THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, April 15, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to consider Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening. My name is David Arnot. I’m a senator from Saskatchewan and the chair of this committee. I invite my colleagues to introduce themselves.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas from Alberta.
[Translation]
Senator Dalphond: Pierre J. Dalphond from the De Lorimier division of Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe Nation.
Senator Dhillon: Thank you for being here, folks. Baltej Dhillon, British Columbia.
The Chair: Thank you.
Honourable senators, we’re meeting to continue our study of Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
For our first panel, we’re pleased to welcome Danardo S. Jones, Associate Professor of Law, Faculty of Law, University of Windsor; Justin Piché, Full Professor, Department of Criminology, University of Ottawa; and Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, who is appearing by video conference. Thank you for joining us here today as we continue this study.
We’ll have opening remarks from each one of the three professors. I’m going to ask you to be very succinct and keep your remarks to five minutes, please. After that, we’ll proceed to questions from the members of the committee.
I’m going to ask the speakers to go in this order: Mr. Jones first, Ms. Parkes second and Mr. Piché third. With that, Professor Jones, I’ll ask you to please give us your opening remarks, sir.
Danardo S. Jones, Associate Professor of Law, Faculty of Law, University of Windsor, as an individual: Good afternoon, senators.
I’m Professor Jones from the University of Windsor Faculty of Law. Thank you for inviting me to address the committee on its study of Bill C-14.
Over the last three years, the bail system has emerged as one of the most contested sites in the Canadian criminal process: a legal space where constitutionalized rights to the presumption of innocence, liberty and reasonable bail collide with public anxieties. It is also where systemic inequalities shape outcomes and where Canadian criminal justice reveals some of its paradoxes. For example, recent legislative reforms, including Bill C-14, along with vociferous political discourse, have increasingly converged on claims of a public safety crisis, with bail positioned as both the cause and the solution to a perceived decline in public safety.
Yet this framing obscures more than it reveals, senators. While these reform efforts are purportedly aimed at recalibrating the balance between due process and public safety, the empirical record does not support the narrative of a system in disarray driven by an increased risk of criminal offending posed by repeat violent offenders on bail. Indeed, not only does the empirical record not substantiate the narrative of a bail system in crisis, it also does not support the claim that further erosion of bail protections enhances community safety. Instead, the cumulative effect of these changes has been to normalize pretrial punishment, deepen existing racial disparities and undermine the constitutional presumption of release that has long animated Canadian bail law.
As bail continues to function as a proxy for punishment rather than being a procedural safeguard, the costs — borne most acutely by racialized communities, particularly Black and Indigenous communities — extend beyond individual cases to the legitimacy of the justice system itself. Any meaningful reform must, therefore, move beyond reactive, punitive responses and recentre restraint, equality and liberty as foundational principles of bail decision making. Thank you.
The Chair: Thank you, Professor Jones.
Professor Parkes, the floor is yours.
Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, as an individual: Good afternoon, senators. In the interest of time, I’ll focus my comments today on two areas of focus in the bill. First is the impact of changes to the law of bail on women, and second is the impact of some changes under the Youth Criminal Justice Act.
First, I’ll say I endorse the submissions made by the Canadian Bar Association Criminal Justice Section and Child and Youth Law Section, as well as the brief by the Canadian Civil Liberties Association, and also the Criminal Lawyers’ Association and some of the specific amendments in there. I could speak to those during questions, if that’s helpful.
I want to speak about women and the law of bail and pretrial detention. In Canada, the national remand rate for women surpasses that of men, with women making up over 75% of provincial and territorial custody admissions in the most recent statistics, with men at 71%. This phenomenon where women are detained in pretrial custody at higher rates than men is not new — it goes back a few decades — but the absolute numbers and rate are increasing. Our restrictive bail laws are disproportionately harming women, and this impact is intersectional, affecting Indigenous and Black women even more profoundly and also affecting children.
Indigenous women are overrepresented in provincial correctional facilities at a rate of 15.4 times higher than for non-Indigenous women, while also exceeding the overrepresentation rate for Indigenous men. Remembering that only 25% of women in provincial custody are sentenced, 75% of them are on remand.
Based on what we have seen over the past two decades, laws that make bail stricter and harder to get, which include some of the provisions in this bill, are extremely likely to have a disproportionate impact on women. We know that the social determinants of adult criminal justice involvement include housing instability, untreated trauma, unmet mental health needs, problematic substance use, histories of child welfare involvement, early contact with the police and experiences of racism and systemic discrimination, all disproportionately impacting Indigenous and Black communities. However, it’s important to see that there are further gendered barriers to women being granted bail, which are exacerbated by any moves to tighten up the bail system.
Women are lower income as a group and less likely to have support. It tends to be women who are often supports for men on bail, and it generally does not go the other way around. Women are more likely than men to be primary and sole caregivers to children. This means that access to sureties and stable bail plans is a gendered problem, particularly due to lack of investment in housing and other supports that disproportionately affect women.
Also, research shows that administration of justice offences — breaches of conditions and orders — tend to reflect systemic barriers rather than wilful defiance. This is more pronounced for Indigenous and other marginalized women. All of this negatively affects children in ways that are almost never considered in bail decision making because women are often and more likely to be primary caregivers to children.
Finally, women tend to do very hard time while held in remand. Due to their smaller numbers overall relative to men, conditions are often worse. Access to rehabilitation and other programs is limited or non-existent. This disparity that you see between sentenced and remand populations for all people in provincial and territorial custody is more severe for women due to their smaller numbers.
There are growing concerns about deteriorating conditions in remand for women, including overcrowding and lockdowns in some women’s correctional facilities.
The changes to the law of bail contained in Bill C-14, like the ones passed in 2023, do not address the root causes or social determinants of victimization and harm, nor do they address the resource issues around lack of housing and lack of support in the community. Instead, they will contribute to even higher rates of denying bail. It’s virtually certain that women, particularly Indigenous and Black women, will be disproportionately denied bail and remanded to custody.
Let me just say a couple of things about the changes to the Youth Criminal Justice Act, or YCJA. My interest here is rooted in my ongoing research on life sentences and on the provisions that allow youth to be sentenced as adults. I want to endorse the submissions of the Canadian Bar Association Criminal Justice Section and Child and Youth Law Section on the YCJA amendments and provide further comment. One particular provision of the bill is clause 64, which would amend section 49 of the YCJA to require a youth justice court to give reasons on the record for any credit granted for the time spent in detention. I don’t object to putting reasons on the record, but I am concerned that this requirement may actually contribute to the greater use of adult sentences for youth. This would undermine the constitutional presumption of diminished moral responsibility of youth as well as the objectives of the YCJA.
I have just completed a study of the 102 reported decisions of youth sentenced for murder under the YCJA provisions, and the imposition of adult sentences was not at all rare, as it was originally intended. I found that judges very much struggled with the gap between the maximum youth sentence of 7 to 10 years and the minimum adult sentence of life. Their ability to discount credit for pretrial custody was very crucial in their decision making around that.
I think my time may be up. I’m happy to answer questions about that and other aspects during the question period.
The Chair: Thank you, Professor Parkes.
Professor Piché, please go ahead.
[Translation]
Justin Piché, Full Professor, Department of Criminology, University of Ottawa, as an individual: Good afternoon. Thank you for inviting me to appear before your committee.
My name is Justin Piché and I am a professor of criminology at the University of Ottawa. I have been doing research on prison construction and alternatives to incarceration for two decades.
Today, I will share some data from a study on recent jail infrastructure projects in Canada that I am in the process of writing up with Mackenzie Plumb, who is a Ph.D. candidate working under my supervision at the Carceral Geography (Col) laboratory.
[English]
As indicated in the tables I have compiled for you, out of the 13 provinces and territories in Canada, only the Yukon and the Northwest Territories have not — or not yet publicly — been in the business of jail infrastructure development since 2020.
As noted in Table 1, there have been nine jail infrastructure projects completed across Canada during this period, which have added nearly 1,000 beds to the tune of roughly $540 million for construction alone. Drawing on 2023-24 figures compiled by Statistics Canada and published last year, I estimate the cost of operating those 1,000 beds to be around $130 million per year.
As noted in Table 2, there are at least another 20 jail infrastructure projects at various stages of completion across the country ongoing right now, with 3,000 beds and $4.25 billion in construction-related costs announced to date. Again, drawing on 2023-24 figures compiled by Statistics Canada, I estimate the cost to operate those 3,000 beds, if built and filled, will be around $350 million per year, with more still to be announced.
