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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 16 - Evidence for November 24, 2010


OTTAWA, Wednesday, November 24, 2010

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), met this day at 4:20 p.m. to give consideration to the bill.

Senator John D. Wallace (Deputy Chair) in the chair.

[English]

The Deputy Chair: Honourable senators, we will begin our meeting. I wish to welcome my colleagues and guests who I will introduce in just a moment. I am John Wallace, a senator from New Brunswick and deputy chair of the Standing Senate Committee on Legal and Constitutional Affairs. I am pleased to preside over this hearing today.

As a starting point, I will provide you with a brief overview of Bill C-464, which is the bill we are here to discuss today. This is the second hearing we have had regarding this bill.

Bill C-464, An Act to amend the Criminal Code (justification for detention in custody) is a one-clause bill which, if enacted, would amend one of the provisions governing the granting or denial of judicial interim release, more commonly referred to as bail, found at section 515 of the Criminal Code. More specifically, clause 1 of the bill would amend paragraph 515(10)(b) by adding the words "any person under the age of 18 years'' to this section with respect to the detention of an accused in custody. In other words, Bill C-464 would serve to highlight for justices the need to specifically consider whether the detention of a person who has been charged with an offence is necessary for the protection and safety of minors when considering whether or not detention is necessary for the protection and safety of the public generally. As I mentioned earlier, this is our committee's second meeting on Bill C-464, the first meeting having taken place on November 18, 2010.

In order to discuss this bill in greater detail, I am pleased to introduce to the committee Mr. David and Ms. Kathleen Bagby, who are appearing via video conference from California. Welcome.

David Bagby, as an individual: Thank you. By the way, we hear you loud and clear but we have no video. I do not know that that matters, but we do not see you.

The Deputy Chair: That should not happen. You should have video.

Senator Banks: The technicians are working on that.

The Deputy Chair: If you do not mind, as long as you can hear us, we will proceed, Mr. Bagby. I apologize for that. I hope the problem will be corrected momentarily.

Also with us here today, I am pleased to introduce the Federal Ombudsman for Victims of Crime, Sue O'Sullivan. She has appeared before us before in another capacity. It is nice to have you back with us, Ms. O'Sullivan.

I would begin by providing the opportunity for an opening statement from Ms O'Sullivan. We look forward to hearing any opening comments you wish to make.

[Translation]

Sue O'Sullivan, Federal Ombudsman, Office of the Federal Ombudsman for Victims of Crime: Good afternoon, Mr. Chair, members of the Committee.

[English]

Let me begin by thanking the committee for the opportunity to provide input on Bill C-464 and by thanking the Bagbys, Kate and David, for joining us here today by video conference.

[Translation]

I would now like to very briefly describe our office's mandate and provide our opinion on the Bill from the point of view of victims of crime in Canada.

[English]

The Office of the Federal Ombudsman for Victims of Crime has a mandate to receive and review complaints from victims; to promote and facilitate access to federal programs and services for victims of crime by providing information and referrals; to raise awareness among criminal justice personnel and policy-makers about the needs and concerns of victims; and to identify systemic and emerging issues that negatively impact on victims of crime. Ultimately, the office was created to ensure that the Government of Canada meets its commitments to victims of crime and to provide a voice for victims at the federal level, which is what brings me here today.

In terms of Bill C-464, let me begin by stating our full support for this amendment. It is clear that the intention behind the bill is to provide an enhanced level of awareness and consideration of the safety of minors relating to judicial interim release which, in my view, is necessary.

Most of us could never fathom what might ever possess an individual to harm a child, but the sad truth is that it does happen and, in most of these cases, the crimes are not stranger based. As senators are no doubt aware, the largest proportion — 41 per cent — of child and youth homicides, are committed by family members, and the majority of those crimes are committed by parents, 2007 data. In fact, over the past three decades, 86 per cent of all family-related child homicides were perpetrated by a parent.

These are difficult statistics to hear. For most people, the idea of a parent harming or killing their children is unthinkable. After all, parents are supposed to be the ones who protect us and keep us safe. However, in order to build and maintain an effective and responsive criminal justice system, we need to look at the data and find ways to mitigate the risks. As we know, those risks are not limited to parents specifically but also include other members of the victim's family or network.

I am familiar, as I know the committee is, with the circumstances behind the incredible suffering Kate and David Bagby faced in losing their son and, eventually, their grandson. I have had the privilege to speak with Mr. Bagby and to learn more about their horrendous loss. This is a clear example of a situation where the system failed. I commend the Bagbys for the courage they have shown, not only in coping with their loss but in fighting to ensure this never happens again.

Unfortunately, their case is not unique. There are numerous examples of cases like this. In 2002, Lawrence Mends was released on bail after attempting to take the life of the mother of his child. While on bail, he attacked her again and murdered their two-year-old son. In 2007, Peter Lee of Victoria was released on bail after attempting to murder his wife. In September of that same year, he murdered his six-year-old son as well as his wife and her parents.

I am heartened to see that there has been support on all sides for this bill. In some cases, the concern has been raised that, in practice, the needs and safety of minors in the care of an accused are already considered. However, I believe highlighting the need to consider the care and safety of children can only ultimately benefit the child. While it may seem like a small change, these few words may have a huge impact on the life of not only a child but their loved ones.

[Translation]

I would like to conclude by thanking the committee and the Bagbys for having given me more time.

[English]

I would encourage members to vote in favour of Bill C-464.

[Translation]

It would be my pleasure to answer any questions you may have.

[English]

The Deputy Chair: Thank you for those comments, Ms. O'Sullivan. I am sure there will be questions from our committee members. However, before moving to questions, we want to hear from Mr. and Ms. Bagby. I understand you now can see us on the videoconference?

Mr. Bagby: That is correct.

The Deputy Chair: Again, "pleasure'' probably is not the right word, but we are honoured to have you appear before us today. We are interested to hear what you have to say regarding this bill. I turn the matter over to you.

Mr. Bagby: Thank you. I will speak first, and then Kate has some comments.

First, we want to thank you for inviting us to give you our perspective on this bill and on bail in general.

We would like very much to thank Senator Banks and Mr. Andrews for taking up the issue.

Last week, Kate and I listened online to the discussion of Bill C-464, and I have since read the transcript, except for some parts that were in French. It seems to me that last week's discussion thoroughly covered the essence of this bill, which I would summarize using mainly words and phrases from the transcript.

If it becomes law, "it will be nothing more than a red flag'' to focus judicial "attention'' at a bail hearing on potential danger to a minor. It does not "create another obligation on the Crown'' beyond those currently covered in the bail sections of the Criminal Code. It does not "restrict the rest of the interpretation of the safety of the public'' to only the itemized list, which includes victims, witnesses and, if this bill is passed, minors. It does not "bump into a potential Charter challenge.'' It does not "restrict judicial discretion.'' It does not "change the state of the law.'' It does not "have any effect upon the conditions that a justice might apply'' if bail is granted.

That is a long list of things that this bill would not do, but the one thing it does is still, in my opinion, worth doing. It brings child safety to the attention of Crown prosecutors and bail judges. If this provision had been in place in January of 2003, the Crown prosecutor, who knew that Zachary and another of Shirley's children were in her care, might have been prodded to ask for the prison records on Shirley. They clearly showed that she was unstable, as Dr. Peter Markesteyn's 2006 report documented. That information, her instability, might have resulted in denial of bail and, hence, the survival of Zachary. Our goal since Zachary's murder has been to reduce the probability of a recurrence of this nightmare in the future, and I think this bill would do exactly that — reduce the probability.

Since I will probably never again have the chance to make this argument directly to a group of law givers, I will summarize the case for blanket denial of bail to anyone accused of murder. I understand that such a blanket denial would raise Charter challenges, and I have done my best to address those issues in the last part of my book. I hope you have received those pages. If not, and you want to read those arguments in detail, I will gladly supply them.

Also, in doing this, I intend no disrespect to Mr. Andrews and Senator Banks. I understand that they have pushed this issue as far as it can go, given the current state of judicial interpretation of the Charter as it applies to bail decisions.

With that said, I am compelled to repeat here the argument I made to the house last March, in somewhat shortened form, and to offer a general warning about disrespect for the law among the general populace. Canada, the U.S., England — all the countries with a legal heritage from English common law — experience a general disrespect for the procedural minutia that drive the legal process. So far, this loss of respect is manifest mainly in dinner table grumbling — the sort of commentary that has led to the cliché "he got off on a technicality.'' I suggest that this disrespect is in direct proportion to the distance between common sense and the legal decision-making process.

