THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 4, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to study Bill C-48, An Act to amend the Criminal Code (bail reform).
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Good evening, senators.
I am Brent Cotter, Senator from Saskatchewan and chair of this committee. I invite my colleagues to introduce themselves, beginning with the deputy chair.
[Translation]
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator D. Patterson: Dennis Patterson, Nunavut.
[Translation]
Senator Dalphond: I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
[English]
Senator Klyne: Good afternoon, welcome to our guests. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Clement: Good afternoon and welcome. I am Bernadette Clement from Ontario.
Senator Dupuis: Welcome to the witnesses. I am Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec.
[English]
Senator Pate: Kim Pate. Welcome to all of you. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Jaffer: Welcome, Mobina Jaffer, British Columbia.
The Chair: Honourable senators, we are meeting to continue our study of Bill C-48, An Act to amend the Criminal Code (bail reform).
Appearing on our first panel, we are pleased to welcome from the Canadian Bar Association, Melanie J. Webb, Counsel and Secretary, Criminal Justice; from the Canadian Civil Liberties Association, Shakir Rahim, Director, Criminal Justice Program; and from the Barbra Schlifer Commemorative Clinic, by video conference, Deepa Mattoo, Executive Director.
We have received submissions from each of these three organizations. We have received and circulated the two — from the Canadian Bar Association and from the Barbra Schlifer Commemorative Clinic. The Canadian Civil Liberties Association’s brief has been received, but it is in English and it will be translated and given to committee members no later than Tuesday, October 10, well in advance of our further deliberations.
Thank you for your opening marks. Following that, we will proceed with questions from members. Each of you have five minutes.
Melanie J. Webb, Counsel and Secretary, Criminal Justice, Canadian Bar Association: Good afternoon. Thank you for the opportunity to appear before you on this bill.
The Canadian Bar Association, or CBA, represents approximately 37,000 lawyers, students, academics and jurists across Canada. The Criminal Justice Section is made up of a balance of Crown and defence counsel from across the country, and many of our members also represent and provide advice to complainants and families of victims of crime. I am Secretary for the CBA Criminal Justice Section, and I have been a criminal trial and appellate lawyer for over 15 years.
In our written submissions, the CBA has outlined three discrete concerns with this bill. First, the expansion of the reverse onus for intimate partner violence, or IPV, offences to include those who have also been “discharged” of an IPV offence conflicts with the Criminal Records Act for offenders whose records should be purged after the retention periods prescribed by law. We also believe this expansion will have no real practical effect, as it applies to bail hearings for accused who are within the retention period.
Second, the addition of a reverse onus for individuals who have been previously convicted in the past five years of another violent offence where the maximum term of imprisonment is 10 years or more may capture a broad spectrum of conduct that goes well beyond the serious repeat offenders whom this legislation targets.
And, finally, the inclusion of section 95 possession offences may capture individuals who have no real connection to the firearm at issue and would unfairly burden these individuals with an onus to show why they should be released.
Overall, we are concerned that some of the proposed amendments may lead to prolonged litigation in bail courts, longer bail delays and an increased strain on an overburdened criminal justice system. Moreover, more cases could be stayed for not being dealt with in a timely manner.
We also anticipate that these amendments would have a direct effect on provincial remand centres, namely, increasing the population of the jails, which are already over capacity in many areas. We say this because there will be more people kept in custody for longer periods of time while awaiting their bail hearing.
We also underscore that even brief periods of pretrial detention can have dramatic negative consequences for an individual over and beyond the normal stress that comes with being charged. That is to say, even a few days or a week in detention can cause a person to lose their job, to lose their housing, to have difficulty supporting their family if they have one and can potentially lead to the breakdown of important relationships. This can create a downward spiral and may lead that person to commit further acts out of desperation, stress and emotional turmoil.
For those detained in custody, the provincial remand centres are not places of rehabilitation. Inmates do not receive meaningful access to sufficient programming while awaiting trial. In fact, as at least one other speaker has noted to you, jail can make a person much more dangerous when they leave as compared to when they first came in. Marginalized populations are often most likely to be the ones with prior criminal antecedents, which may itself stem from systemic factors of discrimination and intergenerational trauma, in the case of Indigenous persons. Persons struggling with mental health, addiction and poverty are often caught in a cycle of arrest, incarceration, release and re-arrest, without their underlying problems being addressed.
Overall, the CBA shares the concern that these amendments too will have a disproportionate impact on these marginalized populations. We recommend that this bill be studied further and urge that it not be fast-tracked.
Simply put, legislating more reverse onuses does not address the root cause of the problem that was the impetus for this legislation. It will not lead to a reduction in violent crime. The Crown already has sufficient tools in their tool box to argue for the detention of those for whom it is justified.
For an effective approach to the prevention of crime, there must be sufficient investment in social services, bail supports, safe shelters and affordable housing. A greater focus should be turned to curing the social ills that plague us rather than adding more language to the code that will not fix the problem.
Thank you once again, and I would be pleased to address any questions you may have.
The Chair: Thank you, Ms. Webb.
Shakir Rahim, Director, Criminal Justice Program, Canadian Civil Liberties Association: Good afternoon. By way of introduction, I am a lawyer and Director of the Criminal Justice Program at the Canadian Civil Liberties Association, or CCLA. I will speak today about the reality of the bail system in Canada and the CCLA’s two recommended amendments to Bill C-48.
In 1976, Parliament introduced the first reverse onus on bail. Gary T. Trotter, author of the leading text The Law of Bail in Canada and now a justice of the Court of Appeal for Ontario, wrote the following about the debate in Parliament:
Both in the House of Commons and during the proceedings of the Standing Committee on Justice and Legal Affairs, there were calls for an empirical foundation to justify the proposed changes. As the Department of Justice had foregone an earlier opportunity to have the functioning of the Bail Reform Act evaluated . . . the government was forced to rely upon anecdotes and speculation.
Forty-six years later, and the government still has not gathered any evidence that reverse onuses enhance public safety. But what do we know?
We know that bail is being denied at record levels. In 1981, 21% of those held in provincial and territorial prisons were in pretrial detention; in 2001, 41%; last year, 71%.
We know that judges have described conditions in provincial and territorial prisons — and these are their words — as “dire,” “appalling,” “overcrowded,” “harsh” and “notorious.” Any human being would want to get out of a place like that as soon as possible, especially if they face a lengthy delay before trial. The innocent are under tremendous pressure to plead guilty. This threatens the presumption of innocence.
As a unanimous Supreme Court of Canada wrote in the first paragraph of their 2017 decision in R. v. Antic:
The right not to be denied reasonable bail without just cause . . . entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process . . . .
For these reasons, the CCLA does not support the introduction of any reverse onus provisions. However, there are two amendments we recommend to address the most significant shortcomings in Bill C-48.
First, the CCLA recommends that a justice be required to make a statement in the record of proceedings of how they considered section 493.2 of the Criminal Code. This section of the code requires a justice to consider the particular circumstances of Indigenous and other overrepresented groups who are disadvantaged in obtaining bail. However, section 493.2 is not often considered by justices, despite it being a requirement to do so. This amendment would ensure justices proactively and meaningfully give effect to what is already the law. It is also fully in line with the preamble of Bill C-48, which states certain groups are disadvantaged in obtaining bail and overrepresented in the criminal justice system.
The CCLA also supports any amendment that would state that Black persons are overrepresented and disadvantaged in obtaining release as part of these provisions.
Second, we recommend an amendment that would remove the intimate partner violence discharge reverse onus. You have heard from many groups on this point, and the CCLA endorses their testimony.
If there was ever a bill that required sober second thought, it is one that pressures the innocent to plead guilty, exacerbates the overrepresentation of Indigenous, Black and other vulnerable groups in the criminal justice system, and does so even though we do not know whether it will accomplish any of its purported benefits.
That concludes my opening statement. Thank you.
The Chair: Thank you, Mr. Rahim.
Deepa Mattoo, Executive Director, Barbra Schlifer Commemorative Clinic: Thank you, honourable chair and senators. I am Deepa Mattoo, lawyer and Executive Director of the Barbra Schlifer Commemorative Clinic. I am very honoured to speak to you today about Bill C-48.
The clinic is a violence-against-survivors clinic, and we offer trauma-informed legal services and representation, counselling, multilingual interpretation and system transformation to support women and gender-diverse people who have experienced violence.
The clinic has already submitted a joint brief to this committee on Bill C-48 in collaboration with the Canadian Association of Elizabeth Fry Societies, or CAEFS; Luke’s Place; and Women’s Legal Education & Action Fund, also known as LEAF.
My comments today are truly a reflection of our work rooted on the foundations of intersectionality and a trauma-informed and client-centred approach. I will cover four points in my opening remarks: impact of the proposed changes on the survivors of gender-based violence, impact on marginalized communities, current conditions of the system, and then I will conclude with a recommendation for evidence-based law reform.
I will start with survivors. These changes will not end gender-based violence or make survivors of intimate partner violence safer. In contrast, it is likely to lead to an increased criminalization of marginalized communities, including survivors. Expanding the reverse onus provision to apply to an accused person who has previously received an absolute or conditional discharge for intimate partner violence deepens the criminalization for both perpetrators and victims of IPV. It also fails to recognize the significant overlap between those who are both perpetrators and victims themselves. Expanding the use of reverse onus in this regard risks further criminalizing and incarcerating women who are themselves victims of domestic violence and are disproportionately Indigenous, Black and racialized.
In our experience, increasingly, police forces have adopted mandatory charging practices when responding to complaints of domestic violence. Police charging practices have meant that, over time, “A disproportionate number of women who were reporting violence against them, found themselves facing criminal charges.” The clinic has dedicated services and programs for this population, and we admit five to six new clients for this program every week.