And why is all this jail infrastructure being built? Well, for the most part, it is because over several decades, Canada has become increasingly reliant on pretrial detention or, as it has been called here by Professor Jones, pretrial punishment. In any given year between the mid-1980s and mid-1990s, roughly 23% to 30% of provincial-territorial prisoners were on remand. By the year 2000, 40% of provincial-territorial prisoners were on remand. By 2005, prisoners on remand outnumbered people serving sentences in provincial-territorial jails, which has been the case every year since.
Amid the “jail not bail” frenzy we currently find ourselves in, we’re now at a point where more than three quarters of provincial-territorial prisoners are awaiting their day in court, who for the most part — at least in Ontario — are accused of non-violent offences, and thousands of them are exiting custody every year without a conviction, according to research by Dr. Nicole Myers from Queen’s University, who is appearing before this committee later today.
And yet here we are, with a federal government that has put forward a piece of legislation that, if passed, will further entrench a dysfunctional system where more people are denied bail and treated as if they are guilty until proven innocent and face pretrial punishment.
Senators, we need to ensure everyone among us benefits from protections from state power, not slowly sleepwalk toward a police state. There is a better way — one that results in safer communities while saving taxpayers’ money.
With the $4.8 billion that provinces and territories have earmarked since 2020 to build over 3,900 jail beds, they could do things like build 17,400 permanent and supportive housing spaces that each cost $275,000 to construct for people seeking homes, drug treatment and recovery support and mental health care, rather than warehousing them in jails where they receive no programming and are treated like dogs. For the annual cost to operate over 3,900 jail beds, which I estimate to be $480 million per year, we could run 10,000 permanent and supportive housing spaces that each cost $48,000 per year to operate and that, unlike imprisonment, are proven to reduce law-breaking and transform lives while significantly cutting government costs associated with policing, courts and prisons, along with health care costs by reducing paramedic calls for overdoses, emergency room visits and hospitalizations.
It is with examples like these in mind that I urge you, senators, to say NOPE — No On Prison Expansion — and to do what you can to build communities, not cages.
[Translation]
Thank you.
[English]
The Chair: Thank you, Professor Piché.
We will now move to questions. It will be a little less than four minutes each, and we will have to stick to that for both the question and answer.
Senator Batters: Professor Parkes, I will start with you. You are the Chair in Feminist Legal Studies at the University of British Columbia’s law school. Your opening statement certainly discussed what you see as Bill C-14’s impact on women offenders, but I would like to talk about and hear from you about the potential impacts of this bill on female victims of violent crime.
When Justice Minister Fraser was here to testify about this bill at our committee recently, I asked him why his government’s Gender-based Analysis Plus document made almost no mention of victims of crime who are women. I’m wondering if that document is something that you routinely look at when you’re analyzing bills and if you find that valuable and alarming. Then I would like to hear from you about female victims of violent crime and the impacts this bill could have.
Ms. Parkes: Those are really important questions.
First, the line between victim and offender is not a hard one; it’s one that we tend to think is. The reality is that particularly for women who are in prison, they are victimized and criminalized. Similarly, many of the men who are in prison are also people who have experienced victimization and criminalization. These are not two discrete groups we’re talking about.
Having said that, it’s really important that we have policies that address the disproportionate and extremely high rates of victimization of women and gender-based violence.
But these bail laws are not going to do that; they just aren’t. There is good evidence — and I can send some studies. Later, you’ll hear from people like Dr. Myers and others, including Dr. Doob. We know that restricting bail in this way is a short‑term, if anything, solution to having someone separated from another person who might be doing harm to them. We need to invest. The person will come back out, and we will still have that woman being victimized if she doesn’t have the resources she needs to have safe and affordable housing and be safe. That’s what victims are asking for; that’s what women in these situations are asking for. They want real solutions and not simply the rhetoric of locking someone up in the short term on bail.
I think we share that concern, but I don’t think this bill is actually getting us there.
Senator Batters: They’re putting reverse onuses as a potential remedy, which is largely what this bill does. Is that because you think that is not an effective way for a female victim of violent crime because it is simply, then, at a judge’s discretion whether they actually follow that? Certainly, I understand what you’re saying about women who are potentially both victimized and also in jail for different offences; however, there are also many women who are victims of violent crimes by men and who want to ensure that the person who has subjected them to potentially horrific crimes is criminalized and stays in jail. Then they or some other woman would not be victimized by that person again pending trial.
Ms. Parkes: I think the research is quite clear if you talk to women and the folks who I hope will be appearing before your committee who work at women’s shelters and that sort of thing. In my experience doing a lot of work and research in that area, what women need is not a short-term solution of that person being denied bail and held in pretrial custody. They need real safety, security and support, and it’s not going to come through the bail system. We have that.
I can send some studies to you in a follow-up brief.
Senator Batters: Yes, if you could send some studies, that would be good because I, personally, have not heard that very often.
Do I have any more time?
The Chair: No.
[Translation]
Senator Miville-Dechêne: I am going to ask you another question, Ms. Parkes, but in French.
I would like to follow up on my colleague’s question, because I must admit I am finding it very difficult to understand your reasoning. I am also interested in the issue of women. Women are a relative minority in prisons. Most of those applying for bail are men. When it comes to sexual offences, very often the women who have filed complaints are afraid that their attacker will be released. Bill C-14 seeks to rebalance the bail system. The principle of restraint does not mean that we should not take into account the protection and safety of the public. I would like to hear your views on this, because what you are telling us today seems rather counterintuitive to me.
[English]
Ms. Parkes: Thank you.
Regarding the principle of restraint, for one, judges already do consider issues of public safety and if the person is likely to commit a serious offence if they are released on bail and the concerns about that. That’s already in the bail provisions in the secondary ground.
The principle of restraint is there for the very reason that these people are presumed innocent, and as you heard from Professor Piché, we are massively overusing pretrial detention to address what are often other needs that the person has. For women who have experienced victimization by the people who are charged, again, there’s the question of them being denied bail pending trial and then whatever happens at that trial. If that woman is in danger, she needs other support. That’s what we’re not providing as a society. We default to saying that we can solve this through the criminal justice system through a short-term period of detention and tightening up these rules, which we know then have a disproportionate effect on marginalized groups. We have that data, so we know that’s not what is working.
So we ought to be investing our resources and energy in what actually does work.
[Translation]
Senator Miville-Dechêne: I understand your point of view. However, I find this difficult to accept, given that in my previous life, we frequently encountered women who feared the release of their attacker. The idea of waiting until later, until the judgment is handed down to protect her, is difficult for me to understand.
I understand that, generally speaking, people feel there are too many people in prisons, and that being in prison does not encourage rehabilitation. However, looking at the issue in much greater detail, should we not prioritize the well-being of victims who are outside prison? Even if you were to offer them something else, what they want is security from their attacker or alleged attacker.
[English]
Ms. Parkes: As I said, I think that’s what we need to do in concrete ways.
Senator Miville-Dechêne: What is a concrete way to protect a victim as opposed to not putting somebody behind bars until trial if he is a danger?
Ms. Parkes: We have those provisions already in the Criminal Code. Our bail laws are already very strict, as demonstrated by the massive increase of people in pretrial detention. We don’t have this problem.
We have some high-profile incidents that happen and get a lot of attention, but we don’t generally have a problem of people being released on serious charges pending trial when there are serious issues around that. We have these very high numbers of people in remand. It is not the case that we have the problem that we think we do, I would say, if that makes sense.
[Translation]
Senator Miville-Dechêne: I have exceeded my speaking time. I am sorry.
[English]
Senator Prosper: Thank you to our witnesses.
The justice minister is on the record indicating that Bill C-14 is part of a broader public safety strategy that includes investments in front-line law enforcement and long-term crime prevention measures.
I am just considering that with this bill: crime prevention measures.
Mr. Jones, you spoke about the deepening of racial disparities. Mr. Piché, you had a rather direct comment about the need to build communities rather than cages. Ms. Parkes, you talked about racism and systemic discrimination.
What are your comments to the minister being on the record saying that this is part of a broader public safety strategy in light of Bill C-14? Do you see a conflict?
This is for Mr. Jones, then Mr. Piché and then Ms. Parkes.
Mr. Jones: Thank you for the question.
The major issue here is not whether investments are going to be made to beef up — if I could put it that way — the social infrastructure necessary for people to thrive if they are released on bail. What we are talking about here is an attitudinal shift.
This is the issue: When we talk about folks who are marginalized or racialized not getting a fair shake at bail, we’re talking about attitudes. The way in which we understand risk and what bodies tend to be ascribed a certain degree of risk is what bail is all about. It is about assessing risks and trying to put together a plan that mitigates risks.