On the issue of bail, I suggest that any interpretation of the Charter that allows a murderer to repeat his crime is an assault on common sense and, hence, adds to the general disrespect for the legal process. I will briefly summarize the argument I made to the house committee now.

Here are five facts about murder. First, murderers are dangerous. Using Canadian recidivism and population statistics, they kill at about 17 times the rate of the general population. The equivalent number in the States is about 22.

Second, most people accused of murder actually did the killing. In one 25-year study of murders in the Toronto area, 85 per cent of those accused actually did the killing.

Third, repeat killings are unpredictable. To my knowledge, the best example of this took place in 2007, in England, where Gary Weddell, charged with murdering his wife, was released on bail. He had undergone a court-ordered psychiatric evaluation, was declared safe and released. He went on to shoot and kill his mother-in-law and then himself.

Fourth, courts have no means, other than incarceration, to prevent second killings. Restraining orders offer perhaps the most obvious example of a disconnect between common sense and the law. A piece of paper will not stop a killer. Killers do not give a damn about anything or anyone but themselves. They will swear to whatever it takes to get out of jail.

Fifth, murder is not just another crime. For every other crime, the primary victim and all the secondary victims — those who care about the primary victim — have at least the potential to recover something like a normal life. That is not so for a murder victim. When the last breath is drawn, all is lost. For the secondary victims, all contact is lost, and they are left with an aching hole in their souls. Murder is the only crime that leaves this degree of desolation in its wake.

These five facts argue strongly for incarceration of convicted murderers for life and for denial of bail to those accused of murder.

According to University of Ottawa law professor David M. Paciocco, Canadian voters agree with the first of these conclusions: a genuine life sentence. Some years ago, they pushed for and got a law imposing a life sentence for murder. I am betting that the populace would overwhelmingly approve a blanket denial of bail to anyone accused of murder as long as the accused were subjected to as little inconvenience as possible, commensurate with security.

Kate has some comments now.

The Deputy Chair: Thank you.

Kathleen Bagby, as an individual: Excuse my speech. Since my head injury in 2006, I do not speak as clearly as possible.

A brief to the Standing Committee on Justice and Human Rights talked about the 2000 Christopher's Law. I have the pin right here. That is where sexual offenders can be registered. In 2000, convicted sex offender Wray Budreo challenged the constitutionality of the Criminal Code pedophile peace bond provisions in section 810.1. In response, Mr. Justice John Laskin of the Ontario Court of Appeal said that the law that aims to prevent future harm is as valid as a law aimed at punishing the offender.

If the preventive aspect of the federal criminal law power is to be used anywhere, I cannot think of a more important use than the protection of children from likely sexual predators. The state should not be obliged to a wait until children are victimized before it acts. I believe that this bill, if passed, would reduce the probability of another child victim. Thus, it would eliminate the pain endured and continuing to be endured by the many people who loved and continue to love, care and pray for Zachary. Thank you.

The Deputy Chair: Thank you, Mr. and Ms. Bagby.

I probably do not know or could ever appreciate how difficult this is for you, but we appreciate, as tough as it is for you, having you share this with us. It is important. We thank you very much for that.

I also want to point out that member of Parliament Scott Andrews has joined us at the table. Mr. Andrews is the sponsor of Bill C-464 in the house, and we certainly thank him for taking the initiative to bring it forward. We will now proceed to questions.

[Translation]

Senator Boisvenu: I have worked with victims' families for eight years. You often hear that people who have gone through terrible events, like you have, relate their experience in a very subjective way. I have to tell you that you have provided very objective and robust testimony. I take my hat off to you.

Our Committee's mandate is to find the best ways of correcting any weaknesses in the Criminal Code in order to block any potential loopholes for offenders.

Allow me to give you an example to illustrate my point. In 2004, a Quebec man stabbed a young Chilean woman to death 34 times with a knife in Montreal. In court he claimed he was helping her to commit suicide. However, the jury found him guilty of first degree homicide in Fall 2007.

A tiny section of the Criminal Code allows judges to release defendants pending appeal. A person found guilty of murder in the first degree for having stabbed their victim to death 34 times is released by the justice system pending appeal. It is clear that the Criminal Code contains loopholes that need to be filled to keep serious offenders behind bars.

I would like to thank you once again for your testimony.

Ms. O'Sullivan, congratulations on your appointment as Ombudsman for Victims of Crime. We really need a spokesperson like you.

I just have one question based on my observations over the past few years of the treatment of victims and their families, the safety of families and offender rights. The Charter of Rights and Freedoms contains a section which refers to the right to safety. In your opinion, what should be the priority for society? Should the release of offenders or dangerous individuals accused of crimes take precedence over public safety?

[English]

Ms. O'Sullivan: Obviously, the number one priority is the protection and safety of Canadians, and the Charter balances that with the rights of accused persons and the issues around that. Here today, our office certainly supports the amendment to this bill. As I indicated in my testimony and as the Bagbys have highlighted, people need to consider that, by articulating, by emphasizing, by highlighting and putting it in and adding this line, it could make that difference because it will make people think about the protection of some of our most vulnerable, the children.

The Deputy Chair: I mentioned that Mr. Andrews is the sponsor of the bill in the house, and we are pleased to have Senator Banks with us today who is the sponsor of this bill in the Senate. Once again, senator, we commend you for your efforts.

Senator Banks: Thank you, Mr. Chair.

[Translation]

Senator Carignan: I have a more technical question on the facts presented by Mr. and Ms. Bagby. However, since they did not cover the point I wanted to raise, I would prefer not to get into a new discussion. This is a painful issue for them and, as such, perhaps they did not feel they could talk more about what occurred. I will therefore forgo my question so as to keep our discussion on topic.

[English]

The Deputy Chair: That is fine, senator.

Mr. Bagby: Please do not worry about going over the case again with us. We are quite comfortable discussing any issue of our case that will help this committee address this bill.

The Deputy Chair: Thank you for that, Mr. Bagby.

[Translation]

Senator Carignan: Thank you for being so forthcoming. It takes a certain nobility of spirit to talk about a topic as sensitive as the event you went through.

I have not seen the film that Senator Banks mentioned. As far as your particular situation is concerned, did you as the grandparents petition the courts for either custody or protection of the child? Was there any indication that the children were in danger? Did you have any opportunity to take action to protect the children?

I do not know whether you have had the opportunity to read last week's transcripts, in which I raised the obstacles family-law lawyers face in obtaining files or evidence they require to shield children from criminal proceedings.

For instance, you mentioned a letter or psychiatric report, which referred to the mother's instability. This is the type of report to which it is sometimes useful for family lawyers to have access. However, because they are Crown property, it is extremely difficult for close relatives, like grandparents, to obtain them to petition the courts to protect the child on the grounds of instability.

I would like to know whether in your particular circumstances, you attempted or even contemplated petitioning the Superior Court to protect the children? If you did, could you tell us about your experience, successful or otherwise, with the family-law system?

[English]

Mr. Bagby: I will try to address all the issues you raised.

We hired a custody lawyer and formally applied for custody of Zachary the day after he was born. That is one point. Through that process, we had visitation. We went to family court and reached consent orders regarding visitation, one hour a week initially, and then it grew. We had a total of probably five consent orders over the whole period of this case that we worked out with Shirley Turner regarding our access to Zachary. That is one of the issues you questioned.

I forgot to mention psychiatric evaluation. I believe last week's testimony indicated that there had been a psychiatric evaluation on Shirley Turner. That is an error. There was never a psychiatric evaluation ordered by the court on Shirley Turner. The psychiatric information that might have saved Zachary was in the reports at the prison where she was incarcerated for two months, starting November 14, 2002 and ending January 10, 2003. During those two months, while she was in prison, there were reports that her behaviour was erratic, threatening and suicidal. Those reports were never requested by the Crown, and they were not voluntarily given to the Crown when her bail hearing came up in January 2003. That is the only psychiatric evaluation we know of that was ever done on her, specifically as an evaluation.

In parallel with all of this activity that was going on, the extradition hearing and the custody fight, Shirley was also seeing a psychiatrist for treatment of her condition, her anxiety, stress, stress-generated conditions and so on. She specifically requested that psychiatrist, and that is another whole story. He is the one who signed a surety to help get her out on bail the first time, in December 2001.

I think I addressed the major things you asked. If I missed something, let me know.

[Translation]

Senator Carignan: I would like to ask a follow-up question.

