THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 5, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:15 a.m. [ET] for the consideration of Bill C-48, An Act to amend the Criminal Code (bail reform).
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[English]
The Deputy Chair: I am Pierre-Hugues Boisvenu, a senator from Quebec and deputy chair of this committee. I invite my colleagues to introduce themselves.
Senator Tannas: Scott Tannas, Alberta.
Senator Arnot: David Arnot from Saskatchewan. I am sitting in for Senator Dupuis this morning.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate, from the unceded, unsurrendered territory of the Algonquin Anishinaabeg people of Ontario.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Jaffer: Welcome, minister. Mobina Jaffer from British Columbia.
[Translation]
The Deputy Chair: Honourable Senators, we are meeting to continue our study of Bill C-48, An Act to amend the Criminal Code (bail reform).
For our committee’s first group of witnesses, we are pleased to welcome, via videoconference, the Honourable Niki Sharma, K.C., MLA, Attorney General of British Columbia.
Welcome, Ms. Sharma, and thank you for joining us this morning. We’ll begin the meeting with your opening remarks.
The floor is yours.
[English]
The Honourable Niki Sharma, K.C., MLA, Attorney General of British Columbia, Government of British Columbia: Thank you very much, and good morning, everyone. I speak to you from the traditional territories of the Lkwungen speaking people including the Songhees, Esquimalt and W̱sáneć people. I am pleased to be able to join you today to speak in support of Bill C-48, An Act to amend the Criminal Code (bail reform).
Bill C-48 reflects B.C.’s advocacy to expand the reverse onus provisions and to hold those who commit serious repeat violent crimes accountable by making it more difficult to obtain bail. We believe that everyone deserves to feel safe in their own communities. Across Canada, communities have been raising concerns about repeat violent offending. In fact, what you have before you today is supported by Attorneys General across the country and came from the work of two FTPs and many working group meetings between prosecution services across this country.
To address the issue of community safety, I wanted to talk a bit about B.C.’s approach. We launched the Safer Communities Action Plan, a comprehensive approach to community safety. It has many layers to it, including investing in mental health and addictions and in better systems within our justice systems, like virtual bail and the repeat violent offenders’ initiative. To talk a bit about that initiative, we think this is an innovative approach to reduce repeat violent offending. We have Crown counsel working with probation officers and police officers. They have cases of the most violent offenders referred to them so they can work together across systems to help come up with a plan, get better information if they are seeking detention of the individual and address the impacts that those people are having on communities. They’ve been running for about four months now and, so far, they are showing a lot of success.
As part of the work we are doing to keep communities safe, it is our view that targeted legislative amendments are needed to address the bail regime. The proposed amendments in Bill C-48 would make it more difficult for people to get bail if they have been accused of specific firearm offences, repeated serious violent offending involving weapons and repeat intimate partner violence. The proposed amendments will also require justices to keep public safety at the forefront of their decision making, including changes to ensure that they are considering community impacts. It shifts the burden of proof onto those accused of committing serious violent offences and where the accused was previously convicted of an offence of the same criteria within the past five years. I want to make it clear that these amendments are meant to target those who commit repeat violent offences with firearms and other dangerous weapons such as knives and bear spray. They will also address the enhanced risk posed by intimate partner violence.
I believe these are very important changes. I’ve heard too many stories of vulnerable individuals who have been assaulted when a repeat violent offender is out on bail. We need to change the law to provide Crown and the courts with additional powers to detain people who pose a risk to public safety. I believe these amendments strike a balance between the rights of victims and communities and the legal and constitutional rights of accused people. These amendments also complement the work already under way to help break the cycle of repeat violent offending and build safer communities here in B.C.
I want to thank you for the opportunity to be here today to speak in support of Bill C-48 and to speak about the particular approach B.C. has taken and the leadership role we feel we are having when it comes to addressing this issue. Thank you very much.
[Translation]
The Deputy Chair: Thank you, Ms. Sharma, for your remarks.
I will now turn things over to senators, who will have four minutes each.
[English]
Senator Dalphond: Thank you, minister, for taking the time to speak with us today. It is appreciated.
We understand that you are supportive of this initiative, but we heard many witnesses in previous panels who referred to the lack of data. Officials from the federal government also referred to the lack of data because the provinces are in charge of the administration of justice. They are the ones able to gather that data. We are also told that in the course of discussions between justice departments, Ottawa and the attorneys general of the provinces, there was an agreement that more data would be provided. Could you indicate to us if that is the case and more data will be provided? What type of data will be made available in order for us to do a thorough review in three or five years when we decide to do a review? Thank you.
Ms. Sharma: Thank you for that important question.
Data is a concern. We in B.C. have been collecting data in new ways through our Crown prosecution office. They are looking at the times that they are seeking detention, so the times they are looking to assess the case and determine that this individual is a threat to public safety. They are collecting data on how many times detention is attained and how many times it is not in those instances. We’ve been doing that for the last five months. You are right that, at the last FTP meeting we had across the country, there was agreement across all provinces to work together to figure out how to streamline the type of data that we all need to be collecting to monitor this thing.
One thing interesting to me that’s happening in B.C. is the Repeat Violent Offending Intervention Initiative because there are particular cases referred to in that initiative. The Crown counsel and the police officer and the probation officer are empowered to focus on that individual who is a repeat violent offender. We are getting very specific data, obviously privacy-protected, but data about individual instances of how they ended up where they are and how the system has responded. I think we in B.C. are going to learn a lot from that. We are obviously subject to what we are able to disclose and happy to help everyone learn together.
Senator Dalphond: If there is some kind of specific document that outlines what you trying to do, we would appreciate receiving a copy for the committee. Thank you.
Ms. Sharma: Definitely.
Senator Jaffer: Thank you, minister, for making time to meet with us today. We really appreciate it.
Minister, I am aware that B.C. has launched the Safer Communities Action Plan, part of which was developed and implemented through the Repeat Violent Offending Intervention Initiative. What exactly does early intervention in cases involving prioritized individuals do to assist Crown counsel in making informed decisions about charges, assessments and giving information to police and other bodies? What does it actually mean on the ground?
Ms. Sharma: Thank you for that question.
It means first and foremost that systems are talking better to each other. No matter if the person is going from one end of the province to the other, they are able to track that particular individual, so there is better information, not only for sentencing but also for planning when it comes to that person if they are going to be released on bail.
I think that the hubs have been running in 12 areas across the province, and they are being referred to by the different systems. There are criteria to determine who fits as a repeat violent offender in that service. What we are learning after four months of that running is it helps Crown counsel have better information if they are seeking detention because the systems are working together. There is fullness of files and understanding of this individual’s trajectory through the criminal justice system and impact on communities. From our preliminary view, it is resulting in better outcomes for communities and individuals and actually assessing what’s needed to stop them from reoffending.
Senator Jaffer: How will this program affect the B.C. detention centres and their overcrowding situation?
Ms. Sharma: Thank you for that question.
At this stage, we are investing in resources to make sure we are thinking about and focusing on that. All systems have to work together when we are doing this. I have to say that the Repeat Violent Offending Intervention Initiative is a holistic approach to that, thinking about what that individual needs to stop reoffending. Sometimes it is a mental health intervention. Sometimes it is medication that the person needs to be receiving that they are not receiving. Sometimes it is increased incarceration because it is determined that, after all the efforts are put in place, there is reoffending and violence. The public needs to be protected. It helps us get a better view of the trajectory of what that individual needs and what services are needed.
Senator Jaffer: Thank you.
Senator Simons: Minister Sharma, you used a phrase a couple of times in your opening comments about people who commit multiple violent offences. This, I think, cuts to the heart of one of my uneases about Bill C-48, which is that we’re assuming the person is guilty before trial. We’re penalizing them based on past actions which may not be germane to a criminal trial. This is somebody who has been charged with a violent offence but who has not legally committed the violent offence. I wonder how you feel, from a civil liberties perspective, about the fact that we are making bail much harder to get for people prejudicially based on past criminal action.
Ms. Sharma: Thanks for that question.
In my view, it strikes the right balance. Of course, you raise very serious concerns about the tenet of our justice system, which is innocent until proven guilty. My role is also to keep in mind how that shows up for people in the justice system, particularly the criminal justice system. It is our view that this strikes the right balance. They are targeted in the sense that it is focused on a certain category of repeat violent offenders.
As you know, in the Criminal Code, there are already reverse onus provisions where we say that, in certain circumstances, a judge may determine that, for certain factors, this person is unsafe to be released. We believe that just needs to be strengthened. There are categories, particularly with intimate partner violence, which happens to be a very dangerous time for the victim of the violence. We know with a lot of women’s organizations we work with that that’s a time when there is a heightened risk that the woman will be seriously harmed because of the nature of the escalation of the criminal proceedings. I believe there are specific circumstances where detention is appropriate over release. Those are circumstances where we think this bill strikes the right balance, which is the use of weapons and intimate partner violence, those things that we know cause harm to communities.
I represent a community in east Vancouver, and I hear from vulnerable women in particular who are victims of repeat violent offenders when they are out on bail. That is something that, I think, certainly the people who were involved in the National Inquiry into Missing and Murdered Indigenous Women have approached me and talked about as an honest discussion. It is my view that there are times in the criminal justice system where it tips over to protecting the community, and this reverse onus is capturing that.
Senator Simons: This leads me to my next question. Much of your practice before you went into politics was working with Indigenous peoples specifically around issues of reconciliation and compensation. Are you worried at all about the implications of what this might mean for Indigenous people when they are already grotesquely overrepresented in our jail system?
Ms. Sharma: Thanks for asking that.
I want to make something clear about this question. In B.C.’s approach, we have an Indigenous justice strategy that we have been implementing for a couple of years. We acknowledge and recognize the harms in our justice system to Indigenous people. There are two tracks to it. One is about lessening these harms and making sure that we can address the over-incarceration of Indigenous people. We have Indigenous justice centres that we are standing up across the province. These are centres where Indigenous people who are encountering the justice system can receive culturally appropriate, Indigenous-led legal services, include Gladue Report-writing and all the things we need to be better at when it comes to Indigenous people facing the criminal justice system. The second track of that is helping to understand how we implement Indigenous legal orders.
We are also working on an anti-racism strategy that would affect all government services. It’s something that I’m keenly aware of, and, as you mentioned, part of my practice before coming here was with that. B.C. is making a very strong commitment to making sure our justice system is not working against Indigenous people, as it has been in the past.
Senator Arnot: Minister, it’s quite easy to predict that there’s going to be increased pressures with more bail hearings occurring, judicial resources like Crown prosecutors and legal aid being impacted and an increased need for capacity in pretrial detention. Are you and your ministry prepared to address those issues in a timely way? What kind of cost do you expect to be paying in order to facilitate this new act?
Secondly, what was the impetus for your Safer Communities Action Plan? It’s a policy approach. What are the expectations and outcomes? Do you believe it’s a model for the rest of Canada? Do you know of other jurisdictions following that kind of active intervention model?
Ms. Sharma: Thanks for both questions. I’ll address the first one.
We are always thinking about investments. Of course, I have to work with the Solicitor General when it comes to the other half of that, and I’m focused on what we do in the Attorney General’s office.
We have invested in increased Crown counsel. We have done the biggest hire of Crown counsel in, I think, decades here in B.C. because we want to make sure the resources are there on the front end when it comes to addressing the challenges that we were talking about. The investments that we made were specifically in the repeat event offenders initiative. That’s focused particularly on this group of people. I’m always working with my colleague the Solicitor General when it comes to what resources are needed on his side of the justice system. We are prepared to work with the federal government to raise that investment.