We already know there are deep inequalities in Canada. You come before a bail court. You are unable to put together a plan that satisfies a justice of the peace or judge that you will not pose a risk of reoffending. Usually, that comes with a price tag, and that price tag is about your social status in the community. Do you have family members willing to sign bail for you? Are you someone who can deposit money as opposed to pledging money? Do you have housing? It goes on.
The minister is not suggesting that he is going to solve the housing crisis in Canada. Usually, in a bail court setting, having a residential surety is a gold standard plan. If most people are on the margins of society and unable to afford housing — even folks who could afford housing 10 or 15 years ago in, say, downtown Toronto but are now not able to afford housing — to say that a gold standard plan is that you have a residential surety is showing, as I said, some of these contradictions within the bail system.
Unfortunately, the people who are unable to have housing or strong community supports tend to be folks who are already on the margins, whether racially or in terms of mental health and so on.
When I say the system shows a certain favour toward people who have historically been advantaged in our society, to put it that way, what I mean is that this is where social inequalities become really apparent.
Bill C-14 speaks to folks who are in reverse onus situations in that they have to clearly demonstrate that the bail plan they put together addresses risks on the primary, secondary or tertiary grounds. Practically, senators, that means that the plan you are putting forward has to be a gold star plan; it has to be. In 2026 Canada, most people who are enmeshed in the criminal justice system — and the numbers tend to show that they hail from, as I said, certain communities — will not be able to put those plans together. That means we’re not dealing with trying to ensure that repeat violent offenders are not granted bail. We’re saying that repeat violent offenders who do not have deep pockets will not be successful at the bail stage.
That is what we’re saying.
We have to be consistent. Do we want repeat violent offenders across the board to not have access to bail or have a more difficult time accessing bail, or are we saying that repeat violent offenders who do not have five sureties willing to sign bail for them, who are not able to deposit money, who don’t have housing and so on are the ones we’re targeting?
If that is what we’re saying, then we have to be straight up and say it. Unfortunately, the vast majority of those people happen to be Black, Indigenous or people struggling with mental health issues. That is what I’m saying.
Senator Prosper: Thank you.
The Chair: We’ll go back to clear up anything if we have time.
Senator Dhillon: Thank you, folks, for being here today.
I will direct this to you, Professor Jones. We had the Commissioner of the Ontario Provincial Police, or OPP, here a little while back giving evidence. We also had the President of the Canadian Police Association. The commissioner shared that between 2023 and 2025, there were over 9,700 individuals who were charged with an offence while out on bail. Out of the charges laid, 7,540 were violent crime charges.
As you speak to Canadians regarding what you are sharing here today, what would be the solution, as you see it, with these kinds of numbers? I do not know if you have looked at these numbers. We have had these numbers and statistics to work with. My question is: Is your research and these numbers consistent? Have they been meshed or looked at together?
Mr. Jones: Thank you, senator.
Let’s bring it back to first principles. In any organized Western society, risk is a part of the deal. What do I mean by that? If we have a Constitution that has constitutionalized the presumption of innocence and the right to liberty, it’s about understanding that the state has a tremendous amount of power and that the state can crush the individual quite easily. Sometimes, it does. The Constitution is trying — or at least the courts have tried to interpret it in this way — to somewhat level the playing field. It will never be able to do that. One way to level the playing field is to say that if someone accuses me of a crime, I should have my day in court. That is really what it boils down to. However, the bail system is about, as I said, assessing risks within a prescribed constitutional margin. The courts have told us what that constitutional margin is. We can’t look at any factors outside of that. Those are the primary, secondary and tertiary grounds.
When we are talking about these extraneous factors that are not within this constitutional margin, that is the attitudinal shift that I said needs to take place. We can’t focus on the idea that we’re going to jail people who seem risky. A lot of times, the word “risk” is a very racialized term; certain bodies carry risk just by virtue of some of the stereotypes we have to live with.
So —
Senator Dhillon: I apologize. I only have so much time, so I want to get to the heart of the issue.
We talked about repeat violent offenders. That’s not a suspicion of risk. That’s a repeat violent offender.
Mr. Jones: Right. But, senator, that is a repeat violent offender charged with a new offence where they have not been found guilty. That’s why I said I wanted to bring it back to first principles.
The Constitution says that you may have a record a mile long, but you are currently before the bail court with a charge where you have not been found guilty. We cannot treat that person as someone who is morally blameworthy. That’s for sentencing later on in the game.
At the beginning, we have to treat that person as if that person is a tabula rasa; they come before the court with clean hands, and we give them that presumption. We cannot take that away from them. If we do, then we’re inverting things, and we’re bringing sentencing to bail. Then what is the point of having sentencing?
Senator Dhillon: I will come back to you. I hear your points. I think Canadians who are victims of the second and third and fourth offence would disagree.
If I can go to Professor Piché, you shared some numbers on infrastructure. Did you look at whether the infrastructure that is being put in place is proportional to the growth in population in Canada that we’ve seen over the years? Was that taken into consideration?
Mr. Piché: Thank you for your question, senator.
I want to come back to the previous question. The Commissioner of the OPP came in here and said seven years, so that’s 2,500 days, and he said there were 9,700 people —
Senator Dhillon: Two years.
Mr. Piché: Two years. Let’s do that, then.
So it’s 700 days — two years — in a province of 16.2 million people.
Senator Dhillon: This was Toronto.
Mr. Piché: This is not what you said in your question.
So it’s 10,000 charged in the city of Toronto of 4 million people. We could do some math here to figure out how many people were charged while on bail in the context of two years.
I will have to go back to my calculator because I was calculating 100 different assumptions, and then we can talk about violence. But I will come back to those and give you the numbers after the meeting, or you can ask me a question.
Senator Dhillon: Professor Piché, at the end of the day, one violent offence is too many.
Mr. Piché: Sure.
Senator Dhillon: Because that victim’s family is not going to be thinking about those math calculations with all due respect.
I do not wish to diminish and reduce this to numbers because that is not how victims’ families feel. There is no sense of justice that you are going to give those victims by saying to them, “Hey, look, the numbers are small.”
Mr. Piché: I would agree with you.
We are all here concerned about community safety. What we’re actually talking about is the scope of the problem as well, right? And whether it is worth bending principles to invert so‑called justice in this country.
Senator Dhillon: The murder of one police officer, I think, is —
Mr. Piché: Principles are principles because we live by them, senator.
Senator Dhillon: I understand.
Mr. Piché: And if bad things happen and we abandon our principles, they’re not principles anymore, are they?
Senator Dhillon: I don’t think we’re abandoning our principles.
Mr. Piché: That’s debatable.
Senator Dhillon: I’m sorry, chair; I don’t want to get into an argument. I will ask the question again: Was the growth in population considered in your calculation when you’re speaking about the growth of the institutions?
Mr. Piché: Well, what I provided in terms of the data tables is what the governments have disclosed in terms of their prison construction, so my answer is, no, I’m not forecasting the jail population.
Senator Dhillon: Thank you.
Senator Simons: In my previous life, as my colleagues are no doubt tired of hearing me say, I was a journalist. As a columnist with the Edmonton Journal, I fought hard for a new remand centre in Edmonton because the new one had 338 beds and was chronically overcrowded, and people died.
In 2013, they opened a brand new remand centre in Edmonton with almost 2,000 beds. It’s the largest prison in Canada; now it’s almost full. Whereas in 2013, where roughly 60% of the people in Alberta’s prisons were remanded, now it’s 85%.
At the same time, we are hearing from premiers right across the country, we are hearing from police organizations and we’re hearing from the general public about this terrible fear that we are letting too many people out on bail when the numbers would clearly indicate that is not the actual problem.
I wondered if I could ask both Professor Piché and Professor Jones: Why is the number of people being remanded — as a proportion of the prison population — so much higher than it was? Are we just filling the beds because they’re available?
Mr. Piché: I would like to say that your bringing up of the new Edmonton Remand Centre conjures up other visions of superjails that I have in my mind right now. For instance, the last mega prison that was built in Ontario under Dalton McGuinty was the Toronto South Detention Centre, with 1,650 beds. It was built in the name of addressing crowding. Why was it being built? It was because of the number of people on remand then, which was much lower than it is today.
Within a few months of the Toronto South Detention Centre opening — with 1,650 beds — it was full. It was quickly known as the “$1-billion hellhole.” That was the name it was given. Tons of judges have said the conditions in there are deplorable; they cannot retain staff. You might have heard of Project South in the news.
There’s some corruption going on there as well. It’s a new jail with the same problems. That’s why I raise these figures with you today.
We can continue to rely on pretrial detention and expand the use of pretrial detention, but we’re going to find ourselves back in this room in 5 to 10 years talking about more jail construction, more jails that are filled, more cases that are being thrown out of the courts, more communities that aren’t any safer and billions of dollars down the drain that could have been spent upstream to prevent victimization, which is what I think everyone here wants to do.
