THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, September 28, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:46 a.m. [ET] to study Bill C-48, An Act to amend the Criminal Code (bail reform).
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning, honourable senators. I call to order this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
We will begin by introducing ourselves, starting with the deputy chair.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu, senator from Quebec.
Senator Gold: Good morning. I’m Marc Gold, government representative in the Senate and senator from Quebec.
[English]
Senator Klyne: Good morning, Senator Marty Klyne from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Clement: Bernadette Clement, senator from Ontario.
[English]
Senator Pate: Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Dupuis: Renée Dupuis, senator for the senatorial division of The Laurentides, Quebec.
[English]
Senator Jaffer: Welcome. Mobina Jaffer from British Columbia.
The Chair: I am Brent Cotter, a senator from Saskatchewan and the chair of the committee.
Honourable senators, we are meeting once again to continue our study of Bill C-48, An Act to amend the Criminal Code (bail reform).
We have three groups presenting. I will introduce them in the order in which they probably appear on your list. Given that our first presenter is still catching his breath from arriving straight from the airport, I think we’ll invite Mr. Bytensky to speak second.
From the Criminal Lawyers Association, we have Boris Bytensky, Treasurer. Welcome, Mr. Bytensky. From the Indigenous Bar Association, by video conference, we have Christa Big Canoe, Member at Large. Welcome back, Ms. Big Canoe. From the Canadian Association of Black Lawyers, we have Kristian Ferreira, Community Liaison, joining us also by video conference, and Theresa Donkor, Member, Advocacy Committee and Criminal Justice subcommittee, also joining us by video conference. Welcome and thank you for joining us.
We will begin the remarks from you, if we may, Ms. Big Canoe. I invite you to present for about five minutes. We will ask each of the presenters to do the same for five minutes, to be followed by questions and dialogue with the committee members.
Christa Big Canoe, Member at Large, Indigenous Bar Association: Thank you, Mr. Chair, and good morning, senators. I am Christa Big Canoe. I am a member at large with the Indigenous Bar Association, or IBA, in Canada. I am here as a witness on behalf of the IBA.
I would just like — [Technical difficulties]. Last week we heard Senator Gold comment about how having discussions on bail reform with Indigenous organizations like the IBA has been an important part of developing a legislative approach that will help protect Indigenous communities from violent crime while recognizing the need to continue combating the over-representation of Indigenous people in the criminal justice system.
Just so it is clear, the IBA did not consult or make any substantive contributions in drafting this bill. It is rather disingenuous that a broad comment is made, and the IBA wishes to make it clear that in no way was any prior discussion on bail reform an endorsement of this bill. The IBA does appreciate the opportunity to appear before the committee to share their position on this bill in a more formal way. It is also noteworthy that Aboriginal Legal Services was not consulted on the bill, nor were they invited to speak to this committee, despite their known advocacy and mandate on law reform.
Previously, there had been submissions made to the standing Senate committee in relation to Bill C-75 — the predecessor to this one — and at the time, Aboriginal Legal Services had taken the position that domestic violence is very serious, particularly in the way that it impacts Indigenous women and girls. They addressed the issue that — and this legislation raises a similar concern — the well-meaning attempts to address the scourge of domestic violence not only failed but had unintended consequences that can be damaging to the very people they are supposed to help, specifically Indigenous women. Very often, what we are seeing is a phenomenon of dual charging, which occurs when a man is charged with domestic assault, and he insists that his partner started it and should be charged. This has led to more and more women, particularly Indigenous women, becoming enmeshed in the criminal justice system. Police policies that grant no discretion to police officers when domestic violence is alleged exacerbate this problem.
With the passage of Bill C-75, there were some problems that came out of that that continue, particularly when we look at the practical outcome this bill will have as it relates to Indigenous women who are being charged for intimate partner violence. This is one of the main concerns with the provisions that we would like to address on behalf of the Indigenous Bar Association and jointly submit with Aboriginal Legal Services that there is potential harm, particularly to Indigenous women, as it relates to prior charges of intimate partner violence, knowing that Indigenous women and Indigenous individuals will often plead out, even when they are not guilty, because the consequences are less serious than when they are convicted in a trial.
Last year, the House of Commons committee heard from the John Howard Society of Canada that, compared to other countries, Canada’s proportion of total prisoners in pretrial detention is shockingly high. Canada’s pretrial prisoners amount to 38.7% of the total prison population. Compared to other developed countries, that proportion jeopardizes Canada’s reputation as a country that takes the presumption of innocence and rights to reasonable bail seriously.
This is even more important to contextualize when we talk about Indigenous people, because Indigenous people are less often granted bail and more often face remand than non‑indigenous people. In 2020-21, Indigenous people in Canada were incarcerated at a much higher rate than non‑indigenous people. We’re talking current and contemporary statistics. On an average day that year, there were 42.6 Indigenous people in provincial custody per 10,000 population compared to 4 to 10,000 population of non‑indigenous people. This is a statistic from Statistics Canada from this summer, 2023.
The federal incarceration rate of Indigenous women continues to be much higher. In fact, it is 12.5 times higher than that of non‑indigenous women. As of May 2022, Indigenous women accounted for half of the female population in federal penitentiaries.
In 2021, for all provinces and territories, 67% of persons supervised in adult provincial custodial centres on an average day were on remand. If they are on remand, this is pretrial custody.
The IBA and Aboriginal Legal Services fear that the intimate partner violence, or IPV, reverse onus could further criminalize Indigenous women because of dual charging.
Colleagues of ours, who I believe will be testifying before you next week, the Canadian Civil Liberties Association, or the CCLA, have already submitted written submissions, and in their submissions, they discussed this issue. We support their submissions in relation to this. They quite properly point to the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls and note that Indigenous women may fear reporting violence because they themselves may be arrested or charged with abuse or violence. As a former lead counsel to that national inquiry, we heard across the country, as people testified, the impacts that this had when they tried to call the police for help but they either feared that they were also going to be charged or they were, indeed, charged.
Duel charging often results in women, who find themselves either in poverty or in circumstances, potentially, of more serious domestic violence, facing the criminal justice system in a way that the reverse onus will be very difficult for them. We already know that Indigenous people do not receive bail at the same rate as others.
As a final point — and this is my wrapping-up point — the Indigenous Bar Association in Canada and Aboriginal Legal Services support the CCLA’s submission, specifically their Recommendation Number 2, which is a suggested amendment to address the over-representation of Aboriginal and vulnerable populations in the criminal justice system. It is important that this be done, because the prior section 493.2 of the Criminal Code that came in with Bill C-75 needs to have the adequate uptake, and there needs to be a recognition, and it needs to be done in a way that can be seen on a record if this legislation is going through. We would implore you to make that amendment as suggested by our colleagues at the CCLA.
Thank you for your time.
The Chair: Thank you, Ms. Big Canoe.
Mr. Bytensky?
Boris Bytensky, Treasurer, Criminal Lawyers Association: Thank you very much, honourable chair and members of the committee, for having myself and the Criminal Lawyers Association attend to make these submissions to you.
We’re here because the bail system in Canada is broken. It’s just not broken in a way that you would think if you only read 280 character tweets on social media.
We have an enormous number of people in custody. Ms. Big Canoe just spoke of the percentage of people who are in pretrial detention compared to those who are sentenced, and those numbers have actually gone up. In Ontario, we are now at nearly the highest level of incarcerated individuals in our detention centres that we’ve ever had — the highest ever; we are pushing 10,000 — and 85% of them have never been convicted of the crime for which they are incarcerated; 15% are serving sentences.
The number of days that it takes to get a bail hearing in Ontario has gone up by 55%, in the measurable numbers that we have, the known statistics from 2019 to 2022, and, anecdotally, it seems that those numbers continue to grow rapidly. The vast majority of courts in Canada — and if I knew a little bit better, I would say all courts in Canada — are simply unable to process their bail matters in a timely way, resulting in significant bail delays to all manners of people throughout the country and, of course, disproportionately affecting our Indigenous, our racialized, our impoverished and our mentally ill.
We must recognize that a successful bail system does not require perfect compliance. No matter how stringent a system we have — and we do have a fairly conservative system, as many have commented — we will not have perfect compliance, and outlier dangerous events will continue to occur. Even if you took the obviously tongue-in-cheek step of incarcerating everybody without bail, that also would not affect public safety, because jails are very criminogenic and people will come out more dangerous than when they went in. The long-term and medium-term impacts on public safety would actually still be negative even if you incarcerated every single person who was charged with an offence, not to speak of the obvious constitutional and other practical problems that every one of them would face.
Bill C-48 seeks to address public safety concerns almost exclusively through the creation of a series of reverse onus provisions. Simply put, in our view, you cannot jail your way out of public safety risks; you will always have to be smarter about our bail reforms.
The proposed legislation has a series of very important points in its preamble. One of those is, after restating the various constitutional principles that apply to bail, that confidence in the administration of justice is eroded when people are either released on bail when their detention is justified or — and this is the important part — when an accused person is unnecessarily detained. Bill C-48 does attempt to target the first part of that provision, but it doesn’t do anything to address the second.