I think you raise a very important point about legal aid. We’re grateful that the federal government has given an increase in legal aid over the past couple years, but we think we need to work together with the federal government to get further increases for criminal legal aid to make sure people have that ability to get representation if they can’t afford it.
On your second question related to the Safer Communities Action Plan, I’m not aware of other provinces that are taking this approach. We think it’s the right approach. We’ve consulted experts who have told us that crime is complicated. Impacts on communities and how it shows up in communities are real, and communities across Canada are facing that. Our approach is about addressing all the challenges that lead to a decreased sense of safety for communities, whether that’s the mental health and addictions investments we’re making or changing our justice system in many ways. We’re investing in the Repeat Violent Offending Intervention Initiative, which is about understanding the individual that’s committing the violence and thinking about what the system needs to do to respond. We’re also investing in many resources that communities have been asking for, such as situation tables. We’re working on many things. I think we’re always led by what we hear the needs are from our communities. However, I do think it’s a comprehensive approach that every ministry needs to focus on to deliver safer communities.
Senator Arnot: Thank you.
Senator Pate: Thank you very much, Minister Sharma, for joining us and for your lifetime of work in this area.
One of the things we’ve heard from other witnesses, which certainly has been acknowledged, I think, by the government, is that Parliament did not rely on empirical evidence when it first introduced the reverse onus provisions in the 1970s. Since then, we’ve seen, as you’ve acknowledged, the exponential increase in the number of people held on bail or remanded in custody in this country, particularly those who are part of marginalized groups.
We’ve also heard from witnesses about the concerns this will have on Indigenous women particularly. I know you’ve invested a fair bit of money in the Indigenous women’s justice strategy in B.C. How do you square this with the reality that, increasingly, we’re seeing countercharging of Indigenous women? When they even pick up a hairbrush or a kitchen utensil to try to ward off violence, they may end up countercharged and sometimes multiply countercharged. How do you see this not being applied against those very women?
Ms. Sharma: Thanks for the very important question.
It’s something we have to be keenly aware of, and I think we’re making the right investments in B.C. to make sure there are checks and balances when it comes to that process. As I mentioned before, we’re very committed to our Indigenous Justice Strategy. We’re working with Indigenous people to understand what’s showing up for them in terms of the racism and the colonization of the system that they have faced and then undoing that harm. It’s part of the work you mentioned with the Indigenous women’s justice strategy that we’re working on, and it’s really led by Indigenous women. We as a government know that sometimes fixing those issues is stepping back, understanding what’s happening and addressing the challenges when we hear what they are from Indigenous women. You raise a very important point. It’s something I’m concerned about, and we’re working on investing to make sure that doesn’t happen when it comes to the bigger system.
I also want to add that the reason I strongly believe these amendments are appropriate is that in my community, I have people who have participated in the missing and murdered Indigenous women and girls inquiry. They were part of that. When you’re talking about a specific category of repeat violent offenders that have caused harm or intimate partner violence, there is a need for protection so they can do no further harm to particularly the most vulnerable people in our communities.
I think it’s all about striking a balance and being aware of the challenges that the justice system needs to address, like the ones you’ve raised.
Senator Pate: If the evidence comes in and shows that, in fact, what we saw since the 1970s continues to see this issue exacerbated, would you lead the way to having provinces change this? Would you approach the federal government to rescind this policy?
Ms. Sharma: Yes. If we are seeing that things are more harmful than good for communities, then I would say it would be my job to advocate for the changes needed to fix that.
In B.C., I think we’re putting the right systems in place to be able to ensure that that doesn’t happen because we are investing in resources to address repeat violent offenders. As well, we are investing in resources to make sure the supports are there and to understand when, particularly, as you mentioned, Indigenous women are facing the problematic sides of the justice system. We will see that. I am confident that we’re making the right investments to be able to see how this goes. I believe that it strikes the right balance.
Senator Pate: Thank you, minister. We’ll be watching.
Senator Clement: Good morning, Madam Minister. I just want to thank you for running for office. Doing that is a source of great inspiration to many, as you know. I would just like to say that out loud.
I’d like to stay on the topic of over-representation of Indigenous, Black and other racialized people in our justice system. We heard from witnesses yesterday who said that the system is currently in crisis and that the over-representation is evidence-based and proven. It seems that Bill C-48 will do the opposite of what it purports to do, right? It will make certain communities more unsafe. I would like to stay on that topic.
My other question for you is this: Clearly, B.C. has shown leadership — clearly. However, what does that mean in other provinces that haven’t made statements around investments they are willing or able to make? What will that mean for people who live in different parts of this country? I’m concerned about that. I would appreciate it if you could respond to that.
Ms. Sharma: Thanks for raising both of those very important issues, and thank you for the appreciation of me running at the beginning.
I am very proud to lead the anti-racism work in government in my ministry. That work is comprehensive and involves identifying where systemic racism sits and removing it. We’ve done some really groundbreaking stuff here when it comes to that work. We’re collecting race-based data. Racialized communities have been asking for that for a long time. We have a demographic survey that I think is just recently out of the field where we asked British Columbians to give us, in a private and protected way, race-based data. The second part of that is I will be passing legislation that goes to government’s action once we see what that data is showing. The goal is that once it’s clear how different systems and services, including the justice system, impact different people, we can address it through better policy and better interventions. That’s important work.
I am keenly aware that part of our approach to our work here today, and just comprehensively approaching safer communities, is acknowledging the disproportional impacts of the justice system on Indigenous and racialized people and how negative those impacts have been up to today. It’s something that I think is part of the work we all need to do. Yes, I think that’s really important.
On the second question, I’m always happy to talk with colleagues across the country about the work and the approach that we’re taking in B.C. I hear from different Attorneys General about the work that they are doing when it comes to this. I am hopeful that, through our collaboration that was seen on this bill — actually, I think it is pretty rare to have everybody agree across the country on specific amendments — we can continue the conversation about how we are jointly rising to the challenges that our communities are seeing when it comes to repeat violence and offending. We are always happy to share the work that we are doing and hopefully seek more federal support on some of the initiatives that we have going on in B.C.
Senator Clement: Thank you for that.
Hopeful is one thing, but there are people who are really in great need. Does your Safer Communities Action Plan speak specifically to investments around poverty, housing and mental health services?
Ms. Sharma: Yes. We have a Minister of Housing in B.C., and we have a poverty reduction plan under the Minister of Social Development and Poverty Reduction. All of that is highly connected. We hear most often that housing is one of the bigger challenges that we face in terms of people having secure lives. One of our top priorities in B.C., to be honest, is investing in understanding how we can face that challenge of housing.
We are also experiencing a tragic opioid crisis in B.C. Too many lives have been lost to that. We are thinking about it in a comprehensive way, which means getting the services up in communities that for too long have been underfunded, namely, mental health and addiction services and mental health, and addictions for young people, so people in schools that are facing that first adverse childhood experience that might set them off to having mental health challenges, so these are being invested in across the province.
We have really thought about all these challenges, the complicated root causes of them and also the work that we need to do to undo the harms of the justice system on these groups of people.
Senator Batters: Thank you, Minister Sharma, for joining us today on this important topic.
In a recent statement regarding the progress of Bill C-48, you expressed your intention to advocate for further changes concerning bail reform. Could you please tell us what changes you want to see implemented at the federal level?
Ms. Sharma: We have been advocating to get these specific changes that you have before me. At this point, I don’t have any further advocacy. I think there is an important conversation, apart from the reforms that you see before you today, about more cooperation between the federal and provincial government for supports, whether it’s increased funding for legal aid or increased funding for our repeat offenders initiative that I think is working or has a lot of potential to work. Right now, I am not advocating for any further changes besides the one before you on bail reform.
Senator Batters: Okay.
In a letter, the 13 premiers of Canada’s provinces and territories expressed their desire for the federal government to conduct a comprehensive review of the bail system. Obviously, Bill C-48 is very limited and quite targeted. It doesn’t really go to the extent that the premiers were asking for. On that point, what do you think the federal government should do? Are you in agreement with your premier that this is something you want to continue to see?
Ms. Sharma: Thanks for that.
There are obviously other connectors or issues to this that I have been talking about a bit. This is a targeted piece that’s before you, but we have to work together for better data, for example, which is one of the first questions that I had. We also have to work together for better investments in different levels of the justice system. When it comes to how communities are experiencing or facing challenges, I think the federal government does have a role to play. Although what you have before you are very targeted reforms that we’ve been advocating for, there’s obviously a bigger conversation in all of our FTPs about the different aspects of investments and approaches that are needed to work together to fix it. I think we’ve talked about some of that today.
Senator Batters: Years ago, when I used to be the Saskatchewan’s Justice Minister’s Chief of Staff, I recall that our FTP meetings used to be in the fall. I don’t know if that is still of the case or whether COVID interrupted that. When is your next FTP meeting, and is this an issue on the agenda?
Ms. Sharma: That is a very timely question. We’ll have our next meeting in Quebec next week, so we’ll all be talking about this. This will be on the agenda, along with other items.
Senator Batters: Thank you.
Senator D. Patterson: Thank you very much, minister, for being with us here today.
We heard quite ringing denunciations of this bill from quite respectable witnesses in our meeting yesterday. They said that it’s being implemented in a rush, without data, and that the system is already increasingly revoking bail, moving up to an average of 70% across Canada in 2022 and as high as 79% in Ontario last year. They also said that increasing jail terms in remand will put more vulnerable people in tough situations and will encourage people to plead guilty, although statistically almost half of those charged wouldn’t be convicted.
As you’ve said in answer to Senator Batters, the system is already under great pressure, and this is a very targeted piece. My question is this: The bill calls for a review of these provisions in five years by the standing committee of the House of Commons that normally considers matters relating to justice. Would you agree with some witnesses’ suggestions that we should do more than just review these targeted — some would say Band-Aid — provisions and look at a more comprehensive review of the bail system, which is amongst the most complicated and convoluted provisions in the Criminal Code?
Ms. Sharma: Thanks for that question.
An interesting thing happened during COVID in terms of the different independent actors in our justice system working together better in terms of understanding how to keep the justice system operating under the constraints that we were under at that time. Those tables are still around now. To your point, it’s important that we understand better outcomes, measures and data when it comes to our justice system. I remember when I took on this role and learned about how hard it is to collect data and how there are so many independent actors that it makes it not only important to understand how the justice system is acting on people and how it shows up for people but also complicated to think about how we collect that data and how we measure it. A lot of important work needs to be done to continue the connection that we have had since COVID and across provinces to think about that.
At the end of the day, everybody just wants better outcomes for their communities and for individuals not to be in a situation where there are repeat violent offenders. That’s an ill in society which I think everybody can agree we want to work to prevent. It’s good that there is a review in this process and that we will be looking at that.
I mentioned the repeat violent offender initiative in B.C. I just met with the whole team, the Crown counsel that’s working on this. They are starting to hear that some accused want to be referred to the Repeat Violent Offending Intervention Initiative, despite what you would term as stigma related to that kind of label, because they feel that they would then get both the attention and the resources they need potentially to change their life.
We will find out a lot of interesting things through all the work we are doing. I hope that will make the justice system better. Obviously, this process needs a review. We need to understand together what we’re measuring and what success looks like.
Senator Klyne: Welcome, minister.
I want to focus on the B.C. First Nations Justice Strategy in the context of Bill C-48. I’m impressed with the aims, the objectives and the overarching goal, namely, reducing the number of First Nations people who become involved with the criminal justice system. Further aims would be improving the experience of those who do, increasing the number of First Nations people working within the justice system and supporting First Nations to restore their justice systems and infrastructure. Does Bill C-48 complement these aims and objectives? What impact will Bill C-48 have on those aims and objectives? Will any adjustments to the strategy be required?