I’m not interested in meeting victims’ needs after they are victimized when they can be prevented from being victimized in the first place.
Here we are, instead of spending a dollar on prevention — where every dollar spent saves $7 on police, courts, prisons and victim services — we’re deciding, “Hey, let’s go to the back end and fill the jails up, and when they’re full, we’ll build more jails and fill those up.”
We can do better with the money that we have. It’s scarce taxpayer dollars; those should be respected.
Senator Simons: Mr. Jones, what do you think is driving the high proportion of people in remand? For Alberta, I worked out the numbers. It’s something like for every day in Alberta, there were about 400 people who were actually in prison serving sentences and almost 3,000 who were remanded.
Mr. Jones: It’s a culture of risk aversion. The issue is this is the attitude: I don’t want to be the jurist who signs the release order of an accused person who goes out and commits the next murder of an OPP officer, for example.
Senator Simons: You don’t want to let in any [Technical difficulties].
Mr. Jones: This is the issue. There is a culture of risk aversion. However, the job, unfortunately, for these decision makers — and that’s why I assume they’re paid the big bucks — is to make these decisions about release.
However, the courts and Parliament have provided a framework. The problem is this framework is not being applied equally across the board.
You will go into courtroom 201 at the Ontario Court of Justice — Toronto, or OCJT, or whatever court in Toronto, and I know that this jurist gets it. If I say “493.1” and bring up the principle of restraint, they get it.
Then I go down the hall to courtroom 203, and that justice of the peace, for whatever reason, believes that every single accused person should be detained. This is the attitudinal shift that I’m saying is required here.
The law could do with some tweaking. Don’t get me wrong; the law could do with some tweaking. But the issue here is about attitudes.
Going back to what some of the senators said about the legitimate fear that victims have, my colleague here said it perfectly: Let’s try to have them not be victims. How do we do that?
My colleague is providing a blueprint for that. The money we’re going to spend — and it’s going to be a lot of money — to further criminalize and further incarcerate could be directed elsewhere and be spent in a more productive way in a way that will actually bring about long-term sustainable change and public safety.
I’m not a social scientist — the social scientist is telling you, right? As a lawyer, I can tell you what the courts are going to do to this bill. That’s something I do want to talk about. Bill C-14 will not survive a constitutional challenge; it’s as simple as that. If the dialogue between Parliament and the legislatures is going to continue to happen in the way it has since 1982, you have to understand that the judiciary is not going to uphold most of these provisions.
I can talk to whomever wants to talk to me about why I’m predicting that, but I can tell you that it will not sustain constitutional scrutiny.
The Chair: Thank you, Professor Jones. We have to give all the witnesses a chance to augment their testimony in writing with memos because I know you can’t cover everything in the short time we have.
[Translation]
Senator Oudar: First of all, thank you to the three witnesses for enlightening us today.
My question is addressed to Ms. Parkes in her capacity as head of a feminist studies chair.
I would like to draw your attention to clause 718 of the proposed amendments to the bill. We can see that Bill C-14 introduces harsher penalties for offences committed against first responders. This is a bill that has already been considered in the Senate. However, I would like to hear your views on this in particular, specifically regarding health care workers, social workers and, above all, staff at women’s shelters for victims of violence, who are also exposed to considerable risks in the course of their duties. In your view, is clause 718 sufficient to cover these individuals who provide health care services as part of their duties, particularly women? Are you satisfied that the definition adequately covers these women working in shelters and all those working in the health care sector?
[English]
Ms. Parkes: I’m just looking for the specific provision. You said section 518?
[Translation]
Senator Oudar: It is subparagraph 718.2(a)(iii.2) of the Criminal Code that is amended by Bill C-14. In fact, it introduces the possibility of a more severe penalty for offences committed against these individuals.
[English]
Ms. Parkes: You’re going to hear from Professor Doob later on, and he is someone who has done research over many decades. He has concluded and found — and the research is quite clear on this — that increasing sentencing severity and having longer sentences, in and of itself, does not deter or change behaviour. It’s something to keep in mind: Generally, if we try to address problems through increasing or having longer sentences, that’s not the way to do that. We need to address problems at their core and as root causes.
In general, I think the evidence is quite clear that increasing sentences is not the way to address harms in terms of changing behaviours. In terms of denunciation and sending a message about how seriously we take certain matters, that is something that Parliament has done through sentencing severity. It would be consistent with that kind of approach.
We know that this can be a part of addressing these problems, but it’s not actually fundamentally the best way to address victimization and harm.
I’m looking for the specific provision, and I can address it in my brief to you later, but my general concern is that trying to address these problems by increasing sentences is not very effective.
[Translation]
Senator Oudar: I will now move on to another provision of the act.
Subsection 515(3) refers to random and unprovoked violence. My question is for the three witnesses. We can see from the bill that a new concept is being introduced into the law. This concept refers to random and unprovoked violence as a factor that the court must now consider at the bail stage. This is a new concept in Canadian legislative vocabulary. It is not defined. One might think that the legislator is seeking to provide a framework for risk assessment. I would like to hear from each of the three witnesses. How do you think this concept should be interpreted by the courts? Does the lack of a statutory definition not risk leading to differing interpretations from one province to another?
Let us begin with Mr. Jones.
[English]
Mr. Jones: You’re right: This would require a great deal of statutory interpretation. At first blush, what is perceived as provocative or random behaviour, again, might be someone who is struggling with a mental health issue, not necessarily a violent person but someone dealing with a mental health issue. That is something I think all of us would agree is not criminal, in and of itself.
In the bail context, for a justice of the peace to take a police synopsis where the police note that this person randomly attacked this individual leaves out the necessary context that will only become apparent at trial.
At that stage, given the limited amount of evidence that is produced at the bail stage, I’m not sure how a justice of the peace would be able to make a determination as to whether the attack was unprovoked or random other than the author of the synopsis — the police — saying so. If the police say it’s random and unprovoked, then that’s it. That cannot be the basis for denying someone pretrial release.
That is problematic because we know that so many people struggle with issues. This particular provision directly speaks to those issues. Regarding the “random attacks” on public transit, that’s what it’s speaking to.
The issue is that it’s speaking to particularly sensationalized — and Professor Parkes talked about it — high‑profile attacks that happened in one part of Canada. This law is going to apply across the country. I can’t imagine that we are going to enact federal policy that will affect a whole swath of people based on issues that were sensationalized coming out of one part of Canada. We’re talking about TTC random attacks.
I spent time practising law in Newfoundland and Labrador in Goose Bay. There is no public transit. Most people are Indigenous and don’t have access to any mode of transportation to come to court. This is what my colleague was saying, where we should probably be spending our money to address those issues instead of, again, saying that there are problems here that are a national problem when, really, we’re talking about a handful of highly publicized issues in downtown Toronto.
Again, this is one of those provisions, senator, regarding which I can tell you the court is going to have a really fun time with because it’s not going to stand.
The Chair: Professor Piché and Professor Parkes, you’ll have to give your answers to that question in writing.
Senator Clement: Thank you to all three of you for your work and for your careers. Professor Piché, I heard you on “Ottawa Morning” this morning. Thank you for that interview. It was quite a bracing way to start the day.
I appreciated you bringing up the research and data. I’m going to be talking about data here.
Professor Jones, it’s good to see you again. You speak about the empirical record and that there is a perceived decline in public safety, but is there really? I worry about how we’re going to speak to Canadians when the fact is that victims are suffering. It is scary, and people have feelings, so when people have those feelings, what do you use to talk to them? Is it data? Maybe.
I want to talk to you about the Canadian Civil Liberties Association, or CCLA, making recommendations around amendments to this legislation. They emphasized the importance of getting the right variables and metrics to do this. It seeks to give a clearer role to Statistics Canada.
Do you have any comments on amending the legislation to increase proper disaggregated data collection?
Mr. Jones: If this bill is going to be granted Royal Assent in its current form, I do believe something needs to be built into it to ensure that five years from now when we see the actual beginning of a legacy of Bill C-14, we’re able to go back to the table and do some kind of program review to see where we are at. If we build in a process whereby we can collect the data — because I can tell you this: The government’s own data collection agency StatCan says this public safety crisis that everyone is talking about doesn’t actually exist.
That is part of the problem.
What we have that’s driving public policy right now, senator, is essentially fear. It is legitimate fear; I get that. But it’s just fear that is not grounded in anything empirical.
Are there issues in, let’s say, downtown Toronto? Are we seeing that? Are people experiencing victimization? Yes, as a criminal lawyer, I see it in court all the time. That’s why we have a process. If we’re going to change national law, it needs to be grounded in something more than short-term clamouring. It has to be something that is based in empirics. We need that.