Based on our experience on how the police proceed on complaints of domestic violence, we strongly urge caution in further expanding the scope of reverse onus to these kinds of offences.
Moving on to the impact on marginalized communities, the proposed expansion of the reverse onus provision would cause the most harm to the members of marginalized communities, including Black and Indigenous women, who are more likely both to have experienced intimate partner violence and to face criminalization.
In our experience, it is important to understand that the criminal justice system simply cannot accurately predict, let alone eliminate, risk. Attempts to do so will not work and will result in discrimination against marginalized groups, particularly Indigenous and gender-diverse people, including the folks with precarious immigration status, who are already overrepresented in the criminal justice system.
The system is biased against racialized individuals and people with precarious immigration status. We are concerned that their time in detention means they cannot meet the conditions required to maintain their status, like pursuing work, education or training. If they eventually receive a discharge or have their charges dropped, they would still have had their capacity to continue with their status or apply for the next stage of their immigration process completely disrupted, or a chance taken away from them.
Regarding the current conditions of the system, we very well know that the large number of individuals in pretrial detention — as per Statistics Canada’s 2022 report, approximately 44% of all individuals incarcerated in federal, provincial and territorial institutions in 2021-22 were in pretrial detention — results in an already overwhelmed system that subjects those who become incarcerated to harmful and deplorable conditions. Individuals are experiencing warehouse-style conditions in pretrial custody, along with significant deprivation to environment, family, health and any opportunities of rehabilitation or support. All of that is completely lacking in any kind of pretrial custody.
It is our humble submission that any broad reforms made to Canada’s bail system need to rely on an evidence-based approach. Any changes should also consider and be responsive to and compatible with related necessary infrastructure. This includes the funding of appropriate research, funding of community supports and access to justice and social services so as to disrupt the larger relationship between incarceration, mental health, addiction, discrimination, poverty, immigration status issues and social disadvantages.
I would lastly say that there is need for a complete impact assessment of Bill C-48’s potential unintended consequences and for implementation of an external, independent evaluation of Canada’s bail system.
Thank you again for inviting us to speak on this important day of October 4, which marks the National Day of Action for Missing and Murdered Indigenous Women, Girls, and Two-Spirit People in Canada. Thank you.
The Chair: Thanks to all three of you for the discipline in your opening statements; it’s much appreciated. We will now turn to members of the committee, beginning with the deputy chair, Senator Boisvenu.
[Translation]
Senator Boisvenu: Welcome to the witnesses.
My first question is for Ms. Webb. Recently a man by the name of Randall McKenzie with an extensive criminal record killed a police officer while out on bail. In the past year, a number of police officers have been killed in similar circumstances.
Don’t you think Bill C-48 protects society by really targeting dangerous men like these?
[English]
Ms. Webb: Thank you for that question, senator. Unfortunately, these tragic events are very difficult to comment on in terms of the specifics.
I appreciate that the intent of this legislation is to try and address a problem that the public has perceived. The spate of violent incidents that the public has seen in the media, tragic shootings and killings of police officers — these are obviously issues of concern. However, our concern is that this bill will not really have any practical effect in terms of changing that kind of conduct. I appreciate that was the intent, but to really prevent this kind of incident from happening, there needs to be a focus on getting to the root of this kind of conduct. That means looking at assisting people who are in crisis, people who are suffering from mental illness and addictions. I can’t speak to the perpetrator, unfortunately, in that particular incident as to what his circumstances are.
I appreciate the intent to try and tighten up, as you will, some of the firearms-related offences. However, practically speaking, any time there is a bail hearing involving a gun, a firearm, whether it is a Crown onus or a reverse onus, it is always going to be an uphill battle for that person to be released. Practically speaking, we don’t think this bill will actually have that much in the way of meaningful effect in terms of preventing those kinds of incidents. Thank you.
[Translation]
Senator Boisvenu: Ms. Mattoo, 118 women were killed in Canada in 2019. In 2022, the figure was 184, a 60% increase. In many cases, they were killed by men with assault records who were released pending trial.
The purpose of this bill is to save lives. If we can’t keep these men incarcerated because they pose a serious risk to the safety of their former spouses, what do you recommend to keep women who have reported their spouses safe?
[English]
Ms. Mattoo: Thank you for the question, senator. I absolutely appreciate the fact that there are so many women affected. In fact, the femicide rate in Ontario, where I come from, is so high that we almost lose a woman a day. I completely appreciate what you are saying, but at the same time, the challenge is that, in most cases, when men — or perpetrators, I should say — are released on bail with any kind of conditions imposed on them because of any kind of preventive order, they are out in the society without any support or without any programming.
That’s the crux of the problem — the lack of social support for the people at risk and the lack of social support for the people who should be in some kind of rehabilitative programs while they are waiting for trial, for example, or while they are waiting to be seen by the courts and the justice system.
Unfortunately, we see time and again that when women go —
[Translation]
Senator Boisvenu: Ms. Mattoo, I realize that almost no programs and services for these men exist, but until they do, how do we protect the women who are going to be killed?
[English]
Ms. Mattoo: Thank you for asking the follow-up question. There needs to be proper programming with a proper risk assessment for all parties involved. Instead of keeping people in our system, where there is no programming and no support, a proper risk assessment of all the parties involved is needed. All the parties involved need to get proper supports in place. That’s what is lacking in the system.
As I said in my opening statement, the criminal justice system has no risk assessment at any stage engaged in making sure that the offences are not repeated. It is so focused on the fact that we need to create deterrence that we forget that the basic tenet of the criminal justice system is reform, and that’s what is lacking in the system currently.
The Chair: Thank you very much.
Senator Dalphond: First, I want to thank all the witnesses. Their contributions are extremely valuable. My questions will be to the three witnesses, really. They are short questions, but I would like to follow up a bit on what was said at the previous meeting by, I believe, Mr. Boris Bytensky with the Criminal Lawyers’ Association. He said, yes, there is a reverse onus, but, in practice, it won’t really change the reality of what is happening in the court house, in the courtroom, in the cases that are already more or less in a kind of reverse onus situation; it would just be formally codified.
At the end of your answer to Senator Boisvenu, you said something similar. You referred to the fact that it won’t reach the objective, and it won’t change much. Are you in agreement then? Will this bill be impactful in results? You are doubtful. But in practice, during the bail hearings, will this bill substantially change the practice?
Ms. Webb: Yes. While we maintain that, particularly when it comes to firearm offences, reverse onuses really have little practical effect on the ultimate outcome — that is to say whether someone is detained or released — I will say that they do tend to influence the position taken on a bail hearing, and that is by the Crown, as to whether or not they will consent or contest a release. Ultimately, that leads to the issue as to whether a bail hearing will be contested. That leads into our concern that what this will end up doing is having more reverse onuses, whether it’s for firearms or what have you, and will result in more contested hearings, and that will essentially clog up the bail courts, for lack of a better phrase.
In terms of firearm offences, as I indicated to Senator Boisvenu, unfortunately, I really don’t think that it makes any material difference whether it’s a Crown onus or a reverse onus. There are many examples every day across the country of individuals who are detained on a Crown onus offence, not only for firearm offences but for all kinds of offences.
It’s not as if having a reverse onus is a magic wand; you wave it and, ultimately, that means they are necessarily going to be detained. Every case, of course, is unique. There are also cases where there is reverse onus and the individual might very well be released. So, ultimately, I’m not sure that it really makes much difference, specifically for firearm offences, in terms of whether or not someone will be detained or released.
Mr. Rahim: It is argued that it will make it more difficult to obtain bail. In the comments provided by Mr. Bytensky, as well as Ms. Webb just now, it’s almost talking about a different route to the same issue of it being more difficult to obtain bail because of the Crown’s position, because of a contested hearing, because of the lack of resources.
Although different people may have different views about how we get to the same conclusion, the ultimate conclusion is that the introduction of reverse onus provisions will lead to more difficulties in the bail system.
I would also mention that Professor Martin Friedland has written an excellent article called “The Bail Reform Act Revisited,” and he had been the impetus behind that act in the 1970s. In that article, he does conclude that, in his view, one of the most significant contributors to the rise of pretrial detention are reverse onus provisions.
Senator Dalphond: Ms. Mattoo, please?
Ms. Mattoo: I do believe that the system will become more clogged up. I also believe that it’s not true to say that nothing would change. What practically would not change is that the crisis in the system is not that the bail system is very lax. I think the crisis is that the system is delayed. It is discriminatory against racialized populations, including the survivors of violence, and these changes will just further complicate the situation and further create delays in the system.
I don’t think it won’t make any difference. I did not hear the earlier testimony, I apologize for that, but it’s my understanding that it will definitely clog up the system.
Senator Jaffer: Thank you to all three of you for being here. You all had very interesting presentations, and I appreciate them.
I am very focused on the discharge provisions for intimate partner violence. I am a lawyer and I have done many discharge applications. I have never known any judge giving bail to anyone where violence is involved. So, first of all, I don’t know why this is here.
I want to start with you, Mr. Rahim. What are your thoughts on clause 1(4) of Bill C-48, where the government is introducing reverse onus against those who have received a discharge for intimate partner violence? Is this the first time a reverse onus is set against someone who hasn’t served a sentence, and what are the implications of this change?
From what I was saying earlier, I wouldn’t even think of applying for a discharge where violence or a weapon has been involved. I think that’s a non-starter. That’s why I’m very confused about the discharge provisions.
Mr. Rahim: Thank you for the question. It is correct that this is the first time a reverse onus provision is introduced for someone only with a discharge. We echo, primarily, the concern around Indigenous women being criminalized because of the practice of dual charging. Thus far, both government and police witnesses have recognized that that practice exists.