In my respectful submission on behalf of the Criminal Lawyers Association, we are not arguing that reverse onus bail provisions are unconstitutional. The Supreme Court of Canada has already decided that it is not. It is rather the unintended consequences of creating new reverse onus provisions. Those unintended consequences combined with today’s shameful inability to get bail hearings done on time will cause an even greater delay in bail courts. It will simply back up the system beyond the point that we’re already at while really doing nothing to address public safety. I believe that the CCLA, as well as Professor Myers, who may be testifying before this committee, have more specific data.
The experience of our members is that reverse onus does not make the detention of an accused more likely. It has a negligible impact on whether an accused is released or whether they are detained in custody after a bail hearing. What it does is make bail hearings longer. It takes longer to get them on, it takes more time to put plans together, it requires more sureties to testify and it backs up the system beyond where we’re at already. You are not going to have more people detained; in my view, you are just going to have more people waiting to have their day in court.
In my respectful view, in order to combat the problems of these unintended consequences, you must address three things.
Section 516 of the code, which permits three-day adjournments, must be clarified to say that adjournments can only be granted if requested by the prosecutor for legitimate and valid investigative reasons. It cannot be granted just because a matter is not reached. That is the law in Ontario already, but it needs to be codified in legislation to ensure it is applied throughout Canada.
The right to appear before a justice within 24 hours under section 503 must be clarified to say that anybody who attended within 24 hours, as they are currently required to do, must be given a chance to have their bail hearing that day, if they want it, with no excuses for lack of resources.
In my respectful view, without implementing these additional changes, you are simply going to throw the system further out of balance and compromise the rights of Canadians facing bail hearings throughout the entire country without meaningfully helping public safety. In fact, you will have the inverse effect in the long run.
Thank you.
The Chair: Thank you, Mr. Bytensky.
We will now hear from the Canadian Association of Black Lawyers.
Theresa Donkor, Member, Advocacy Committee and Criminal Justice subcommittee, Canadian Association of Black Lawyers: Thank you and good afternoon. My name is Theresa Donkor, and I’m here today with Mr. Kristian Ferreira. We are both criminal defence lawyers and, as mentioned, we are members of the Canadian Association of Black Lawyers’ criminal justice and police reform committee. We are honoured to speak on behalf of CABL today.
Last week, the Honourable Minister of Justice Arif Virani urged the House to pass this bill quickly in order to make Canadians safer. We share his desire to make our communities safer. We echo his sentiments that Canadians expect laws that both keep them safe and respect the rights that are entrenched in the Charter. However, we do not believe that Bill C-48 achieves those goals. We would like to provide three comments on the proposed bill.
First, we must express our concerns about the implications of the proposed bill on the Black community. There is no empirical evidence that this bill will achieve the public safety goals that it aims to address. There is, however, overwhelming evidence that a bill that seeks to incarcerate more people will disproportionately impact Black Canadians. Black people are denied bail more frequently than the general population, Black people spend longer in pretrial custody than the general population, and while incarcerated, Black people experience harsher conditions of imprisonment, experiencing use of force, solitary confinement and maximum security more than other racial groups. Race-neutral laws do not always have race-neutral effects. In our view, the proposed bill will worsen existing racial disparity within the criminal justice system. Simply put, by passing this bill, you will be sending more Black people to jail. This undermines the government’s Black Justice Strategy and stated goal of addressing anti-Black racism and systemic discrimination that has led to the over-representation of Black people in the criminal justice system.
Bill C-48 aims to target repeat offenders, but the reality is that Black communities are more heavily policed, making Black individuals more likely to be repeatedly arrested. Over-policing and over-incarceration do not make our communities safer.
The proposed reverse onus provisions will also deepen inequities in our justice system. Wealthy defendants have more resources to displace the legal presumption of their detention, but because of the ongoing legacy of colonialism, the trans-Atlantic slave trade and institutional racism in Canada, Black and Indigenous people in this country are more often members of under-resourced communities. As a result, Black and Indigenous people are more likely to bear the weight of Bill C-48’s changes to the existing bail regime. Our laws should seek to push back against inequality, not further entrench it.
Second, we share the concerns of various stakeholders about how the government has bypassed the normal procedure of studying this bill before passing it in the House of Commons. We agree with the Canadian Civil Liberties Association that this is a fundamental departure from making evidence-based criminal justice policy in this country and could set a dangerous precedent. Performative legislation or quick Band-Aid solutions do not engender trust in the administration of justice and certainly do not make our communities safer.
Third and finally, we urge you to consider what actually does make our communities safer. If we care about protecting the public, we need to consider policies that make social services such as safe housing, mental health and addiction services, and guaranteed livable income more accessible.
At the very least, we recommend amendments to this bill to address the potential discriminatory outcomes against vulnerable groups who are already over-represented in custody. We understand that the CCLA will be recommending an amendment to the bill, as previously discussed, to require a statement in the record of proceedings on how a justice has considered section 493.2 of the Criminal Code in reaching their bail decision, which is the provision that requires the consideration of the over-representation of vulnerable populations in the criminal justice system. Similar to our colleagues at the IBA, we support this amendment as a small step towards remediating the disadvantage that Black, Indigenous and other vulnerable groups face at the bail stage.
We would be happy to discuss our concerns further or discuss further amendments with this committee. Thank you.
The Chair: I would now invite senators to pose questions to our witnesses, beginning with Senator Boisvenu.
[Translation]
Senator Boisvenu: Good morning, and welcome to our witnesses. My first question is for Mr. Big Canoe. In your brief, you state that this bill could increase the proportion of incarcerated Indigenous people. Did I understand you correctly?
[English]
Ms. Big Canoe: Yes, in terms of the one provision specifically in relation to intimate partner violence as it relates to Indigenous women. It is a potentially unintentional consequence, but it is a real consequence. We know this. We have known in reports and research as early as 2013 that Indigenous women in this country are often dual-charged when there are allegations of domestic violence, and they will more readily plead out. If we see this trend continue, you will see an increase.
[Translation]
Senator Boisvenu: In order for me to ask you questions, your answers will have to be shorter, otherwise we’ll run out of time.
My second question is this. You are no stranger to the Supreme Court’s Gladue ruling, which calls on the courts to find alternative solutions to the incarceration of Indigenous people in this country.
Did you know that twice, in 2004 and 2016, the Supreme Court called judges to order because they rarely used the Gladue ruling to find alternative solutions to the incarceration of Indigenous people? Is the problematic disproportionality in the number of incarcerated Indigenous people also a consequence of the way our judges treat this population and often forget to use the Gladue ruling to find alternative solutions to incarcerating these persons?
[English]
Ms. Big Canoe: I believe that that could be part of the contribution. When section 718 of the Criminal Code was first put into place, there was little uptake by the bench or lawyers, so that could be part of the problem.
The other part of the problem is, for example, in this bill, the preamble talks about the importance of recognizing that over-incarceration, but then there are no actual provisions within the bill itself to address that. That’s why the IBA, my colleagues on the panel and ALS are supporting the CCLA amendment to address that.
If you require judges to then write why a person from one of these vulnerable groups is being remanded as part of their — [Technical difficulties]
[Translation]
Senator Boisvenu: This year, I conducted a consultation with Indigenous communities, particularly with regard to domestic violence and the increased use of electronic bracelets. Rather than incarcerating these people, the use of electronic monitoring bracelets outside penal institutions is a good way of controlling them. The majority of people I consulted — if not all Indigenous communities — agreed with this principle.
In your opinion, is this also an effective way to prevent the excessive incarceration of Indigenous people accused of domestic violence?
[English]
Ms. Big Canoe: Without more background or context, I don’t think it’s fair to try to answer that. I can answer that we heard throughout the national inquiry that even when there are orders put in place for those types of measures, it doesn’t prevent some violence.
The bigger problem with the particular bill we’re discussing is that when you have a reverse onus on a very vulnerable person, they don’t have the opportunity, so the IBA would ask what is being done to protect those more vulnerable people.
Senator Jaffer: Thank you to all the witnesses for being here this morning.
Mr. Bytensky, you said that bail is not heard in a timely way. Can you define what you mean by that?
Mr. Bytensky: Yes. The Criminal Code currently requires a person who is arrested, assuming they are not released by the police, to be brought before a justice to be “dealt with according to law.” Those are the words of the Criminal Code. There is some reason to believe that being “dealt with according to law” means something more than just being told to come back on another day.
Courts throughout the country have entered stays of proceedings when people have not had timely bail hearings, pretty much in every province and twice at the Supreme Court of Canada. Most commonly, it’s when people aren’t brought to court within 24 hours, but there are examples of cases that have been stayed when people haven’t had bail hearings for a number of days, when they keep getting adjourned and not reached. That has also happened in many provinces, if not all of them.
Rather than leaving it to expensive litigation on a case-by-case basis, it’s important to include a provision that clarifies the law that says if you are brought before a justice and you are ready to proceed, you shall be entitled to have a bail hearing that day. Right now, it’s a little ambiguous. In my view, the better definition from the courts is that you are entitled to that, and lack of resources is not an excuse. It would be helpful to prosecutors around the country and to justices who administer the law to know that that’s exactly what the intention of Parliament and the Senate is — to ensure that people who want to have their bail hearing get their bail hearing and are not delayed in being able to be heard. That’s the current state of affairs, and it’s a shocking problem to the country.
Senator Jaffer: You’re a lawyer and I’m a lawyer. I used to do bail hearings. You would know this more than me now because I haven’t been practising for a long time. Whose bail hearings are heard first? Those who have resources have a fancy lawyer — sorry, I don’t mean to be rude — not fancy, but well-resourced lawyer and ready to go. That hearing would be first. Who would be left to the bottom?