Senator Clement: Are you going to be able to follow up? You did state for the record that this is not going to survive a constitutional challenge. It would be great to have a follow-up on that, as well as your comments on the CCLA amendments around data protection. I’m really interested in that. The minister told us he might be interested in talking about amendments, so I think some of us here are serious to do that.
Mr. Jones: I would be happy to send you a brief on potential constitutional challenges.
Senator Clement: Thank you.
Senator Pate: You may want to answer in writing.
Thank you to all my colleagues for the questions. It makes me feel really old that I have known all of you since you were students, but it’s fantastic. Thank you for being here and for all the work you do.
I spent a fair bit of time last week in court in Toronto, meeting with folks, from the Aboriginal Legal Services folks to lawyers to Crowns. I sat in the mental health court and the Indigenous court. I met with judges and lawyers.
One of the first questions they asked me was what we will do about this bill and Bill C-16. As I sat in court, I kept hearing person after person coming in. They were described as violent offenders, but mostly, they were homeless and/or had mental health issues. While I’m sure the violence was real in terms of how it was experienced by those who were victimized, it was minor in the sense of what the end result was. I heard some of the judges and Crowns trying to interrogate.
Was there some other way of intervention? Almost everyone seemed to have also been homeless, which you have already addressed.
Professor Parkes, one of your colleagues Ian Brodie is the former chief of staff for then-Prime Minister Harper. Many of us remember the law reforms. We have heard from successive ministers of justice, as we have had these reforms, and you mentioned it today: There is no data to substantiate this.
Ian Brodie has talked about the fact that the tough-on-crime strategy lacks empirical support. He said:
Every time we proposed amendments to the Criminal Code, sociologists, criminologists, defence lawyers, and Liberals attacked us for proposing measures that the evidence apparently showed did not work. That was a good thing for us politically [because all of those folks] are all held in lower repute than . . . politicians by the voting public. . . .
That’s a pretty major condemnation of continuing on this same path.
We have heard there is no data. We have heard there is some data from some of our witnesses. We have heard your data. We certainly haven’t heard any data to support that these successive bail reform measures have increased public safety. That’s the point we should be examining here.
We heard from the Minister of Justice that he would accept amendments, so I would like to know what amendments we should make to this. What are the steps that we need to be putting on the record to assist in those constitutional challenges?
It breaks my heart, but it is also so soul destroying to repeatedly be thinking about the next challenge by the very people who would have the fewest resources to move this forward. Why do we keep having people coming forward and demanding these kinds of changes when we know they are not effective?
I agree with Senator Miville-Dechêne, having worked, as many of you know, on violence against women as well. The fact that we don’t take seriously and address these issues at the root is beyond frustrating.
Any help you can provide us on what we can most usefully do, I’m all ears. Right now, it just feels like we’re, again, being puppeted to put something in place that looks performative and makes it look like our political colleagues in the other place have responded to calls. Yet we know this is going to result in more people in prison and yet another call for something to protect public safety.
Sorry, I know I have used up my time, but it’s —
The Chair: I’m going to say to all the witnesses that this is a truncated process. You can see that. You have a lot to contribute. There is an open invitation to give advice to the committee on amendments that could be quite helpful. We would really like you to augment what you had to say already today with some information along those lines. We will pay close attention to it.
With that, then, let’s move to what will be the last question.
Senator Tannas: I’ll try to be brief.
I have listened carefully. Professor Jones, I am interested in a number of things you said. You talked about the fact that people who are homeless don’t have a surety, a job or a plan, and they will be disproportionately put in jail versus those who have a surety, a job, a house and a plan.
If you take those two groups, who is most likely to reoffend? Who is most likely to go out and cause another crime while they are on bail? Do you have any statistics on that?
There is a common-sense feeling about it. All the other issues aside, if this is meant to put more people in jail and keep them there so that they won’t reoffend, will it at least achieve that end? Absent everything else — the Constitution, et cetera — do you believe that these changes will actually prevent people from reoffending and being recharged while they are on bail?
Mr. Jones: If you’re suggesting that your gut feeling is that folks who are marginalized are more prone to reoffend, then, yes, this bill will achieve its stated objective of locking up poor people. If that’s the objective, then I say it’s bang on.
Senator Tannas: It’s not about poor people. I asked the question: Of the two groups that you described, who is more likely to reoffend?
Have we got it wrong saying that these traits that make you seem less risky are actually not less risky? Are those people going to recommit crimes at the same rate as the other group?
Mr. Jones: If what you’re saying is that there’s a biological predisposition for certain people to commit offences —
Senator Tannas: No, I’m saying that’s blind. For these people, never mind who they are or what their identity is, just their facts.
Mr. Jones: They’re socially predisposed to committing crimes. If we remove the biological calculus in saying they’re socially predisposed to commit crimes because, well, these are people without certain material accesses that you and I would take for granted, then I would agree with you that, yes, a large criminogenic factor — and my colleague here can attest to that — is poverty. Poverty leads people to commit crimes.
Should we be criminalizing people not having the kinds of opportunities that you and I take for granted? I don’t think that’s the purpose of the criminal law.
The Chair: Thank you. Senator Dalphond is the sponsor of the bill, so he’ll ask a question. You may not have time to answer it.
Senator Dalphond: You can send me the information in writing. It’s more directed to Mr. Piché who is an expert in prison infrastructure.
The population of Ontario in 1971 was less than 8 million people; in 2026, it’s over 16 million people. Do you have the number of beds that were in provincial jails in 1971 compared to 2026? Can you say that the increase of beds available in prisons followed the augmentation of the population? That, I think, was the sense of the question from my colleague Senator Dhillon.
Because I suspect that building more prisons was popular at one time, maybe in the 1990s when the big prisons were built in Ontario, but after that it became less popular.
Are we catching up, in a sense, when we see that we had 40% of people in provincial jails on remand at a certain period of time, which was 30 years ago, for example, and when we look at how many are on remand these days and if we have doubled? Because we have not doubled the capacity or the number of beds available, of course, but you end up with people where if you just follow the same trend per 100,000 population, maybe we are in the same situation.
Maybe we’re not. I would like you to provide me with information on that because I don’t know the answer, but you’re an expert in infrastructure, and you must be following the evolution since the 1970s.
Mr. Piché: Thank you for your question, senator.
Professor Doob may be able to speak to this in the next part of the hearing today. Research he has done with Cheryl Webster and others has looked at the rate of incarceration in Canada since the end of the Second World War. And since that time, it has been relatively stable. Usually, any given year, between 100 to 120 people per 100,000 have been in prison; it ebbs and flows for sure.
As the population increases, we can calculate the rate; it ebbs and flows. I certainly can see where you’re going with this argument.
With that said, much of the prison infrastructure that has been built in the last few decades — including most of the jails being built when I studied prison infrastructure construction in the Harper years — was to address a remand boom that was starting, not to address tougher sentencing designed to put more people in prison with fewer chances of release, longer sentences and harsher conditions.
It’s a long-standing trend of prison construction that’s going on, but right now, what’s happening is the boom has gotten even larger as of late. Now you have in Ontario, for instance, a plan being put forward by the Ford government to build 6,000 new prison beds from now until 2050. That is an exponential increase.
Right now, we have 10,000 jail beds in the province. The majority of those folks awaiting their day in court — more than 80% in Ontario — are facing non-violent charges. I’m not just making this up; it’s in the data that Nicole Myers will present to you today, who is a prof at Queen’s University.
Thousands of them get released having never been convicted of anything. We have an administration of justice crisis, and we can’t jail our way out of this.
Senator Dalphond: Maybe they are released within a day or two or a week —
Mr. Piché: Sure, that does happen. Like, the average —
Senator Dalphond: The police charge them, then the Crown takes over the file and they drop the charge, and the person is released. There are many things happening.
We need more fine data because the problem sometimes is that on both sides, we’re using rough data without enough precision for making a judgment.
If you’re able, please provide a table that shows the population increase versus the number of beds that have increased and also the time spent in provincial remand because that time, for most of them, is not the full time to the trial.
Mr. Piché: That’s a big research project you’re proposing. I’m willing to take it on.
The Chair: Sorry, Professor Piché, I think you’re being invited to provide some more. You know where the argument is going, and you can answer it in a way that you think would be appropriate.
I thank all the witnesses for being here. Obviously, we probably needed more time with these panels because of the expertise that you have and the knowledge you want to give to the committee.
We hope that you’ll be able to augment everything you said here with briefs in writing.
Thank you to all the witnesses for coming today and for sharing your expertise.