We are also concerned about the constitutionality of this provision. You heard the Minister of Justice speak to Pearson and Morales and those cases justifying that a reverse onus provision could be constitutional, but there is guidance in those decisions that a reverse onus has to be restricted to a narrow set of circumstances, that it cannot be overbroad and, therefore, beyond its objective.
In our view, extending the reverse onus provision with respect to discharges to such a broad range of individuals and broad range of situations runs perilously close to and, in fact, does violate that guidance regarding the constitutionality of those provisions.
Ms. Webb: I can indicate that, certainly in my experience, it’s actually not that uncommon for defence counsel to seek a discharge for a crime of violence, but I will say that it is certainly challenging to attain a discharge. You typically have to work very hard to get it. Discharges are typically given to first offenders, and there is a lot of upfront work that is done. It is not something that is handed out like candy.
In terms of the implications of this bill, if we include, for example, a reverse onus for people who have been discharged for intimate partner violence, first of all, we have the concern that there’s a conflict with the Criminal Records Act, but, second, I should just point out there’s absolutely nothing, as it stands today in any regular bail court, that prevents the Crown from referring to this, whether it’s a reverse onus or not. But if the person was recently given a conditional discharge in the last three years or was absolutely discharged in the last one year, I can’t imagine that the Crown, if they knew that, would not bring that to the attention of the presiding justice.
It’s absolutely common sense that that will be undeniably relevant to the judicial officer. That’s the case whether it’s a Crown onus or reverse onus. That’s why I say I don’t know that it’s going to have that much practical effect in terms of whether or not there’s a reverse onus. We note that, typically, discharges are not imposed for serious criminal offences. Certainly for an assault with a weapon, it’s very challenging to obtain a discharge for that but not unheard of. It has happened in the case law.
Senator Jaffer: Ms. Mattoo, could you just give a quick answer, please?
Ms. Mattoo: I absolutely agree. The discharge or findings of guilt without conviction are granted only for minor offences where the courts find that a discharge is not contrary to the public interest. Therefore, I am in agreement that the proposed legislation would make release more difficult for individuals with a history of least serious domestic charges and would not advance the important goal of this legislation, which is trying to limit the pretrial release.
From my location, I am, of course, more concerned that this expanded use of reverse onus will risk and criminalize and incarcerate women who themselves are survivors of control in situations of domestic violence and are, most of the time, Indigenous, Black and racialized women.
Thank you.
Senator Batters: Thank you very much to all of you for being here today and for your important testimony. My question is to Ms. Mattoo from the Barbra Schlifer Commemorative Clinic.
When you were speaking earlier, I noted on your website that you had a quote there. You were speaking earlier about proper programming being one option that you thought was important for these types of cases.
On your website’s home page, there’s a quote from you. It says:
On the background of lost life, it is easy to see how the gender-based violence crisis is like a virus that has been eating away at the rights of women for centuries, causing loss of dignity and death.
Obviously, that’s a highly important issue for you and people in your clinic, yet you are not in favour of the reverse onus as being one of the potentially strict measures that many of us would contend is necessary to ensure the safety of women against domestic violence here.
One thing I’m wondering is what about the reverse onus that was put into place with Bill C-75 a few years ago for second offences involving intimate partner violence. It was introduced in that bill a few years ago. Do you think that reverse onus improved the safety of victims of intimate partner violence or not?
Ms. Mattoo: First of all, yes, absolutely. The lives of the women and lives of the survivors are definitely the goal that we work for every day.
My testimony or my opening statement may be a little bit complex to understand because, as I said, it is rooted in the experience of intersectionality and the fact that the system currently — the way it is designed or is being executed — is charging the same people it was designed to protect. We are seeing a lot more women and gender-diverse people from racialized and marginalized communities being charged in the system while they are experiencing coercive control and violence themselves.
Coming back to why we don’t know what is happening with the Bill C-75 changes is we don’t have the impact assessments done. That’s why in my opening statement I had said that any law reform is not good enough if we have not done a proper impact assessment of what this will do, and if we have not really gone back and checked what impact it had.
I can’t speak to whether those changes have had any positive impact or not because we haven’t had any study done. I know that, as part of a joint submission we had submitted, currently what happens is that any bill that comes into shape or form, the time period to go back and look into and studies that are done — there is a huge time gap. There is no ongoing tracking of what is going on.
Unfortunately, the challenges that I’m sharing with all of you are around discrimination in the system and around the experiences of the marginalized communities, and that includes survivors. The same changes which are made to protect them actually end up criminalizing them in the system, and that’s what the challenge is that I’m sharing. Thank you.
Senator Batters: I’m not sure if you had the opportunity to watch the justice minister’s testimony in front of our committee last week, but one thing that I was asking him about was this data. I know that it’s just potential because it’s reverse onus, but how many potential offenders would this bill potentially apply to? Basically, he was saying that he didn’t have enough data to be able to give us any numbers, and that was confirmed by the officials.
Then when I also asked him about the Gender-based Analysis Plus, they didn’t have that yet either, so I don’t think we still have that in front of our committee, but it’s always more helpful. These are the types of data points and information that you’re speaking about that can properly inform our study of this bill and make sure that we’re trying to help women. We’re trying to help people in these marginalized communities, but we don’t even know if this bill will help, which the government says it will.
The Chair: I think there was a question in that, Ms. Mattoo, and I guess I’m inviting you to agree with Senator Batters.
Ms. Mattoo: I absolutely agree. Thank you.
Senator Clement: Thank you, all three of you, for your testimony and your careers, quite frankly. It’s helpful. Thank you, Ms. Webb, for closing your opening statement with the need for proper social support investments. That’s most important.
I want to ask Mr. Rahim a question about the recommended amendment around section 493.2. I find it very compelling. You indicate that there hasn’t been much uptake or there hasn’t been a consideration of that. First, can you speak to why, and then go into more detail around what that amendment would look like specifically?
Second, you mentioned that Black persons are not explicitly referenced there, so can you dive a little bit deeper there in terms of that reference?
Mr. Rahim: Certainly. With respect to section 493.2 of the code, an instructive answer as to why it is not being considered can be found in how the Gladue jurisprudence, for example, unfolded for many years. That’s, of course, the jurisprudence that requires consideration of circumstances of Indigenous persons in sentencing. Time and again it was found that courts failed to give that proper effect. I think that occurs for a myriad of reasons, including that these are significant shifts to how the criminal justice system operates — taking into account these considerations.
We did a search of how many times that provision had been cited. It was about 21 cases since enactment, which isn’t a whole lot when you consider how many bail decisions are made. We found cases where justices were found to have erred because they failed to apply that provision. There is an excellent quote from a case talking about Gladue, and the case talks about how it’s not enough to just say that you’ve considered something. You have to explain how you have considered it. That amendment would go a long way to doing that.
Sorry, could you just repeat briefly your second question? The exclusion of Black and —
Senator Clement: Yes.
Mr. Rahim: I think that’s an omission. Our courts have quite clearly recognized — most recently the Court of Appeal for Ontario in R. v. Morris, the Supreme Court as well in R. v. Le — that Black people are overrepresented. In our view, as also expressed before this committee, that has to be specifically identified in the statute.
Senator Clement: Thank you, Mr. Rahim.
Ms. Mattoo, I found your exchange with Senator Batters to be very interesting. We did hear witnesses say that there was a lack of evidence, yet they were confident that this would not be a problem in terms of Bill C-48.
You ended your opening statement by saying you wanted to see the impact review. Could you talk more about that and what that would look like? Are you talking about completing it on Bill C-75, or are you talking about doing an impact review before we even consider Bill C-48?
Ms. Mattoo: I am suggesting that even before we make any changes, or this committee decides to make any decision on this bill, that there should be a proper impact review done on what these changes are expected to do, what the impetus behind it is and how it will impact the communities.
In theory, if someone comes to anyone who works with gender-based violence or anyone who has experience with gender-based violence and says, “We are going to keep people for more time in jail; do you think it will help?,” anyone would say, “Sure, it will help.” But the reality is that when a system is broken to a point where folks who should be getting protection are getting charged, when there is dual charging happening, or there is charging of the racialized survivors themselves — and as I said in my opening statement, we see five to six new survivors every week at our clinic — clearly, there needs to be an impact assessment of what is happening in our system with the mandatory charging and how it is being applied.
Unfortunately, the intentions could be right, but the environment and the infrastructure need to be appropriate to bring about any of those changes. Unfortunately, the way the system, our jails and our remand homes are currently, I’m not necessarily 100% sure that a change like this has actually gone through an impact assessment for the communities.
Senator Clement: Thank you.
Senator Pate: Thank you to all of you. I echo Senator Clement’s comments. Thank you for the work you do every day and have done for many years.
I want to focus a bit more specifically. A number of people have mentioned Mr. Bytensky’s appearance. I want to talk about the number of people who are self-represented or represented by duty counsel who have huge caseloads, sometimes legal aid lawyers who also have huge caseloads, people living with mental health issues, past abuse issues, poverty-related issues. You have all spoken about this quite a bit, but I’d like you to expand on what this means in terms of the responsibility placed on legal counsel, defence counsel in all of those kinds of conditions versus the resources available to the Crown in these circumstances. How realistic is it to argue that due process will still exist within these provisions?
Maybe you could answer in the order you presented: Ms. Webb, Mr. Rahim and then Ms. Mattoo from the Barbra Schlifer Commemorative Clinic.
Ms. Webb: Thank you. Well, it is interesting because in my first year of practice, I actually was staff duty counsel, and it was an eye-opening experience as to just how much work they actually do. It’s no secret, of course, that there have been budget cuts to legal aid. However, at least for Ontario, there has been some improvement in that regard. I’m not here to talk about that.