Mr. Bytensky: Respectfully, I’m not so sure how easily we can analyze that. The vast majority of bail hearings across the country are already done by duty counsel services throughout the country, so that already happens. Just as an anecdotal piece of evidence, last week in Toronto on a particular day, there were 35 bail matters ready to go, and I think 12 of them weren’t able to proceed. Now, that’s a combination of duty counsel matters and private counsel matters. There’s no way of saying which ones, and you’re not always going to have privately funded lawyers being given priority.
Senator Jaffer: I didn’t say that.
Mr. Bytensky: I’m sorry. I misunderstood.
Senator Jaffer: No, maybe I did say that. I apologize. What I meant is they are ready to go, and the judge always hears from those who are ready and then later from duty counsel. That is my experience. Maybe you’re saying no. Those that are ready to go, normally, in my experience, are those that have private counsel. What I’m trying to find out from you is who gets left out.
Mr. Bytensky: Right now, we’re trying to find strategies throughout the country to triage matters. We’re like an emergency ward where there are more people than doctors, and we’re trying to figure out who gets treatment now and who gets to sit on the gurney for a few extra days. In my respectful view, it’s shameful that we have to do that. I think the practices vary through the country. My experience is that private counsel do have some priorities sometimes, but I wouldn’t say that that’s a universal truth, and I think there are regional differences throughout. There are many places where there simply are no private counsel and they are all duty counsel matters, or 99% of them are. They can’t all be reached, and that’s the problem.
Senator Jaffer: Tell us, from your experience, what happens to a Black or Indigenous or vulnerable person who is incarcerated? Where in the pecking order do you find them?
Mr. Bytensky: Well, frankly, I personally litigated the Balfour and Young case in Manitoba, which was my case, and it’s a shocking revelation of justice in northern Manitoba, which is almost exclusively Indigenous accused persons. The impact it has on individual defendants is really unspeakable. I encourage everyone to read it because it’s eye-opening. It was eye-opening for me.
I don’t know that we have an easy answer for that. I think historically we have disadvantaged the racialized, the poor, the mentally ill and the Indigenous. There aren’t a lot of Indigenous accused in Toronto where I practise primarily, but overall we know from our data that there are certain groups that have always been left behind, and I’m sure that will continue going forward.
Senator Jaffer: And those groups are Black, Indigenous, racialized, vulnerable and marginalized people. Right?
Mr. Bytensky: Sure. The mentally ill and the poor. The Ontario court and all magistrates’ courts throughout the country are full of very, very poor people and very, very mentally ill people.
Senator Jaffer: Thank you very much.
Senator Klyne: Welcome to our witnesses here.
My question is for Mr. Bytensky. In your experience, do you believe that an expansion in the reverse onus provisions in Bill C-48 would lead to more accused in remand? Coupled with the lack of resources given to our criminal justice system, should we expect to see an increase in plea bargaining?
Mr. Bytensky: Yes, you will have more people in remand because more people will be waiting for their bail hearings. You will not have more people in remand because they have been detained following a bail hearing. I don’t think there will be any realistic difference. If there is a difference, I predict it will be a very minor one.
What you will have is people waiting additional days, and so the population in our remand centres will rise because there are just more and more people waiting for their day in court. And whenever that happens, you’ll have people who will be pleading guilty to get time served dispositions, which has happened since time immemorial in our country. There’s no doubt that there’s an overwhelming number of wrongful convictions of people pleading guilty to things they didn’t do just so they can be released from custody. That will continue and that will grow.
Senator Klyne: How much overlap is there in Bill C-48 and current bail hearing practices?
Mr. Bytensky: There’s variability regionally. Speaking for myself in my personal practice and, I think, for most Ontario lawyers, I can tell you that I approach a reverse onus bail hearing the same way I would approach any serious case that’s a Crown onus bail hearing. It’s necessary for us to present a cogent bail plan when there’s any kind of serious allegation. I don’t know that I will approach my work much differently. Creating new additional reverse onus provisions will make me be extra careful in some of those cases, but I don’t think it will change much, to be perfectly blunt with you.
Senator Klyne: Thank you.
Senator Dalphond: Just to follow up on this last line, I think you said before that even in the current system, even if technically the burden is placed on the Crown, in fact, it is on the accused. You say this isn’t going to change with this bill. It will not make things worse; it will be kind of a codification of the practice.
Mr. Bytensky: Yes, I think that’s how most experienced lawyers will look at it. I think when you take a cross section of all lawyers from every level of experience across the country, it’s natural that some, especially the more junior lawyers — my junior colleagues — would take additional steps, perhaps unnecessary ones, in reverse onus proceedings that they might not otherwise do. If it’s a reverse onus, they may propose additional sureties to the court out of an abundance of caution because it will be their onus. So I do think that it will protract bail proceedings on the whole. I think it will take longer for plans to be put together and people will wait longer to get their bail hearings. There will be some difference with some lawyers, but I don’t see that it’s going to be an overwhelming sea change.
Senator Dalphond: Thank you.
You’re a member of a task force of experts that advises on bail hearings. Most of these things are done by a provincial judge in a provincial court. What has your advisory group been proposing to speed things up, especially if it’s going to be protracted hearings, meaning further delays, as you’re saying? I understand that. Is there a copy of a report that we could have access to?
Mr. Bytensky: I was on the bail experts panel, which was an Ontario panel in — I believe it was the 2014 report. It’s a publicly available document. I’m happy to provide it, but it is easily findable. It was called Justice On Target, and it was a bail experts report.
In terms of the current recommendations, many of them involve matters that are really within the provincial domain. There are practice issues that I don’t think are the proper subject of federal legislation. I think there could be strategies such as how we should stop cross-examining as much as we do. We can put in some meaningful practice changes that will impact on how long bail hearings take.
From a legislative standpoint, we can say a lot by making it clear that the intention of our federal elected officials and our Senate is to say that you get a bail hearing in a timely way. That is what we’re writing in our legislation. It’s not enough that we have some courts saying it; we are telling you that that is what we want you to do in your practice in terms of how you apply whatever practice requirements to bail.
Senator Dalphond: Thank you.
Senator Pate: Thank you very much to all the witnesses.
What are the issues in addition to the countercharging that you’ve raised, Ms. Big Canoe, and also the issues that you’ve raised in terms of the mass incarceration of Indigenous and Black people, Ms. Donkor? I’m curious as to whether you could expand a bit on that as well.
Mr. Bytensky, the impact of financial means and the fact that as you’ve — I forget now exactly who said it. I think it was you, Mr. Bytensky. You said the majority of folks who are represented at bail hearings are represented by duty counsel. What kind of resources are required to actually mount the type of case needed to counter the kinds of provisions being suggested here? What’s your experience currently — to expand on some of the issues that were just raised — in terms of the lack of resources now for individuals who may have mental health issues, are struggling with homelessness or are in poverty? How is pretrial detention treated now?
I’d like to provide each of you an opportunity to expand on the crisis that pre-exists this bill, which each of you has spoken about. Maybe we could start in the order that you presented.
Ms. Big Canoe: Certainly. I will not take up a lot of time so that my colleagues can also answer this.
I think the evidence-based recognition, the multiple commissions and reports, already speak to the mass incarceration of Indigenous people and what they’ve experienced since the 1980s. We know the experience Indigenous people have when they are remanded, and they are more often remanded. That is directly tied to resources.
Last week I spoke to this committee on a different bill, and I provided poverty statistics of Indigenous people. We know the resources that Indigenous people have, whether that’s being provided by legal aid or duty counsel. The systemic issues and harms that have continued prior to even this coming into place still have impacts. We know prior assumptions even from decades ago still have an impact on the way Indigenous people are incarcerated.
When they are less likely given bail, they spend more time in custody. That becomes a real concerning issue, not just because the system itself is being slow, but because of the systemic harm they then receive while incarcerated. We also have a lot of evidence on what happens to Indigenous people in custody. Unfortunately, that’s from small harms right through to death. The majority of the work I do is inquest work, and the majority of it is mandatory inquest as a result of death.
Mr. Bytensky: I don’t want to turn this into a discussion about the plight of defence lawyers. Right now, at least in Ontario and I believe other parts of the country as well, legal aid funds bail hearings either very poorly or not at all. When you have to come back on multiple days to be reached for your bail hearing, you’re not likely to ever recover the time that you’ve put into doing that. I don’t want to make that about us, though.
My point is that we have duty counsel. You’ll be running a lot more hearings, require more courtrooms and need more duty counsel, or at least be able to fund private lawyers to do that, or you’ll have more bail delay. That will come as an additional tax on legal aid, undoubtedly, and will probably require more resources either from the provincial or the federal government. Somehow, additional funds will be needed because the current complement of duty counsel can’t manage the existing caseload. With all the problems I’ve previously identified, you will probably need more courtrooms. If you’ll need more courtrooms, you’ll need more money for legal aid and for other resources from the defence side.
Ms. Donkor: Just to briefly add to that, I completely agree that there will be a disproportionate impact on the legal system, but in terms of resources of the accused person, as I briefly mentioned, more resources will help displace the legal presumption of an accused person’s detention.