Did your lawyer, who won you visitation rights, attempt to get you custody of the child?

Did he also endeavour to obtain a copy of evidence or records indicating suicide-related or psychiatric issues? Did he try to get these records from the Crown?

If he did, what was the outcome? What obstacles did he face?

[English]

Mr. Bagby: Our attorney did not specifically go to the Crown and ask for psychiatric information. Our attorney did go to a director-level person in child, youth and family services and directly asked them to look into Shirley Turner's suitability in caring for an infant. Our attorney did that about a month before Zachary was born. This, by the way, was thoroughly detailed in Dr. Markesteyn's report. He hammered child, youth and family services pretty hard for not looking closer at Shirley Turner.

As far as the Crown, she did not go to the Crown and ask him if there was psychiatric information, no.

The Deputy Chair: I believe Senator Banks has a supplemental.

Senator Banks: I will impose on your courtesy to say hello to the Bagbys. I wish you were here. It is nice to see you again.

Ms. Bagby: We would have come if we had known. Even though I had my cataract surgery yesterday, I was going to cancel that if we could get a flight.

Senator Banks: Never cancel that.

Ms. Bagby: It would have been good, because we would have liked people to know that this does mean such a lot to us that we would have come any time.

Senator Banks: I know that. There is nothing wrong, by the way, with anything that you said or your capacity to say it. You were apologizing for your speech. There is nothing wrong with your speech. I highly commend cataract surgery. I have just had it.

In respect of the points that Senator Carignan was making, I would again commend the attention of senators, even if we dispense with these matters in the next several days, to the film I have sent you. It answers these things fully.

I want us all to be aware of the fact that when this happened, before Zachary was born and when Shirley Turner absconded — and that is the fair word, I think — to Newfoundland, Mr. and Ms. Bagby, who live in California, tore up everything, pulled up stakes and moved, for all intents and purposes, to Newfoundland to pursue these questions. What subsequently happened is a litany of mistake after mistake after mistake after mistake, crack after crack after crack after crack, and the left hand, as you have just heard, Senator Carignan, having no idea what the right hand was doing, and a lack of communication among the various agencies and the judiciary and the lawyers who were involved in taking care of business in respect of Zachary's health. That is why Mr. Andrews and I have come to the conclusion that, since we cannot compel the Crowns to do the things it seems obvious they ought to have done in these instances, that the best way to do it — and I hate to refer to it again, chair, and I am sorry — is a red flag so that the justices who are involved will have their attention called to the question: Are there any kids involved here, and what might the effect on them be?

It is not only the case that the Bagbys made some attempt to do the right thing. They gave up everything and gave everything and did everything that anyone could possibly have done. Notwithstanding those efforts, which were costly and difficult and being done at a time in which I cannot even imagine what they were going through, despite that, our system failed. That is what has given rise to the bill that Mr. Andrews has devised.

Ms. Bagby: May I just say that when we were first in the custody trial — it was not a trial, but a hearing — the accused sat to our right, and we sat to the left. The judge at that moment said: Why can you not get along? Is it something to do with this criminal case in America? Yes, it is something to do with this criminal case in America. In the report that came from our justice department in America, it stated, by the Pennsylvania police, how she had tried to commit suicide with another boyfriend. Crown prosecutor Mike Madden had said, when I pointed it out one time, that it was two years ago, and that was all right.

The Deputy Chair: Thank you for that, Ms. Bagby.

Senator Runciman: I extend a welcome to the Bagbys. You are an amazing couple. My familiarity with the situation is based on what I saw in the Dateline special relating your history and what happened with your son and grandson and your dedication to Zachary's life. I reiterate that you are an amazing couple, and it is an honour to have you testifying before us today.

The message you are giving us is that you are supportive of Senator Banks's initiative here, which I am as well. However, you would like to see the Canadian justice system have us go further. You are talking about no bail for anyone charged with murder. You referenced the Charter concerns that might arise out of that.

To broaden that a bit, there was an inquest into the circumstances surrounding Zachary's death. I was wondering about the recommendations that flowed from that inquest. Are you satisfied with the recommendations initially, and that they followed through in respect to the response of the governments and agencies involved?

Mr. Bagby: The short answer is that we are partially satisfied. Some of the recommendations have been followed through on. Apparently, the Child, Youth and Family Services Act in Newfoundland which governs child, youth and family services, including child protective services, has been updated. I have not followed in minute detail what went on, but the gist of it, as I understand, is that they have done something analogous to what this bill proposes in the bail arena. They have jacked up the level of awareness of the safety of children in the minds of the social workers and their managers. That, in itself, just like this bill, has a chance to achieve the goal we have been after, which is to reduce the probability of a recurrence.

We do know, on an anecdotal level, of at least two cases where a murder took place and, immediately, child, youth and family services stepped in and took custody of a young minor and put them in care someplace away from the murder situation to ensure that child's safety. The recommendations of Dr. Markesteyn's report in that one respect have been carried out.

Kate just said in my ear, "not bail.'' Dr. Markesteyn's report did not specifically address bail. He explained it carefully in the report, and I will try to summarize it briefly. In the report, he said that he represented the Province of Newfoundland, which has no authority or power whatsoever to address federal criminal issues or judicial issues. I thought he did it cleverly in that, even though he had no power to do that, he spent several pages itemizing the questions he would like to have asked if he had had the power to address this issue at the federal level and in the criminal courts and the judiciary. If you have time, I ask you to please go find that online. It is well written.

Senator Runciman: To your knowledge, did anything occur with respect to the Crown itself in respect to obligations placed upon the Crown in terms of ensuring that the kind of evidence that was available with respect to Ms. Turner's situation would be required to be made available to the judge? Has anything along those lines occurred, as well as a response to what happened to your grandson?

Mr. Bagby: Not to our knowledge. We have not heard of any directive or change in the Attorney General's handling of criminal cases regarding this at all. That does not mean it did not happen, but we have not heard about it.

Ms. Bagby: In the case that David was talking about, the father got bail finally, and he is apparently living with his family and the child goes for visits to those grandparents. I am not sure that that child is terribly well protected because the father can get to the house and the social workers are not able to be there all the time.

When Turner killed herself and murdered Zachary, we wrote to the Minister of Justice in Newfoundland and asked that the bail sureties be taken in because Turner had failed to show up for the hearing. We got a letter back saying, "We cannot do anything about that. That is the federal justice department.'' David wrote to the federal justice department. A letter came back from them saying that this is a provincial matter. These letters kept going backwards and forwards until, finally, the justice department in Ottawa said, yes, the sureties should have been taken up, but the people in Newfoundland had suffered enough and he did not want them to suffer anymore.

Senator Runciman: Thank you again for doing this.

Senator Lang: I, too, want to thank you for being with us this afternoon. I can only imagine how difficult this has been, and still is, for you.

Listening to your comments, in the period of time that you have been involved in looking for changes to the law, was there ever any consideration given to a legal requirement that, if a psychiatric assessment was done on a individual charged with murder while incarcerated prior to a case being heard, that that information must be made available? It seems to me there is a step here that has been missed. Obviously, there was information on one side of the administration of justice that should have automatically been made available. Was there any discussion of that?

Mr. Bagby: Is that a question to us, the Bagbys?

Senator Lang: Yes.

Mr. Bagby: No, I have not given any specific consideration to that. I have not heard any proposals about it. That strikes me as something that would be valuable. However, I remember the case that I used in my summary of the man who underwent a psychiatric evaluation, which was court ordered. It came back and said he is safe and not a danger to himself or others. He went out and killed his mother-in-law and himself. I personally have little confidence in them. This is not an attack on the social sciences, psychiatry, psychology, sociology and so on. I do not mean to attack them. However, there is not the capability to look into another human's soul and see what is really there. I do not have a lot of confidence that psychiatric evaluations in general help very much. Obviously, if you already have one done, it would be a good idea to ensure that everyone who has any power has access to it. That would be a nice addition. I do not know where to put it in the Criminal Code but that is a good idea. If the data is there, spread it around.

Ms. Bagby: The fact that she attacked other people in the first place is important, too.

The Deputy Chair: On that point, Senator Banks has a supplemental comment to make.

Senator Banks: I wish to say that that is so patently obvious. Of course, that is what should have been done. Mr. Andrews and I looked hard and long at trying to find a way to put into the law some place a requirement on the part of the Crown to do that. We could not find a way to do it that would pass muster, because it is a matter almost of policy and discretion by attorneys general, et cetera, and we could not find a way. There may be a way, but we could not find it, to put into the criminal law a requirement that those processes be done and that attention be paid.