Ms. Sharma: No adjustments to the strategy will be required. We see this as not in conflict, to be frank, because we are talking about repeat violent offenders. There’s a circle around that group that is causing harm to many people, including Indigenous women and girls, in the community. I would start by saying that.
Yes, that strategy is comprehensive. We are standing up resources in communities across the province. Five more centres will go up shortly this year. These Indigenous justice centres are direct resource centres for Indigenous people that are encountering the justice system, whether it’s Gladue report writing or legal advice from an Indigenous lawyer.
The goal of the centres is to work with the local First Nations. Each centre will have a different focus based on what’s needed in the community, but we can establish cultural supports for people. If it’s appropriate in the criminal justice system that it’s not detention, it could be some culturally appropriate pathway that the accused may go down.
Once we develop those systems and communities, that will evolve over time depending on the community and the nations involved. The supports will be those needed to lessen the over‑incarceration of Indigenous people in the province. It’s important work, and it’s led by the BC First Nations Justice Council. I meet with them regularly as Attorney General, and we figure out what supports they need to do the work. It is about taking back that power.
Senator Klyne: Thank you for that. I wish you all the best with the strategy. I hope it goes well.
Ms. Sharma: Thank you.
The Deputy Chair: I have three senators for second round. We have ten minutes left, so I will give you three minutes each.
Senator Jaffer: Minister, thank you for all the answers. I have learned a lot from you today.
I understand you also have a separate Indigenous court as well. Is that correct?
Ms. Sharma: That’s right. We have a few in the province that are running. We’re thinking about that as part of the strategy as well. Communities are asking us about it. They would like to have their own Indigenous court. Yes, we are thinking about expanding it.
Senator Jaffer: Thank you.
Regarding the issue of legal aid, when the Minister of Justice was here, I asked him a question about this legislation and if he would be increasing legal aid. He told me, “We expanded legal aid in 2022 by $60 million on top.” I won’t read everything else he said, but if I understood him, he said that the annual allotment from the Government of Canada is $202 million a year for criminal legal aid. Obviously, that’s for the whole nation. Are you expecting more legal aid once this legislation has been passed? If not, with the reverse onus, won’t this mean that other parts of services, like matrimonial and other appeals, will suffer?
Ms. Sharma: Thanks for the questions, senator.
I am glad you asked the minister about legal aid funding. We have been asking as well. We are grateful for the increases that you mentioned previously, but we see the need for further investment in criminal legal aid, along with the investments that we need to do as a province to do our share of that. It is of concern. One of the worst things in our justice system is when somebody can’t afford to get representation and encounters something that affects their liberty or their life without that proper representation. We will continue to advocate for the levels of criminal legal aid that we think are necessary in the province. We did ask for an increase at the last budget round and are hopeful that we will get it at some point. It is part of the picture that we need. Part of the comprehensive plan is ensuring that the resources that are needed to respond to changes like this are in place.
Senator Jaffer: Thank you, minister.
Senator Dalphond: Thank you, minister, for all the insight and extra information you have provided.
In your capacity as Attorney General, I think you can issue general guidelines to Crown prosecutors. Would you consider issuing a guideline that will remind prosecutors to consider specific factors, such as over-representation of some groups, when they consider their assessment of files and to ensure that they also present to the judge their representations about these factors?
Ms. Sharma: That’s an important question. We have issued a directive — it was the AG in B.C. before me — to Crown counsel when it came to offences such as this. Included in that was a clear directive that you must ensure, as you are doing this work, that this doesn’t impact the work that we are doing on the Indigenous Justice Strategy and lead to further harm and over‑incarceration of Indigenous people. It’s part of the work that we have done in B.C., and it’s always that balance that we have to ensure that we strike. We are always thinking about further work that might need to be done on this file. I will take that and think about whether we need to do anything else in that regard.
Senator Dalphond: Thank you very much, because some witnesses have represented that judges are not considering these factors. If they are told about them, they will most likely consider the factors. Thank you.
Ms. Sharma: Thank you.
Senator Simons: I want to return to Senator Jaffer’s questions about legal aid. I recall that, in 2019, B.C.’s legal aid lawyers organized a strike because of their pay conditions. They argued that funding for legal aid in B.C. was tenth out of 12 per capita in the country. Since this is a shared responsibility, can you tell me a bit more about what your department is asking for from your treasury to support legal aid?
Ms. Sharma: Great questions.
Yes, you are correct about the history there. Since then, the legal aid lawyers have an association now that represents them, so we are able to sit down and negotiate payment increases for their work. We have recently upped that. We are doing that work continuously. However, because they have an association now, they speak regularly and meet with me as government and talk specifically about the needs or the challenges that they have. We are always looking at ways to improve that.
Presently, in particular when it comes to legal aid, we are thinking about family law in B.C. and how we can support increases in that. It’s a little bit off-topic here but something that we are all continually in discussion and talking about.
Senator Simons: There is a very new-fledgling lawyer doing family law, legal aid work some of the time, in Vancouver. If I could say that without conflict of interest, that would be good. But what I am really wondering is, what kind of increase are you hoping for from your own government?
Ms. Sharma: We have put increases into our legal aid over time, and you are correct that years ago there were significant cuts to legal aid and supports in B.C. I think we have had reductions across the board. I think we are tackling that in different ways, so it is hard to give you a number. For example, we are opening a South Asian legal clinic opening soon. We are investing in different immigrant and refugee clinics. These are lawyers who we are paying or partially funding to do the work, along with other funders. Although it is not direct legal aid work, it is a resource.
Senator Simons: For people incarcerated under Bill C-48, my real concern is, with the reverse onus, there will be a greater call for legal aid. It is lovely that you are funding the family law work that my own daughter is doing or you are doing work with immigrant communities, but will there be enough funding to deal with the people who are faced with the challenge of presenting a reverse onus case?
Ms. Sharma: Yes, and we have to watch for that. We have made a request to the federal government for an increase in criminal legal aid. I think your question is correct. We have a share to do in that in B.C. What I will say is we will watch that. We will make sure we are in contact with legal aid in B.C. to see if there is an increase or a need for that, and our job obviously is to get the resources to do that, if that’s the case.
[Translation]
The Deputy Chair: Thank you, Ms. Sharma, and I’d also like to congratulate you on your leadership when it comes to helping victims and fighting crime. You’re very inspiring and illuminating. Thank you so much.
For our second panel, we have the pleasure of welcoming via video conference Kat Owens, Project Director at Women’s Legal Education and Action Fund; Catherine Latimer, Executive Director of the John Howard Society of Canada; and Emilie Coyle, Executive Director of the Elizabeth Fry Society.
Welcome, and thank you for joining us.
We’ll start with Ms. Owens’ opening remarks for five minutes, and then we’ll go to Ms. Latimer and Ms. Coyle.
Ms. Owens, you have the floor.
[English]
Kat Owens, Project Director, Women’s Legal Education and Action Fund: Good afternoon. My name is Kat Owens. I am a lawyer and Project Director at the Women’s Legal Education and Action Fund, or LEAF. I’m grateful to appear today from what is now known as Toronto, on the traditional lands of the Mississaugas of the Credit, the Wendat, other Anishinaabe and the Haudenosaunee nations.
LEAF is a national charitable organization that advocates for the equality of women, girls, trans and non-binary people. We do this through law reform, litigation and public legal education.
LEAF has worked together with the Canadian Association of Elizabeth Fry Societies, the Barbra Schlifer Commemorative Clinic and Luke’s Place to submit a joint brief to this committee on Bill C-48. All four of our organizations work with and on behalf of women and gender-diverse people who have faced gender-based violence, intimate partner violence and processes of criminalization. Each of us supports measures that will meaningfully address gender-based violence and make survivors of intimate partner violence safer. Bill C-48 will do neither. Instead, it is likely to increase the criminalization of marginalized communities, including survivors of intimate partner violence.
I will focus on three main points today: the crisis in Canada’s bail system, the effect of Bill C-48 on survivors of intimate partner violence and the need for evidence-based law reform.
As you’ve heard from multiple witnesses, there is a crisis in Canada’s bail system, but it is not that the system is too lax or releases too many people pending trial. Instead, there are too many people in our jails, the majority of whom have not been convicted of a crime. Incarcerated people face appalling conditions. These include lengthy lockdowns, a lack of rehabilitative programming or mental health supports, and serious health and safety risks. It is unsurprising but still appalling that people in these conditions are dying. Earlier this year, for example, Sarah Rose Denny, a young Mi’kmaw mother, repeatedly asked for access to health care in a provincial jail. She was denied that care and died days later of double pneumonia.
Bill C-48 risks increasing the number of people in an already overwhelmed system that is causing real harm to the disproportionately marginalized communities who experience incarceration in Canada. To counter this, we support the CCLA’s recommendation to require a statement in the record of proceedings of how a justice has considered section 493.2 of the Criminal Code.
On my second point, Bill C-48 will not make survivors of intimate partner violence safer. To understand why, it is critical to remember that there is no neat dividing line between survivors of intimate partner violence and those charged with intimate partner violence offences. Sometimes this is because of inappropriate dual charging flowing from mandatory charging policies. As this committee heard from Ms. Big Canoe last week, this is a significant problem for Indigenous women.
In addition, perpetrators and survivors often overlap. People who are incarcerated have elevated histories of sexual and/or physical victimization. Black and Indigenous women are more likely to have experienced intimate partner violence. They are also more likely to face criminalization by the state. For this reason, we urge you to remove the proposed amendment to section 515(6)(b.1) of the Criminal Code, which introduces a reverse onus related to discharges for intimate partner violence offences.
My final point is that reforms to the bail system need to be grounded in evidence, not headlines. In addition, the possible consequences of Bill C-48 on marginalized communities and on a bail system in crisis need attention as soon as possible. We urge you to require a review by committee on the second or third anniversary of the day on which this act receives Royal Assent, if it is passed, rather than on the fifth. That review should also incorporate an independent and external evaluation of Canada’s bail system more broadly.
Right now, when people talk about bail reform, they mean how we can make bail harder to get. This will not improve safety, including for survivors of intimate partner violence. What will improve safety are evidence-based reforms that focus on disrupting the larger relationship between incarceration, mental health, addiction, discrimination, poverty and social disadvantage.
Thank you for your time, and I look forward to your questions.
[Translation]
The Deputy Chair: Thank you, Ms. Owens. Ms. Latimer, you have the floor.
[English]
Catherine Latimer, Executive Director, John Howard Society of Canada: Thank you very much, Senator Boisvenu.
It is wonderful to be here today to appear before Bill C-48. I am particularly pleased by the number of well-spoken and well‑prepared witnesses that you have already heard on this bill. I think they shed light on some of the dysfunction in our bail system, which this bill will exacerbate. Certainly, it doesn’t do anything to improve that.
I’ve asked that the comments I made before the House of Commons committee in March, as well as the speaking notes I prepared for today, be circulated in advance, which will allow me to speed through them a little bit and focus on those elements that I think are particularly important.
The extent of the dysfunction in our bail system has been made spectacularly clear by other witnesses. This has come to light in terms of international fora. In its concluding remarks in 2018, the committee on torture specifically asked Canada to ensure that there was not an overuse and prolonged use of pretrial detention. Since those concluding remarks were given, the situation has actually gotten worse, which takes me to the three concerns I wanted to raise with you. They are essentially in connection with the presentation of the bill by the Minister of Justice and his officials.