For example, when we have these reverse onus bails, when we have serious charges that an accused person is facing, often what helps to obtain bail in those cases is, for example, having a residential surety or sureties who are able to pledge a significant amount of money to secure the bail. The individuals who are unable to attain bail are individuals who don’t have those resources, who don’t have family members who are able to pledge a significant amount of money or don’t have family members who have available space in their houses or in their places of residence that the accused person can live in. Without having those resources to back them up, it makes obtaining bail more difficult. That often falls on Black and Indigenous folks.
[Translation]
Senator Dupuis: I thank the witnesses for being here this morning.
Mr. Bytensky, may I come back to part of your testimony? Do you have the same reading of the impacts of Bill C-48 on what is clearly stated as a desire to have greater public safety and to create conditions so that there are fewer very violent offences committed with firearms, as opposed to incidents of violence that involve an intimate partner?
Do you have the same reading of the consequences of this bill? It struck me that you said we had a very conservative bail system. I understood you to say that this won’t improve the system, but rather increase delays. Based on your practice and that of your colleagues, do you share the same judgment regarding the impact of Bill C-48 on these two realities, which are nevertheless very different?
[English]
Mr. Bytensky: I’m on record before a different committee saying that I don’t believe — I’ve said it here as well — that the question of who bears the onus has a significant impact on the detention-versus-release outcome, and I do believe that.
We have many cases where we may overall, as a community, disagree with the decision to release someone on bail. We would probably have that same disagreement if that person were released by a Crown onus or a reverse onus situation. The public often disagrees with the ultimate court decision.
Legislation that would take away the right to bail would have an impact, obviously, on those individuals. I would say that the downstream effects would be pretty significant the other way, but my point is that simply by including a number of additional offences that will be called reverse onus, I do believe that there is a belief, which is untested, that we will have more people detained as a result. That’s the working theory. I simply don’t know that there’s any data to support that. In fact, my experience tells me that it is not true.
What you might see — and I believe that Mr. Taylor said this briefly yesterday in his testimony — people released with more stringent conditions. To the extent that might help public safety, then I agree with him. If somebody is released without conditions and somebody else is released with very strict conditions, that may have a measurable impact on public safety. I do accept that premise. But if the public believes that the only way to achieve public safety is by detaining somebody, I do not think that we are going to get there.
[Translation]
Senator Dupuis: Thank you for this reply. I understand that your argument is along the lines of saying that we put too many people in pretrial custody, and that putting too many people in pretrial custody doesn’t solve the issue of gun violence at all. So it doesn’t accentuate, it doesn’t accelerate and it doesn’t increase public safety.
[English]
Mr. Bytensky: If you expand that thought, one can argue that it has the opposite impact because everyone will wait longer in the detention centres to get their bail hearings, and the person who may be in there for a relatively minor alleged infraction will be sitting face-to-face for a number of days with people who perhaps have a much lengthier criminal history. As I said in my written submissions, jail is very criminogenic. People go in and come out much more dangerous than they were.
On top of that, if you wait for your bail hearing and you lose your job, your place in a shelter, your treatment program, your family or your kids, that is also going to make you more dangerous directly because of all of the different stresses that you are now going to face in your life.
The specific individual with firearms being granted bail repeatedly — which is what we hear about — look, it happens. It is going to continue to happen, regardless of who has the onus, and it is not going to make the public happy. I have to acknowledge that.
Senator Batters: Thank you to our witnesses for being here today and helping us to understand this bill better.
Mr. Bytensky, from the Criminal Lawyers’ Association, will Bill C-48 make any practical difference in bail hearings for these new reverse onus offences that are included here given that prosecutors are already more likely to seek detention for repeat violent offences using weapons or similar offences?
Mr. Bytensky: Yes. The difference would be that defence lawyers and duty counsel will probably take longer to put together bail plans that they will propose. It will take longer to get hearings on. I agree with you that the prosecutors are less likely to consent to bail in some of the examples that you have given, but there are always different shades of grey.
If you have a so-called gun charge where there are four people in a car who are arrested and there is one firearm found in the driver’s seat, the rear seat passenger might have received a consent bail if it was a Crown onus, whereas they may not receive a consent bail now if it is a reverse onus. Frankly, I’m not sure that the public would have the same outrage if that person were granted bail.
I’m not sure that I can give a blanket statement that covers every scenario, but in general there would be some minor impacts in terms of the practice, but I tend to agree with you on the whole that the serious charges will tend to go the same way.
Senator Batters: Thank you.
To the Canadian Association of Black Lawyers, in your opening statement, you referenced that you would like to see some amendments to Bill C-48. What type of amendments would you recommend to our committee to make Bill C-48 both effective in its objectives and also respectful of the constitutional rights of individuals?
Ms. Donkor: Thank you.
We certainly support the amendments that the CCLA will be proposing, the first one being the recommendation to amend the bill to require a statement of record of proceedings on how a justice considers section 493.2 of the Criminal Code in reaching a bail decision.
We would also suggest that “Black accused persons” be added to the language of section 493.2. Currently, Black accused persons are included in the catchall phrase of “other vulnerable populations.” Given the statistics, which are clear that black and Indigenous individuals are over-represented and are denied bail more often, we think it is imperative for Black accused persons to specifically be named so that justices know that they need to take this provision into consideration for all Black accused persons who come before them.
We would also suggest adding a provision that makes it clearer that the failure to appropriately apply section 493.2 is an error of law. This would effectively make a pretrial detention of a Black or Indigenous offender reviewable on a standard of correctness, which addresses the problem of over-incarceration. If justices aren’t taking this provision seriously, aren’t stating how they’re really considering the over-representation of Black and Indigenous offenders at the pretrial detention stage, then that should be an error of law that should be reviewable. Section 493.2 is already codified in the Criminal Code, but we aren’t seeing the practical realities of it really being considered. As a criminal defence lawyer myself, I can say in my experience that some justices don’t really know how to apply it. Sometimes they don’t even mention it in their decisions at all. This really will put more of an onus on justices to take this into consideration and take it seriously.
Senator Batters: Thank you.
Senator Clement: Thank you to our witnesses for being here. I appreciated that last response from Ms. Donkor. I will ask my questions and then get out of the way.
My question for Mr. Bytensky is about whether the delays that we are already experiencing are going to lead to charges just being thrown out, which means that it is the opposite of public safety and is not going to lead to any trust in our criminal justice system. Could you could comment on that?
My other questions are for Ms. Donkor and Ms. Big Canoe. Yesterday, when this committee was questioning the minister and his officials, a key theme around evidence and the lack thereof kept coming up. I am just wondering if you could comment on the risk of moving forward without comprehensive evidence. Also, what kind of data do you use? Are we all using the same data when we are evaluating things? Could you comment on data, generally speaking? In 2019, Bill C-75 comes into force. That is going to be reviewed. Are we collecting data on this now? Do you know? Has that been released? Would that be helpful in this process, do you think? Those are my questions for Ms. Big Canoe and Ms. Donkor.
Ms. Donkor: Perhaps I will begin with addressing the theme around this lack of evidence, which is certainly very concerning because there is no empirical evidence that this bill is going to achieve the public safety goals that it aims to. There is actually no strong evidentiary basis or justification for this bill.
I completely understand that when any individual life is lost, that’s a tragic circumstance. It is certainly something that we want to avoid, but the cases we are seeing in the news are certainly outliers. It is not that every single person who is released on bail goes out and commits another crime.
The bail regime as it stands already addresses public safety concerns because a justice is able to detain an individual based on public safety concerns and based on concerns about public confidence in the administration of justice. Those are already factors that are taken into consideration at the bail stage.
It is concerning that there is a complete lack of evidence or a complete lack of evidentiary basis for this bill. What is even more concerning is that, in contrast, there is overwhelming evidence on the impact this will have on Black and Indigenous communities. Really, we are making this bill based on assumptions when there is clear evidence that it will have a disproportionate impact on Black and Indigenous communities.
In terms of what data we use, it is a broad question because there is data for a lot of things. For example, if we are talking about data for the conditions of confinement, the Office of the Correctional Investigator releases an annual report where you can see clear data about the conditions of confinement. We have seen research done. You can look at Appendix A of the decision of Morris v. The Queen. This is a Court of Appeal decision that considers social context evidence in sentencing. There is an appendix there that is an expert report on crime and the experience of — I can get the full name for you, but it is an appendix that has a lot of data about the experience of Black Canadians and the criminogenic effect of anti-Black racism, particularly in Ontario. There is data out there for all provinces as well.
Perhaps I will pass it on to my colleague to address this further.
Ms. Big Canoe: Ms. Donkor actually answered quite well.
I would touch on a couple of components of the data that is collected. One of the largest issues we have is that it has only been more recently that we’re starting to disaggregate actual data to understand particular groups who are impacted by the criminal justice system, whether that is in custody or during. One of the problems is that throughout multiple jurisdictions, we have different [Technical difficulties] collect. For instance, you may not be able to go to one province and ask how many bail hearings were there on this day and how many people were remanded versus released. That is problematic. We often rely on Statistics Canada. We often rely on the correctional investigator. We also rely on a number of reports specific to Indigenous people and their interactions or the experience they have within the criminal justice system.