In addition, as Mr. Bagby has just said, and I think Ms. O'Sullivan will bear this out, psychopaths are notoriously capable of deluding the people who are interviewing them.

They are excellent at manipulation in that respect.

Senator Lang: I am not necessarily trying to add to the bill here in respect of your objectives, Senator Banks, but I do think it is another area that perhaps can be considered. It seems to me that, if this information is acquired within the judicial system in one manner or another, then it should be made available to all of those parties when decisions have to be made, whether that examination is positive or negative. That is the case-by-case situation, obviously. I do not disagree with Senator Banks's point of view or his information about psychopaths and what they are capable of and what they can do. Personally, I think the recommendation for a blanket bill has a lot of merit from the point of view of parole. It seems to me that is another area that can be looked at. Maybe there is a way of doing it. It seems to be unbelievably unconscionable that that information is not provided and all parties do not have access to it.

Senator Joyal: Welcome. I will submit to you a reflection that came to mind when listening to your testimony and that of Ms. O'Sullivan. It seems to me that it falls under common sense when, in front of a judge, you have the case of a spouse who is alleged to have murdered his or her spouse and there are children. There is a specific problem there: The dysfunctionality of the couple. The fact that they are accused of having murdered their spouse, their partner, should trigger the reflection that, by itself, there is a situation there of instability between two adults, which could be detrimental to the future of the kids. If you are the child of a father or mother who was killed by the other one, how does that affect your future life? It is a tremendous element of psychological preoccupation.

To come back to the original step, when a judge has such a situation in front of him, it should trigger immediately on the Crown the responsibility to evaluate the psychology of the people who are in front of the court. In that context, I think the first reaction would be to set the children aside from this.

One of the key elements — besides the bill that we have and that everyone around the table supports — is the instruction to the Crown attorneys. The Department of Justice is not here today, but the federal Department of Justice could raise this issue with the provincial attorneys general, because Crown instructions are within the realm of responsibility of the provincial governments. It seems to me to be an important element that the Crown prosecutor should raise and bring it to the attention of the court. They are in a dire situation. The mere fact that the parent of a kid is accused of having murdered the other partner raises an important issue that is totally outside another situation such as, for example, a gang murder. That is different than this case. In this case, there is a psychological element that is totally inescapable from the decision to be taken. That psychological element needs to be taken into account when the judge pronounces as to whether or not he will grant the bail, or which conditions he will attach to the bail.

As Senator Banks has said, that would be difficult to legislate in the Criminal Code, but there is no doubt in my mind that it should be an instruction given to the Crown prosecutor to raise that aspect forcefully at the first stage of a hearing.

The Deputy Chair: Do you have a question, Senator Joyal?

Senator Joyal: I wonder what the grandparents of the victim think of that.

Mr. Bagby: I think I understand thoroughly. You are right that there is a psychological element. I should note that Andrew and Shirley were never married, but that does not change the essence of your point. Andrew's murder was, in a real sense, a domestic violence murder. It is exactly the way it happens with married couples where one says, "I want a divorce,'' and the other one kills them for that. This is essentially the same case except there was no formal marriage.

Your point is that a Crown prosecutor and a judge should take into account the psychological aspect of the killing as a domestic case versus, for example, a gang case. Your point, I think, is exactly right. It should raise the level of awareness of the psychological aspect of the case.

Ms. Bagby: I think you have come to a wonderful point. It absolutely makes sense to do that. I do not know how to say this exactly. The accused in this case was a woman, a doctor. The judge said one day, "I am so sorry, Dr. Turner, that your life is on hold.'' I wanted to scream, "You are apologizing to this accused murderer. My son's life is on hold forever, and this little boy's life is in danger.'' When we went to the court that first day and the judge said to us, "Why can you not all get along?'' he also only granted us a one-hour-a-week visit, because Shirley Turner did not want us to visit. We had to be searched, and we had to pay a lady to come and sit with us so that we did not harm the baby. All this was at Turner's request. We had to send a taxi to the house to pick her up because she had a C-section. We did not object to any of that. We would have gone there naked, if that is what they wanted.

The irony of it is that this accused murderer, who has been accused of murdering this little boy's father, is getting him 24-hours a day, and we are getting one hour a week. We have all these restrictions, and yet she has him at home, and all the social workers do is see her as a case, as a family problem case, rather than anything to do with the murder and child protection.

The third child was in her care, too. She had lived for five years with her father and his new wife, and he allowed her to come to St. John's for one week, and then she did not go back. That father went to court and paid $4,000 to try to get her back because he was fearful for her safety. She won the case because she was probably going back to America.

Mr. Bagby: She won it fundamentally — here I go again — because of an absurd interpretation of presumption of innocence.

Ms. Bagby: And motherhood.

Mr. Bagby: The law decided that she had not committed a murder and was just like everyone else and, therefore, she had the right to keep her children and be free to walk around because of presumption of innocence.

The Deputy Chair: This is certainly a discussion where I do not want to be tough on the clock and stop it. It is wonderful to have you take the time to share this with us. However, we do have another witness to hear from. Senator Runciman has a final supplemental.

Senator Runciman: I have a supplemental to Senator Joyal's line of questioning with respect to a Crown directive. I will direct this to Ms. O'Sullivan because of her policing background and familiarity with what happens in Ontario. There was a recent murder of two young children in Ontario, and there were similar questions related to the mental well-being of the accused. What is the situation in Ontario with respect to a Crown directive in terms of ensuring that all this information is before the courts?

Ms. O'Sullivan: I want to build on a couple of comments that the Bagbys made about awareness. You talked about the report from the provincial level. When you are talking about a direction to Crown counsel, it is not just about at the time. One thing we want to raise awareness around is that, when you are talking about the issues of victims and their families and the needs to ensure that these questions are asked, some of the recommendations our office has made in the past have been around the fact that there should be a lot of awareness training at school, at university, at legal colleges and medical schools, in terms of making people who are going into these professions aware of some of the issues that must be considered. For specificity to a certain province, I would be hesitant to get into details. I know the next witness has a much larger legal background than I do. However, the issues we are raising here are about having dialogue. It goes right to the heart of this legislation that people ask those questions about the impact on families and the impact on this vulnerable child when they are making these choices and considerations. There are many stages of awareness among people who are in the professions, not just in legal protection but also other professions that are interdependent and interconnected in these situations with regard to family and services in the province as well. I think it speaks to the heart of what the Bagbys are trying to do, and both Scott Andrews and Senator Banks, with regard to ensuring that people do ask that question and that it be considered when making these serious and difficult decisions.

The Deputy Chair: Thank you, Ms. O'Sullivan and Mr. and Ms. Bagby. I believe that concludes this portion of our discussion. We thank you for what you shared with us today. Senator Banks and Mr. Andrews have done an excellent job in laying the groundwork and the explanation for us to understand this bill, but nothing can replace hearing firsthand from you.

Mr. Bagby: Is it possible for us to sit in on the second half?

The Deputy Chair: Unfortunately, I do not believe that is possible. We have the videoconference booked until 5:30 p.m. our time. However, we will forward you the blues with the full testimony so that you are able to review that.

Ms. Bagby: Thank you very much. Thank you, Senator Banks and Mr. Andrews, and all the people who had such wonderful ideas this afternoon. Please let the bill pass.

The Deputy Chair: We have before us as our next witness someone who has appeared before us on a number of occasions in respect of other bills, Phil Downes, a lawyer, who is here today representing the Canadian Council of Criminal Defence Lawyers.

Mr. Downes, it is a pleasure to have you appear before us. You are always very helpful with your comments. If you have any opening statement you wish to make, the floor is yours.

Phil Downes, Barrister, Canadian Council of Criminal Defence Lawyers: I have some prepared remarks. For the benefit of the translation, I will be departing from them a bit, largely because of the interesting discussion that I have just heard over the last hour or so.

It is never anything other than a privilege to be here and it is an honour to be invited to speak to this committee. I bring greetings on behalf of my colleague, Bill Trudell, who is the chair of the Canadian Council of Criminal Defence Lawyers and who is known to many of you.

Our association, we think, is uniquely positioned to provide input on criminal justice issues from across the country, through the criminal law practitioners that we have as representatives of the organization in all of the regions of Canada. I have had the chance, since being invited here today, to speak to several of them and, in particular, to our members in Newfoundland and Labrador, where this tragic story is so closely engaged.