What I will say is that legal aid lawyers or duty counsel certainly are shouldering massive workloads, frankly, already. The bail court as it is — I can speak for Toronto, for example — apparently, they run quite late. I’m at the stage of my practice where I typically don’t do a bail hearing every day, but my understanding is that they can run as late as 8 p.m., as it is, in Toronto. I can just imagine when there is a marginalized person — someone who has been in and out several times — they have no sureties and they are faced with more reverse onuses, but they don’t have the supports to help them get out of the crisis they are in. It’s going to be increasingly more difficult. I have a lot of concern for what happens to the people who don’t have the resources. They don’t have sureties who are so ready to step up.
I will just go back again — because I don’t think I made the point — to when there are increased bail delays. That also leads to a problem in terms of sureties. I will call it “surety attrition” in that sureties cannot afford to take a day off work and come to court, even virtually, for virtual bail hearings. Therefore, gradually, some of these more marginalized people who are going to be languishing in custody longer and longer until they can get a suitable bail plan together, may, unfortunately, just take “the easy way out” and plead guilty. I worry about whether or not this is going to result in more false guilty pleas or guilty pleas out of desperation. I am concerned that this could be an indirect and unintended effect of these provisions as well.
The Chair: Thank you. I didn’t mean to interrupt you, Ms. Webb, but I wanted to give Mr. Rahim and Ms. Mattoo a chance to respond on this.
Mr. Rahim: Thank you for the question. I would add to Ms. Webb’s comments that when you think about a reverse onus provision — and I think this had been previously mentioned before the committee as well — even for those who are not ultimately detained, they are going to have to demonstrate a stronger plan of release. That precisely intersects with the concern you are raising, which is the question of who can demonstrate that they can create such a plan with sureties and so on.
The other piece that I think is missing is that we can make investments for those populations that enhance public safety: bail verification and supervision programs, for example, that create supports in the community to ensure compliance; bail bed programs that give people who might not have a fixed address a place to stay. But to my knowledge, of the hundreds of millions of dollars that you have heard about being allocated toward “reforming the bail system,” not a penny has gone to those types of programs or to funding legal aid to deal with the onslaught that will occur as a result of this bill and similar steps.
Ms. Mattoo: I want to echo the comments made before me in terms of the investments in the right places. In terms of what is available currently — very limited legal aid resources and very limited resources such as the Barbra Schlifer Commemorative Clinic for the survivors — I am really afraid that the extra burden that a reverse onus situation would create will just be an extra burden on very limited resources that are available in the community. There will be many more people who will be unrepresented in these situations, which means they will have even less chance to actually get access to justice.
Thank you.
[Translation]
Senator Dupuis: Thank you to the witnesses for being here today. I have a question for Ms. Webb. In the letter you sent with your brief, you talk about the addition to paragraph 515(6)(b.1), which addresses a prior discharge of an offence in the commission of which violence was used, threatened or attempted against an intimate partner. You call the amendment impractical and point to an apparent conflict between the amendment and the Criminal Records Act that will result in confusion and protracted litigation.
That struck me. Does this create a bigger problem than the one we are supposedly trying to solve?
[English]
Ms. Webb: It’s interesting because the bail provisions are some of the most complicated and certainly some of the longest provisions in the Criminal Code. I think we could take a sober step back and think about perhaps simplifying some of these provisions.
In any event, in terms of the conflict with the Criminal Records Act, we were concerned because it wasn’t clear to us whether or not the amendment contemplated that there was an apparent conflict insofar that according to the Criminal Records Act, when you have a conditional discharge, it is supposed to be removed from your record. Discharges do not result in a permanent criminal record. Once it is removed, that essentially puts the individual in a legal position of having no criminal record. I don’t think that is something that should be brushed under the rug. I think that’s an issue of concern. I can also just say, practically speaking — from experience — that even though discharges are supposed to be removed from the records of the Canadian Police Information Centre, or CPIC, after a certain period of time, it is not uncommon for us to see it on someone’s record even 4 or 5 years ago or even up to 10 years or more.
Furthermore, when those discharges are known to local police and Crown offices, they appear in disclosure. As I said before, when that’s known to the Crown — if the offender has reoffended or is accused of reoffending within the two years that they are still on probation, that’s obviously something that’s going to be of concern to the judicial officer. This is why we say that it’s not really effective to include a discharge in this particular circumstance, specifically for intimate partner violence. We feel that would be ill-conceived.
[Translation]
Senator Dupuis: I have a question for Mr. Rahim. I want to follow up on your proposed amendment to section 493.2. This is not the first time we’ve heard that the code is clear about the fact that decision makers are supposed to give particular attention to the circumstances of Aboriginal accused and accused who belong to a vulnerable population that is overrepresented in the criminal justice system.
Are you saying that judges have not gotten the message and that we need to establish a directive instructing them to state why, how and to what extent they considered X, Y or Z? Do we need to tell them that they have an obligation to consider those circumstances under section 493.2 of the Criminal Code?
[English]
Mr. Rahim: That is correct, senator. The Supreme Court has had to do that many times because that guidance is not followed — and, of course, one part of this bill requires justices to do that with respect to public safety. Our view is that the overrepresentation of Indigenous and Black persons is at such a crisis level that the same direction is required regarding section 493.2.
I would add that in our consultations and discussions with counsel, there were a good number who were not aware of the provision or said that it wasn’t really coming up in their bail hearings. It seems to us at the CCLA that this broad remedial provision was introduced with Bill C-75. It could have a potentially important effect but simply has not been picked up in the way it was intended.
Senator D. Patterson: Mr. Rahim, to follow up on Senator Dupuis’ question, if the current provision in section 493.2 of the Criminal Code is not being observed, is not being followed by judicial officers, how would your proposed amendment change that?
Mr. Rahim: The way in which we think it could have a positive effect is that it introduces a requirement that the justice make a statement in the record of proceedings that the section has been considered. And I think that is a difference: Where justices are trained and told that there has to be an explicit statement about a particular part of the Criminal Code, that would go some way — not to resolve the problem entirely, but some way — to ensure consideration of that provision.
I would add that it has a secondary effect for those who are correctly considering the provision. The requirement of an explanation of how those circumstances have been considered will enhance the body of jurisprudence that exists regarding the consideration of these circumstances.
Senator D. Patterson: Have you proposed the wording of such an amendment?
Mr. Rahim: Yes, the wording is proposed in our brief.
The Chair: Senator Patterson, that brief will be circulated in French and in English in the middle of next week.
I have a brief question for Mr. Rahim. You mentioned earlier on in your remarks that you and the Canadian Civil Liberties Association are of the view that the discharge reverse onus provision is probably unconstitutional. Can I take it by your having identified that on constitutional grounds that the other provisions are probably, you would say, bad policy but not necessarily unconstitutional?
Mr. Rahim: I would state that we are concerned about the constitutionality of some of those other provisions as well because of the broad range of conduct that they can capture, and you heard Ms. Webb refer to that with respect to firearm offences, for example. But it seems particularly egregious and clearly unconstitutional with respect to the IPV reverse onus provision.
The Chair: Thank you very much.
Senator Gold is the sponsor of this bill, and I will turn over the last set of questions to him.
Senator Gold: Thank you to the witnesses for being here. My apologies for arriving a bit late.
I want to return to a subject that my colleagues have raised, and that is the reverse onus for intimate partner violence and, in particular, for those accused who were granted a discharge. The Minister of Justice and the government officials explained to us that the key reason for doing this was to account for the fact that by the time a relationship gets to the point where one of the partners calls the police, there has often been a lot of violence already. Otherwise put, even a discharge for intimate partner violence is frequently, we were told, indicative of a pattern of behaviour.
I have two questions for all three witnesses. I don’t expect a yes-or-no answer. I am often asked for those myself and I resist, but please provide brief answers in light of the time.
First, would you agree that the intimate partner violence that ends up in court is often just the tip of the iceberg of what is going on in that relationship?
Second, would you agree that once victimized partners — often women — get the criminal justice system involved, the risk to them of violence can and does, in fact, often increase? I would really appreciate your views on those two questions, in whatever order you feel compelled to answer. Thank you.
Ms. Webb: Thank you. Certainly, it is well understood that there is an increased risk once, essentially, it gets into the system. We do know that. As to whether or not it is often the tip of the iceberg, it is difficult to generalize. In some cases it is, sadly, and in some cases it is not necessarily. Sometimes it is the first violent incident that has happened in the course of a long relationship, and there could be many reasons for that. Couples are experiencing all kinds of stressors these days, whether these are economic struggles or issues in the family. There are many reasons for that. It is very difficult to generalize.
We agree it is important to protect victims of intimate partner violence. We do not minimize that at all. I will say, generally speaking, my experience is that bail courts take intimate partner violence very seriously. Even when there is a first offender who presents in bail court and has never been charged before and they are charged with domestic assault — now they are called intimate partner violence offences — it is not uncommon — in fact, it is increasingly common — for the court to want a surety for that person.
This is a way of trying to, essentially, manage risk. As a note of caution — and perhaps it is my duty as a defence lawyer to remind this committee — although these issues are absolutely of concern, every person, including every person in bail court, is presumed innocent. We cannot assume that all accused who are coming before the court have done what is alleged of them. That is why there is a balancing of risk, and the presumption of innocence still applies. Thank you.
Mr. Rahim: Senator Gold, I would echo that it is hard to draw a total generalization across these cases. They have to be assessed as they come. The important considerations you speak of can be taken into account with the laws that we have. We have the provision around public safety, and justices conduct thorough analyses. It is the unintended consequences of this particular policy that raise concerns, that raise the overbreadth. That’s what our organization and others have tried to convey to this committee.