The first concern I have is that they indicate that the bail system is essentially working well, thus justifying the surgical approach they are proposing in Bill C-48. There were probably 30 witnesses who appeared before the House of Commons committee to give a general look at the bail system. We did an analysis of the testimony of those witnesses, and I would be hard-pressed to conclude that people felt that, generally, the bail system was working well. If anything, I would say the administration of justice is being called into disrepute by the way our bail system is currently functioning. I think many of the witnesses here have indicated that.
They also indicated that the premiers have only wanted this narrow surgical approach. In fact, as Senator Batters pointed out, the letter of the premiers has called for an overview, investigation and comprehensive review of the bail system.
I think this narrow approach and complacency on the Department of Justice’s behalf about how well the bail system is working really gives me pause about whether the five-year review required by this legislation will be broad enough and deep enough to really have an evidence-based assessment of what’s wrong with the bail system. The position of the John Howard Society of Canada is always that reform should be evidence-based and principle-driven, and I think there are real concerns about that.
Given that they blew through the House of Commons without seeking the advice of the House of Commons committee on bail, and given their interpretation of what was heard in the general review of the bail system there, I’m not really comfortable with the House of Commons committee being the one looking at the bail reviews.
John Howard’s position is that we do need an evidence-based, comprehensive review and overhaul of the bail system.
The other comment that was made that I think requires more thought is the idea that the presumption of innocence applies at trial but not at pretrial. As many of the witnesses have pointed out, the heart of the presumption of innocence is vested in a well-functioning pretrial detention and release system which does not unnecessarily detain people who are innocent of the crimes they have been alleged to have committed.
As the witnesses have pointed out, Canada’s pretrial detention rates are enormously high compared to other countries. If you just look at the rate of detention, the numbers or the proportion in provincial institutions, 79% in Ontario is outrageous. It really signals a significant problem with the bail system. We essentially entrenched a system where we punish people by detaining them in prisons before they are found guilty of offences. As Professor Myers pointed out, a good number of the people —
[Translation]
The Deputy Chair: Ms. Latimer, please wrap up your remarks.
[English]
Ms. Latimer: Okay. I think I have basically covered what I wanted to say, which, essentially, is that we need a complete evidence-based, principle-driven review of the bail system to address what is significant and serious dysfunction of the system. There are ways of getting more people safely in the community awaiting their trials through bail supervision programs and other mechanisms that need to be funded.
[Translation]
The Deputy Chair: Thank you, Ms. Latimer. Ms. Coyle, you have the floor.
[English]
Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you very much. It is a pleasure and honour to be with all of you again today.
As I have stated before in this committee, our organization’s statement of purpose is to work to address the persistent ways that criminalized women and gender-diverse people impacted by this criminalization are denied humanity and excluded from consideration of community.
We understand the instinct to want to address the harm that happens in our communities because we share this instinct. However, our organizations respond every day to the negative and unintended consequences of the laws that are written by well-intended people who are far removed from the lived realities of the people whom we work alongside. Unequivocally, we emphasize that Bill C-48 will not meet its aim to prevent more harm from happening, and it will not produce safer communities for all.
We hope you all had a chance to review our brief that was jointly submitted with the Women’s Legal Education and Action Fund, or LEAF, the Barbra Schlifer Commemorative Clinic and Luke’s Place. We agree with and underscore the comments made by our colleagues before this committee.
Today, we want to underscore one of the two proposed amendments to the legislation contained within our brief, which is the removal of the proposed amendment to section 515(6)(b.1) of the Criminal Code, which deals with the reverse onus provision for intimate partner violence. We will use our time today to contextualize and humanize the importance of this amendment within a broader call to abandon this legislation entirely.
First, we will bring examples of the real crisis related to the bail system, particularly focusing on how this provision will continue to criminalize and harm survivors of intimate partner violence, and then how this will feed into a culture of wrongful convictions, which produces “offenders” from marginalized communities.
You’ve all heard from many of the witnesses here that the provincial and territorial jails across the country are filled with people who have not been able to access justice and are still awaiting trials. In the Prairies, we see that the majority of the women and gender diverse people there are Indigenous.
The present conditions of confinement in these jails are so deplorable that even those of us who routinely go in there are quite disgusted. The advocates in our network have witnessed people placed in cells covered in feces. Without access to water, one woman resorted to drinking the water from her toilet. Other women we spoke with have been placed two to three in a small cell and were not allowed out of that cell even to wash themselves for over two weeks.
You have heard from others that people are dying in alarming numbers in pretrial detention. We should all become familiar with and shocked by the findings of the December 2022 report on deaths in custody in Ontario, which highlighted that being on remand increases a person’s risk of death.
As well, of course, people in pretrial detention for what some of you may consider even a short period of time still lose their employment and their housing and, in the case of the many parents we work with, lose custody of their children. The ripple effect, then, on families of those in pretrial detention is immeasurable.
I will speak now in the words of one woman named Jessica, which is a pseudonym, who said, “Remand time is like death. There is no access to programs, no mental health supports and almost no health care. I spent 96 days waiting for justice and, in the end, they withdrew the charges and let me out. But by the time I got out, I had lost my apartment because I couldn’t pay rent. All my belongings were thrown away, and my beautiful cats were taken. I came out with my disability support cut off, nowhere to live and no access to my lifesaving medication. My life was ruined. And for what?”
Many of the people we work with who are criminalized are victims or survivors of intimate partner violence as well. In the work that we do, we know that the laws of domestic violence are often weaponized against people who experience domestic violence. Elizabeth Fry Societies work with the people who are then referred to what some of the provinces have, which are domestic violence courts. In these domestic violence courts, they require people to do the work that they have prescribed with the intention that they will then receive a discharge. These are the people who would be caught up in the revolving door of criminalization should Bill C-48 pass as it is written.
Why do we spend all of this time detailing the horrific conditions in pretrial detention? Champions of this legislation believe it is targeted and will only impact people who are posing a real risk by imposing reverse onus on “violent repeat offenders.” That sounds like a scary term, “violent repeat offender,” but factually, people in Canada receive initial conviction and become people —
[Translation]
The Deputy Chair: Ms. Coyle, I have to ask you to wrap it up.
[English]
Ms. Coyle: In conclusion, these people are thereafter referred to as offenders in the first place upon shaky ground.
I hope that in the questions I can speak to you about Professor Kent Roach’s recently published book entitled Wrongfully Convicted because there is a causal link between the conditions —
[Translation]
The Deputy Chair: Thank you, Ms. Coyle.
[English]
Senator Simons: I have been thinking about an incident that happened in Edmonton last summer, in May 2022, when an Indigenous man was charged after two older men in Edmonton’s Chinatown, in separate instances, were beaten to death. The defendant was out on bail, but the CBC later discovered, through investigative reporting, that at the time he was out on bail, his conditions were that he could not be in the city of Edmonton and that he was to remain with friends in rural Alberta. When the defendant allegedly became violent and threatened those friends, they called the RCMP. The RCMP picked up this gentleman and dropped him alone in the city of Edmonton, where he was subsequently charged in the deaths of two people.
This makes me wonder. People have a distrust of the bail system, but how much of that is because people who are out on bail are not being appropriately supervised and the people who breach their conditions are not being appropriately re-arrested. If the problem is that people don’t trust the bail system, what do you three think needs to be done to give people confidence that the bail system is working the way it is supposed to?
Ms. Latimer: I think that’s an excellent question.
The John Howard Society provides community-based supervision and alternatives to detention for immigration purposes and for bail purposes. On the bail purposes, these are enormously underfunded but extremely successful programs because you are dealing with people who would otherwise be incarcerated. They may have mental health challenges and may have difficulty respecting conditions, but they are being supported and supervised. If they go off track, they are quickly breached and brought in to protect the public from any harm. Because they are getting support, most are able to successfully stay in the community until their trial dates. Those programs are very important and need to be funded.
I think you are absolutely right. There is a real problem with bail conditions, enforcement and respect for those. I think that is easily addressed with more programming.
Ms. Coyle: I agree. May I also answer that?
Senator Simons: Yes, until we run out of time.
Ms. Coyle: It may surprise you to learn that there are only three or four bail beds for women in the entire city of Toronto and those bail beds are only for Indigenous women. There are no bail beds in northern Alberta, and there are no bail beds in Nova Scotia for women.
The conclusion that Catherine is bringing us to is that we need more resources in the community. People are often released on bail to homelessness. As a result, they are often put into situations where they are breached and do go back. This is the revolving door that we are already talking about. If we really want to address the systemic failures, we need to resource our communities.
Ms. Owens: I agree with what has been said.
In terms of your question related to public confidence in the bail system, one of the important things said by other witnesses as well is the need for evidence and data collection so that when there is concern in the public, we are able to have those conversations grounded in data and in accurate analysis.
Beyond targeted funding for bail-related programs, which we support wholeheartedly, broader social service and community supports such as access to mental health care and pharmacare for medications are also investments that can help strengthen the system and restore public confidence.
Senator Simons: I was a journalist for many years. Most bail hearings are routinely subject to publication bans. It is absolutely unusual to be able to report on what happens. Sometimes I would sit in the courtroom and listen to the bail hearing and go, “All right. I can see why that person is getting out.” But I could never explain it. Do you think we need more transparency in how the bail system works to enhance public confidence?
Ms. Latimer: Transparency is always a good thing. Operating from data and evidence, even if people disagree with what happened, at least we are operating from a common set of understandings. Yes, the more opaque it is, the more you get into misunderstandings.
Senator Jaffer: Thank you to all three of you for being here.
It was only a few months ago when I heard about double charging. I am shocked, because that’s the lazy way. When you can’t do enough investigation, you just charge both. Can I get your opinions, Ms. Coyle and Ms. Latimer, on double charging?
Ms. Coyle: We understand that this all comes back to the same well-intended legislative reform that Bill C-48 is premised on, which is that we want to protect people. We want to protect vulnerable people. The people we work with are some of the most marginalized and vulnerable people in our society. Unfortunately, they are frequently subject to dual charges. People come to their houses. They can’t determine or bias exists in the police officers who arrive, and they end up laying dual charges. Both parents are then caught up in the legal system. The repercussions from that are far-reaching, particularly if there are children involved. It is one of those nuanced aspects of the law that we really need to be talking about.
Ms. Latimer: I absolutely agree with that.
Senator Jaffer: Ms. Owens, I have been really disturbed about the discharge provisions. I can’t believe that Bill C-48 has the discharge provision for intimate partner violence. How can you give a discharge and then look at discharge provisions under this bill? I want your opinion on that.
Ms. Owens: Thank you, Senator Jaffer, for the opportunity to speak on this point. We are also very concerned about that provision, and that’s why we called for it to be removed from the bill.
With respect to discharges, this committee has heard from other witnesses that strict requirements need to be met before a discharge can be provided. There are concerns with conflicts with the Criminal Records Act and whether or not people who have discharges that should be expunged from their record will not see that happen. There is also the reality that prosecutors have access to information about discharges already. We are concerned about expanding reverse onus beyond the narrow set of circumstances where the courts have found they’re appropriate and for the impact, as Ms. Coyle mentioned, on individuals who face dual charging.
Senator Jaffer: Ms. Owens, what worries me is that maybe the discharge provisions will be open and then that will make it like a frequent offender and that’s where reverse onus will be used. I don’t know how this will work. Have you thought about that?