This is a time, as you well know, of dramatic legislative proposals in the criminal law arena. I spoke to Mr. Trudell about this at length. This committee has, time and again, shown itself to be a vital source of balanced, careful and wise second thought with respect to legislation. We again know that that is what we will see this time around.

You have a challenging task of looking at the wisdom of what is a small amendment in many ways — and, in many ways, it is uncontroversial — but yet is set against the context of this terrible emotional and devastating case that we are familiar with. I am glad my time is cut into. I would be more than happy that it be cut into to hear from the Bagbys. They are a remarkable couple and their engagement with the criminal justice policy issues is, from my perspective, quite amazing, given what they have been through. No one for a second doubts their intentions or motivations when it comes to trying to do justice to families and victims in Canada. It is quite remarkable.

As you probably know, I am a defence counsel. I was a Crown counsel in Ontario for eight years as well. Many of the issues that we talk about on bail I have engaged with on both sides, and much of the discussion I just heard about rings true to me. I recognize it, having dealt with many of these issues when I was a Crown and now as a defence counsel.

This case was a spectacular tragedy, and so our natural reaction is to look for a solution, and to look for accountability and prevention to ensure it does not happen again. That is what we do with every loss or, in many ways, we should do with every crime.

We then come to the position: Does this amendment contribute to that? Does it have that effect? Is there anything on the other side of the ledger that should make us think about whether it really is something that we should do?

In our respective submission, this amendment, while perfect in its intention, at the end of the day it will not have any practical effect on what we do, in any side of the ledger or on any player, if you like, in the criminal justice system.

We should bear in mind that the bail provisions do allow, under section 518(1) of the Criminal Code, a judge to make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable; and to take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence.

I must admit that I take that as including not just a direct victim. Of course, in a homicide, that victim is no longer, but the victim is captured by family members of the deceased person, and the kind of interest that we have been talking about today.

As you know, a justice can receive evidence that is simply credible and trustworthy. In other words, the quality of the evidence at a bail hearing can be much lower than we would expect at a trial proceeding.

It seems to me the question to us is: Was there a failing in the course of this case, and with respect to the accused's release from custody, that this amendment would, or even could, have prevented. I tried to inform myself as best as possible about some of the circumstances surrounding Shirley Turner's release. It is my understanding that, when she was released on the extradition warrant, she was released on bail with the consent of the Crown prosecutor.

Senator Banks: That is right.

Mr. Downes: She had a lawyer at the time, but yet the Crown agreed that the protection of the public did not require her to be kept in custody. After she was ordered to be extradited, she was detained in custody, as I understand it, and appealed that extradition committal order. She did not have a lawyer at that time and the legal aid commission, as I understand it, had deemed her case to be of insufficient merit to fund her case.

She represented herself again, as I understand it, on that bail proceeding. Again, she was ordered released by an appeal judge. It maybe says something about the quality of the information that was before the court on those occasions, that she was released both on consent and without the benefit of counsel. It maybe says something about the benefit of having counsel.

In any event, Mr. Bagby says, and it is interesting hearing him, that there was this evidence available from the prison that was not put forward by the Crown. It is hard for me to imagine that the Crown knew that information or had information and simply failed to produce it.

As a Crown, I know that if I had any inkling of that kind of information, I would put it forward. You would put it before the court. If I did not, and had it and ignored it, I would expect to be chastised roundly by my superiors.

Would an additional provision that outlines this one interest, if you like, the persons under 18, change that? In my submission, I do not see that it would.

The danger, of course — and you know this, namely that we see a case and we want to react — of reacting to a specific case is fraught with dangers that we may not see. Let me try to suggest a couple to you that maybe will impact other legislation. In principles of statutory interpretation, when we are trying to understand and apply legislation, one of the things we do is look to other statutes and say: Has Parliament articulated a list of factors? If they have in one context, but in another, if they have not, one of the principles of statutory interpretation allows us to say: Since they did not put it into this section, Parliament obviously did not really intend it to be a significant factor. We can maybe revisit this during the discussion. In other words, without looking comprehensively at a whole range of legislation that outlines particular interests, is there a risk that simply highlighting this one may lead to problems in other areas?

Second, what do we do on the next case where the victim is, let us say, an elder abuse case, where someone has taken advantage of an elder parent — we know that is more and more common — and maybe there is a homicide in that context. Do we amend it to add a condition that a judge should look at whether there are elderly people vulnerable from this accused? Similarly, people engaged in working with developmentally disabled people, we can think of any number of vulnerable people. My worry is that we end up without a compressive look. We end up picking on this one and leave other areas open to vulnerability.

In my experience — and this is the experience of my colleagues that I have talked to in the last few days — Crowns do consider very much who is at risk in all cases, in all circumstances, a fortiori in the domestic violence context, very much so. Certainly in Ontario, the Crown policy manual talks to that. That issue is raised, and it is important as to Crown directives.

I read a comment that says that this amendment will enable a judge who is considering a bail application to take into account the accused's minor children in the determination of the risk that the accused is likely to commit a serious crime on bail.

Is there anything to suggest that a judge would otherwise not do so where any evidence is put before them? If someone raises it, would a judge say, "I am not going to consider that''? I do not see it, with great respect.

In our submission, this amendment will not contribute to preventing further Zachary Turners of our world. I assure you that if we thought it would, we would be in support of it. It is much easier to support a piece of legislation like this than it is to raise difficulties with it.

We are again grateful to have this chance to have input into this piece of legislation. We would simply ask you to weigh the two sides of the ledger and ask whether it contributes to public safety and, if it does, are there some other dangers that exist in enacting an amendment like this?

The Deputy Chair: Thank you, Mr. Downes. Your comments were very thought provoking.

I have a question before I turn to my colleagues. In considering how bail applications are dealt with today, with the law as it is today, and when the courts are considering if detention is necessary for the protection or safety of the public, would a judge automatically, as a matter of course, in looking at a certain situation and in considering the public, go through a series of checklists? Would they, for example, consider the circumstances of the person accused and automatically ask: Do they have children? Do the children live with the accused? Do they have parents? Do they have elderly parents?

Would they go through that list as a matter of practice in each and every case? Would they ask that question and then decide what impact the possible release could have on those individuals? Do they try to determine the members of the public who could be impacted directly by the release of the accused?

Mr. Downes: I do not know what checklists judges might have, but let me say this: Judges are judges; the parties are the parties who are responsible for putting these issues before a judge. I would think a responsible judge would turn his or her mind to the Criminal Code and say: Am I satisfied, regardless of the quality of what the parties have done?

We have an adversarial system, for better or worse. Frankly, many times it is for worse. The onus is on the Crown. I am not talking about the onus in terms of bail, because in a case like this the onus is on the accused to show that they should be released. However, the Crown is the one who should, and I am sure does — I am speaking at least for Ontario — have a domestic violence checklist that the OPP, Ontario Provincial Police, have prepared, which is long, and it had better be on their mind in a case like this; and if it is not, I think the problem lies with the Crown's understanding of the directives they have. If a Crown has not turned his or her mind to children, in the case of a domestic homicide, then something is badly wrong, and it is not something that this legislation would necessarily fix, in my view.

The Deputy Chair: Because of the work volume or for whatever reason that each of us has a bad day and something slips between the cracks, if a judge who is hearing the application looked at the facts before him and saw no reference at all to children, would a judge likely, in all cases, or at all, raise that issue, put that issue to the Crown and to defence counsel?

Mr. Downes: I think it would be astonishing if a judge did not ask the question: Does the accused have any children? In this case, is anyone suggesting that the Crown and the judge did not know there was a child? It is not that they did not know there was a child; it is that there was a problem in sharing and getting access to the right information, and putting that information before the court. It seems to me, not being too familiar with the case, but the short answer is that I could not imagine a judge not asking that question.

The Deputy Chair: I guess that is the first question: Is there a child? Then the next step would be to assess the risk to the child, if any.

Mr. Downes: Apart from anything else, even as a defence counsel, you will say to the judge: My client has a child who is five years old and has no one else to look after him. I appreciate the irony of the submission where the accusation is that you have killed the partner but, in fact, it may operate to the benefit of defence counsel if you say this child needs to be taken care of.

[Translation]

Senator Carignan: I agree and disagree with you at the same time.

I agree with you in so far as I am not sure that his particular Bill will deal with the whole issue. It will resolve part of the problem but will not necessarily fix everything.

However, I do not agree that the importance of considering child safety prior to a release should be red-flagged to judges.

We are studying specific cases to ascertain whether the amendment would have resolved the issues involved.