Ms. Mattoo: I want to add very quickly that I really appreciate, Senator Gold, what you are saying about the pattern of violence and that the system is wanting — or the government is wanting to recognize the pattern of violence. That is a challenge. Unfortunately, that challenge is from the police services because they do not recognize that pattern of violence, and, therefore, we see so many survivors actually getting charged in the system.
Unfortunately, the solution, again, lies in the correct education and correct training, it lies in the social infrastructure, and it doesn’t necessarily lie in creating this reverse onus, which we are afraid will actually create a situation for marginalized, racialized immigrant women who see themselves charged in the system and then get discharged. Our clinic routinely works with them in getting their discharges, getting their record expunged, working with them and making sure they can go back and live a life. This change will create a situation where they will actually not have a chance left once charged and discharged.
It is a lot more complex situation, and quoting Arundhati Roy, we should not “. . . simplify what is complicated or complicate what is simple,” and I feel like this change is creating the latter.
The Chair: Thank you very much.
Senators, this will bring this panel to a close. Let me begin by thanking the witnesses for their presentations and also for their thoughtful responses to senators’ questions.
We will turn now to our second panel, all in person. It is my pleasure to introduce three additional witnesses who will be speaking with us today and engaging with questions from members of the committee.
Let us welcome Danardo S. Jones, Assistant Professor, Faculty of Law, University of Windsor; Nicole Myers, Associate Professor, Department of Sociology, Queen’s University; and Michael Spratt, Partner, AGP LLP. Welcome back, Mr. Spratt.
I will begin by inviting each of the three of you to provide a five-minute presentation.
Danardo S. Jones, Assistant Professor, Faculty of Law, University of Windsor, as an individual: Thank you for the opportunity to participate in these hearings.
I want to begin by saying that the recent tragic incidents that we’ve seen in Canada cannot be attributed solely to one piece of legislation. I know there have been talks around Bill C-75 and some of the measures that piece of legislation brought in. This is a much more complex issue, which we can’t target with one piece of legislation. It is overly simplistic to suggest otherwise.
Really, the question that this committee should be considering is the constitutionality of Bill C-48 and whether or not this bill would withstand constitutional scrutiny.
Now, to uphold the constitutional right to bail under section 11(e) of the Charter is not to be confused with being anti-public safety. To frame the narrative in that way is dangerous. The courts have engaged in this balance since Morales and Pearson. It is an important and delicate balance to strike. Public safety is paramount, but ensuring the rights of Canadians is also paramount.
Now, the issue I will emphasize is the impact, both direct and collateral, that this bill, if passed, will have on accused people in the interim — before it is addressed before a court as to whether or not it is constitutional. That may take time. We know what kind of issues people face right now in the bail system. Those issues will only be exacerbated in the interim until this bill, if it is passed, gets before a court to test whether or not it is constitutional.
Now, ensuring a sense of public safety cannot come at the cost of eroding our fundamental constitutional values. These are the very things that make Canada a country worth living in.
Many of the witnesses who have spoken before me, both today and on other days, have talked about bail being a constitutional right. It is important to stress this. We constitutionalized this right in 1982, but the right to bail has been within the common-law system for centuries. This is not new.
Chief Justice Wagner of the Supreme Court said the right to bail is part of an enlightened justice system. It recognizes that the state has the burden of establishing an accused person’s guilt before denying or abridging their right to liberty.
The right to bail subsumes other constitutional imperatives, for instance, the presumption of innocence; the right to life, liberty and security of the person; and the right to a fair trial. Taken together, these rights form the strongest procedural safeguards for people accused of criminal offences. These rights, to set bail being among the most significant, should not be eroded or abridged in reaction to short-term public clamouring.
Bail, again, is a constitutional imperative, and I would go so far as to say that it is at the cornerstone of our criminal justice system.
What we’re seeing with Bill C-48 is punishment being smuggled in through the bail system. This is a perversion of our constitutional system and our constitutional values.
Second, making the bail system more punitive leads to a notion that bail is a matter of judicial leniency or benevolence and not a constitutional right. This is problematic.
The last issue I would like to raise is the fact that the law itself is not going to address the root causes of why our bail system is lacking. There are issues with the social infrastructure that are necessary for folks to actualize their right to bail. Some who have spoken before me have talked about some of the issues with ensuring a robust social infrastructure to ensure that when people come before bail courts, they actually have a real right to reasonable bail and not just a right on paper. I will leave it there. Thank you.
The Chair: Thank you.
Nicole Myers, Associate Professor, Department of Sociology, Queen’s University, as an individual: Thank you for the invitation to speak with you today. I’m a criminologist and Associate Professor at Queen’s University, and I have been studying issues around bail and pretrial detention for almost two decades.
Despite what you may have been told, we do not have a lenient bail system in Canada. The public condemnation of the law on bail has been replete with assumptions and assertions that mischaracterize and misunderstand the law. Claims that our bail system has become significantly more lenient, that we have a “revolving door system” or propagating slogans such as “jail not bail” are misguided and constitutionally unsound.
None of these assertions are supported by evidence or long-term trends in the use of pretrial detention or release on bail. Law reform that takes as its basis this inaccurate assertion has the potential to cause harm to both individual accused people and the public more broadly.
We must be mindful that the presumption of innocence is not a constitutional right reserved for trial. Release on bail is not benevolence. We do not have a problem detaining people. The law already provides mechanisms to keep people in pretrial detention where necessary for the protection and safety of the public.
Bill C-48 is largely as a response to intensive police and political pressure to do something. The “something” proposed, however, will not be effective in meeting the objective of protecting public safety.
Let me provide some context and statistics. The overall crime rate, including violent crime, has been generally declining for decades, despite some indicators of recent slight increases. Every year in this country since 2005-06, there have been more people in pretrial detention than in sentenced provincial territorial custody after a finding of guilt.
In 2021-22, 71% of the people in our provincial jails across the country were in pretrial detention. In Ontario that was 79%. The rate with which we use pretrial detention has more than doubled in the last 40 years, and the number of people has quadrupled in this time.
We use pretrial detention at a rate more than 2.5 times that of the United Kingdom. Across Canada, only 47% of cases result in a finding of guilt. We are, therefore, punishing people not just prior to conviction but in the absence of any conviction for wrongdoing.
We need to check our assumptions against reality. Bail decision making has become more restrictive and risk-averse over time. There is no reliable way to predict who will commit crimes in general or violent acts in particular in the future, and our attempts to do so are both unreliable and discriminatory.
Custody is criminogenic. Even short periods of time, a matter of days, make people more — not less — likely to commit offences in the future. Indigenous peoples, Black people and other racialized people are over-policed, disproportionately detained in custody and more likely to spend longer periods of time in pretrial detention. Individuals who are experiencing poverty, homelessness, mental health issues or the criminalization of drug use are among those subjected to the most intensive scrutiny and surveillance by police, making them more likely to be arrested and held in custody for a bail hearing.
Tightening the bail system will increase our reliance on pretrial detention and have a disproportionate impact on a range of marginalized communities. It will contribute to the mass incarceration of Indigenous peoples and the overrepresentation of Black people in Canada’s criminal justice system.
Reverse onus provisions, in general, are problematic, as they fail to acknowledge the inequality in power and resources between an accused person and the state. When a person’s liberty is at stake, the state ought to bear the onus of proving detention is justified rather than an accused person bearing the onus of demonstrating why they ought to be released.
Indeed, regardless of whose onus it is, accused people facing serious charges are already in a de facto reverse onus situation, needing to demonstrate why they ought to be released, and the law already allows detention for public safety. The Crown can oppose release; they can make submissions. The judicial officer weighs the release plan that the accused has presented and considers the concerns of the Crown, and they can detain that accused person. If they are released, they are likely to be subject to supervision and restrictive conditions of release.
Our bail system is not working well. It is a system in need of reform. The reforms in Bill C-48, however, will do nothing to address the multi-faceted and entrenched issues with the bail system.
Incidents of repeat violence are both tragic and alarming. These events, however, are not the result of legislative failure. Creating more reverse onus provisions will not improve public safety. Instead, it is likely to cause disproportionate harm to the most marginalized and overrepresented people in our criminal justice system.
There are many opportunities for reflection and change. For example, we might want to look more closely at the amendment proposed by the CCLA around section 493.2.
I encourage you to uphold the principal purposes and limits of the criminal law and work towards law reform that is both empirically supported and resists tightening an already restrictive bail system. Thank you.
The Chair: Thank you, Professor Myers.
Michael Spratt, Partner, AGP LLP, as an individual: Thank you. It’s an honour to have been invited to talk to you and help with your study of Bill C-48.
It is vitally important that criminal justice legislation be fully studied and considered at every step of the legislative process. When it comes to justice issues, the stakes are too high to legislate without careful consideration of all the available evidence.
I’m a certified criminal law specialist, and I have been practising criminal law for almost 20 years now. I’ve been in our bail courts more times than I could possibly count.
Every discussion about our bail system has to start with the fundamental constitutional principles that have been enshrined in the Charter of Rights and Freedoms: the presumption of innocence and the right not to be denied reasonable bail without just cause.
We must remember that people denied bail are presumed innocent, and we shouldn’t seek to punish people before they have been found guilty of anything. Pretrial detention is punishment of the worst kind, and we should be incredibly reluctant to throw behind bars people who haven’t been found guilty of anything — but we aren’t.
More than 70% of individuals in provincial and territorial custody are presumed innocent, and locking up presumptively innocent people denies them their liberty. It cuts them off from rehabilitative programs and treatment. Even a few extra days at the front end in pretrial custody can cause people to be cut off from family supports, cut off from community supports, lose their housing, lose their employment. In short, people who suffer — and it is suffering — in Canada’s provincial jails come out — and almost all of them eventually do come out — in worse shape than when they went in.