Ms. Owens: We have thought about it, yes, in terms of how problematic it is for reasons that Ms. Coyle also spoke about, where you have someone who receives a discharge for a relatively minor offence or potentially a dual charging pleads guilty to get out of jail, and all of a sudden they become that repeat offender subject to the reverse onus, and that is quite concerning to us.
Senator Batters: Thank you very much to all of you for being here.
First of all, on the dual charging issue, I have to say I agree with Senator Jaffer. I had not heard about this practice before, and it isn’t that many years since I practised law actively. In the province of Saskatchewan, it was not something that I saw happening with any frequency whatsoever, yet this morning I note that Ms. Coyle used the word “frequently” to describe this.
Ms. Owens, you have highlighted in your submission that many individuals can be both victims and perpetrators of domestic violence, and it seems to me that perhaps this argument is at the core of your opposition to that provision in the bill. You were talking about data earlier, and I’m wondering if there’s any reliable statistical data that accurately quantifies the number of cases of domestic violence where individuals are both victims and perpetrators, particularly with the number of men and women listed in that, and to what extent does that data vary depending on factors about perhaps the definition of domestic violence or different data-collection methods.
Ms. Owens: Thank you very much for the question.
The short answer is that this is one of the areas where it would be beneficial to have additional data looking specifically at this question related to dual charging. I don’t know of strong data that lays that out, but perhaps my colleagues on the panel may have information about that. I do know from talking to people who work directly with survivors, like Ms. Mattoo who appeared before the committee yesterday and Ms. Coyle today, that this is a problem they see frequently in the work they do.
From a broader statistical standpoint, we also do know — and there are statistics for this in our brief — about the percentage of folks who are incarcerated who have experienced victimization themselves. That’s broader than the situation of dual charging, but it is a situation where we have an overlap between perpetrators and survivors.
Senator Batters: Yes, that is quite a bit broader than that. I thought maybe it was an Ontario thing, or maybe it’s a policing issue, which frankly it seems to be. The few practitioners I have spoken to from here also did not see this. They said, yes, certainly they have seen it, but they would not describe it in any way as frequent. If there is any actual data or evidence that any of you can provide to our committee about that, I would be very interested to see that.
Also, Ms. Owens, in your submission to this committee, you recommended the removal of the provision in Bill C-48 that applies that reverse onus in cases where the accused has previously been discharged from an offence involving intimate partner violence and now is accused of a similar offence. Obviously, you are dealing with vulnerable women in your capacity at LEAF, and given the increase in prevalence of domestic violence in Canada, you don’t think it’s essential to have that type of a stricter legislative measure to protect potential victims, even if it means imposing those types of stricter conditions on acts of domestic violence, like is provided in Bill C-48?
Ms. Owens: Thank you for that question as well.
We absolutely agree that gender-based violence is an epidemic, as has been said by the Mass Casualty Commission, but responses like these don’t make survivors safer, and I can give you three quick reasons for that. The first is that the criminal justice system already doesn’t work for many survivors, especially ones from marginalized backgrounds. The second is the point made about no neat dividing line between survivors and perpetrators. The third is that changes to the bail system like this do nothing to address the underlying causes of gender-based violence, and they actually may make things worse in terms of the impact of detention on people, like losing their jobs, homes and mental health supports, as other witnesses have talked about.
Senator Batters: Lastly to you, also because you are here with LEAF today, are you concerned about the fact that the predecessor minister on this bill had introduced this bill back in May or early June, and generally the Trudeau government puts forward a gender-based analysis on a bill and we still don’t have one. Are you concerned about that, given that could be the type of thing that would provide us with some answers?
Ms. Owens: Yes, we are concerned about that, and we think it would be beneficial to have one.
Senator Jaffer: Chair, may I ask that we don’t finalize the bill before the gender-based assessment? May I ask that the clerk make it known to the minister’s office that the Senate will — I’m just speaking for myself — reconsider looking at this bill if we don’t get this, because the minister had said we would get it. It’s not normal not to get it.
Senator D. Patterson: Letter from the chair.
Senator Jaffer: Thank you.
The Deputy Chair: They told me that we asked the minister last week.
Senator Jaffer: May I respectfully ask that we ask again, because it’s a new minister and I don’t want it to get —
The Deputy Chair: We will.
Senator Jaffer: Thank you, chair.
Senator Batters: Especially when we’re almost to go to a clause by clause and we still don’t have it, it’s not acceptable.
Senator Jaffer: I’m really uncomfortable asking questions when we don’t have it.
The Deputy Chair: I agree with you.
Senator Batters: Thank you.
Senator D. Patterson: Thanks to all the witnesses.
Ms. Latimer, you made it clear that you believe that the bail system needs to be reviewed. You said we need a complete evidence-based comprehensive view of the bail system, but you also spoke about a review of the bail system by the House of Commons. Is it still necessary that one be done?
Ms. Latimer: I have yet to see the results of the discussion that was held last March by the House of Commons, but absolutely it needs to be done. There are issues that have been raised by witnesses that really reflect a serious dysfunction in the bail system. Far too many people are being detained pretrial, and one of the most galling elements, I think, is that if you are found guilty, the time you’ve spent in pretrial detention counts against your sentence. Basically, it’s recognized that that’s a penalty or a punishment that offsets your sentence. If you’re acquitted or the charges are dropped against you, as Emily’s example cites, your life is ruined and there’s no compensation for that.
Senator D. Patterson: Are you recommending, then, that the review, which I believe you said should take place — was it you or another witness? — on the second or third anniversary, not the fifth, should incorporate a comprehensive review of the bail system rather than just focusing on this very narrow amendment to the bail provisions?
You also said that you weren’t comfortable with the House of Commons dealing with these provisions. You said the bill had blown through the House of Commons. Would you be recommending, then — and I hope this doesn’t sound self‑serving — that perhaps the appropriate Senate committee should also undertake this review of these provisions and perhaps the more comprehensive review you’re recommending?
Ms. Latimer: I would welcome that enormously. I would hope that we could now start to collect evidence that would allow for an informed review, and I think certainly the Senate should be part of a joint committee looking at the review or doing it independently.
Senator D. Patterson: My experience with reviews of legislation is that when it says the fifth anniversary, it means that it starts in six or seven years. I’m wondering what your thoughts were in recommending that the review happen on the second or third year.
Ms. Latimer: I think we could start the review as soon as we have collected the evidence. Statistics Canada and others should be engaged to try and bring that information about data gaps. Professor Myers, who appeared before you, is probably Canada’s leading expert on the available data and where the gaps are. I think she would be a good resource in terms of assessing what evidence needs to be collected in order to have a clear picture of what’s happening.
Senator D. Patterson: Actually that recommendation came from LEAF, so I wonder if Ms. Owens would have a comment on why you recommend the second or third anniversary rather than the fifth.
Ms. Owens: Thank you.
I’ll be quick. My colleague Ms. Coyle also made that recommendation. That’s the sense that we know the system is not working right now. We know there’s a significant risk that this bill will negatively impact marginalized communities, and so as soon as we have the data, as Ms. Latimer said, let’s get this review started so that we can make evidence-based policy changes.
Senator D. Patterson: Thank you.
Senator Klyne: I have a question of Ms. Owens, but our panel that’s with us in attendance can also jump in if there’s time permitting.
So far, I haven’t been able to get at this. Maybe you can land it. To get a better idea of those affected by Bill C-48, do you have any statistics into the number of accused discharged, conditional or absolute, following an intimate partner violence charge?
Ms. Owens: Thank you for the question, Senator Klyne.
I do not have those numbers. That doesn’t mean they don’t exist, but I don’t have access to them.
Senator Klyne: Maybe I can put another spin on that. Can you opine on how Bill C-48 will or will not end gander-based violence or make survivors of intimate partner violence safer?
Ms. Owens: Absolutely. Thank you for that question.
As I alluded to earlier, the criminal justice system is not a system that works for all survivors. There are many that it does not work for who never engage with the criminal justice system at all, particularly members of marginalized communities — Indigenous women, Black women and trans women — who face high levels of gender-based violence. They may not interact with the system at all, so a criminal justice system response is unlikely to help them. For those who do, we hear about the risk of dual charging and about police not taking them seriously. Again, relying solely on a criminal justice system response to gender-based violence is something that we’ve tried for decades, and it hasn’t worked and it’s unlikely to work now.
Senator Klyne: Thank you.
Senator Arnot: Ms. Coyle, you were referring to a recent publication by Professor Kent Roach on wrongful convictions in one of your arguments. I’d like you to amplify your point there.
Second, and this would be to all the witnesses if possible, I’ve heard that Bill C-48 has negative consequences that will further harm victims of intimate partner violence. I need to better understand the basis of that assertion and what evidence or data you can point to to help bolster that argument.
Ms. Coyle: I so appreciate you providing me the time to talk about Wrongfully Convicted by Kent Roach. His first chapter is titled “False Guilty Pleas.” It details very clearly the causal link between pretrial detention conditions, our already onerous bail system, which has been discussed ad nauseam here in committee, and innocent people then pleading guilty, which is a very real present social problem that Bill C-48 will exacerbate.
The majority of Canada’s discovered guilty plea wrongful convictions, he writes, involve women, Indigenous and racialized people or those living with mental health issues.
We look at the fundamental right to presumption of innocence, and related to that the right to reasonable bail that is enshrined in our Charter. We see that this is a critical foundation that is at risk with this particular piece of legislation. He actually has quite a few examples of how this has happened to specific people, but I won’t go into that.
I will answer your second question. The data is probably found within the provincial systems because intimate partner violence and the domestic violence courts that I spoke about earlier in my remarks are provincial courts. I was speaking to someone just last night in preparation for my comments who said to me just yesterday one of the people they work with was charged with intimate partner violence because she was in an argument with her partner and she had their child’s toy with her and she ended up smacking him on the leg, unintentionally. Someone was filming that, and he called the police. Now she has a domestic violence charge. That is not unusual. This is not a one-time thing. You heard from Michael Spratt yesterday that he encounters that in his work every day, so when I say frequently, this is a frequent occurrence in the work that we do.
Ms. Owens: I would echo what Ms. Coyle has said, and I would point to thinking about some of the collateral consequences as well. I think it was Ms. Mattoo who spoke yesterday about the impacts on a survivor when they do face a charge like this, when they are held in remand, even for short periods of time, in terms of losing access to housing and to children and, if they have immigration status requirements, not being able to fulfill those requirements. The concern that we have is that when you do see survivors who are charged with violence, like Ms. Coyle just mentioned, that we’re going to see an increase in these types of broader consequences for survivors instead of actually seeing gender-based violence rates go down.
Senator Pate: Thank you to all of you for attending.
One of the issues that’s come up and just got raised again is this issue of counter-charging, and it sounds like to some people it’s new. Catherine Latimer, you’ll likely remember from your previous position that, as early as the late ’80s and ’90s, it was being raised by women’s groups in this country. Violence against women and children in particular was not being taken seriously, and now Professor Emeritus Elizabeth Sheehy started doing research which showed this data. So in fact, the data does already exist, and as Ms. Coyle pointed out and as Kent Roach has now pointed out, it’s really been the historic decades of failures by the criminal legal system to take into account the biases of police, of prosecutors, of defence counsel, and that of judges as well, including as well legislators. The MMIWG and other reports have recommended shoring up social, economic and health systems instead of offering short-term what looked like more politically palatable solutions such as more punitive sentences, more punitive approaches, like Bill C-48.
I’m curious as to whether you can speak more about the lack of resources that actually come even before this. You have spoken about the need for bail supports, but really, if we are going to address this issue, it strikes me we need to go much earlier in the process to prevent the separation of folks from land, from community, from their children, from families. Perhaps you could speak to that. I know there is documentation that existed in the Department of Justice. Perhaps you could articulate some of what did exist, and perhaps that could be added to the record for those who aren’t aware of that.