I think we have to tread carefully here because we are not only dealing with this one issue. Senator Banks referred to cracks. In this particular case, they slipped through multiple cracks. My goal here is to fill in at least one crack to avoid a similar situation happening again.

In this particular case, one of the spouses had been murdered. Unfortunately, the child's immediate family, the grandparents, who might have been able to help were kept away. They had a tough time gaining access to the child for an hour a week. In many cases, the victim of domestic violence has not necessarily passed away. However, they may not be functional. In other cases, it might be the spouses' children who have been killed.

My wife knows of a case where a pregnant woman murdered her children. Fortunately, the spouse was in good mental and physical health and was able to get immediate custody of the child at birth and restrict the mother's access. The facts of the case we have been discussing here were however, quite different. If the grandparents had been able to present sufficient evidence or had had access to the relevant information, they might have been able to get full custody with supervised access for the mother.

The problem is accessing the information. Family-law counsel have a tough time accessing Crown files in order to assess the issues and the danger posed by the individual. There are options available to the Crown and the judge but they do not appear to automatically use them. However, the Bill does amend section 515(10) of the Criminal Code.

Adding a specific reference to persons, including minors would mean that children under the age of 18 would have to be protected as well as witnesses and victims.

You mentioned section 518 of the Criminal Code, which deals with admissible evidence. However section 518(1)d.2) of the Criminal Code states the following:

d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence;

Nowhere in the Code is reference made to evidence involving a third party other than a witness or the victim.

There is no provision in the Code for children who do not fall into either of these categories. There is nothing in the section on evidence requirements, detention review or release conditions providing for the protection of any minors involved.

Some judges have, in Quebec at least, asked Child Welfare Services to get involved in cases where a child's parents have been killed and there is no immediate family to care for the child. In this type of situation, Child Welfare Service would normally step in on the grounds that a child's safety is compromised.

However, where one of the parents is a victim, is still alive but not necessarily in a fit state to parent, judges are less likely to step in.

I think that we have to go even further. There should be a red flag requiring judges to assess the situation. I believe that section 518(1)d.2) of the Criminal Code needs to be amended to make it possible for justices to consider evidence involving minors.

Section 518(1)d.2) currently reads as follows:

d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence;

It needs to be expanded to include persons under the age of 18.

Do you have any specific comments on the points I have raised?

[English]

Mr. Downes: I will not comment much on the family law side of it because it is not something I have any knowledge of. You focus on one part. You talk about section 518 and it just mentions "victim'' or "witness.'' I had said in my comments that I would take someone like Zachary to be a victim in this case, a victim of his father's homicide. When you look at section 2 of the Criminal Code, which is the definition section for the entire Criminal Code, "victim'' is defined simply as "'victim' includes the victim of an alleged offence.''

Maybe the answer here, to avoid the other problem I have talked about — about having to articulate each and every one — is to say: Should that section be expanded to make it clear that, when we talk about victims, we talk about people who are directly affected by the commission or alleged commission of a criminal offence, and how could anyone say that the child here was anything other than that? Then you would look at sections 518 and 515 and you would not have to amend them in order to say that a victim includes all of those people who are affected — the remaining siblings, spouse or family members. I wonder whether that would achieve the objective without having to maybe amend any number of different sections of the Criminal Code.

I would like to touch on one other thing you said, senator. The issue here, as I understand it and as we have heard, was not so much whether a judge had the information but whether the information was available to the parties. If it was the case that there was a jail report showing psychiatric problems, why did the Crown not have that report? If there are systemic problems at the provincial level in that regard, it seems to me that you run the risk of running into other problems if provincial agencies and ministries cannot share that kind of information to ensure that it is before a judge in any context.

Lastly, it seems to me the other issue is Crown directives at the provincial level. I know in Ontario that victims are front and centre to the Crown policy manual, and Crowns are directed to consider the interests in a broad context. It seems to me there is very much a responsibility there.

[Translation]

Senator Carignan: This raises a totally different issue that I would like to discuss with you.

[English]

The Deputy Chair: Senator, I just want to point out that I have a list now of five other senators, and we are running late. If your question is short, that would be fine; otherwise, we will put it to a second round, if there is one.

[Translation]

Senator Carignan: I will be brief. You asked why the Crown did not have access to this evidence. I would just like to point out that even if the Crown had had access to the evidence, the grandparents would not have been able to obtain it for their custody petition. Even if the Crown had the evidence, it still would not have changed the fact that the grandparents would not have been in a position to access it. Not having access to the Crown report made it even more difficult for them to successfully petition for custody.

[English]

Mr. Downes: My quick answer is that that is really a problem in the context of family law litigation. My concern here is whether the Crown had the information and whether the judge had it in the bail context. I take your point.

[Translation]

Senator Carignan: There is a disconnect here between the Crown and criminal counsel. The criminal lawyers contend there was no problem while the Crown maintains that it was a criminal and not a family-law matter.

[English]

Senator Runciman: You do not want to talk about family law, and I understand that, but I think there are some biases in family law that carry over to the criminal courts. I suspect the fact that this individual was a mother and a physician, that there was latitude afforded there that probably in other instances would not have been the case.

In your experience, what tests have defendants had to meet when the reverse onus provisions apply? It seems to me there should have been some clear burden on that individual who is charged with murder. If none of the other information was available, we knew she was a flight risk, for example; that is clear. What has your experience been in terms of the requirement with respect to reverse onus? I am sure it is not standard, but do you have any experience in that regard?

Mr. Downes: Not a whole lot. Judges, I think, tend to be very careful about onuses. It is usually the first thing they ask: Whose onus is this? How that translates practically is difficult and it obviously varies case by case. Bails on murder charges are relatively rare, period. I agree with you that the dynamics of this case may well have informed that with the particular characteristics.

In my experience, in a murder bail or in a reverse onus situation, the evidence has to be put forward by the accused. In a case like this, if all they are putting forward is no criminal record, no history, a good parent and a professional, where is the evidence going to come from for the other side? In other words, the Crown still has an opportunity to get that evidence and counter it, and clearly the onus is on the Crown side in that case.

I am generally not concerned about judges not respecting the onus. I think they generally do, if that is what you are getting at.

Senator Runciman: I would like to have some specifics with respect to what they look for.

You spoke about the Crown directives and about the domestic violence checklist in Ontario. I am not sure if Newfoundland and Labrador has something comparable or not. However, occasionally a Crown can screw up as well. I think that has happened on an occasion or two.

Do you believe that the federal government has a role here in ensuring that there is a clear level of guidance with respect to — and I know you are sticking your toes into the administration of justice perhaps, which can get some noses out of joint. Do you think there is a role that the federal government could play with respect to encouraging a standardized application concerning this kind of issue right across the country?

Mr. Downes: That is a great question because I do not know what each province has. I know the Ontario domestic violence checklist is incredibly thorough. I would be surprised if it is not in some other forum.

To be honest, I have not turned my mind to what federal initiatives could encourage — I know there is generally good cooperation between attorneys general and the federal government, but other than trying to encourage that, it seems to fundamentally be a provincial jurisdiction. Other than the code, which provides good criteria on a number of areas, such as bail or sentencing, on which we are given increasingly more detailed criteria, but on the checklist issue, which is also a police issue, I do not know. I do not have any great ideas; I am sorry.

Senator Runciman: Thank you for being here. You have raised some valid issues. I think we all agree around the table that this is a modest initiative, and while in a positive sense it might not have all of the hoped-for gains, on the negative side, it is a relatively modest concern as well. I want to reiterate my continuing support for the legislation.

[Translation]

Senator Boisvenu: I appreciate your clarification, Mister Downes. Not being a lawyer myself, I do hope that my colleagues will continue my education on the Criminal Code. I have learned a lot over the past few months but at these Committee meetings I am always torn between speaking as a Senator or as the father whose child was murdered because of an incompetent justice and prison system.

I do not possess any theoretical knowledge of the Criminal Code but I am however, familiar with courts through my work with many families whose loved ones have been murdered. Several of these cases involved parents who had murdered their children.

Given that we do not live in an ideal world and that judicial errors are a fact of life, do you think that the Criminal Code should serve as a safety net for these families? Do you not think that a safety net of specific provisions should be built into the Criminal Code? The Code refers to public safety in general, but should there not be provisions for more vulnerable groups, such as women and children, who make up the majority of the victims of domestic violence?