Canada’s remand facilities are overpopulated with people who haven’t been convicted of anything, and they languish in oppressive and inhumane conditions, waiting for trials that are often delayed, not by their own choice. And in the face of those Dickensian conditions, many accused people will do anything to stop the suffering, including pleading guilty to crimes they haven’t committed. Those are the hardest cases that I’ve ever dealt with.
On top of the risk of keeping innocent people incarcerated in this pretrial detention, we disproportionately impact and affect marginalized groups. We can see this in the over-incarceration of Black and Indigenous people, impoverished people and marginalized people.
The truth about our bail system is that it doesn’t apply equally. The wealthy and the privileged, in my experience, are much more likely to be released and much more likely to be released more quickly than people who are impoverished and racialized and have faced other challenges in their life. That’s the built-in inequity in our system, and this bill does absolutely nothing to remedy that.
More importantly, the measures in this bill are performative. The government itself has admitted they don’t have sufficient data to say what impacts, if any, this bill would have had or will have in the criminal justice system. The current discussion about bail and firearms offences has been driven by some very high-profile and tragic cases, but there is not one iota of evidence that this bill would have saved one life.
The reversal of onus for firearms and intimate partner violence offences — and we can have a discussion about this — I don’t think is going to change very much. The system is already bad. It’s already broken. This will make it worse, but worse in a way that when you’re falling 999 feet out of a plane without a parachute and you know you’re going to hit the pavement, the guy with the parachute beside you says, “It could be worse.” You say, “How could it be worse?,” and he says, “Well, you could be falling from 1,000 feet.”
The inevitable result is still the same. One is worse than the other, but I can’t think of one occasion where someone charged with a serious firearm offence or repeat domestic offender has been liberally and leniently granted bail. I haven’t seen the court not place a primary importance on someone’s past record for violence.
I echo the concerns that you heard about earlier today and that you’ve heard about from — thanks for putting me on a panel full of professors — the professors beside me.
I’m also concerned that what I haven’t heard about is clause 1(4), which reverses the onus for allegations involving violence, either used or threatened, where a weapon is used. It is overly broad and it will disproportionately impact people with mental health issues.
I can tell you what I’ve seen defined as a weapon in my practice: a slice of pizza, a glass of tepid tap water, a pillow, someone’s hand, a newspaper. These are the types of offences that someone with mental health issues, who has already fallen between the cracks, can attract a conviction for.
I agree that the system is broken, but not in the way that the tough-on-crime crowd thinks, and this bill isn’t going to make things better. I think that the evidence that you’ve heard is that it’s going to make things worse. I’d be happy to answer your questions about that.
The Chair: Thank you, Mr. Spratt.
[Translation]
Senator Boisvenu: Mr. Jones, the Supreme Court has ruled a number of times on the constitutionality of reverse onus provisions. In 1992, the Supreme Court held that reverse onus was constitutional in drug trafficking cases.
At the time, the Supreme Court stated that reverse onus was useful when it was shown that the bail system was ineffective or when those charged could evade justice and would pose a risk to public safety or undermine confidence in the administration of justice. The Supreme Court has already held that it is constitutional.
We are dealing with a rise in attacks against women and police officers. A witness in the first panel made the point that men — because it is men, for the most part — need programming and supports that barely exist in our society, if at all.
What in our system adequately protects the public from a dangerous repeat offender? The principle of releasing the accused takes precedence in our justice system, even though we know the person will reoffend and victimize others. What choice do we have between placing them in pretrial detention and releasing them on bail to victimize more people? What’s our alternative?
[English]
Mr. Jones: Thank you for your question, senator. What the Supreme Court of Canada said in the early 1990s in Pearson and Morales is that when that constitutional balance is struck, there are times when reverse onuses will be constitutional, but they can only be used in the narrowest of circumstances and they cannot be used for extraneous purposes. Given all the politicizing that we’ve seen recently around Bill C-48, one could legitimately say what we’re seeing are circumstances that are extraneous and not grounded in anything empirical.
There has been a lot of robust social science research provided to this committee that suggests that the situation as it’s being presented to Canadians is perhaps not totally accurate.
[Translation]
Senator Boisvenu: How do we balance constitutional rights, the right to protection and security, as provided for in section 7 of the Canadian Charter of Rights and Freedoms, and a repeat criminal’s right to release? How do we adjust that balance, so it’s not achieved at the expense of victims, as is often the case?
[English]
Mr. Jones: That’s a very good question, and, thankfully, I’m not a Supreme Court justice, but that balance is a hard one to strike, but it is one that recognizes that in any liberal democracy risk is something that — a reasonable amount of risk, to put it in the vernacular — we all signed up for, in a democracy. It is to be expected.
The bail system is about risk management. It’s not about eliminating risk completely. We’ll never be able to do that. We should not focus our energies on trying to eliminate risk completely. That is not possible.
What the bail system does is try to identify, using certain markers, to say this individual is either a flight risk, in that the person will not show up to court, or the person poses a substantial likelihood of reoffending. That’s the bar — a substantial likelihood — and what indicators there are that will bring us to that bar or exceed that bar.
Well, we’ll look at antecedents: Does this person’s criminal record suggest that they will reoffend if they are granted bail? Will there be public outcry, or will the public lose confidence in the administration of justice if this person is released on bail?
We have mechanisms to determine whether or not this person is risky. However, there are also risk factors that are pernicious, that seep into our system — risk factors including race, poverty and other socio-economic deprivations — that have absolutely no place in an enlightened bail system.
When we read risk on certain bodies in particular ways — Black people being more prone to criminality or Indigenous people being more prone to criminality — again, these are presuppositions that have found their way into our system that have no business, no place in an enlightened bail system. A lot of the evidence that you’ve heard today is suggesting that we’re seeing that right now in our bail system, and any move to make our bail system more punitive without recognizing how the system that we currently have disproportionately impacts marginalized and racialized people is problematic. That is not striking a balance.
The Chair: I will interrupt you there, Professor Jones, and thank you.
Senator Dalphond: Thank you to the witnesses. Once more, you are bringing a lot of expertise and matters to think about. My first question is maybe a short-answer question. I will ask other questions to other panellists.
You said, Mr. Spratt, in the system it is easier to get bail release and everything else if you’re wealthy and so on, and it’s already kind of an imbalance. But we are told by other witnesses that about 90% to 95% of the bail hearings are conducted by duty counsel.
Are we dealing with — is wealth the real issue here?
Mr. Spratt: Some of that is duty counsel conducting bail hearings for people who can’t afford lawyers, but some of that as well is that the bail decisions need to be made quickly because they can destroy lives. Sometimes duty counsel are the people who are at court who are able to deal with things quickly.
Dealing with wealth, there’s a difference between a single mom who can’t take time off her work to come down and bail out a family member, or someone living in subsidized housing who doesn’t have a lot of space to bring in a family member or someone who doesn’t have resources to arrange private treatment and counselling.
Duty counsel deal with a lot of impoverished people, but they deal with a lot of middle-class folks and those working hard to join it.
Senator Dalphond: Thank you.
My next question is for Professor Jones and you, Professor Myers. I read the documents you tabled with the Human Rights Committee in the other place, and I thank you for that. If there’s time for a second round, I have questions.
Professor Jones, you say overall this bill is not striking the proper balance, as I understand your perspective. Is there a way we could improve it to strike the proper balance, or are we bound to fail the minute we have a reverse onus? Because we have already limited reverse onus for repeat offenders, in some cases, so now we are extending the reverse onus.
Mr. Jones: When we use the bail system in a way that perverts what the system is meant for, that is not striking a balance. We know the motivations behind this particular bill. We’ve heard it from lawmakers. If the motivation is to increase the pretrial detention population, that’s not striking a balance. If the motivation is to punish, that’s not striking a balance. If the motivation is to target particular communities — even if on the face of the legislation it’s not saying that, but its impact is creating this distinction — that’s not striking a balance.
What we’re doing here, gathering all the necessary empirical data, will help us in striking that balance. What I’m suggesting to you is what we are hearing from lawmakers, the motivations behind this bill, does not strike this balance at all. This, what we’re doing here, will help us in striking the appropriate balance.
Senator Dalphond: Is your fear — and maybe rightly so — about the fact that — I know what the bail hearing is; it’s a risk assessment process, and we’re told that it goes very fast. There are many cases, so the Justice of the Peace or the provincial judge is sitting there and has very little information provided, so the whole thing goes fast.
One of your concerns is that by reversing the onus, the systemic bias in the systems will be prevailing because the accused will have to rebut these things instead of the Crown. Am I summarizing what you’re saying correctly?
Mr. Jones: That’s accurate. The accused population right now is already saddled with a tremendous amount of burden, whether the burden is already on the Crown or reverse. What we’re seeing here is a situation where we are now reversing the legal burden, not the social burden. We’ve seen there is a tremendous amount of social burden already placed on accused people.
My colleague here said that in certain situations people can’t get sureties for whatever reason: the single mom who cannot take time off from work to come down and sign bail for her child or her loved one who is before the bail court. We know that there are these hidden burdens that we don’t talk about.
We’re here talking about a reverse onus, a legal burden that’s being reversed, but what I’m saying is that only exacerbates a system that is already skewed against accused people.
Senator Jaffer: Thank you to all three of you. It would be a good time to have a long session with all three of you. I want to start with you, Mr. Jones.
What I understood from you, the courts have found reverse onus to be constitutional — and I will not say it as eloquently as you said it — but in this case, where there are all kinds of noise, do you think that this, if anybody challenges it — and I’m not asking you for a legal opinion — this is not as simple as the other time, when the courts found that reverse onus was constitutional. I mean in this bill.
Mr. Jones: If I were a betting person, I would say this bill will not withstand constitutional scrutiny. This bill does not strike that constitutional balance that the court talked about in Pearson and Morales and Hall. It goes way overboard. I’ll leave it there. I do not think this bill would withstand constitutional scrutiny.
