mr. Banwarie: Anything that can protect our people and our members nationwide for every police agency is a good thing.
Senator Batters: Further to Senator Jaffer when she earlier wondered about where police act as Crown, I have seen that happen in my province of Saskatchewan as well. I've been in some those courtrooms in small cities and towns in Saskatchewan where that happens on certain occasions.
Superintendent Truax, I have to say that I agree with Senator Runciman's earlier comments to you. I too view this as a modest change that basically puts in place, in a mandatory way, what already exists generally in order to ensure that it happens. With the proposed amendment that you're talking about, I saw a possible concern not only with potential interference with judicial discretion or the appearance that that could happen, but also with potential increased concerns by defence council that this might interfere with presumption of innocence. Would that be a potential concern given what you want to bring to this bill?
Mr. Truax: I agree with the concerns that you raised as well. The messaging that the Canadian Association of Chiefs of Police is providing today is certainly to reiterate and emphasize that we are supportive of the measures being put forward. We do want to raise some particular impacts that should be considered as well. Obviously, there will be legal debate in relation to utilizing the word "shall'' versus "may.'' As you know, legal counsel can spend an entire afternoon debating those particular issues. That may come up as a result of the changes in the bill as well.
The other piece that we would like to emphasize is that all relevant information be considered. There are times potentially when the Crown prosecutor may not raise the information, and then we're saying, well, another step above that may be having the presiding justice make the inquiry.
Senator Batters: Earlier you were speaking about some of your concerns, such as potential increased remand time. I'm sure you will concur with this, because you see this, particularly in this tragic case. There is a massive cost to society and to families like Shelley Wynn's when tragedies like this happen. If we can take a small but important step to try to prevent something like that, it's worthwhile.
Mr. Truax: We certainly don't oppose remands or extended bail hearings in order to ensure that public safety is being addressed.
Senator Batters: Of course, yes.
[Translation]
Senator Boisvenu: I thank our witnesses for having agreed to appear before our committee regarding the safety of police officers. I am very concerned by the reliability of the data contained in CPIC, the Canadian Police Information Centre, QPIC, the Quebec Police Information Centre, and in the dangerous sexual offenders database.
In Quebec, 30 per cent of sexual predators who were convicted do not appear in this file. Even CPIC experiences delays in recording data. Like in the gun registry, the information contained in this database is not 100 per cent reliable. Police officers have to be vigilant since the data is not always up to date, which fact can endanger their lives. It is a matter of priority in my opinion that we put together all necessary resources to ensure that the databases are up to date. The safety of police officers depends on it.
There are three court levels that serve Canada: the superior court, the provincial court and the municipal court. In large cities like Montreal, Quebec, Vancouver and Toronto, more and more criminal cases are being heard at the municipal court level rather than in superior court or provincial court, such as sexual assault cases and shoplifting cases. I was surprised to learn that the data in Juristat on criminality in Canada does not contain municipal court convictions. Are persons charged with conjugal violence in municipal court in Toronto or Montreal entered into the CIPC database, or does it only contain convictions issued by superior courts and provincial ones?
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Lara Malachenko, Legal Counsel, Ottawa Police Service, Mounted Police Professional Association of Canada: With respect to entries, I am not in a position to comment on what specifically is entered into the CPIC records. Normally that information would be readily available, depending on the jurisdiction, with the local police. In terms of what is entered into CPIC, you would need to defer to the RCMP to obtain that specific information.
[Translation]
Senator Boisvenu: In one murder case, the judge had to make a decision, but he did not have in hand the data from the Montreal municipal court on the seven or eight prior convictions of the accused, because the systems do not communicate amongst themselves. The judge was surprised when he learned that he did not have the information on the prior convictions of the accused; the defendant was accused of murdering his wife. An increasing number of criminal cases are sent to municipal court because the data is not entered into all of the systems. This situation has to be looked at very seriously. The safety of police officers is in jeopardy if the data from municipal and provincial courts are not entered into CPIC. This whole situation is beyond me. What do you think about that?
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Ms. Malachenko: It goes back to figuring out a way for better information sharing and ensuring that everything is entered into CPIC so it becomes more up-to-date than is currently the case. It varies from jurisdiction to jurisdiction in terms of what information is readily available. What might be available in Ontario may not be available in Alberta. It's so that every province can collaborate to be able to obtain that information so that it's accessible; so that the police can better assist the Crown at the time because they have all the information; and so that it gets before the court.