Men are rarely murdered. It is normally the woman and the children. One of the greatest sources of frustration for families is knowing that had the Criminal Code contained specific provisions to protect the victims, there would perhaps be fewer miscarriages of justice. I recognize that Crown attorneys are governed by comprehensive codes of conduct but there will always be one who will drop the ball somewhere. However, should the Criminal Code allow judge to take this into consideration?

Do you think that in cases of domestic violence or where women and children are deemed to be in danger, clear provision could be made in the Criminal Code to protect them?

[Translation]

Mr. Downes: I agree with you. The code must address protection of victims. That is the ultimate problem, is it not? We have a system where accused people have rights. People always talk about criminals having rights; it is accused people who have those rights. We all have those rights. Victims have rights and interests too.

There was an interesting program last night on TV Ontario, if anyone saw it. It was a debate about this very issue. One of the participants there pointed out how over the last 10 to 20 years, the code has included many amendments to take into account interests of victims within the trial process, whether that is testifying behind screens, victim impact statements, access to third party records, and access to the sexual history of a complainant, that kind of thing, where we have consciously tried to address the role of victims in the Criminal Code.

Will these things continue? They will because people are people. Psychiatric predictions are very difficult to make. I think Ms. Bagby said that trying to predict dangerousness — and any psychiatrist will tell you this — is virtually impossible.

Yes, the code should continue to do whatever it can, but we butt up against the rights of accused people and, generally, I think we do a pretty good job at it. That is why these incidents are, thankfully, relatively rare. I know that means nothing to people who are victims of them, and neither should it. However, they are relatively rare. That is why I always have a concern about legislation that responds to a particular case as opposed to a general problem.

[Translation]

Senator Boisvenu: Mister Downes, do you not think that regardless of it being a rare occurrence, that even one case is one too many?

[English]

Mr. Downes: Yes, I do.

Senator Lang: I want to follow up on one or two comments made by Senator Joyal to the earlier witnesses that I think this witness did not hear.

Referring to your background of previously being a Crown prosecutor, perhaps you can shed some light for us who are not lawyers, but I like to think we do bring some common sense around the table. It seems to me in the case we have just heard and has obviously been quite dominant over the last number of years, common sense did not prevail. We had a judicial system where I think, quite frankly, the presiding judge erred and the Crown prosecutor erred. Here was a situation where there was a murder within a family, yet this child was kind of a pawn in the whole soap opera that took place and that ended in such tragedy.

I want to go back to Senator Joyal's point about instructions to the federal Crown prosecutor so that common sense does prevail.

Would you be prepared to accept in a case where you were the Crown prosecutor, such as in your previous role, that if a homicide or a violent assault occurred within a family, as per instructions from the government across the country — not just in Newfoundland and Labrador and Ontario — the policy be that bail should not be granted and it should automatically be opposed by the Crown prosecutor?

Second, if bail is granted, in that case, should the requirement be for the Crown prosecutor to ask that that child or children be removed from the situation until there is a final decision taken?

I think that a common-sense approach would go a long way to negating a situation like this ever occurring again. I would like to hear your comments on that.

Mr. Downes: When I was a Crown, I did get directives from the Attorney General on what positions to take in particular instances — for example, when it was not appropriate for the Crown to agree to a conditional sentence. That was a policy that I recall a directive on.

If I got a directive saying that in a domestic violence case — there is a difference between legislation saying there should be no bail and a directive saying the Crown should oppose bail.

Senator Lang: I know. I am talking about instructions.

Mr. Downes: If the directive is that the Crown should oppose bail in all the circumstances, the directive should be worded in a way that says the Crown should have that as the default position, subject to X, Y and Z, because I do not think there can be a blanket rule that is fair to everyone. If the presumption is that the Crown would oppose bail — and, frankly, that is effectively what happens in the cases I am aware of — there will be cases where all of the facts are on the table, all of the evidence is out, and no one has a concern about repeat violence. Those cases do exist.

Similarly, there will be cases where there is lots of evidence. Everyone is informed — that is, the Crown, the defence and the judge. It is clear, or a judge is able to make an informed decision, that access to the children is appropriate. Should they be rare? Maybe. But should we have a directive that says, "in all cases?'' I think the potential damage you do to families from that situation is still there. In other words, there still must be some discretion.

Senator Lang: I am not here to argue; I just want to make the point. All I want here is common sense. There is a murder. There is a homicide. There is violent assault. There is either one or two of those situations in a family and children are involved. If instructions were given to the Crown prosecutors that bail is automatically opposed, then if bail is granted, there is a request that that child or children are taken out of that situation until it is resolved.

Mr. Downes: I would have no problem with a directive saying that the Crown should consider or make that request. It should not be an automatic result, though.

Senator Lang: The decision lies with the judge, obviously.

Senator Joyal: Of course.

Senator Lang: I rest my case.

The Deputy Chair: Very well argued, by the way.

Senator Baker: I am bringing you back, witness, to Senator Banks's bill that is before us. As you pointed out, in this particular instance the person had been denied bail and it was on appeal that bail was granted.

Section 515(10)(b) of the Criminal Code of Canada has been around for a long time. It is the secondary ground. There are three grounds, three sections. The only one that has changed over all the years is the third, the tertiary ground, the first portion of which, you remember, was declared unconstitutional. This second ground has not changed. The Supreme Court of Canada dictates, to a large degree, how each judge interprets the words in that second ground. Each one of the words has been clearly spelled out in cases before the Supreme Court of Canada, in cases like that of Morales and Pearson. I think those are the two principal cases. The words have been taken apart — for example, what does it mean to have the safety of the public, for the protection of the public, and then the likelihood of committing a criminal offence? All of those things have been broken down and interpreted.

Would you agree with me that each judge, when they deal with that ground, will go through the very same procedure and analyze what the Supreme Court of Canada has interpreted as the meaning of those words.

Mr. Downes: I think that is built into their understanding of bail and their training on bail and all the leading bail texts. Yes, I agree with you.

The Deputy Chair: Senator Baker, I have to catch you off this point briefly. We will lose our television coverage at 6:15 p.m. We will continue with the meeting, but I think at this point I will just do a momentary adjournment and then we will immediately come back so that the cameras are able to finish their coverage of today's hearing.

Senator Baker: Getting to my point, all of the words have been interpreted. Along comes Senator Banks with this bill before the Senate, injecting new words into the Criminal Code, namely, "or any person under the age of 18 years.''

Would you not agree with me, witness, from your vast experience — and I followed you in case law over the years, over 80 reported cases — that now, when a judge looks at this new provision and looks at bail in the first instance, at the provincial court level when bail is being determined, that they will look at those words and say, "What do those words mean?'' They will then look at and say, "What was the intent of those words passed by the Senate on this day?'' Do you agree that that will be the case in the future?

Mr. Downes: I think that is very likely the way they will go about it, whether or not they will use those words. However, that is the way they will look at it.

Senator Baker: Will you not agree, as a final point, that Senator Banks has achieved his purpose in that it will direct our courts, in judgments, to have a look at those additional words and say, "What do they mean? What was the intent of Senator Banks in introducing it and the Standing Senate Committee on Legal and Constitutional Affairs,'' and they will go over your testimony and see what you said as well — is that not correct?

Mr. Downes: I would be honoured if they did that. I love your cross-examination, senator.

The truth is, will they? Yes. I think you are right. They will look at it and say, "Is that on the checklist?'' But to come back, I am not sure that is the issue. The issue is whether the information was there.

Senator Baker: But, witness, would you not agree that it is the words in the Criminal Code that are followed by every adjudication, by every judge in determining what fits in that particular section on bail? That is a fact.

Mr. Downes: Yes, I would hope so.

Senator Baker: They would pay attention to this particular section.

As far as the Crown manuals are concerned, they are all different right across Canada — there is no doubt about that. There are some similarities in general, but they are quite different. I have examined all of them, and I tell you that in some cases they are drastically different. They are all online for anyone to read.

The fact of the matter is that Senator Banks is introducing new words to the Criminal Code and it will achieve his purpose in looking toward the future and seeing judges interpret what he meant by the introduction of these words.

Mr. Downes: His purpose is to prevent these things happening. If that question had been asked in that case, the Crown would have said there is no concern and the defence would have said there is no concern because no one had the information they needed, so it would not have made any difference.

Senator Baker: Yes, but you are assuming that, in not having the words there, it would have the same ultimate result than if the words were there, which is something we can only speculate on. By Senator Banks putting the words there, however, it will at least direct attention in that area. Thank you.

The Deputy Chair: Any comment, Mr. Downes?

Mr. Downes: I am not sure speculation is the way to go about making these amendments when I have suggested there are potential downsides to them.