One thing to point out — my colleague addressed this well when she talked about the outliers of people who are released on bail and reoffend — is that we often look at lives lost, but what we’re failing to look at over and over again are the lives lost in custody or in those horrific circumstances of custody, which is largely impacting Indigenous and non-Indigenous. More recently, Tracking (In)Justice, which is a research group, has released multiple reports — and will continue to — both on the use of force by police but also on deaths in custody. I would point your attention there because, unfortunately, when you look at the numbers of those who are dying in custody, you will see they are largely Indigenous and Black populations.
I said to one of the senators earlier that the Indigenous Bar Association, or IBA, is concerned. What are the protections that are going to be afforded for these vulnerable populations who we already know have the most adverse impacts — including death — as a result of the criminal justice system? That is where amendments need to focus. That is where the change needs to be made to make sure there are steps in place. If this bill goes through, which I quite frankly feel it will, just based on the speed of [Technical difficulties], then please put into place some protections that will assist those communities.
The Chair: Thank you, Ms. Big Canoe.
We are short one speaker for the next panel, so with your indulgence, we might extend this panel another five minutes or so.
Mr. Bytensky: There is a part of the question that I would like to answer very briefly. Yes, you will see litigation. You will see serious charges either stayed or — what is much less well known — simply withdrawn by the Crown in the face of stay applications. I brought my first stay application for a bail delay case for a client in 2001. Unfortunately, the problem has gotten worse and not better in the 22 years since. There are some well‑known cases in Ontario, including firearms charges and intimate partner violence cases that have been stayed. Last week, a firearms case was withdrawn by the Crown in the face of an application for a stay of proceedings. You are quite right. We would be extremely naive to suspect that it will get better, and, in fact, I suspect it will get worse and more charges will be stayed.
Senator Gold: First of all, thank you to all three of our witnesses for appearing today.
Yesterday, we heard from the minister to the effect that the legislation was deliberately very narrowly focused and, importantly, that there was work being done at all levels of government to strengthen and build confidence in the bail system more broadly and the criminal justice system even more broadly. We have heard a lot about data collection and provincial funding for bail compliance measures. To the three witnesses in whatever order, what would you like to see in terms of investments or policy approaches coming out of future cooperation between federal, provincial and territorial governments to deal with the broader issues of which this bill is only a part?
The Chair: Can we go in reverse order this time? Ms. Donkor?
Ms. Donkor: Thank you for that question. I think it is an important question to address.
First and foremost, for important legislation such as this, we need more meaningful and earlier consultation. Right now, we’re at the Senate stage where we’re studying this bill. It should have been studied a lot sooner. There are serious concerns about the House of Commons skipping over that process.
In terms of investments in future policies, as I mentioned briefly in my opening statement, we really need to see more policies that invest in and make more accessible social services. We need to see policies about guaranteed livable income. We need to see more policies about safe housing, mental health and addiction services.
Really, what makes our communities safer is addressing the root causes of crime. Over-policing and over-incarceration do not address the root causes of crime. It is kind of an after-effect. It is addressing the impact after the crime already happens. If we want to really make our communities safer, we need to be looking at and investing in policies that hit the root of the issue.
There’s a lot of data out there that shows that violence is actually a public health concern more than it is a criminal law concern. Investing in public health and social services will, in my opinion, make a more meaningful impact than over-legislating.
Kristian Ferreira, Community Liaison, Canadian Association of Black Lawyers: I would also like to quickly add that more meaningful bail reform would also include — as my friend has indicated — more efficiency in the court systems, strengthened and targeted enforcement of the conditions of the report and, as Ms. Donkor mentioned, enhanced community support.
With regard to the comments on data, victims units have, especially around the Toronto police, done several data collection processes reports in the last few years.
The Chair: Thank you.
Ms. Big Canoe: I would concur with both Ms. Donkor and Mr. Ferreira.
One thing I would like to say is in relation to the first part of your question, senator, if I might. You talked about the narrow scope. I would disagree on behalf of the IBA and say that it is narrow in scope except in relation to intimate partner violence. We heard my friend talk earlier about the fact that the Supreme Court has already said reverse onus is constitutional. When we look at the over-breadth of something, in the context of Indigenous women who are caught up in a process as a whole, they actually do raise legitimate section 11(e) arguments. I will leave those arguments for my colleagues at the Canadian Civil Liberties Association, or CCLA, to present to you next week.
I would agree with my colleagues that when we talk about policy and reforms, we have to look at the roots of why people find themselves before the justice system. We know with Indigenous people that it can be as minor as just pleading out and taking criminal responsibility where it persists to deeper-rooted issues like the housing or policy. When we do look at bail reform, part of that has to be taken into consideration.
We want to see an amendment because a judge has to put their mind, when it is a vulnerable person — whether it is a Black or Indigenous person or someone with serious mental health — to what resources are in place to keep them. Remand, when we live in a world of presumption of innocence, is supposed to be the last resort. What can we put in place? If there is to be a reform, it should be any potential reform that supports and maintains so that we do not create better criminals and ensure that people, while waiting for their trials, are living in that good way that is not going to cause harm to them.
Mr. Bytensky: There are a lot of broad answers that could be given to that question, but I will simply say two things.
Number one, we need to actually do evidence-based legislation as opposed to talk about doing evidence-based legislation. In whatever we do, let’s do it because the data backs it up and not because of some other reasons.
Number two, I appreciate why it is difficult for legislative officials who are elected to focus primarily on the interests of the impoverished and those who are marginalized in our society, but if we focus simply on this, even if you want to look at public safety, more timely justice means better justice. The reason why some people are released on bail go on to commit crimes is their bail hearing might have been rushed, and the reason it was rushed is there were 50 bail hearings that could not be reached that day.
I’m not saying for any particular case, but maybe the reason that we have some outcomes that are, in retrospect, bad outcomes, is we did not give that case the time it deserved and didn’t get the good decision that could have been made in that case, because maybe the proper decision would have been a detention order had everything been done in a timely way.
If we invest in the other half of it — and I referred you to the preamble of the current bill where it talks about accused persons being unnecessarily detained affecting the confidence of the public in the administration of justice — and we actually do something to address that part of it and meaningfully legislate provisions that will provide for timely justice, it will give you better justice and better public safety.
The Chair: We are not going to have time for a second round. Senator Cotter has withdrawn his really outstanding questions to make space for Senator Simons, who is our last questioner.
Senator Simons: I am going to circle back to Senator Clement’s question to Mr. Bytensky because I do not know if he had enough time to answer it in depth.
I am concerned, and I raised it last night with the minister, that the Jordan clock will tick out and people will not just have their cases stayed, but, because of Jordan, they will have to be dismissed.
I worry, too, about the credit-for-time-served issue. I think that the public is often angry when they hear that somebody who is sentenced for a crime is going to get out right away because of all of the extra credit, if I can put it that way, for time spent in remand. I worry that there could be a boomerang effect that offenders who are actually convicted of fairly serious crimes may get out right away without having had a chance to go through any of the programs they might have been offered in a federal institution because they have just been cooling their heels in remand because they were not able to access bail.
Mr. Bytensky: Thank you for the question, Senator Simons.
I will answer it this way: The individual who would receive a penitentiary-length sentence and whittles it down to something else because they’ve chosen not to have a bail hearing is a separate issue and one that this legislation does not go after.
Senator Simons: I’m speaking of someone who is denied bail.
Mr. Bytensky: Right. And someone denied bail may not have a speedy trial, or they may, for any number of reasons.
We have actually changed the law in the last ten years. There is no real advantage anymore for spending time in pretrial custody and getting credit, because those individuals, unless they have horrible and unusual conditions, will not get the enhanced credit that they typically received ten years ago and earlier. I’m not so sure how much of a problem that is going to remain going forward.
What I do agree with, though, is that pushing cases in bail court and stretching bail courts’ limits, the way that some courts are addressing it, certainly in Ontario, is taking judges from trial courts to do bail hearings because they want to put out that fire. When you take a judge out of trial court and put that judge into bail court, you have one less judge available to do a trial. That makes somebody’s case or perhaps multiple cases not get reached that day, so they get bumped, and they will then bump someone else when they come back up for court. You will also have stay applications for bail delay being litigated, which will take up the time of judges and so on. There is a cascading effect. Yes, more charges will be stayed, and fewer people will have their day in court. Both victims and accused will not have their day in court. It is bad for everybody.
Senator Simons: Thank you very much.
The Chair: That brings this session to a close. Let me wrap it up by thanking each of the four of you for outstanding and insightful presentations and high-quality responses to our questions. Some of us, if we had the time, would like to carry this conversation on all day, I think. Unfortunately, from your point of view, that is probably not attractive because you have lives to lead and careers, jobs and clients to serve. We want to express our collective appreciation for your taking this time out of your very busy days to help us in our consideration of this bill. Once again, thank you very much.
We will move to our next panel to continue our examination of Bill C-48. The second panel is composed of a group of representatives from two organizations. We’re fortunate today to be joined by Thomas Carrique, Commissioner, the Ontario Provincial Police, by video conference; from the Canadian Association of Chiefs of Police, Jason Fraser, Member, Law Amendments Committee; and Pauline Gray, Member, Law Amendments Committee, both by video conference.
A special thanks, Commissioner Carrique. We know your time is precious, and we have asked your indulgence with an appearance at this particular time. We will turn the floor over to you and invite you to address us for five minutes or so, and then I’ll ask the same of the CACP. That will be followed by a round of questions. We will limit this session to 45 minutes, partly to assist the commissioner, but also, we have a group of senators who have to go to work in the Senate shortly.