[Translation]
Senator Boisvenu: In my opinion, if we leave it up to the 10 largest municipalities to choose to record criminal convictions or not, we are simply endangering the lives of police officers.
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Ms. Malachenko: My colleague, Ms. Huntsman, indicates that she may be able to speak to the issue.
Rachel Huntsman, Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police: I'm not personally familiar with the municipal courts that you refer to because in the Province of Newfoundland and Labrador we have the provincial court and the Supreme Court.
My understanding with respect to how convictions are entered into CPIC is that it's not determined by which level of court the matter is heard in. It's determined by the classification of the offence. If the offender is charged with an indictable offence, and an indictable offence includes hybrid offenses, such as assaults and shopliftings, then if that offender is convicted, then that will be entered into CPIC.
When we actually receive the record is anyone's guess because we know that there is a delay, but ultimately, that conviction will be entered onto CPIC. A Crown in Newfoundland and Labrador, when they appear before the court, will have a copy of the CPIC in their file. If that offender has been convicted of any domestic violence offence or shoplifting, then that should be appearing on the CPIC record.
Senator Boisvenu: Should.
Ms. Huntsman: I would say that, in Newfoundland and Labrador, it will, because those matters are directed to CPIC because they are indictable offences, and they will appear on CPIC once the RCMP enters them.
The Deputy Chair: Thank you, Ms. Huntsman, and I know Ms. Huntsman is very experienced. She used to be a Crown attorney in that province. I looked at case law recently. She's cited in over 50 cases prior to her present position.
Mr. Muise, you wanted to add a comment to the discussion.
Mr. Muise: Yes, I think there is a little bit of confusion here. CPIC is the system. There are a number of things you can get on CPIC, but there are two essential things that are done on a regular basis. One is obtaining that criminal record, what I referred to in my presentation as the FPS sheet. FPS means fingerprint sheet. If somebody is convicted of a criminal offence for which fingerprints weren't taken by a policing agency, it's not going on the FPS sheet. So, in and of itself, the FPS sheet may or may not have everything on it.
The CPIC printout really, for the most part has charged with this, on a warrant for this, the Toronto cops would like to talk to him for this. There are a number of things, but it doesn't say on there convictions per se.
There are local conviction sheets, MTP records, with lesser convictions. There are provincial databases, the PARIS system, that might be called something else today, where you might see some impaireds, along with running red lights and speeding.
It's complicated, but there is all of that plus the delays in entering or, I guess, potentially not entering at all on either of these systems.
The Deputy Chair: And there are various systems right across Canada; there are various electronic systems with police officers. The person who would know all about that is, of course, the former Deputy Commissioner of the RCMP, former police officer, former head of the Ottawa Police, Senator White, who I'm going to call on now to see if he has any questions or comments to make.
Mr. Muise: I hope he won't correct me.
Senator White: My question, I guess, is to the superintendent. I appreciate the explanation because, in reality, of 198 police agencies in this country right now, we have requirements, but we do not have national standards about how we progress the information we collect.
If I may, superintendent, wouldn't you agree that — and this almost has nothing to do with this legislation — the challenge we're having right now is that we don't have national standards on hiring; we don't have national standards on police agencies; we don't have national standards on ensuring that the information must be updated within so many days. Whether it's brass from a shooting, we don't have a national standard. That's really the issue that we're talking about, and we're beating around the bush. The Government of Canada needs to step forward and put forward a national standard on a number of areas, including the collection and submission of this information. Isn't that correct?
Mr. Truax: I agree with your thoughts, Senator White. It's my understanding that there isn't any legislative authority that compels contributing agencies to make updates to the CPIC system within X number of days, for instance. I think that's important because that may be seen by some agencies in this country as maybe less important, but, as we have experienced in the case of Constable Wynn, not having an updated system, not having all of that information available, becomes a great challenge for our justice system to be able to make a proper risk assessment in relation to release or other conditions or even detention. That's important.
There are potentially agencies that could be behind, as you have suggested, Senator White, 30, 40, 50, 60 days or more in providing those updated records to the CPIC system.
Senator White: When Public Safety Canada came into play in 2003, the expectation was that we were going to take that next step in policing in Canada and start operating, although individually, as one when it came to a number of areas, and some of those areas would be information sharing, information gathering and updating of systems.