Senator Jaffer: Thank you, Mr. Jones.
First of all, welcome all three of you. You are always coming to our committee and giving of your time, so thank you very much for being here again today.
I have a question for you, Mr. Spratt. In subsection 515(10)(b) of the Criminal Code of Canada, it is written that denying bail to an accused in custody is justified “where the detention is necessary for the protection or safety of the public . . . .” Therefore, is clause 1(4) of Bill C-48, which is the reverse onus on defendants, redundant with the powers that justices already have?
Mr. Spratt: I don’t think it’s necessarily redundant, but I think at the heart of your question the answer is that bail can still be denied, even when it’s not a reverse onus situation. When we’re talking about onuses — and this will go into the constitutional analysis that Professor Jones spoke about — you have to look at what is sought to be accomplished through the legislation.
The onus, quite frankly, should be on you, on our legislators and parliamentarians to show that the provision will accomplish the goal. I haven’t seen any evidence, and the government hasn’t presented any evidence to show that reversing the onus, which is exceptional, will accomplish the goal of, I assume, increasing public safety. We just haven’t seen that, and we don’t need necessarily to reverse the onus to make sure that the public is safe. There are already mechanisms to take that into account.
Senator Jaffer: The challenge is that there’s all this noise — and you are right there in the trenches — that the public is not safe, right? That’s why we are doing this. That’s what the elephant in the room is — that the public is not safe. How would you answer? This bill will not make the public safe, right?
Mr. Spratt: No, and there’s no evidence when we look at some of those high-profile cases, the tragic death of Officer Pierzchala, that was a reverse onus situation because it was a bail review. It was his onus.
The hard conversation is that you can never have perfection. You can never guarantee 100% safety unless you look at something really unconstitutional by saying no one gets bail. That’s the hard conversation to have with the public.
But it is a false sense of security, and it’s actually counterproductive to say, “This will make you safer,” because we know when people are incarcerated and they lose their jobs and are in a worse situation — the criminologist will tell you this — it actually increases the danger of reoffence and risks public safety.
Senator Batters: Mr. Spratt, in the Pierzchala case, were you saying that already was a reverse onus case, and, as such, Bill C-48 would do nothing different than the current situation that already exists for that?
Mr. Spratt: That’s right. Many people have commented on that case, of course. I don’t have the full facts because it’s at the bail stage, but that was a bail review, is my understanding, that the accused brought to the Superior Court after he had been detained in the Ontario Court of Justice. In cases like that, the onus is on the accused to show there has been a change in circumstances and that his release wouldn’t violate the principles of bail — the primary, secondary, tertiary grounds.
Senator Batters: Mr. Spratt, I had the opportunity, as you’re aware, to ask Senator Gold after his second reading speech and then to ask the minister about how many potential criminal offenders would have stayed in jail over the last five years as opposed to being released on bail. I recognize it’s just a reverse onus, so we can never totally know, but what I was looking for from both of them was, given the very limiting conditions that are applicable for Bill C-48, that it seems that this Trudeau government bill has a very limited scope. So, as such, my guess, personally, is that the actual number of offenders it would apply to is tiny.
Can you provide any more enlightenment on that given that you’re in the bail courts every day or very frequently and you would see how many cases of those types of limiting conditions would actually be ones that reverse onus would potentially apply to?
Mr. Spratt: Leaving aside the broad scope of this bill and how it could apply to many non-serious minor offences — the assault with a weapon; I literally had someone charged with assault with a weapon for pizza and hitting someone with a pillow — in serious cases, it probably wouldn’t make much of a difference in terms of release, ultimately, because we take and our courts take firearms and intimate partner violence offences very seriously.
But I expect that it would make a big difference in the people who are caught up in this legislation because it will mean the bail hearings are delayed and that people are in custody longer and that they lose their jobs and they lose their support, so there will be impacts.
I don’t want to be taken as saying this bill would not impact anything. I think it would make things worse. But in terms of your question about how many people might be held in custody because of this bill, I think the number would be vanishingly low.
Senator Batters: Professor Myers, in your research, have you explored the perspective of victims regarding the bail system, and if so, how do victims perceive the Canadian bail system? Do they feel that it adequately protects their interests and safety?
Ms. Myers: Thank you very much for the question. Admittedly, victims have not been the target of my research. I have spent several hundred days sitting and observing bail court happen. I have seen and heard the frustration of victims sitting in court when a matter gets adjourned over and over again and a decision is not made or when feeling that information hasn’t been properly provided to them.
But I’ve also, more greatly, seen the incredible frustration of accused people who are being held in custody, who cannot access a timely bail hearing, who are caught up in the incredible court delays that we have and experience, and the Herculean efforts of trying to put together a bail plan that will secure the consent of the Crown so that they can ultimately be released.
If I could add something to what Mr. Spratt was saying around the reverse onus, from sitting in court, you can’t tell whose onus it is. The only reason you know who has the onus is because it dictates who speaks first. In terms of the impact that will have on the ultimate decision making, it is not the most important factor. I would say it is an incredibly unimportant factor in all the circumstances that are considered in making these releases.
One of the biggest difficulties is we have no data. We do not have national systematic data. Where you asked such incredibly important and fairly straightforward questions, we simply have no capacity to answer those, so we can’t say this bill has any evidentiary support. We don’t know what it would have done; we don’t know what it could have done because we simply don’t know.
I don’t know how these things work, but the preamble of this bill indicates the opportunity for a five-year review, and I would ask if we can look for an opportunity to expand that not just to the bill itself but to the bail system more broadly so we can develop a better knowledge of how the system operates so we can advance law reform that actually has some evidentiary support.
Senator Batters: One thing on that, too, is that five-year review —
The Chair: I have to interrupt you, senator. We are just squeezed for time for all of us.
Ms. Myers: I apologize.
Senator Batters: — it’s not the Senate, just the House of Commons.
Senator Clement: Thank you for being here. You all speak with such urgency about a system that is already in crisis. I will just ask my questions.
Professor Jones, I will pick up where Senator Jaffer left off. You talked about short-term public clamouring. It is a real thing, though. So how are we as legislators supposed to speak to that? I don’t know. Some people are not interested or not concerned, but I am. I worry about that as someone who has to communicate with the public.
Professor Myers, we heard testimony last week from witnesses who say this is the right thing but don’t have the evidence to back that up. You, however, in your presentation quote some data. There have been tragic events. People are outraged, but we need things to be grounded in evidence. So what data do you have that sheds light on whether or not the changes proposed in the bill can achieve public safety?
Mr. Spratt, you are there every day. Can you speak to what investments would be necessary? We had a previous witness talk about bail verification and supervision programs. Are those things we should be investing in? What else should we be investing in?
Those are my questions for all three of you.
Mr. Jones: I will start. On short-term public clamouring, the Supreme Court of Canada has talked about looking at the administration of justice in a long-term perspective and worrying about the confidence the public has for the administration of justice long term. If we focus on something that is — as you said, and rightfully so — critical, important but is something that may shift or change in a year’s time, and if we do something radical to address it that does not look at how it will impact the system 5 years, 10 years from now, that can have a real impact on how people perceive the system 5, 10, 15 years from now. That’s more important and more urgent than addressing something that, as all of us have said, we are not quite sure whether or not, empirically speaking, we have an issue that requires this type of draconian approach.
The Chair: Thank you.
Professor Myers?
Ms. Myers: It is critically important to acknowledge the incredible difficult position of victims and those in the public, the clamouring, the concern about the system. The problem is the solution being proposed here simply will not be effective. That’s where the difficulty is. Everyone is in support of enhancing public safety and acknowledging we have a broken system. It’s that this particular solution may be ineffective or may also cause harm.
When we take to what sort of evidence I have offered to this, whether it is from observations in court and observing proceedings going on, if it’s looking at long-term trends in our use of pretrial detention and if it’s acknowledging that those who are ultimately released have supervision and many conditions of release imposed on them and they are monitored in the community, creating additional risk of their further involvement in the system lets us know that we have a system that has many issues that simply won’t be addressed by this kind of amendment and needs us to be much more creative and aggressive with our approach.
Mr. Spratt: When it comes to Charter issues, it is very dangerous to legislate based on popular public perception because the Charter is designed and supposed to protect the minority from the overwhelming will of the majority. If you want to reassure the public, the best way is to ensure that people in bail courts have support.
You mentioned the John Howard Society bail verification programs; we have heard about bail beds. Those are incredibly progressive systems that can increase public safety.
The next thing I would suggest is we need to do it carefully because there is already a problem of over-policing, but police resources can be used for compliance checks instead of arresting and dealing with people with mental health issues. So resources can be redistributed, and we can let the public know that what will actually make them safe is not to throw someone in jail or keep them in jail for a couple of days extra but to ensure that they have supports from community organizations, to ensure they are set up to succeed. That’s what everyone wants in the bail system.
The Chair: Thank you, Mr. Spratt.
Senator Pate: Senator Clement, I am glad you went ahead of me because I’m going to say something and then I invite each of you to comment.
Yesterday we were celebrating the first Black Speaker in Canada. Today we celebrated the first Indigenous premier in Canada. We are also wearing pins to commemorate the Missing and Murdered Indigenous Women and Girls, and to me, all of you, your lives’ work has involved looking at these attempts to polarize a system that disproportionately negatively impacts the very people who have the least faith, for good reason, in the criminal legal system. Now we are debating a bill that I would argue will cost a lot of money to administer. It will not increase public safety. Where could we better allocate those resources?
I want to build on what you’ve already said. Don’t feel the need to repeat the bail supervision, but there are also infrastructure pieces that are not being put in place in terms of health systems and income supports and social supports, health supports that you talk about.