Thomas Carrique, Commissioner, Ontario Provincial Police: Thank you, Mr. Chair. I certainly appreciate your consideration and understanding, and thank you to the members of the Standing Senate Committee on Legal and Constitutional Affairs for calling upon me to contribute to your examination of Bill C-48. I am very pleased that Bill C-48 has been formulated, and I appreciate the committee’s quick uptake of the bill after the Senate’s first and second readings last week.
You will all recall that on December 27, 2022, Ontario Provincial Police Constable Greg Pierzchala was murdered while performing his duties protecting the citizens of Ontario. You will have heard me say before that Greg’s murder was 100% preventable. Two individuals have been charged with first‑degree murder, and we’ve lost an exemplary young police officer, and a family has lost a loving son and brother.
One of the individuals charged — namely, Randall McKenzie — is a repeat violent offender with criminal convictions for armed robbery using a firearm, assault with a weapon, possession of a weapon and assault, including assault of a peace officer. He had been subjected to a five-year weapons prohibition in 2015, a 10-year weapons prohibition in 2016, a 10-year weapons and lifetime firearm prohibition in 2018, and at the time of Provincial Constable Pierzchala’s death, bail conditions prohibiting him from possessing a weapon and ammunition. Despite showing a concerning pattern of non-compliance with previous weapons- and firearms-related prohibitions, as well as five previous convictions for failing to comply with court orders, he was released while awaiting trial for additional violent weapons-related offences. McKenzie did not abide by his conditions, including discarding a GPS ankle monitoring device, which he was ordered to wear while under the supervision of a surety.
Regrettably, the incidence of repeat violent offenders with a history of violence being granted judicial interim release and committing further violent criminal acts thereafter is not rare. I appreciate the attention being paid to this bill and am pleased that months of discussion following Provincial Constable Pierzchala’s murder have turned into action.
As my colleagues will also testify, the quest for bail reform by Canadian police leaders did not start following the days of Provincial Constable Greg Pierzchala’s murder but dates back to 2008, some 15 years ago, when the Canadian Association of Chiefs of Police put forward a resolution identifying that a minority of offenders commit the majority of violent crimes here in our country. CACP research at the time established that these individuals can be fairly categorized as chronic or prolific offenders. Today, we refer to them as repeat violent offenders. The research indicated that these offenders are often given judicial interim release, despite the fact that they have lengthy criminal records, have many times in the past broken conditions of bail and that these chronic offenders, who are released on bail conditions, frequently commit further crimes soon thereafter.
As I shared with the Standing Committee on Justice and Human Rights on February 15, 2023, specific to bail, the CACP resolution called upon the federal Minister of Justice to amend the Criminal Code so as to establish a definition of a chronic offender based upon a threshold number of offences committed over a distinct period of time; to establish the principle in bail hearings that being a chronic offender is prima facie proof that detention of an accused is justified; and to place the onus on a chronic offender who is facing bail refusal application to show cause why they should be given judicial interim release.
Immediately following the tragic and preventable murder of Greg Pierzchala, I, along with my policing colleagues, called for enhancements to the Criminal Code that would result in conveying what I believe is the will of the law-abiding people of Canada and compel the courts to consider factors that must be weighed against the release of accused, such as preventing the commission of a serious offence; the prior commission of a serious offence while on bail; the prior commission of an offence while using a weapon — in particular, a firearm — or where a firearm was party to such an offence; and the extent to which the number and frequency of previous convictions of the accused for serious offences indicate persistent serious offending by the accused; and the nature and likelihood of any danger to the life of a person, their safety or any person endangered within the community that may be presented by the release on bail of a person charged with an offence punishable by imprisonment for a term of 10 years or more.
Bill C-48 aligns with this call for enhancements and the concerns I have continuously raised over the preventable murder of my officer. I asked for the expansion of reverse onus provisions for firearm possession offences as they relate to repeat violent offenders. Bill C-48 shifts the onus from the prosecution to the accused to show why an accused person should not be detained and held in custody while awaiting trial. I asked for a definition of serious prolific or repeat violent offender. Bill C-48 makes targeted changes to the Criminal Code bail regime to address serious repeat violent offending with firearms, knives, bear spray and other weapons.
I do respectfully submit that limiting the reverse onus to violent offences involving weapons could benefit from further consideration towards protecting Canadians from repeat violent offenders not using weapons to inflict serious bodily harm upon their victims.
I suggested codified public safety considerations before bail is granted. Bill C-48 requires the court to consider if an accused person has any previous convictions involving violence and to include in the record a statement that the safety and security of the community were considered. The provision ensures that the public’s and the victim’s right to be protected from these offenders’ violent criminal behaviour is indeed given greater weight than is currently the case when bail matters are considered.
Bill C-48 will strengthen Canadian bail laws. It will enhance public and police officer safety and, therefore, increase public confidence in Canada’s legal system.
In closing, I would again like to express my sincere appreciation to the Standing Senate Committee on Legal and Constitutional Affairs for this examination. I thank you for allowing me to offer my comments, and I look forward to answering any questions you may have of me. Thank you.
The Chair: Thank you, commissioner.
We now invite Mr. Fraser and Ms. Gray to speak for five minutes, followed by questions from senators.
Jason Fraser, Member, Law Amendments Committee, Canadian Association of Chiefs of Police: Thank you, Mr. Chair and members of the committee. On behalf of Chief Danny Smyth, President of the Canadian Association of Chiefs of Police, we are pleased to be given this opportunity to meet with you today. I am Jason Fraser, general counsel with York Regional Police, and I’m accompanied by Staff Superintendent Pauline Gray of the Toronto Police Service. We are representing the CACP as members of their Law Amendments Committee.
The CACP welcomes and supports Bill C-48 and the reform of Canada’s bail system. The proposed amendments align with many of the calls to action put forward by police leaders dating back — as Commissioner Carrique has already indicated — to a 2008 CACP resolution that called upon the federal government to implement a reverse onus for chronic offenders who seek bail. This year, the CACP adopted a new resolution advocating bail and firearms reform to support community safety.
The CACP recognizes that the fundamental right to reasonable bail is critical to the Charter-protected presumption of innocence. In most circumstances, the Crown bears the onus of establishing why an accused should be detained in custody pending their trial.
Nevertheless, any system of reasonable bail must take into consideration public safety. After all, bail is fundamentally a risk management tool. A properly designed bail regime is meant to manage an accused’s flight risk, their risk to public safety and the risk of undermining confidence in the justice system. There will necessarily be circumstances where the onus must be reversed to require the accused to show cause as to why they should be released.
Pauline Gray, Member, Law Amendments Committee, Canadian Association of Chiefs of Police: In regard to firearms offences, we wholeheartedly support the proposed new reverse onus for additional firearms offences, including possession of a prohibited or restricted firearm. While the root causes of gun and gang violence are complex and extend well beyond bail reform, it is important to reflect upon the impact that bail reform may have on stemming the tide of gun violence, particularly in urban centres like Toronto.
For example, in Toronto in 2021, 772 people were released on bail for firearms-related charges. Of these, 165 people were rearrested while on bail for firearms-related charges. Of these, 60% were rearrested again for firearms-related charges, and of these, 50% were released on bail yet again. In 2022, 754 people were released on bail for firearms-related charges. Of these, 89 people were rearrested while on bail for those firearms-related charges, and of these, 47% were rearrested again for firearm-related charges, and of these, 71% were released on bail yet again.
As it pertains to intimate partner violence, many municipalities in Canada, including Toronto and York Region, have declared intimate partner violence an epidemic, so we also applaud the government’s efforts to expand the reverse onus provision for intimate partner violence offences, added by Bill C-75, by applying the provision to accused persons who previously received a conditional or absolute discharge for IPV‑related offences. We recommend that the intimate partner violence-related amendments in Bill C-48 be clarified to ensure that the reverse onus also applies to previous acts of psychological violence, including the criminal distribution of intimate images, criminal harassment and extortion.
Mr. Fraser: With respect to repeat violent offenders, the CACP supports the creation of a reverse onus for repeat violent offenders. However, we are of the respectful opinion that the proposed classification of repeat violent offenders is overly restrictive. By limiting the reverse onus to violent offences involving weapons, Bill C-48 does not address the risk posed by offenders who inflict real violence on their victims without using a weapon. For example, in 2022, a man broke into an elderly woman’s home in York Region and violently sexually assaulted and choked her. He was on bail at the time of the offence. This offence would not be captured by the reverse onus bail provisions under Bill C-48 since the offender did not use a weapon, and yet the offence involved a level of violence that shocks the conscience of our communities. We recommend that the proposed reverse onus should be expanded to include violent offences where a weapon is not used.
We are also recommending the following clarifications or refinements to the reverse onus for violent offences.
One: There should be no five-year limit on the use of prior convictions. Such a limit fails to take into consideration the offender’s period of incarceration resulting from their prior conviction, as well as the objective gravity of, for example, using a firearm in the commission of an offence which is punishable by a term of imprisonment up to 14 years and the dangerousness of an accused who would commit a second offence of that nature.
Two: A hybrid offence that is punishable by a term of imprisonment of 10 years or more should be eligible for consideration regardless of the Crown’s election to proceed by indictment or summary conviction.