The Deputy Chair: Thank you.

Mr. Downes: I want to make it clear that, at the end of the day, this is not an amendment that, as criminal defence lawyers, we say, "This is bad; it will harm the accused.'' It is not that kind of amendment. It is an amendment where we say, "Let us look to see if there are any other downsides to it as well.''

Senator Baker: I appreciate your testimony; there is no doubt about that. However, in the process we should also look at the reality of the situation in that it will direct the court's mind to what is in the Criminal Code, which is this new addition.

Senator Banks: Anyone on any legal question who follows Senator Baker is an idiot. In vaudeville the rule is you never follow a kid act or a dog act because you will die, or the Shumka Dancers. Nothing can go on after the Shumka Dancers. I will have the temerity to tread where angels fear to tread and ask a question.

I know that in your profession, Mr. Downes, the rule is you do not ask a question until you know the answer but I am not a lawyer, so I am not bound by that.

I have suggested to the committee — and it was suggested by the author of this bill in the House of Commons — that we know this will not fix everything. We know this is not riveted and ironclad. However, as I think Senator Baker has stated, it might, in some circumstances, call the attention of the judge — because we do not see a way to call the attention of the Crown prosecutor — to asking this question. That is the hope. You have suggested that there are downsides to that, and I heard what you said. I do not practice law. I do something much simpler than that, which is to make law. Practising law is much more difficult.

I am hopeful, and I have said to this committee that I think this bill would do no harm. I cannot see that the bill would do harm and you have not convinced me tonight that it would do harm.

However, I do have a question to ask you. Parenthetically, you suggested that perhaps we should look at another way of going about this, for example, looking at the definition of "victims,'' as set out in the Criminal Code, what is meant by "victims.'' We looked at that, and the conclusion at which we arrived was that as soon as you start trying to define "victim'' — the guy next door, the guy to whom he owes a lot of money, someone he knew a long time ago. Society is the victim when crimes of this kind are committed. We could not find a way to define "victim'' that would be fair and that would achieve the ends we sought in devising this bill.

As Senator Baker said, there are three sort of pillars that a judge looks at in determining whether or not to grant bail in a non-capital case and they are — first, the likelihood of the defendant appearing at whatever the next requirement is; second, the likelihood of the accused committing another crime; and third, the calling into disrepute of the law. I think that is correct.

Senator Baker: Yes, you are generally correct.

Senator Banks: It is something like that.

If those are the criteria that are looked at by a judge in a lesser case, when the onus is on the Crown to show why bail ought not to be granted, are those also the criteria that must be met by an accused in a capital case to show why they should be released on bail?

Mr. Downes: The onus is on the accused person to show that none of those factors, or the other factors, are present in their case. In other words, they have to defeat that. They have to put forward — and this was Senator Runciman's question — evidence about what they will do when they get out.

Senator Banks: In response to those three pillars, they have to prove the negative, in effect?

Mr. Downes: Yes, that those things are not a concern. It is their onus.

Senator Banks: Right. I guess I am restating Senator Baker's point. If we add into those considerations, is it not possible that a judge will say, referring to the specific case that gave rise to this — and I know that you cannot make law about anything based on a particular circumstance and we have tried not to do that — however, in the egregious failure of our system that gave rise to this case, which is that, I think it is fair to say, if the judge who finally, for the second time, released Dr. Turner on bail had been in possession of the facts that were known to various agencies and ought to have been known to the Crown, and if the Crown, having known those things, ought to have and would have assiduously opposed the granting of bail — it is inconceivable to me that the judge would have granted bail. In that case, this young fellow would still be alive and we would not be talking about this, except that we probably would, as you said, from another case.

Given that, and given the fact that Crowns sometimes do not have access to that information which might have come from a social agency, or sometimes do not avidly pursue it and sometimes decide, for other reasons such as overload, et cetera, not to assiduously oppose bail, is it possible or likely that a judge, looking at this new, tiny criterion, will say to the Crown — and I do not know how this is done — "Are there any kids involved here?'' Might that happen? If so, is it more likely to happen if these few words are in the Criminal Code than if they are absent?

Mr. Downes: This was Senator Wallace's earlier point. In a case today, with or without this provision, if someone was accused of homicide and they came before a judge on a reverse onus bail — in some ways, particularly if it is a woman — I could not imagine it not being part of the first few things out of either party's mouth that there are children, particularly in a spousal homicide. I cannot imagine a judge not asking the question to at least the Crown — or, in a reverse onus, to the defence: "Counsel, do you want to give me an opening statement as to your client's situation?'' "Yes, she is accused of killing her husband.'' "Are any children involved here?'' I would be astonished if that question were not asked.

Senator Banks: Here is the problem: In the case before us, it was not a capital case. The trial — if that is what the word is — at which bail was granted to Dr. Turner was not a trial for murder, so the onus was not on Dr. Turner. The onus was on the Crown because it was a hearing on extradition and not on murder.

Mr. Downes: Senator, I do not know if you are correct on that, because the charge was murder in the States, and the States were seeking her extradition. I stand to be corrected, but a bail hearing on an extradition, not capital, but what we call a 469 offence in Canada, would be a reverse onus bail. This bail was a reverse onus situation. At the end of the day, does that affect a whole lot? You still ask the relevant questions: Who was asking the question and what answers were being given?

Senator Banks: In that case, do you think that the addition of these words might have a salutary effect?

Mr. Downes: As I say, to me, the question will be asked: Are there children involved here? In this case, what would have happened? The defence would have said, "Yes, there is a young child and there is no evidence of any problems.''

The Crown then needs to get that information. This amendment will not make the Crown get information that otherwise has fallen through the cracks.

Senator Banks: Will it not?

Mr. Downes: I do not see it. Certainly, if they have the information, a Crown will not ignore it.

Senator Banks: If you are right, then the bill will achieve no good. I still contend that it will do no harm. However, if I am right, there might be an occasion or two on which the judge — because this does not seek to do anything but call the attention of the judge in this case — I hope there will be an occasion on which the judge will say: "Are there kids involved here?'' "Yes, Your Honour.'' "Well, let me hear the story. Who are they? Where are they?''

That did not happen in this case and it also did not happen in two other cases that we heard about today.

Mr. Downes: If that did not happen, that is shocking to me.

Senator Banks: It is shocking.

Mr. Downes: If they knew about it and the Crown never sought to review this bail —

Senator Banks: That is precisely what happened. Thank you, Mr. Downes. I appreciate your time, sir.

The Deputy Chair: We have one final question from Senator Carignan.

[Translation]

Senator Carignan: Could you confirm that you do indeed practice in Ontario?

[English]

Mr. Downes: Yes.

[Translation]

Senator Carignan: I wanted to know whether the situation was the same in Ontario. It appears that in cases of domestic violence in Québec, where the victim is the female spouse, the judge will, unless the Superior Courts rule otherwise, issue a restraining order prohibiting the defendant from communicating with her. However, judges do not rule on children when they are neither witnesses nor victims.

Does this type of generic order also exist in Ontario?

[English]

Mr. Downes: When you say they may prohibit communication, it is virtually never; it is always that they do. The typical order you are thinking of is — shall not have direct or indirect communication with — name the spouse or the children — unless through family court proceedings or a family court order, unless through the order of a family court or something of that nature. Sometimes it is added, "or through counsel for the purposes of family law proceedings.'' Yes, it is a typical order to have the criminal bail allow for communication in the family court context. Usually, there is a benefit to that because you want them to sort out the legal side of the family law proceedings.

[Translation]

Senator Carignan: Have you ever observed cases of children being included in the order despite not being either a witness or a victim?

[English]

Mr. Downes: Yes.

[Translation]

Senator Carignan: However, it appears to be the exception to the rule, does it not?

[English]

Mr. Downes: I have seen fairly commonly, if there is violence in the home, "shall not have contact with the spouse or the children.'' Usually, the accused has to move out of the house and go live somewhere else, so that is not unusual.

The Deputy Chair: That concludes today's hearing. Mr. Downes, thank you. Your perspective as a former Crown counsel and a defence counsel brings depth to the discussion. Not one of us around the table has that. The information is useful, and we will give it much thought.

Mr. Downes: I am grateful. Thank you.

The Deputy Chair: Tomorrow, we will reconvene at 10:30 a.m. We have one witness, Heidi Illingworth, from the Canadian Resource Centre for Victims of Crime. Perhaps we will follow that with clause-by-clause consideration of this bill.

(The committee adjourned.)