Ms. Latimer: Sure.
There was considerable work done on crime prevention and how you prevent people from falling into crime.
One of the issues that I think has recently emerged, which has caused a greater public focus on concerns about crime, is the downturn in the economy. You almost always see an uptick in crime when the economy is on the rocks because poverty is affecting more people. Poverty and absence of services to support those who are struggling with mental health and addiction and other social ills is a real driver of criminality, unfortunately. A lot of this could be addressed by having adequate supports in the community so people don’t need to seek desperate measures to feed their families and to look after themselves.
I think there is quite a bit of information that’s available through crime prevention work on spend a dollar now, save seven down the road. There’s no question that a lot of even the community-based supervision and support is a lot less expensive than detaining someone in pretrial remand. There are economies that support this argument as well, but much more should and could be done to address the issues that lead to people getting in conflict with the law in the first place and ending up in pretrial detention.
Ms. Coyle: Just recently, the government tabled a bill, and it has become law, and it’s the federal framework to reduce recidivism. Much discussion was put into what elements reduce recidivism in our community, and those are housing, employment, peer supports, mental health supports and resources. All of these seem quite clear to us when we’re discussing recidivism, but I think the discussion could quite easily come way further upstream, which is talking about all of these elements in community before people are criminalized in the first place.
I beseech everyone here to consider the criminalized women and gender-diverse people we work with as worthy of our protection and valued members of our communities.
Senator Clement: Thank you to all three of you for your testimony and for your work.
I thank Senator Arnot for allowing Ms. Coyle to go further into the comments about the book from Professor Roach.
The provinces have come together here. They have presented a united front supporting this bill. I have concerns that there may be some leadership and some will and resources in some provinces and not in others to make the investments to properly support and do things parallel to what this might do. Could you comment on sort of the uneven impact this could affect?
Ms. Latimer, you in your opening statement started to go into Professor Myers’s analysis of the pretrial detention rates and what that means. Could you comment on that and what that means from a constitutional perspective in terms of if this legislation can survive?
Ms. Latimer: One of the noteworthy things is that international organizations that respect human rights look at about 25% of your overall prison population being held in pretrial detention as the borderline for having human rights problems in your country. The United States is 22%; Britain has 11%; Canada has 38%. There is a huge problem here, and I am very confident that we will have some international human rights organizations knocking on the door to ask why this hasn’t been addressed. This is a significant problem that really undermines our visible commitment to the presumption of innocence and the right to reasonable bail and speedy trials and everything else. It’s a relatively complex issue to figure out exactly how we improve that, but we need to do that.
I think people’s rights are being violated significantly. We have fallen into a system where we are complacent about people being punished before there’s a conviction. It’s a fundamental criminal law principle: nulla poena sine culpa. You can’t punish without guilt, and we do it all the time. If the person is convicted, they get a discount in their sentence, but if they are not convicted, they are left high and dry, which to me really speaks to a fundamental injustice in our system.
Going to your point about data collection, I have been fuming in my office when I saw the percentage of pretrial detention in the provincial institutions reach 40%, reach 50%, reach 60%, and now they are at 70%, 79% in some provinces. You’re right that the variation across jurisdictions will be significant. It’s all high just because of the way we operate. B.C. has always been a bit more progressive and a bit of an outlier in terms of having supportive programming and recognizing some problems, so I wouldn’t see B.C. as the model. If you look at pretrial detention rates in the Prairie provinces, about 95% of the people detained are Indigenous. It’s huge. It’s a really significant, galling problem that we turn a blind eye to, and I really hope that when we start collecting the evidence it will mobilize public reaction and concern about whether we are actually operating consistent with our values as Canadians.
[Translation]
The Deputy Chair: Thank you, Ms. Latimer.
[English]
Senator Dalphond: My question is about recommendation number one. You propose removing the reverse onus in the case of a discharge for intimate partner violence, so that would mean that the aggressor was found guilty but would be given a conditional discharge for all kinds of reasons, including working in the U.S. I saw that in some cases. He will benefit, because the aggressor is a man in 80% of the case. The reverse onus will no longer exist for that type of person.
Ms. Coyle: Is that question for me?
Senator Dalphond: It is for whoever wants to answer it.
Ms. Coyle: Thank you.
I believe that my colleague Ms. Owens has already brought to the table discussions around existing laws that are purported to support people and prevent people from experiencing domestic violence, and we know that it still doesn’t happen. Our recommendation is to not try to create laws at the back end that continue to criminalize people and harm people that we work with but rather invest at the front end to ensure that people are not experiencing the type of precarious situations that will eventually lead to potentially being criminalized under these domestic violence laws.
Senator Dalphond: You did not provide numbers, but if you can provide numbers, it would be more or less men who were charged and found guilty of domestic violence.
Ms. Coyle: For us, we work with women and gender-diverse people, so those are the people that I’m talking about in my remarks.
Senator Dalphond: Would I be right saying that it is 80% men who are found guilty of aggression and domestic violence?
Ms. Coyle: Certainly we do not in any way in our remarks try to make statements that would say that it’s okay to harm someone. It’s not. Working to prevent harm is what we do every day. We don’t believe that putting in a provision like this reverse onus for intimate partner violence will actually keep the people we work with safe, is what we’re trying to say. Even if it is 80% men who are charged under this provision, it’s still not going to keep people safe.
Senator Dalphond: Thank you.
[Translation]
The Deputy Chair: I thank the witnesses for their remarks.
I just got a note from the Clerk. Justice Canada is planning to get the GBA+, the gender-based analysis plus, to the committee when we get back from the break week, so we’ll get the information we requested then.
For our third and final panel, we are pleased to welcome Sarah Niman, Senior Director at the Native Women’s Association of Canada; David Field, President and CEO of the Association of Legal Aid Plans of Canada, along with Policy Advisor Marcus Pratt; and, as an individual, Carolyn Yule, Assistant Professor in the Department of Sociology and Anthropology at the University of Guelph.
Welcome, guests. We are eager to hear your remarks.
We’ll start with Ms. Niman’s opening remarks, followed by those of the Association of Legal Aid Plans of Canada representatives and then Ms. Yule.
[English]
Sarah Niman, Senior Director, Legal Services, Native Women’s Association of Canada: Hello and boozhoo, honourable senators.
I first want to honour the fact that, yesterday, people across Canada joined the Sisters in Spirit campaign of the Native Women’s Association of Canada, or NWAC, to hold vigil for all those missing and murdered Indigenous women, girls — MMIWG — and gender-diverse people and their families. Bill C-48 and the ongoing MMIWG genocide have an important intersection which NWAC wishes to explore with you today.
Bill C-48 is a measure of criminal law reform, and I want to position my remarks today within this larger effort at systemic reform and reconciliation for two reasons: one, Indigenous women are disproportionate victims of family violence; and, two, Indigenous women are over-incarcerated. Today, when I refer to Indigenous women, I include in that the girls, two-spirit, trans and gender-diverse people whom NWAC represents.
NWAC supports Bill C-48’s attempts to use the criminal law to protect Indigenous women from intimate partner violence, IPV, but suggests amending the bill’s wording to reflect Indigenous women’s over-incarceration is necessary. This committee must account for the intersection of gender and indigeneity when amending the reverse onus provisions of the Criminal Code.
Issue one: Bill C-48 includes a preamble recognizing that Indigenous women are over-incarcerated. This committee has heard data and anecdotes on bail delays and the increased likelihood that Indigenous people are remanded rather than released. This means Indigenous women are separated from their families, children, work, homes, communities and healing practices. This perpetuates colonial harms.
The Supreme Court of Canada decisions in Gladue and Ipeelee provide clear guidance already for judges to interpret background factors when making any decision that may deprive an Indigenous person of their liberty, including at sentencing and bail. But what we know today is that when Gladue reports are presented for a judge’s consideration, bail is often denied because judges can view systemic Gladue factors as risk factors instead of the government-created states of being that they are. Gladue case law and Bill C-48 create tension when we’re balancing Indigenous rights at bail. Hanging in that balance are Indigenous women who risk structural violence in the criminal justice system and family violence at home.
That brings me to issue two: 6 in 10 Indigenous women experience family violence in their lifetime. Of those, 4 in 10 experience physical abuse from an intimate partner. This risk is even higher if an Indigenous woman belongs to other marginalized groups, such as identifying as LGBTQ2S+ and women with disabilities.
MMIWG Calls for Justice 5.3, 5.6 and 5.14 create a responsibility for legislators to approach criminal law reforms about IPV through a holistic, enhanced and comprehensive approach using Indigenous feminist legal perspectives.
This committee is asked to reconcile the competing realities of Indigenous over-incarceration and high IPV rates within a bill seeking to create more stringent rules for those accused of violence within an intimate partnership. In fact, these competing realities often come to a head to doubly disadvantage Indigenous women through the practice we have been discussing called dual charging. This committee heard testimony and reviewed materials about this. The National Inquiry into MMIWG heard from witnesses that police had threatened to arrest Indigenous women for drug possession, public intoxication or breach of parole conditions when they reported IPV, and they also fear having their children taken away. Bill C-48 must account for this reality when seeking to reform the criminal law.
Because Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples, known as the UNDRIP Act, in June 2021, this committee has a responsibility to provide a report that meaningfully considers whether this bill is consistent with the UNDRIP. The UNDRIP affirms Indigenous women’s unique and gender-specific entitlements to be protected from violence at Article 22.2. NWAC suggests rewording the proposed amendments to sections 515(6)(b.1) and 515(13) to better reflect Indigenous women’s realities. These wording suggestions are included in NWAC’s written materials.
NWAC also supports the recommendation of the Canadian Civil Liberties Association, the CCLA, to include a requirement that applies Gladue principles through engaging Criminal Code section 493.2.
NWAC asks this committee to leave Indigenous women with more than preamble, with more than words. NWAC asks this committee to meaningfully consider how to balance Indigenous women’s disproportionate representation among IPV survivors and within our jails.
Thank you. Meegwetch.
[Translation]
The Deputy Chair: Thank you very much. Now I’ll give the floor to the representatives of the Association of Legal Aid Plans of Canada, Mr. Field and Mr. Pratt.
[English]
David Field, President and CEO, Association of Legal Aid Plans of Canada: Thank you. I am CEO and president of Legal Aid Ontario. I am here with Marcus Pratt, also from Legal Aid Ontario, to speak on behalf of the Association of Legal Aid Plans, or ALAP, with respect to Bill C-48.
ALAP represents legal aid programs from all provinces and territories. We are pleased to be able to contribute by both our written submissions and our testimony today to the committee’s study of this important bill. Legal aid plans provide representation for the majority of accused persons in bail court. ALAP is well positioned to provide input on Bill C-48.
ALAP is concerned about the unintended consequences of the bill for our clients, the vast majority of whom are neither violent nor dangerous, and many of whom are themselves victims of abuse, suffer from mental health or addiction issues and deal with poverty, systemic racism and the legacy of colonialism. While this bill is directed to improved community safety, our clients will be less safe. They will be denied bail more and remanded into custody more often and for longer periods. In remand, they will be housed in overcrowded conditions with little or no access to treatment or rehabilitative programs. They will find it more difficult to raise a defence, thereby making false guilty pleas and wrongful convictions more likely. They will become more likely to engage in criminal activity once they are released. The bill will add to what has been fairly called the remand crisis in Canada.