Three: The reverse onus for an accused who commits a prescribed offence while on bail with a no weapons term or while subject to a weapons prohibition should be expanded to include an accused who commits a prescribed offence while subject to an undertaking given to a police officer that prohibits the accused from possessing weapons.
In conclusion, violence in our society is a complex issue that will not be solved by bail reform alone. However, as police leaders, we see Bill C-48 as an important step toward addressing the impact that repeat violent offenders have on the safety of Canadians and their trust in our justice system.
We thank you for allowing us to express our support for this important bill, and we look forward to answering any questions that you may have. Thank you.
The Chair: Thank you for your presentations.
We’ll now turn to senators for questions, beginning with the deputy chair, Senator Boisvenu.
[Translation]
Senator Boisvenu: Once again, I thank our witnesses.
My first question is for you, Mr. Carrique. Once again, thank you for your testimony. My question is of a general nature.
We know that all Canadian provinces have called for in-depth bail reform. Do you think Bill C-48 is an in-depth reform? Does it go far enough to meet your needs and public safety?
[English]
Mr. Carrique: Thank you for your question, senator.
I do believe that the bail reform legislation in Bill C-48 does go far enough to meet many of the concerns that Canadians legitimately have and that policing professionals are experiencing day in and day out in our communities across this nation. I would further add that the suggestions provided by Mr. Fraser would further strengthen the bill as currently proposed.
[Translation]
Senator Boisvenu: Mr. Carrique says the bill goes far enough, but you say the bill doesn’t go far enough, because one of the things you would have liked to see included is domestic violence. We know that there is a lot of recidivism when it comes to domestic violence, and that male aggressors will often have multiple victims.
Mr. Fraser, do you share Mr. Carrique’s view that this bill goes far enough? Shouldn’t it include domestic violence and recidivism in the context of domestic violence?
[English]
Mr. Fraser: I share Commissioner Carrique’s view that this bill addresses a number of the issues that policing leaders have been advocating for since 2008, but I also appreciate that the bail system as a microcosm of the criminal justice system is in and of itself a complex system and that we can’t expect revolutionary change overnight. We appreciate that the change will be incremental, and the CACP will continue to advocate for additional incremental change as we push particularly to look at bail reform and bail through the lens of public safety, and also specifically through the lens of the safety of victims of intimate partner violence. As we see it, we see too many victims who are victims of physical violence and, just as importantly, serious psychological violence.
[Translation]
Senator Boisvenu: The justice system is a big ocean liner that can move slowly on the ocean of justice. However, domestic violence, which is endemic in Canada, is a real and present problem. Do we need to wait another five years to intervene, or shouldn’t we amend this bill to include domestic violence as well?
[English]
Mr. Fraser: Thank you, senator.
I agree, and that’s one of the recommendations that we put forward as an amendment to that bill to ensure that we address the physical violence that’s occasioned by intimate partner violence and also the psychological harm that’s done through intimate partner violence. We believe that’s an important step that could be taken in this bill to help make Canadians safer in this realm. As an example, we are seeing many communities in our country, includes Staff Superintendent Gray’s city of Toronto and my community, York Region, where our local leaders have recognized that this is an epidemic. Bail reform is one thing, but we need a full-faceted and holistic approach to addressing such a serious issue in our country.
[Translation]
Senator Boisvenu: Thank you very much, gentlemen and madam.
[English]
Senator Dalphond: I would like to thank our witnesses for their contributions, and I would like to mention to Commissioner Carrique that the story that prompted many new public comments is a notable example of the failure of the legal system, and I certainly agree with you. That brings me, however, to the following questions.
If you look at the numbers that you provided, Staff Superintendent Gray, 772 were released and were charged persons in relation to firearms. They were released on bail, and 165 were rearrested later on and so on. Maybe it’s the third time or fourth time, as was the case in this horrible story that Commissioner Carrique referred to. But it remains a fact that over 600 of them seem to have complied with their bail conditions and were rightly released. We should also not overlook this situation and think about the burden that would be imposed upon those 600 people who might be exposed to an onus, and it might be different or not, depending on the witnesses.
At the end of the day, it brings me to think that — and one of you said it — a bail proceeding is a risk management tool. You have a trier of fact sitting in the front of the room who is supposed to be knowledgeable about the law, and who is asked to determine, based on the evidence presented by the Crown and the defence lawyer, if there is a risk to public safety if the person is released, and whether imposing conditions, whatever they are, would not be sufficient and thus the person should be kept in custody instead.
Do you think that reversing the onus for these cases — and you have referred to this horrible story — would change the situation? I assume that in the case you referred to, commissioner, the Crown opposed the second time to a release and the Crown opposed the third time release, and the guy was back to court for the fifth time, always on charges related to firearms. I’m sure the Crown did not agree to a bail. Do you think that reversing the onus will change the end result, without imposing an unfair burden on those that are amongst the 600 that I referred to?
Mr. Carrique: Thank you, senator.
I will address the potential of unfair burden first off, if you don’t mind, sir. As the legislation is proposed, I think it is a responsible scope, and I do not believe that it will unfairly disadvantage all offenders. We are talking about a very narrow subset of offenders that we will now have a definition to categorize as repeat violent offenders, which does provide some protections and should give the citizens of our country some comfort in that this will only apply to those that present the greatest risk to them.
Reverse onus in itself would not prevent a situation like we experienced back on December 27. The accused was in fact in custody at the time. It was an interim judicial release. But I do believe the definition of a repeat violent offender will help in guiding decisions. I also believe that having to put on the public record the consideration towards revictimization and community safety and show how that has been weighed appropriately will bring about positive change, and I hope that it will prevent further serious injury and further death.
Senator Dalphond: Ms. Gray, do you have a brief comment as well?
Ms. Gray: I just concur with what the commissioner has said, and I want to clarify that we are talking about, again to the commissioner’s point, a very specific group of people here. We’re talking about the repeat violent offenders, and I think the manner in which we have approached the bill focuses solely on those.
The Chair: Colleagues, we have six more intervenors and only about 21 minutes, so I’m going to ask if you could be as surgical as possible in your questions.
Senator Jaffer: Thank you to all three of you for being here.
Commissioner, what you said about losing very hard-working policemen or women is something we face across the country. We, in Vancouver, are just in the process of or have just buried one policeman, a hard-working man with family, so first of all, our condolences to you and your force for this terrible tragedy.
Commissioner, besides what you are saying today, the bigger issue for me is the issue of this is not going to prevent everything. It will address some public concerns, but there is the issue of overcrowding in remand centres and in prisons, of Indigenous people, of Black people, of marginalized people, and as commissioner, I’m sure you are also occupied by that issue. I was wondering if you could kindly comment on that issue. I believe this is part of that. The reverse onus is part of that issue, so may I ask you to comment on that?
Mr. Carrique: Thank you, senator, and thank you for expressing your condolences and recognizing the unprecedented year we’ve experienced in policing across this country. Since September of last year, we’ve had 13 officers killed in the execution of their duties, and a number of them were outright murdered, so it is a very important conversation.
I concur that we need to be ever mindful of issues of overcrowding and other unintended consequences of changes that we make. As Mr. Fraser has appropriately articulated, it requires a holistic approach, but part of that holistic approach, I do believe, is what has been proposed in Bill C-48, and it will be a ripple effect. Change starts with intentional action to create a safer country for all of us, but there are many other components that need to be examined continuously and ongoing, and that’s where each of us, in the roles that we have, have an opportunity to lead other change that will be required as well.
In summary, I do not believe that the revisions proposed in Bill C-48 will create greater risk to more offenders in a large subset being incarcerated and creating greater dangers than would be present if they were released into the community. It’s that risk mitigation, in weighing one against the other, and they will be a far greater risk to the public if not incarcerated while they are awaiting their trial.
Senator Jaffer: Commissioner, thank you.
Senator Simons: Listening to all of you today reminds me of a tragic story that I covered in my days as a columnist at the Edmonton Journal, and that was the murder of RCMP Constable David Wynn and the serious wounding of Constable Derek Bond, who was shot by Shawn Rehn, a man who was out on bail.
At the time, the Alberta government held a major inquiry into what had happened and discovered that when Mr. Rehn appeared for his bail hearing, there was no Crown prosecutor. It was a police officer who had conducted the bail hearing, and the bail hearing had been extremely perfunctory. The officer hadn’t had access to detailed information about Mr. Rehn’s record, as I recall. At the time, I remember being quite shocked. I wrote about the inquiry that very few bail applications at that time had any lawyers at all. There was no one from the Crown prosecutor’s office appearing to request remand. Only 7 to 10% of the accused had any counsel.
I’m wondering if perhaps we aren’t using the wrong tool to deal with a larger systemic problem and that our bail system itself is dysfunctional. I wonder if you know if there are still any jurisdictions in Canada where they don’t use Crown prosecutors and they only use police to handle the bail applications. Do you know if there’s enough transparent flow of information so that the justices of the peace who are adjudicating these bail hearings actually understand the record of the person they are dealing with, or are they working in a black box?
Mr. Carrique: Senator, I am not aware in Ontario of any jurisdictions where police officers are presenting the bail packages directly to a justice. I am responsible for policing close to 350 municipalities in the province of Ontario, and in each one of those municipalities, the bail hearings are run by Crown prosecutors. There’s no jurisdiction in the province of Ontario that I am aware of, which does not mean there aren’t jurisdictions where this is happening.