For our second panel, we’re pleased to welcome Nicole Myers, Criminologist and Associate Professor, Queen’s University; Anthony Doob, Professor Emeritus of Criminology, Centre for Criminology and Sociolegal Studies, University of Toronto, who is appearing by video conference; and Chloé Leclerc, Full Professor, School of Criminology, Université de Montréal, who is also appearing by video conference.
I will ask the witnesses to be very succinct, with just an overview. If you do not want to say anything as a context setter, that is fine. We are really interested in questions from the senators. You know the issues and you are well versed, so if you do not really want to make an opening statement, that is fine with me.
Ms. Myers, you get to go first. If you wish to say something, please be succinct. We really have many senators with great questions.
Nicole Myers, Criminologist and Associate Professor, Queen’s University, as an individual: Thank you for the invitation to speak with you today.
I am a criminologist and associate professor at Queen’s University. I have been studying bail and pretrial detention for over 20 years, having observed hundreds of days of bail court, witnessing the decision making in thousands of cases and interviewing justice professionals and accused people. It is from this perspective that I appear before you today.
When tragedies occur, it is easy for us to look to the law as though it’s the culprit and to think that some adjustments could prevent further tragedies. We do this rather than the more complex task of addressing the causes of crime. The bail law is not responsible for these tragedies. The effectiveness of narrow rather than wholesale bail reform will be limited, as the problems with the bail system are not ones of leniency.
Bail is about making predictions, and predictions about humans are seldom 100% accurate. We only ever hear about the people who are charged with a new offence. Nobody ever talks about the number of people who are released into the community who show up as required and do not commit offences. For every person who commits a serious offence, there are scores of others who do not, and we will never be perfect at figuring out who will be the one.
The bail system is replete with problems. Keeping people in custody pretrial is not one of them. It is already difficult to get bail in this country. The issues with our bail system lean far heavier on the administration of the law rather than with the law itself. Today, I caution you against proceeding with efforts that are designed to make it easier to lock up legally innocent people when we are already quite good at doing so.
We all agree public safety is important. People should feel safe in their communities. While slogans like “jail not bail” or “revolving door system” are catchy, these are dangerous mischaracterizations. I encourage you to pursue empirically supported reforms rather than reforms that will make the problems with the bail system worse, increasing rather than remediating risks to public safety.
Let’s get a few facts straight: Canada’s bail system is the harshest it has ever been. We have never held this many legally innocent people in custody before. Most recently, more than 19,000 people were in remand on an average day across the country and less than 6,000 were serving a sentence in provincial custody.
Across the country, 76% of those in our provincial jails are in remand. The rate per 100,000 — so corrected for changes in the population growth — with which we hold people in remand has more than quadrupled in the last 40 years. The result is overcrowding in inhumane conditions that amplify violence, compromising the safety not only of those being held in detention centres but also the officers and other staff who work in these facilities. These conditions are aggravated by regular lockdowns due to staffing shortages, reminding us we cannot properly, safely or effectively operate the jails we have.
Internationally, we stand out amongst comparable nations as holding the highest proportions and rates in pretrial detention. As a free and democratic nation, this is not an enviable achievement.
It is critical to strongly emphasize that it is Indigenous Peoples, Black and other racialized peoples, people experiencing poverty, as well as those who struggle with mental health and substance use issues who are dramatically overrepresented. Said differently, it is the most marginalized in society who experience the most punitive aspects of our system, and any efforts to tighten the bail system will amplify these disproportionate impacts.
Being accused of a crime does not make it so. In 52% of cases in Canada, all charges against the individual are withdrawn. We are only convicting about 46% of people before the courts. Our current system has inverted the process where the punishment commences upon accusation rather than conviction. We routinely punish people up front prior to determining their guilt, reducing any sentence that may be imposed and any available opportunities for rehabilitation.
This says nothing of the heavy consequences for the hundreds of thousands of cases that conclude with all charges being withdrawn.
For many people, pretrial custody is the punishment before and often in the absence of any conviction for wrongdoing.
Before we punish someone, generally speaking, we ought to convict them of the offence first. It would be better to focus our efforts on holding guilty people accountable rather than punishing people for something they may or may not have done.
An accusation can send someone’s life sideways, disrupting the very community connections that help provide stability and are known to protect against crime. We must be mindful that custody makes it more — not less — likely people will engage in crime. To the extent that pretrial detention may be necessary for some people, we nonetheless need to remain restrained in its use.
Crime goes up and down for many reasons. Our laws are not one of them. Tightening the bail law will likely increase the number of legally innocent people in custody and do almost nothing to improve public safety. We cannot police or incarcerate crime away. What we can do is engage in empirically supported preventive efforts and hold people accountable in a proportionate and timely fashion.
This bill is being sold as targeted bail reform, and its target has set it on the wrong sights. This is an example of legislation that does not target the actual problems while doing things to make it worse.
There are many problems with our bail system in Canada, none of which will be addressed by making it easier to incarcerate legally innocent people. Thank you.
The Chair: Professor Doob, would you like to make an opening statement?
Anthony Doob, Professor Emeritus of Criminology, Centre for Criminology and Sociolegal Studies, University of Toronto, as an individual: Yes, thank you very much.
Changes in our bail laws will be more effective if they were to take into account what we actually know. In 2023, 49% of all of Canada’s prisoners were remand prisoners. This has increased steadily in the last 30 years. And 30 years ago, only 16% of Canada’s prisoners were in pretrial detention.
Second, you heard the testimony from the Ontario Provincial Police that there were 3,200 people charged per year who were already on bail for new offences. However, what was not mentioned is that they charge about 41,000 people a year. Said differently, about 8% of the people they charge were on bail for some form of offence.
In 2025, the Ontario Court of Justice completed about 245,000 cases. In about 50,000 cases, the accused was in pretrial detention when the case was completed. Of these roughly 50,000 cases, in about 19,000 cases or about 38% of the cases of the people being detained, all charges were withdrawn or stayed. Being detained in pretrial custody does not mean being found guilty.
Our bail system is not lenient. However, it is important to realize that even though most people charged with offences are not on bail, some are. And some of these will never be found guilty.
We make two kinds of errors with bail. One is invisible: people who are detained but who would not have committed an offence if released and would have appeared in court as required.
Of course, some people are released and commit offences. These cases are likely to come to our attention. Those, we tend to think, should “obviously” have been detained. It isn’t that simple.
Many years ago, I was working on a project with someone who once worked for Transport Canada. He recounted an experience he had when, after a series of train derailments in various parts of Canada, he was summoned to a meeting with his minister.
The minister declared that Canada was experiencing an unacceptable number of train derailments. The public servant responded to this, saying, “I understand we have experienced an unacceptable number of train derailments, but could you tell me what an acceptable number of derailments would be?” The minister’s answer was simple: “None.”
The civil servant said, “I was hoping you’d say that because that is the only target I know we can reach.” “How?” the minister asked. The answer was simple: “We can stop running trains.”
Of course, we did not stop running trains. Almost 50 years later, there were 399 derailments in 2024. But the official was not just being witty; he was making an important point about uncertainty: The only way to guarantee no train derailments is to not have trains.
In the criminal justice system, it is similar. If you are only satisfied that there should be no offences by those on pretrial release, the solution is a simple one: Detain everyone. It is a simple solution, but one that few people would endorse.
There were 568,000 adults charged with criminal offences in Canada in 2024, but 118,000 adults were admitted to pretrial custody.
A recent study examined predictions of violence made for people being released from prison — a prediction which was based on much better data than we could expect to have on those being considered for pretrial release. It showed that those rated in the highest-risk group were about five times more likely to commit a violent offence within 12 months of release than those who were low risk.
That sounds good until you realize that the offending rate of the high-risk people was 11.4%. Had all of the high-risk people been detained because of their high risk, it would mean that about 89% of those who were detained would not have committed an offence even if they had been released. But even among the low-risk people, 2.3% were charged with new violent offences.
Predictions in this business are seldom perfect, just as plans to eliminate all train derailments are unlikely to be perfect unless all trains are stopped.
There is one final point that I’d like to make. A person detained in pretrial custody clearly is not committing offences in the community, but there is a growing body of research demonstrating that the long-term impact on crime needs to be examined.
Most people will eventually return to the community.
Those who are detained before their trial appear to be more likely to commit offences once they are released back into the community. Said differently, unnecessary pretrial detention may actually contribute to more overall crime in our society even though it will occur after the period of pretrial detention.
Thank you.
The Chair: Thank you, Professor Doob.
[Translation]
Chloé Leclerc, Full Professor, School of Criminology, Université de Montréal, as an individual: Good afternoon.