The percentage of inmates on remand awaiting trial compared to inmates serving provincial sentences has grown dramatically over the last several decades, irrespective of any changes in the crime rate. Over 70% of individuals in provincial or territorial custody are awaiting bail or trial. They may well not be convicted of the offence with which they have been charged. In fact, less than 50% of decisions on criminal charges are findings of guilt.
The remand crisis does not impact all Canadians equally. Indigenous persons make up approximately 5% of Canada’s population but represent 32% of individuals in remand. That percentage is significantly higher in certain provinces.
ALAP’s written submissions detail how the specific provisions expanding the use of reverse onus are not, as a matter of law, sufficiently targeted to a subset of violent offenders. These provisions will disproportionally affect legal aid clients.
ALAP’s concerns with the wide scope of Bill C-48 have only been heightened by the absence of any additional supports, including more funding for legal aid, to assist accused persons in establishing that they should be granted bail. In contrast, significant additional funding for police and prosecutorial services have been recently announced to aggressively identify allegedly violent offenders who should be detained and not be released prior to trial. In our view, providing enhanced police and prosecutorial resources into bail court, without more defence resources and supports to temper them, will make it harder for all accused to obtain bail, not just violent offenders.
Bill C-48’s implications for timely justice in bail court, which is already in peril, cannot be ignored. Recent data from the Ontario Court of Justice shows the average number of days that a case will spend in bail court has increased over 50% from 2019 to 2022. In the last several years, courts across Canada have stayed serious charges based on the time that it took for a bail hearing. With Bill C-48, bail hearings will become more common and also more complex and lengthy. Courts will have difficulty scheduling hearings without taking court time from other proceedings, putting into jeopardy the accused’s Jordan right to a trial within a reasonable time.
With the onus for release now on the accused, more defence preparation will be required, including interviews for additional sureties, putting stricter release plans together, making additional referrals to community supports, calling more witnesses and spending more time making submissions. More adjournments will be sought as a result.
Without additional resources to legal aid and other agencies to meet these new demands, the real burden that will shift as result of Bill C-48 will fall on the poor, Indigenous and racialized accused and those struggling with mental health issues — in other words, legal aid clients.
Thank you.
[Translation]
The Deputy Chair: Thank you, Mr. Field. Ms. Yule, you have the floor.
[English]
Carolyn Yule, Assistant Professor, Department of Sociology and Anthropology, University of Guelph, As an individual: Good afternoon. I am an associate professor in the Department of Sociology and Anthropology at the University of Guelph. I have spent over a decade studying Canada’s bail system. Thank you for the opportunity to speak today.
I will make three main arguments. First, Canada’s bail system merits attention and review. There is much room for improvement. Second, Bill C-48 is unlikely to bring about the desired consequences of improved community safety over the long-term and may, in fact, undermine it. Third, a more promising approach to meaningful bail reform can be found in efforts by provincial and territorial governments to modify how bail is implemented.
To begin, I agree that a critical review of the bail system is warranted. Evidence-based decisions must guide bail reform, and we must focus on long-term public safety. Public safety is an important goal of the criminal justice system. We cannot lose sight of the devastating harm and trauma that accrue to victims and communities from crime, particularly violent crime. We must also uphold the key principles of the criminal justice system — namely the presumption of innocence and the right to reasonable bail. Will Bill C-48 help us achieve these goals?
My primary concern with the proposed bill is that it will do little to enhance public safety and may possibly even degrade it, while making the system less fair for accused individuals. Under the existing system, decision makers are required to consider public safety when ruling to detain or release an accused, as well as relevant factors, including criminal history. As you know, many individuals are currently incarcerated before trial. Since incarceration separates individuals from community connections, including family, employment and housing, and introduces them to a criminogenic environment, increasing rates of incarceration may have the unintended effect of decreasing public safety.
It is also important to note that the impact of expanding reverse onus provisions will not be distributed evenly. Individuals who cannot afford a private lawyer to argue against reverse onus provisions will be significantly disadvantaged. Already marginalized groups in society, including Indigenous Canadians, will be disproportionately affected by Bill C-48.
I’ll conclude by briefly outlining four suggestions that my colleague Dr. Laura MacDiarmid and I proposed that could better balance the goal of public safety with the presumption of innocence and the principle of restraint.
First, more resources should be devoted to strengthening bail compliance to carefully monitor accused deemed to be higher risk and to apprehend those accused of violent offences found in breach of their conditions in a timely manner. Importantly, in some cases that preceded Bill C-48, there were outstanding warrants for individuals who were not apprehended.
Second, improving court efficiency is needed to reduce the amount of time accused spend in remand custody, decrease the likelihood of additional charges for breaching conditions — often for non-criminal behaviour — and to accelerate the rate at which those who are found guilty will be sentenced.
Third, access to adequate legal counsel and greater funding for legal aid is paramount. Ensuring accused have legal representation not only contributes to court efficiency by addressing delays in court proceedings but provides essential services for economically marginalized individuals.
Fourth, greater social supports, including prioritizing efforts to address homelessness, mental health, poverty, addiction, victimization and trauma, are essential. We must recognize that effective public safety depends upon addressing the precursors of offending. Connecting accused with social services and supports complements public safety.
The types of bail reform activities I’m suggesting largely fall within provincial and territorial jurisdictions. The federal government would make a much more meaningful and productive contribution to public safety, while better preserving the core principles of our criminal justice system, by engaging with the provinces on the issue of bail reform and offering resources for the types of initiatives I’ve discussed that focus on the implementation of bail, not changing the criminal law.
Thank you.
[Translation]
The Deputy Chair: Thank you very much, Ms. Yule. We need to end the meeting at 1:50 p.m., so you have three minutes each. Please keep your questions brief so the witnesses have enough time to answer.
We’ll start with Senator Simons.
[English]
Senator Simons: I want to start by asking Mr. Field and Mr. Pratt some very specific things about the impact this bill will have on legal aid. What percentage of provinces rely on duty counsel? Can you give me a sense of who is using duty counsel and who is using assigned legal aid lawyers?
Mr. Field: I will start, and maybe Marcus can provide additional information.
The way legal services are provided is quite varied across the provinces. Many of them have staff models. We have a sort of mixed model here. We have a lot of duty counsel who do all the bail hearings. Other jurisdictions have hired staff to do it. I wouldn’t say that I could really provide you a solid answer on that except to say it varies quite widely province to province. In Ontario, duty counsel, which is a combination of per diem lawyers and staff lawyers, do 80% of the bail work.
Senator Simons: What would be the impact on your duty counsel system if you had to be doing more reverse onus work?
Mr. Field: The big issue would be the time it takes to do that and how expensive that is. Right now, we don’t have the resources to provide additional hours to lawyers. That’s one of the things we are looking at in terms of tariff reform. How many hours do we provide to a lawyer to do a bail hearing, for example? It is a combination. I would say it will impact our staffing levels. There hearings will be much more technical in terms of complexity. That means we need to look at having staff who are specialists in bail. We have been looking at whether we need to invest, perhaps hire five or six lawyers who really focus and provide advice to our duty counsel who really are bail specialists, for example. One in each legal jurisdiction in Ontario is the kind of things we are thinking about, and then additional hours for private bar lawyers who already have a relationship with a client and would do this work.
Senator Simons: What is the risk that somebody, especially not in a major centre, may have to self-represent in a bail hearing?
Mr. Field: We have waived our financial eligibility for bail, so if you are in custody, we represent all clients who are in custody, if they want to use legal aid. We have covered off that. Once a client receives bail, then they have the option of hiring a private lawyer. I think we have covered that off, but the resource requirements would be significant.
Senator Simons: Thank you. That’s very helpful.
Senator Jaffer: Practically all the witnesses have spoken against the bill. I don’t remember if anyone other than the minister and the second minister spoke in favour of this bill. My colleagues can correct me. I sit here thinking, what are we doing?
I have a question for Ms. Yule, and maybe Mr. Pratt as well. You do this kind of work all the time. First of all, were you consulted?
Mr. Field: No.
Senator Jaffer: You really know this work. At times, we hear a sort of cry — I don’t know how big it is — in the newspaper that the government is too easy, that’s it’s too easy to get out on bail and then there is reoffending. That’s the story. That’s the narrative. What could the government have done to improve that system rather than this Bill C-48?
Marcus Pratt, Policy Advisor, Association of Legal Aid Plans of Canada: Thank you for that question.
Some of the ideas we heard this morning from the Attorney General for British Columbia give us an avenue, some paths on how to improve the system. We heard about better information sharing and better supports for persons who are on bail to ensure that they comply. Those are the kinds of ideas that we would be putting forward, and obviously advising the minister of what is happening in bail court, how challenging it is for duty counsel to provide the representation properly.
I would mention, yes, duty counsel are available, but one of the challenges is the Crown is not ready to proceed, for whatever reason. It is an overburdened system. Matters are put back into remand. That increases pressure on clients to plead or to agree to conditions that they can’t possibly meet. They are re-arrested and back in custody.
We would advise the minister of the reality of that and urge the minister not to proceed with such a wide bill but really focus, if you must, on violent offenders in ways which this bill does not.
Senator Jaffer: You said you would need more resources and there has to be almost a trial on this, which leads to the fact that the accused person will end up in remand until all the resources are collected and the witnesses have come, and this will take almost as long as a trial in some cases. Of course, we would factor in court time and the fact that we don’t have a full complement of judges. There is a need for more judges, et cetera, et cetera. I am feeling very stressed. Is this just a vicious circle? There will be more trials yet fewer judges and fewer court resources and fewer resources for you, and duty counsel would not be ready on the day?
Mr. Field: I think what you have identified is that this is a very complex issue that requires all the parties to get together. We haven’t really talked about access to people who are incarcerated and are awaiting bail. The private bar and also our duty counsel don’t really have an opportunity to talk to the people in the institutions because they can’t find them. Just the organization related to getting a person in a remote situation in front of a monitor so he can participate in a bail hearing, for example, is very difficult.
I don’t want to criticize corrections. They have so many facilities they have to manage and get people to appear in six different courts on the same day. Many mechanics need to be sorted out. There is a lot of participation and disclosure that needs to be provided. So many complicated issues need to be thought about in a much more comprehensive way. Without pointing the finger at any party who is participating, there are so many factors really leading to this high remand rate that we are seeing, and there is no simple solution to this. This bill is really a simple solution that I don’t think will do what is suggested.
Senator Dalphond: Professor Yule, you wrote an interesting piece on January 18 about the bail system. You proposed five ways to reform it, as you just described. I am quite interested by some data you referred in this piece.
Recent Statistics Canada data also shows that nearly 80 per cent of people in provincial custody in Ontario were legally innocent, further demonstrating that bail is not a lenient process.
Would you mind elaborating on the numbers and how you achieved that number of 80% of people, as I understand it, who were kept in custody but will finally not be found guilty?
Ms. Yule: Thank you for the question, and I will clarify. The 80% refers to the number of people who are detained, roughly, in Ontario, who are in the remand population who have not yet been found guilty of their charges, not who ultimately won’t be convicted of the charge.
Senator Dalphond: Is there data about how many of them will be found guilty?
Ms. Yule: There is some data. I don’t have the specific numbers with me right now. We do know there is a significant proportion of charges that are withdrawn. We know that many people who are in custody ultimately have charges withdrawn or are not found guilty of those charges.
Senator Dalphond: Is it possible for you to provide this data to the committee?
Ms. Yule: Yes.
Senator Dalphond: Mr. Field, is that the same kind of experience you have through the duty counsels or legal aid?