If you care to use your time to elaborate on those things, that would be helpful. I think you have already covered some of the things I was going to ask.
The Chair: Could I invite you of each for a minute or so, beginning with Professor Jones?
Mr. Jones: We increasingly see before the bail courts people being charged and overcharged with failing to comply, and failing to comply essentially because of their social conditions. They don’t have access to homes, jobs, treatment centres and so on. I think we can all agree that criminalizing someone for essentially drawing the short straw in this race that we call life is not advancing the cause of justice at all.
That’s what we are seeing in our bail courts: our people being punished for essentially —
Senator Pate: For system failings.
Mr. Jones: Exactly. That’s what we are seeing.
Senator Pate: Sorry, I didn’t mean to . . .
The Chair: Sometimes Senator Pate testifies through her questions.
Professor Myers?
Ms. Myers: We need to look at the incredible backlog that we know plagues our court system and that has been recognized by the Supreme Court of Canada. One of the biggest difficulties we have is a volume problem and then a processing problem. A partial solution is to reduce some of the more minor stuff coming into the system, finding ways to keep them out so we can focus our limited resources on those which are most serious and most risky.
For anyone who does come into the system, we need to be able to process them in a timely manner so those who will have their matters stayed or withdrawn are out of the system as quickly as possible, and those who will ultimately be found guilty of what they are alleged to have done are then held accountable in a timely manner.
If we think about the best way to prevent crime, it’s to invest in our communities, whether that’s through health care, education or social supports to different communities. But also involved in that is keeping folks in their communities. The moment we remove somebody from their community, even for short periods of time, it is intensely destabilizing, whether it is the loss of employment, the loss of the ability to care for one’s children or a disconnection from the variety of social services that act as protective measures against further allegations of criminal offending.
The Chair: Thank you.
Mr. Spratt: The old saying is that hurt people hurt people, and jail hurts people, so it’s a vicious cycle. There are interests in continuing that vicious cycle. But we can reallocate resources. Yesterday, I went to Ben Perrin’s book launch. He is Stephen Harper’s former justice adviser. He outlined a lot of the programs, like the Collaborative Justice Program here at the Ottawa Courthouse and the Elizabeth Fry Society’s diversion programs. These are all programs that can get people out of custody, break the cycle and work in conjunction with some of those upstream social services that you talked about.
There are also organizations that have to beg and plead and scrape for every ounce of funding. Nothing is ever handed out, as we do see money handed out to other organizations. All things like that are important. If we’re looking at processing times, judges help, so we should make sure we have a full complement of judges both at the provincial and federal levels.
The Chair: Thank you, Mr. Spratt.
Senator D. Patterson: I’ve been struck by a strong denunciation of the bill, and I won’t go through the reasons, driven by politics, already punitive, et cetera. But all the parties in the House of Commons have unanimously passed this bill without study and, as some of you have pointed out, without data.
I see some suggestions here about, dare I say, tinkering with the bill. Mr. Spratt said clause 1(4) is too broad. Professor Myers said there is some merit in the CCLA recommendation on section 493.2. I think Professor Myers suggested the five-year review in the bill should be expanded to the overall bail system. It seems to me we are coming up with quite a lot of material for observations about the broader system, which has been very rich for me today.
We are unelected parliamentarians. You denounced the bill saying that it really won’t work; it won’t make much difference, or it may make things worse. What would you recommend we do with this bill, beyond the, dare I say, minor changes you have recommended? Your denunciation was so strong. Do you feel it is not worth proceeding with this bill?
Mr. Jones: Well, that’s the reason we have a bicameral parliamentary system. That’s why the upper house is supposed to be the house of sober second thought, unelected or not. That’s the reason I am proud to be here. This body takes lawmaking seriously — lawmaking grounded in empirical data and not in what is politically popular.
In my opinion, the work being done here is good public policy-making. This is what public policy is supposed to be. This is what I teach my law students. I tell them the law is supposed to be grounded in reality and not what is popular, what is trending. That’s dangerous.
Ms. Myers: To go to your comment about this bill passing the House of Commons so quickly, in a single day, and not being sent to committee, it’s not popular to be opposed to appearing tough on crime. There is no connection, though, between this solution and the problem. That’s part of the difficulty. I would really like to ask you to simply not go forward with this bill whatsoever, but I absolutely respect and acknowledge that that’s not likely, in which case, I put my support behind the very carefully considered amendments from my legally trained colleagues.
At the end of the day, I don’t think this is a legislative problem, and therefore the solution doesn’t fit.
Mr. Spratt: Half of the House of Commons say that this bill won’t change anything and isn’t tough enough. Yet half of the House of Commons, without data, seem to suggest that this minor tinkering is a cure-all for the perceived problems. That’s why I’m glad we’re actually studying it here today. When I look at the parliamentary record, and when courts do, there is a reason why Senate committees are quoted more often. It’s because some of that partisanship is left behind.
I would urge that fact to be made clear to the House of Commons. A bill that is not backed up by data — the courts will look at it and ask if the purpose of the bill is borne out with the data. Is there a rational connection there? When there is no rational connection — or when the moving party can’t show that there is a rational connection — why would you pass it?
[Translation]
Senator Dupuis: My question is for all three of you. I want to revisit something you said, Mr. Jones, about the Senate’s role as the house of sober second thought, which, technically speaking, emerged from the hue and cry for one thing or the opposite.
In 2023, shouldn’t the Standing Senate Committee on Legal and Constitutional Affairs undertake an in-depth review of the criminal justice system?
For years, the committee has been making observations and proposing amendments. We’ve discussed the criminal justice system just as we’ve discussed bills C-75, S-248 and C-48. The discussion becomes totally abstract. Lawmakers think they’re addressing the hue and cry, but they lack data.
Is our first responsibility to carefully examine the whole system, dissecting it chapter by chapter, taking bail into account as one of the factors?
There’s a contribution we can make to inform not just our own thought process, but also the public’s, and perhaps influence the hue and cry.
[English]
Mr. Jones: I agree with a wholesale study of our criminal legal system for this reason; what happens at the bail stage follows the accused person. It has been said by my University of Windsor colleague Professor Jillian Rogin and others that what happens at the bail stage will influence what happens at sentencing, what happens during the trial process and so on. I agree that a wholesale study would be preferable, rather than a piecemeal approach; it’s just way above my pay grade. I don’t know how that would even begin, but an initiative like that is sorely necessary.
Ms. Myers: That is true particularly in the context of our bail system, a system that has not been a subject of intensive study since the Bail Reform Act in the early 1970s. We should think about the importance of stepping back and having a thorough and principled review of the law that brings together all the justice system actors, academics and community stakeholders. We should consider what the purposes of bail are, what we’re trying to achieve. Then we should be very clear and specific about how we want justice actors to weigh different factors.
We might want to look at the incredible success of the Youth Criminal Justice Act, the YCJA, on a number of fronts. There certainly are some challenges, but one of the reasons why the YCJA was so effective in reducing their use of custody for young people was that it was a brand new piece that was subject to a great deal of resourcing and education to decision makers, saying, “We need to do things differently. This is how we want you to think about those things.” The data has now borne that out that this has been remarkably effective. I see an opportunity here to do the same thing with bail.
Mr. Spratt: I could not agree more. The Criminal Code is an unwieldy Frankenstein monster of different provisions that have been added over a number of years. Part of the problem is that a lot of the legislation that is passed — that you guys study — comes about because of very specific and unique factual scenarios. So we get this sort of piecemeal legislation. Look at the numbering of the Criminal Code. I don’t know how many “point-one, sub-one, point-twos” you can get in there before it becomes so unwieldy.
This is important because we are all supposed to know the law, right? Ignorance is no excuse, and the Criminal Code is a big book. Our laws should be simple and easy to follow. I think there is some work to be done there.
Senator Gold: I won’t actually ask a question, so I will be even briefer — although some of my colleagues worry when I say that.
I am the sponsor of the bill and I want to thank you for coming here. I think you’ve added real value to our study. As a senator, I am very grateful also for what you have added because we have a job to do. In this particular case, we as a committee are the only ones who have studied it — for reasons to which we all alluded.
As a former constitutional law professor, it warms my heart to see the two of you from the younger generation who are so able. Mr. Spratt, it is always a pleasure to have you here.
As the Government Representative in the Senate, I can also assure you that this testimony will be well studied and taken into serious consideration, certainly, as our study goes forward. Again, I don’t presume to speak on behalf of anybody else, but personally, I want to thank you for your presence.
The Chair: This gives me an opportunity to bring this session to a close. Before I do that, I want to extend all of our thanks to our witnesses for their participation, presence and responses to questions. I think it has been really helpful for the committee. I should also say parenthetically that your kind compliments to the Senate and the Senate committee ensure you will be invited back regularly.
I would like to remind senators that we will continue with a slightly longer session tomorrow, beginning at 11:15 a.m. in the same room. It will be our final hearing of witnesses with respect to Bill C-48. I will not be in attendance, but you will be ably chaired by Senator Boisvenu tomorrow. We will begin clause-by-clause consideration of the bill on Wednesday, October 18. If you have contemplated amendments, it would be helpful if you began to develop them to the extent that you are willing to share them with other members of the committee in a timely way. As has been the case with our study of the bill to date, we look forward to a robust, principled and thoughtful consideration at clause by clause.
Tomorrow, we will go till 1:45 p.m. Essentially, we are starting a half hour early. We will go two and a half hours. One of the reasons is that the Attorney General of British Columbia has indicated a desire to testify by teleconference, and she will join us at the first session tomorrow. I apologize for not being able to attend.
With that, I will bring the meeting to a close. Thank you once again for your attendance.
(The committee adjourned.)