Several of my colleagues have already outlined very clearly the issues surrounding the proposed changes to bail. I must say that I largely share their concerns. The system is in crisis. However, the problem is not that we lack the tools to keep accused persons in custody. The problem is rather that too many people are detained during proceedings, often unnecessarily, and that this detention ties up a great deal of resources that could be better used to address the real public safety issues.
Today, I will focus my remarks on the proposed amendments relating to sentencing, although many of the concerns raised also apply to the provisions regarding bail.
Experience with past reforms in Canada, as well as internationally, clearly demonstrates several things.
Firstly, extreme cases should not dictate the general rule. Experience shows that legislating in response to highly publicized cases rarely produces good laws, because such cases, by definition, are not representative of the majority of cases dealt with by the courts. When the Criminal Code is amended in response to exceptional situations, there is a risk of introducing rules that are too broad for very specific circumstances. This contributes to unnecessarily complicating the law, making judicial responses more rigid and, at times, also creating unfair outcomes in ordinary cases that were not originally targeted.
We also know that this type of legislative change often has different effects on different social groups. In the current context of the homelessness and opioid crises, provisions such as the aggravating factor for offences against first responders, shoplifting, theft and property damage risk leading to harsher criminal responses towards these groups, without contributing significantly to public safety.
Secondly, the tools to impose severe sentences already exist. When they consider that a deterrence message is necessary, for example in the worrying context of motor vehicle theft, the courts will state this explicitly in their decisions, and they are already able to impose harsher sentences.
Limiting judicial discretion to ensure harsher sentencing has already been attempted in past reforms here in Canada, but also elsewhere. Research shows that these policies clog up the courts, increase the number of proceedings, lead to more trials and constitutional challenges, create inequalities and undermine one of the fundamental principles of Canadian criminal law: the individualization of sentences. These reforms rarely produce the intended effects, and far more often cause unintended consequences. In a context where Canada is still struggling to produce data that would allow for a rigorous assessment of the impacts of its criminal justice reforms, caution is warranted.
Thirdly, and this is probably the most robust finding in all criminological research over the past several decades, harsher sentences do not lead to a reduction in crime. What really acts as a deterrent is not the length of sentences, but the likelihood of being arrested, as well as the speed of the judicial response.
This is very clear in the case of vehicle theft: The most effective measures are those that reduce opportunities to commit the offence or increase the certainty of arrest, but never those that lengthen sentences.
I shall conclude by discussing suspended sentences. This sentence is often presented as lenient, a “sweet deal” or a “Netflix sentence.” In reality, however, it is a demanding, highly structured and supervised sentence, which many offenders will experience as being much harsher than imprisonment. Freedom is restricted, the conditions are numerous, and the responsibilities constant. Whilst its severity may be comparable to that of a prison sentence, this sentence has the advantage of avoiding several well-documented negative effects of prison, such as family breakdown, loss of employment and loss of housing, whilst promoting personal responsibility. Above all, it is a sentence that has proven effective in reducing reoffending. According to Statistics Canada, approximately 28% of people under community supervision reoffend, compared to 50% of those who have served a custodial sentence.
Restricting access to suspended sentences risks simply shifting certain convictions to short, intermittent sentences, often served on weekends. In Quebec, a 90% increase in such sentences has already been observed following previous reforms that restricted access to suspended sentences or introduced mandatory minimum sentences. However, intermittent sentences are not only of very little use in terms of rehabilitation, but they also contribute significantly to prison overcrowding, undermine prison conditions, and increase tensions and the risk of violence within institutions.
In criminal justice, our responsibility is not merely to act swiftly, but to act effectively. To achieve this, we must absolutely resist the temptation to address specific concerns with general rules.
Thank you.
[English]
The Chair: Thank you, Professor Leclerc, and thank you to all the professors for their opening comments.
We have less than 30 minutes and four senators who want to ask questions so far.
I will say to each of the witnesses: You have heard that the minister is open to amendments. I’m hoping that you will be able to provide, in writing, memorandums to the committee for their consumption so that you can help us in the work we have to do in assessing this particular bill.
I know that you have a lot of experience and expertise. We will count on that. Most of your evidence will be effective if it is reduced to writing.
Senator Batters: I will start by asking questions to Professor Myers. You previously argued and stated again today that bail decisions rest on imperfect predictions. I think we heard a similar comment from Professor Doob, but in a system where predictions are imperfect, the real policy choice, then, is who bears that risk: the accused or victim of the crime.
In the scenarios targeted by Bill C-14 — alleged strangulation and violent extortion — is it your position that the criminal justice system should accept more accused released on bail even if that increases the risk of a small number of serious but potentially fatal errors?
Ms. Myers: If I may, I think what you are pointing to is the reversal of the onus in those situations. Is that specifically what you were inquiring about with that offence?
Senator Batters: Who bears the risk? You say that the predictions are imperfect, but, yes, that is correct: It is imperfect, but then, if you make the wrong assessment, on the one hand, it is the accused being behind bars, but on the other hand, it is a victim potentially being subjected to another attack or even murder.
Ms. Myers: These are difficult decisions. I don’t have that job for a reason. I wouldn’t want to be the one who has to navigate these really difficult tensions between protecting fundamental and critical legal rights to presume somebody innocent of the allegations and to release them on bail, generally unconditionally, and balancing that against legitimate concerns about risk and fear on the part of victims.
The difficulty that it comes back to is that we’re not very good at making accurate predictions. The reality is that some of these predictions are going to turn out badly. That’s not to say we want to discount them. Those should be opportunities to reassess how that decision was made. We cannot, then, shy away from making difficult decisions.
Part of the consequence we have to recognize is that by keeping people in custody, we may provide short-term public safety, but long-term time in custody, or even short periods of time, makes it more — not less — likely that people will commit offences. Some of that balance is: How do we provide long-term public safety when some of the measures to provide short-term public safety are aggravating that?
Senator Batters: During your testimony on bail at the House of Commons, you indicated that your research did not include interviews with victims. But in Bill C-14, there are several measures that target situations where victim risk is very central, such as alleged strangulation, suffocation or violent extortion. Do you think that for those types of cases, victims’ perspectives on their real, actual risk would be essential information for calibrating bail? And if so, why don’t you incorporate that kind of information in your studies that you rely on to recommend a less severe bail regime? Without direct data from victims, do you have any concrete indicators to be able to tell us as legislators that tightening bail is not appropriate?
Ms. Myers: Thank you for the question. I think victims should be involved in all stages of the decision-making process. In some ways, we do these things, whether that’s through their involvement with the police or their being able to speak to the Crown attorney and offer their perspective. It is an element that the Crown is going to consider. I think victims already do have a place. Can we do more for them? Absolutely.
But the best way to protect victims and provide them with the support they need is outside of the court system and in the community. I think what we need to be looking at in these very serious circumstances is getting rid of some of the more minor stuff coming into the system so that we can more slowly and more carefully go over information available in more serious cases so that decision makers feel they are making the best decision they can with the information they have.
Senator Batters: I needed to ask you one final thing based on something that you said. You said 46% of people were convicted in Canada. Are you talking about 46% of accused people being convicted? Or are you talking about the number of charges? Because those are two quite different things. Are you determining it by the number of charges dropped or are you determining it by the number of accused people? Can you also determine what percentage of charges would be dropped because of Criminal Court delays and not necessarily because of actual findings of guilt or innocence?
Ms. Myers: Thank you for the question to clarify. I can tell you that 72% to 76% of all individual charges are withdrawn.
Senator Batters: Charges, not people?
Ms. Myers: When we’re talking about people, 52% have every single charge against them withdrawn. They are convicted of none of the alleged offences.
Senator Batters: Can you tell us what percentage of those are Criminal Court delays dropping charges?
Ms. Myers: It would be fantastic information to have, but unfortunately, that information speaks to some of the other issues we see with data where it is not properly collected, so we’re not able to say.
Senator Batters: Thank you.
[Translation]
Senator Miville-Dechêne: Ms. Leclerc, I would like to speak to you briefly about suspended sentences. I am finding it a little difficult to follow you. According to what you say, serving a community sentence is difficult, and it could even be more difficult than a prison sentence. I’d like you to come back to that point.
Also, you mentioned that 28% of those given a suspended sentence reoffend. That’s quite a figure, isn’t it? What are we doing about it? Because there is reoffending; against whom is this reoffending directed, and are there victims of these repeat offences? These aren’t just meaningless figures.
Ms. Leclerc: Firstly, I will begin with the question regarding suspended sentences. I think it is a sentence that is very little known and whose severity is underestimated.
I have interviewed people who have been given suspended sentences. What most of them said in hindsight is that, had they known what it entailed, they would have preferred to go to prison. It is a sentence that is experienced as very difficult, because freedom is close at hand for these people, yet out of reach. They have several conditions to comply with.