Mr. Field: Yes. As I was listening to that conversation, the figure that came to my mind in Ontario is 40% of cases are withdrawn or not proceeded with. That’s high in Canada, but those are the numbers we are dealing with in Ontario.
Senator Dalphond: When you say 40%, is that because it first was initiated by the police directly and then the bail order was made with the Crown not being in charge of the file, and then they release the person when they take over the file so the charges are dropped?
Mr. Field: I couldn’t speak to that. It is an overall figure that speaks to, in my mind, a number of factors: police overcharging, lack of Crown triaging, or discretion proceeding but withdrawing at trial. Those people, as you point out, may be in custody, in remand, for this whole time and ultimately the charges are withdrawn.
Senator Dalphond: Do you have any specific data about how much time it takes until the charges are dropped?
Mr. Field: I don’t have that data with me, but I can certainly try to find it and share it with the committee.
Senator Dalphond: Thank you.
Senator Klyne: Ms. Niman, you mentioned in an article you wrote entitled “The healing power of Gladue reports” that Gladue reports are severely underused. Can you elaborate further as to the status of the Gladue reports in our criminal justice system, especially at the bail stage? How do you explain this performance?
Ms. Niman: Thank you for your question, and I will qualify that though I wrote that article, it was not in representation of NWAC, who I am here on behalf of today, but I can certainly speak to that.
We know and the National Inquiry into MMIWG tells us that Gladue is not being used the way we intended and the way it has potential to redress some of the colonial harms that it’s meant to. But that doesn’t mean we stop trying. It’s used in a limited sense at bail. By “limited,” I mean it faces the same supply-and-demand crises that affect the Gladue report provision at all stages, like at sentencing.
What we do know from researchers, lawyers and academics is that oftentimes these reports are prepared in a more rushed fashion, if I can characterize it in that way, because bail is much more immediate than preparing for a sentencing hearing. The information that’s made available is often presented with the intention that it will help mitigate the likelihood that the person will be kept in custody, but judges demonstrate that they are interpreting those factors as risk factors of why they should not be released. Then we get ourselves in a circular kind of argument where the very factors that are keeping them in jail on remand are the same factors that NWAC thinks operate to convince a judge that they should be allowed to be returned to their community.
Senator Klyne: A common concern as it relates to Indigenous detainees is their lack of access to a surety. It seems as though if a detainee does manage to satisfy a reverse onus, a judge may be more likely to impose — as a lower rung in the ladder principle — a surety as a bail condition. Will Bill C-48 exacerbate this issue?
Ms. Niman: I want to be careful to characterize that I’m striking a balance in my position today representing NWAC in that Indigenous women want and deserve to be protected from intimate partner violence, and in that way NWAC supports what Bill C-48 is trying to do. But on the other side of that coin is the need to make sure that we’re not over-incarcerating Indigenous women, and that’s where the operation of that dual charging kind of sticks in. I’ll sort of frame my response with that reminder.
There are several factors — not just being able to access a surety, but housing, employment, reliability, homelessness — that all disproportionately impact Indigenous women and Indigenous people to their disadvantage. That’s the connection between why we are going to see more people over-incarcerated at the remand stage that are Indigenous than not.
Senator Klyne: Thank you.
Senator Clement: Welcome and thank you for all of your work. I just want to restate that I am very partly employed by a legal clinic, and I do no criminal law and no federal work whatsoever, so I am just stating that before I engage with you.
I appreciate your comment, Mr. Field, around the more you spend on policing, the more you have to think about investing on defence and legal aid. I might want you to comment a little further on the concept of public safety. If there is staying of serious charges, what does that mean for the public’s confidence in our legal system and the public feeling safe? Could you comment on that?
Ms. Niman, I’m understanding the nuance of your responses, especially in response to Senator Klyne. I just want to make sure I understand if you’re supportive of the amendment to require a section 493 consideration and some clarity around that. Thank you.
Mr. Field: I do think that confidence in the justice system is reduced when there are stays, but I think it’s the solution to that problem that we look at. How do we make sure that stays do not happen? The way to do that is to have a more efficient system, and I think this will just cause more complications. What’s proposed in the bill here will make it that much harder for the justice system to operate efficiently, and that’s what happens when you have people who are sitting without a bail hearing for a significant period of time and a judge feels it’s inappropriate. I think that’s the judge’s determination, but the solution to that is to fix the system and make it more efficient. There are problems related to the confidence that people have, but the solution to that is very different than what’s proposed here.
Senator Clement: The provinces have presented a united front in support of this bill. B.C. in particular has done a lot of leadership work around Indigenous strategies and anti-racism strategies. Do you see that in Ontario? Do you see that this province here that we sit in is making investments that will be part of the solutions I think you are referring to?
Mr. Field: I think that’s beyond my scope. That’s really something that needs to be addressed and answered by the Attorney General for the province. I’m really here to talk about how we are administering this program, what this bill will affect and how it will affect our program. Getting beyond that and making determinations on investments the government makes in other areas is really something that I really can’t comment on.
Senator Clement: But you’re supportive of investments in terms of anti-poverty reduction?
Mr. Field: Absolutely. Those are the kinds of things that would prevent high crime rates in any jurisdiction, making sure there are social supports for people. Addiction, mental health issues, we talked about all of those things, and many of the witnesses have said these are the kinds of investments that are required.
Ms. Niman: Thank you for your question and I’m glad to use this opportunity to provide clarity that indeed NWAC supports the CCLA’s recommendation to include language specifically referencing the obligations under section 493.
They use the language of proactive, and I liked that because if we are to make an amendment that includes imperative language, then it’s not just a box-ticking exercise. It’s a measure of transparency, and what that leads to is building trust with the Indigenous community and Indigenous women.
Any instance of intimate partner violence and the intersection with law enforcement requires a high level of trust. It takes a lot of courage to ask for help in those situations when you’re an Indigenous woman, and if there’s double charging, if you’re the accused, you’re the victim.
When there is a requirement to explain —
The Deputy Chair: Please conclude, Ms. Niman.
Ms. Niman: The requirement to be transparent about how you included the Gladue factors in your decision, not just that you have, is what’s important in building trust.
Senator Clement: Thank you.
Senator D. Patterson: Thank you to all the witnesses.
I was once a legal aid lawyer, along with my colleague and I think probably Senator Jaffer as well. Mr. Field, my question is to you. You talked about the disproportionate effect this bill will have on legal aid clients and legal aid systems, and you also noted that recent moves to add funding for police and prosecutors will exacerbate that situation. I know that it’s costs shared across the country, but could you give us an idea of what the trend has been for legal aid funding from the federal government in Canada? We heard some comments from the minister that there had been an increase in legal aid funding in recent years, but if we’re going to be making observations about the burden on legal aid, it would be helpful to have some concrete information on those trends.
Mr. Field: The minister is correct in that there has been additional investments in legal aid, but if you look at how it’s structured, it’s year-to-year, it’s in-year. We have met with the representatives of the Department of Justice as an association a number of times and said we can’t really plan. They have announced a number of times in the budget that it’s a one-time funding, so that doesn’t really help us in terms of long-term planning.
I was just looking at the base funding that legal aid gets from the federal government, and we get $100 million from the federal government, $58 million of which is base funding and the rest one-time funding, depending on the circumstances. Every year we have to go cap in hand to the federal government saying, “We’re short of money. We need you to assist us.”
I think the other plans are much more precarious than Legal Aid Ontario. We have a bigger base. The province provides us with a significant amount of money, but some of the other plans are much more dependent on federal funding than we are. That’s a serious problem for many of the plans across the country, because how do you plan when from year to year you don’t know exactly what the federal government is going to invest in legal aid? How do we make changes to the hourly rate we pay lawyers? We can’t next year reverse and say, “Sorry, we’re not going to pay you as much as we did last year.” Those are the kinds of planning challenges that this represents.
Senator D. Patterson: Could you provide the details you mentioned to the committee through the clerk, please?
Mr. Field: We can certainly provide the information. Our financial statements have this information available, but I can provide that.
Senator D. Patterson: I mean for the whole country, if you have that through the association, please.
Senator Pate: Thank you to all of you for appearing.
I was going to ask you some of the ways which your various organizations are advocating for the sorts of interventions that you all indicated you support, but first, Professor Yule, you’ve talked about and written about wrongful convictions and talked about the ways in which the routine operations of the current system tend to disproportionately impact women and those who are victims, so I’m curious. I know that you’ve done work in the prisons and have interviewed folks around this issue. I’m wondering if you can elaborate on that.
Ms. Yule: Thank you very much for the question.
My work with women in custody didn’t focus so much on wrongful conviction. That was prior work focusing on their experiences of victimization offending.
Having said that, the link between wrongful conviction, which has been discussed on the panel today, with Bill C-48 is very concerning and something we must take seriously because if individuals are faced with increased barriers to being able to achieve bail, there is certainly a greater likelihood that they may decide it’s in their best interest to enter a false guilty plea for something that they didn’t do to avoid spending long periods of time in remand. The very negative detrimental consequences of remand have already been discussed yesterday and today, so I won’t elaborate on those. There is real concern that we will see increase in wrongful conviction and false guilty pleas, miscarriages of justice more generally, if we contribute to an overburdened system by making it more and more difficult for people to achieve bail with the expansion of the reverse onus provision.
Senator Pate: In addition to what I just asked, in terms of legal aid, I’m particularly concerned that one of the issues raised is that this will privilege those with resources. You have already mentioned some of the impacts it will have on legal aid systems and duty counsel. I’m interested in whether any of you, or all of you, want to comment on how this will become the purview of those with the greatest resources to put up defences.
Mr. Pratt: That is the concern that we have as these greater demands come to our duty counsel as a result of this bill and as a result of the expanded reverse onus. How do we meet those demands? How do we provide those kinds of services without taking away from other services? Some of the difficulties currently that people without resources who are dependent on legal aid have to obtain bail have already been mentioned: access to sureties, access to housing. With the reverse onus, those are increased.
One aspect I want to mention about the importance of duty counsel work with respect to this bill is that it is needed because it actually helps address the risk of this bill. It actually in some ways supports the government’s goals to ensure that it will be focused on violent offenders. It won’t pick up people who have an assault with a weapon conviction for using a relatively innocuous object. It won’t pick up and criminalize women who have received discharge for an intimate partner violence. That’s the work the duty counsel, bringing that to the attention of Crowns and judges, and we’ll be challenged to continue that work.
Senator Arnot: In my opinion, legal aid has always been under-resourced and undervalued. I see from my own experience that legal aid counsel seems to be — this is a generalization — fairly stressed out with the incredible professional responsibilities they have. That’s not an exaggeration of any type. What confidence do you have that the federal, provincial or territorial governments will deliver the types of resources required for legal aid to provide equitable legal representation to their clients?
Mr. Field: That’s a tough one. I would say that this will always be an ongoing issue. Legal aid is not a popular thing, so governments cannot announce that they are spending money on legal aid and receive a lot of public support for that. That’s an ongoing problem. It will always be a challenge. There will always be pressure, or trying to pressure, governments to provide the resources that we need in order to do our jobs. There are constitutional issues that are affected by that. Our representation for clients and having people who are wrongfully convicted is certainly something that no government wants to see. It’s going to be an ongoing issue.
[Translation]
The Deputy Chair: Thank you. I’m sincerely grateful to our witnesses for their illuminating testimony. Thanks to you as well, colleagues. One of the committee chair’s responsibilities is to keep us to our allotted time. Thanks to your discipline, we’re adjourning the meeting on time. I wish you all a good weekend. We’ll see each other again in two weeks.
(The committee adjourned.)