We have the greatest system in the world, by the way, CPIC, one of the only countries in the world that has all of our fingerprints and all of our criminal records in one place. But it's useless if it's not up to date. That's one of our challenges.
This legislation is a great piece of legislation, but I'm still fearful that a constable or a Crown prosecutor, sitting in front of a magistrate, is going to state, "There is nothing on the system, Your Honour.'' They're going to be correct, but they're going to be wrong. Isn't that true?
Mr. Truax: I think what you're suggesting, senator, is that there is an opportunity for our country, with a population of 33 million, to make sure that we are networked, from coast to coast, with the most accurate and up-to- date information. As the country gets larger, as the population increases, that information becomes even more key.
Senator White: Thanks for your evidence today.
The Deputy Chair: Thank you for the presenters here today. I really wasn't surprised, Senator Runciman, with the presentation of Mr. Truax. He did a comprehensive job and went right down the road as to what the possible ramifications could be and beyond that, and it's something for us to think about in the future. I want to thank him for being so comprehensive. That's what our committees need, not just a blush thing, and you did an excellent job. So did the other two presenters. Thank you very much.
We're now going to continue to clause-by-clause. If you wish to stay, you can. If you don't, you can leave.
As everybody understands, this then goes to third reading, at which time amendments could be suggested in the Senate chamber, and then, of course, it goes to the House of Commons.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-217, An Act to amend the Criminal Code (detention in custody)?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 3 —
Senator White: Have we already done clause 3?
The Deputy Chair: Pardon?
Senator Runciman: I was going to recommend that we vote against clause 3.
The Deputy Chair: Okay. Senator Runciman, you're going to have to tell us why because I agree with clause 3, but you go ahead.
Senator Runciman: I did explain my reasoning. I agree with clause 3, too —
The Deputy Chair: No, you didn't explain your reasoning. I'm sorry; you didn't.
Senator Runciman: Well, I thought I did. My reasoning, Mr. Chair, was that the question of constitutionality was raised. We confirmed with the Crown who advised us and the law clerk that that wasn't a legitimate concern, but, in my view, it could muddy the waters with respect to the real intent of the legislation, which is to address the circumstances surrounding Constable Wynn's murder. We know this is just step one in the legislative process, and I felt that, by removing it, we would eliminate the possibility of problems down the road. Perhaps we can deal with this in another way.
I also felt that my legislation was introduced before the Supreme Court decision related to this issue. In terms of that particular area, I think the ground doesn't look too promising with respect to changes going forward. So I feel that it's the safest thing to do, if you will, Mr. Chair, to remove that clause.
The Deputy Chair: Thank you. I disagree with you because the Supreme Court of Canada did not remove that entire clause. They only removed six words in it. I suppose, though, as you say, it might muddy the waters, and some persons who didn't read the Supreme Court of Canada decision some three months ago would probably raise objections and delay the passage of this legislation.
Senator Runciman: It raises the issue of future attitude. That, I guess, is of concern.
The Deputy Chair: Shall clause 3 carry? That's the question.
Senator Runciman says no; everyone else says no. Clause 3 has been negated; it's been defeated.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the bill carry, as amended?
Hon. Senators: Agreed.
The Deputy Chair: The bill carries as amended. Does the committee wish to consider appending observations to the report?
Senator White: I'm wondering if, in light of the testimony today, we might want to bring forward an observation to the Government of Canada, in particular the Minister of Public Safety, to complete a review on CPIC, the Canadian Police Information Centre, in particular in relation to timeliness. It's one thing to be 48 or 72 hours behind, but in 2005 CPIC reported to me and the RCMP and we were months behind. I'm not sure we have seen improvement over the last decade.
Senator Jaffer: I understand for a new record it takes 27 days and to update an old record is 334 days.
Senator Runciman: I support the observation.
I want to put on the record that the CPIC update issue is not an issue related to the Wynn murder. The accused had a record as long as your arm going back years and years. If it hadn't been updated in the last three or six months, it would not have had any relevance with respect to the matter of this bill.
The Deputy Chair: Is it agreed that we attach observations, which can be drawn up from the discussions we've had here to be checked with the chair of the committee after consultation with other committee members?
Senator Jaffer: Steering.
Hon. Senators: Agreed.
The Deputy Chair: Steering will make the final decision, quickly?
Hon. Senators: Agreed.
The Deputy Chair: We will have observations.
Is it agreed that I report this bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The Deputy Chair: Agreed. Thank you, senators.
(The committee adjourned.)