I can share with you that there is a need to communicate best practices beyond the province of Ontario and look at what other provinces are doing and sharing what we are doing. There has been a recent investment by the Province of Ontario of approximately $112 million, which includes specialized bail prosecutors. It includes specialized officers who pull these bail packages together. I know Staff Superintendent Gray of the Toronto Police Service has actually led the way and dedicated police officers to work alongside prosecutors to ensure that the best evidence is available, leading to the best possible decisions. Thank you.
Mr. Fraser: Thank you for the question, senator.
I will add that I share your concerns and the concerns that were raised with the previous panel in terms of the proper resourcing and efficiencies of the court. It doesn’t assist anybody, whether it’s the accused, victim or community, to see justice delayed. That includes justice delayed at the bail stage. Those resources that are being invested, as Commissioner Carrique has indicated, are an important step. Bill C-48 is, in itself, an important step, but it can’t be a step in a vacuum. These steps have to be taken in conjunction with a process that is going to allow people to have their bail heard in a timely fashion. Otherwise, justice is denied to all of the facets of the system.
[Translation]
Senator Dupuis: My question is for all of the witnesses.
Commissioner, I would like to say that I am also very sorry about what happened to a member of the police force in your area.
My question is this. In your opinion, does Bill C-48 concern the people who make the decisions? As I understand it, the current system doesn’t work, given that it allows the release of offenders who are violent and use firearms.
Are we saying that those who currently decide on release are not adequately ensuring public safety? Should we amend the law to provide guidelines for them, in the form of a reverse onus, so that they have better guidance, because they are not responding to the concerns of citizens and police forces in terms of maintaining public safety?
[English]
Mr. Carrique: Thank you, senator.
I concur with your comments. This legislation is absolutely essential because it provides the necessary framework to align the decisions with the expectations of Canadians which are aligned with the public safety we should expect in this country.
Mr. Fraser: Senator, I agree with the position you are taking as well.
One of the things contained in the CACP’s most recent resolution is that, for some of the more serious firearms offences, the bail hearings should be heard before a judge as opposed to before a justice of the peace so we can have more of that expertise on the bench when dealing with such complex issues.
I would also say that it concerns me — from some of the comments made by Mr. Bytensky in the earlier panel — that we cannot have the reverse onus simply be a symbolic gesture; there has to be some meaning to that. Hopefully requiring the presiding justice to give reasons why the decision was made one way or another will emphasize the fact that reverse onus is not just a flag that goes on the file. It is an important acknowledgment that, in most circumstances, the onus is on the state to show cause as to why someone is released. However, in these particular circumstances, the onus has to shift to the accused to show cause as to why they should be released. That needs to be something more than just a token gesture.
Senator Pate: Thank you to our witnesses.
It is often the case that we have challenging decisions made in the face of highly emotional and horrific violence that is experienced.
I want to ask all three of you my questions. You have given examples of this just being one feature that needs to be addressed. In my experience working with the RCMP, and, when I was in Alberta, with the Calgary Police Force, seasoned police officers as well as the administration often talked about the need to not just focus on a legal, punitive and jail response, but when they were looking at what they called at that time “serious habitual offenders,” they talked about the need for a comprehensive approach. How I came to know about the approach was that the organization I was working with was drawn in as a part of that to provide comprehensive housing, health, economic and social supports.
I don’t see any of those sorts of recommendations coming at this point in conjunction with this legislation, which concerns many of us, quite frankly. It concerns me profoundly to pretend that this kind of response will actually address the issues when, in fact, we’re dealing with folks who are often homeless, have mental health issues or are disproportionately racialized. We’re not building in those kinds of capacities within the system.
Could you comment further? Each of you has made some commentary about the need for additional supports. What efforts are being made, to your knowledge, to address those deficits?
Mr. Carrique: Thank you, senator.
We have a very robust system in place in many of our jurisdictions where we look at community safety and well-being. In fact, in Ontario, every municipality is required by law under the Police Services Act to have a community safety and well‑being plan that articulates that it is more than just the police and law enforcement that lead to safe communities; it requires housing, education and health services. That is the way that we continue to create a safer environment and work toward rehabilitation and prevention. It does require a very strict commitment to taking on those responsibilities.
As Mr. Fraser has said, Bill C-48 can’t happen in a vacuum. I do believe it needs to happen, however. It will set the way and the precedent, and it will tell Canadians what is important to us as a nation. Other good things will flow from this decision, I truly do believe.
Senator Batters: Thank you to all of you for being here, for serving Canadians and for keeping us safe every day.
First of all, to Commissioner Carrique, you spoke about the terrible murder of your officer Greg Pierzchala of the Ontario Provincial Police. Is it your belief that the provisions of Bill C-48 would potentially — if the offender would have stayed in jail there — have prevented the bail release of Officer Pierzchala’s murderer? If not, doesn’t that highlight significant gaps in this bill that could, then, perhaps, be fixed?
Mr. Carrique: Thank you for that question, senator.
I do believe wholeheartedly that this bill, if applied as intended, would have prevented the death of provincial Constable Greg Pierzchala. Randall McKenzie fits the definition of a repeat violent offender, and the requirements that would have been imposed upon the justice at the time, I believe, would have prevented his release and thereby prevented his death.
Senator Batters: That is good to hear. That is one case we have heard that could actually fall within this quite limited definition, so I am glad to hear that, thank you.
I will ask my next question to the Canadian Association of Chiefs of Police — to Ms. Gray and Mr. Fraser. Ms. Gray, when you were giving your statement before, I wanted to give you a little bit more time to tell us about the types of amendments you would like to see in Bill C-48 to strengthen the provisions that are in here about interpersonal violence to make it stronger. If there is any time remaining — or perhaps you can provide us something later, if possible — please talk about the five-year maximum sentence condition that is set with Bill C-48 on the burden reversal. That might be more so for Mr. Fraser. But in our brief time, is there anything additional that you would like to present to us, or perhaps you could send that to us later?
Ms. Gray: There are a few things I would like to address with IPV, particularly with the dual charge spoken about by Ms. Big Canoe. I do not disagree. A lot of training has happened and continues to happen in police services regarding primary aggressor. But let’s be clear: We are talking about bail. That is a charge. The problem arises before we actually get to bail court. They are two different issues.
In regard to intimate partner violence, bail is particular and different than firearms, because every time an offender in an intimate partner violence situation reoffends or breaches their bail, they are, in fact, escalating in their behaviour toward their victim. It is not just not following the rules of the justice. It is not being out past 9:00. It is escalating that behaviour. It has been shown time and time again that each time it escalates, we come closer to that victim dying at the hands of that perpetrator.
Senator Batters: Mr. Fraser, do you have anything brief to add about that five-year maximum sentence condition?
Mr. Fraser: Thank you for the question, senator.
When we’re talking about serious violent offenders, we’re dealing with a small subset of the population that inflects an incredible amount of harm, and in some circumstances, those individuals are being sentenced to lengthy periods of imprisonment, only to come out and reoffend. The five-year limit would create a situation where someone could spend five years in jail and come out and that offence will not be captured by this provision.
Courts are already using an individual’s criminal record as one of the factors that is either aggravating or mitigating in sentencing, and courts will take into consideration whether it is recent offences or whether there are gaps in the individual’s criminal record or whether the criminal record was quite dated. Obviously, that is going to go to the weight of that record. Those same considerations could apply here.
To place that arbitrary five-year limit really runs the risk that we’re not going to capture the very offences that we’re looking to capture.
Senator Clement: Thank you for your work, and I mean thank you for your work. These last few years have been horrific. You are still here, you are still doing it, and we are grateful.
I wanted to come back to the questions asked by Senator Pate. In the last panel of witnesses, we heard Mr. Bytensky say that you cannot jail your way to public safety. We heard witnesses highlight the existence of research that says that there are disproportionate effects of pretrial detention on marginalized groups. How does racism against marginalized people and other forms of discrimination play into the bail process? I will ask the question to you, Ms. Gray, because in your opening statement, you did speak of complexity.
Ms. Gray: Thank you for the question.
To the commissioner’s point, it can’t be just this. We do believe in community safety and well-being. I can speak for my own service. We have even embedded in our own work exit gang strategies and programs for intimate partner violence.
I want to highlight that, yes, although I do not disagree with the previous panel, the communities most affected by gun crime are also marginalized. This bill will allow those communities to be safer when those community supports are put in place and get on their feet and able to be uninhabitable to those people who are being kept in custody for these types of offences.
The Chair: There isn’t time for a second round. All of us have another place to be shortly.
I want to bring this panel to a conclusion by profoundly thanking the witnesses who have attended. I know in many respects that colleagues have suffered and lost their lives in serving Canadians, and hearing your message is an important one for the committee’s consideration. In particular, I would like to thank you, Commissioner Carrique, for joining us today and for carving this time out of a busy agenda, and Mr. Fraser and Ms. Gray as well for your presentations to us and fielding the questions that we have asked.
I would observe that the Canadian Police Association’s representative and president, Tom Stamatakis, was unable to join us because of problems — he is remote and doesn’t have a headset that works — but he will be providing a written brief to us in the coming days.
We will reconvene our consideration of this bill next Wednesday. Thank you, all.
(The committee adjourned.)