Suspended sentences have changed significantly over time. Their use is now much clearer: They are an alternative to a prison sentence. Therefore, they must be roughly equivalent in terms of severity.
Initially, for the first six months of the sentence, the person is placed under house arrest. Normally, they cannot leave their home unless they have permission to do so. Several people have explained to me how difficult it is to live in such close quarters. Some tell me that their children do not understand why they cannot go to the park with them. It is a difficult experience. So, in terms of deterrence, people who have served a suspended sentence have certainly had an impact on their sentence.
People talk about “Netflix sentences” because they think offenders will spend their time in front of the television doing nothing. However, there are expectations associated with a suspended sentence. The person is expected to go out to work and look for a job. There are many conditions attached to this.
There are also many breaches associated with it. It is not always a matter of offences being committed. It may be that the person is unable to comply with their curfew or does not answer the phone. They are therefore returned to prison.
There is still a great deal of stress associated with this sentence.
What seems to be portrayed by the media is that the person avoids prison, as if they had no sentence. However, that is really not the case. It is a very severe sentence. It has a lot of potential, because the person can continue with their treatment, and they have access to more resources in the community than they would behind bars.
Otherwise, regarding the issue of reoffending, it is important to understand that when we talk about reoffending, it can relate to anything. Around 30% of offences in the courts are breaches of probation or conditions. So, within that 28%, these are very often people on probation, and the alleged offence is failing to comply with their conditions. These are behaviours that, very often, do not result in prosecution, such as not consuming alcohol. It is not illegal, but it is when one is subject to conditions. Those are often the types of conditions involved.
Senator Miville-Dechêne: Thank you.
I have a brief question for Ms. Myers.
[English]
You said: Crime goes up and down. Laws have nothing to do with it.
[Translation]
You seemed very convinced when you said that. Do you have any figures or data to back up such a striking statement? It seems to me that we actually lack the data needed to assess crime rates, and whether they are rising or falling.
[English]
Ms. Myers: Crime goes up and down largely due to social factors. Regarding us making an adjustment to the law or making any of these particular adjustments, its impact on whether crime is going to go up or down would be a limited, negligible or perhaps even imperceptible impact. The kinds of things that have an impact on crime are much more related to the kinds of social policies we have in place around providing housing, education, access to social welfare and supports, mental health and addiction —
Senator Miville-Dechêne: That’s fine in theory, but in practice, do we have figures or statistics to show that the different reforms we have made have had no impact on crime?
Ms. Myers: We would go back to the kinds of data we have in this country and an inability to track it down to making one specific adjustment to a law in order to then say what kind of an impact it has ultimately had. If we then, however, place the kinds of laws that we’ve had and we track those with our crime rates over time, you would perhaps then think in a tough-on-crime agenda, where we’re creating new crimes and getting tougher, you would see crime going up. And you don’t. We see long-term trends of our crime rates instead going down. You can also talk about differences in the relationship between our use of incarceration and crime: Our crime rate has gone up and down regardless of what we are doing with incarceration or seeing the incarceration rate remain relatively consistent over time despite what is happening with crime. What this tells us is that there is not the kind of close relationship between these two things that we would like there to be.
[Translation]
Senator Miville-Dechêne: Thank you.
[English]
Senator Prosper: Thank you to the witnesses here.
There was a comment from a witness in the previous panel that certain provisions within this bill wouldn’t withstand constitutional scrutiny. I am just curious from each of the witnesses what your thoughts are on that.
Do you think that this bill or certain provisions in it will not withstand constitutional scrutiny? Maybe we will start with you, Ms. Myers, and then go to the other witnesses.
Ms. Myers: Thank you for the question. On this, I would have to defer to my lawyer colleagues. Professor Danardo Jones is being legally trained as best to speak on these. I would trust what he is saying. If he is indicating to us that these are not likely going to pass constitutional scrutiny, there is something to be said there.
Separate and aside from that, I do think that we’re likely looking at difficulties and challenges when we look at the kinds of decisions that the Supreme Court of Canada has made in R. v. Antic, R. v. Zora and some of those really big bail decisions. We’ve seen the court reminding us of the importance of restraint and of making sure that we’re releasing people at the earliest opportunity with the least possible conditions. If that is the tone that the Supreme Court is taking, I would be apprehensive about whether or not the provisions in this legislation will align with what the Supreme Court has said in the past.
Senator Prosper: Thank you. Any other comments from either of the witnesses online?
[Translation]
Ms. Leclerc: I can comment briefly.
I, too, have no legal training. I am actually a professor of criminology. However, I can say that, in the past, any measures aimed at restricting judges’ discretion have not been well received by the judicial community. There will be challenges. We saw this a great deal with the Safe Streets and Communities Act.
I would like to draw your attention to another point. Whilst a debate is taking place at the constitutional level, parallel practices are always developing. If the new provision is perceived as unfair, people will find ways to adapt to avoid having to impose a decision they consider unfair. Often, we have no insight into these matters. There are theories that attempt to describe judicial discretion somewhat as a hydraulic system. So, if we try to limit discretion in one area, it will simply shift to another area — namely, into the hands of the prosecutor, who may bring additional charges or choose not to mention that element in the case file. We must be mindful of these factors too. Even if they do not constitute legal challenges, there will still be parallel strategies that are somewhat unexpected consequences of these provisions.
[English]
The Chair: Professor Doob, do you have a comment on this question?
Mr. Doob: I’m not a lawyer, but I think what we should be doing is trying to make our bail system more effective and more selective so that what we should be looking at is how we can use pretrial detention in a sensible way rather than responding to the latest crisis that has occurred.
As I pointed out in my comments, it is important to realize that we’re never going to have a perfect system. We are going to have the possibility of waking up and finding out that somebody is charged with an offence who was previously on bail. That’s inevitable if we have a bail system. But it’s also inevitable that people who are released from prison are sometimes going to recommit offences.
What we do have to remember is this increasing amount of research, which two of us have referred to, suggests that pretrial detention can lead to more crime. The way in which those data are collected is often to look at decision makers who were very tough on bail decisions and compare the outcome of their cases to equivalent kinds of cases that went to somebody who was more selective in the use of pretrial detention.
What we find is, of course, people are not committing offences while they are being held in custody. But if you look at the long term — a couple of years, for example — what you find is that you have disrupted people’s lives unnecessarily and led to more crime. The criminal justice system doesn’t get blamed for that, though it should be. But it doesn’t get blamed for it because it’s happening at some later point.
I think what we should be doing when we’re detaining people who are legally innocent is ensuring that this really is the most sensible thing to do with those people for them and for society more generally.
The Chair: Thank you.
Senator Simons: One of the arguments we have heard in favour of Bill C-14 is that it would serve as a deterrent. People would be less likely to commit crimes if they knew it would be harder to get bail.
It has been my anecdotal observation over the years that most people who commit crimes are not thinking that far ahead. Especially if you’re a 20-year-old car thief on the streets of Montreal or Toronto, I don’t know that you’re following the Bill C-14 debate. But I’m not a criminologist. Perhaps the three of you who are criminologists would like to weigh in on whether you think these measures would be preventive of crime because people would be deterred.
Ms. Myers: Thank you very much for the question. I’ll give a short answer and cede the floor to Professor Doob to speak more about this. The short answer is deterrence doesn’t work. We may like the idea. We may want it to work. It may make sense that it is going to work, but it doesn’t. The empirical evidence does not bear it out that increasing the severity of the consequences deters individuals from engaging in criminal behaviour.
Mr. Doob: I would agree with that completely. Think about what needs to be known for something like this to deter. The idea that somebody who is committing an offence will, first of all, think that they might get caught and know that it’s a reverse onus case where they are going to have to demonstrate why they should be released just simply doesn’t make sense.
What we should be doing is using resources sensibly, using bail decisions sensibly and be looking at where we can actually make improvements. The one thing that bothers me most, I suppose, which I didn’t mention in my initial remarks, is how data-free and principle-free this bill is on a number of different dimensions. Why were these particular things chosen? What was the process whereby these became reverse onus cases or that there was this change in the sentencing provisions?
What we have done with bail and, to some extent, what we have done with sentencing as well is that we make these almost random changes that reflect the events of the last week or two rather than saying, “How are we going to make a better system overall?”
What we see is, in this case, a bill that doesn’t derive from principles. It’s just a hodgepodge of different provisions.
[Translation]
Senator Simons: Ms. Leclerc, would you like to add anything?
Ms. Leclerc: I would agree with what has been said. Deterrence may work for certain very specific individuals. However, most people do not think they will get caught. Furthermore, they are unaware of the penalties. As a researcher, I find it difficult to ascertain what penalty is imposed for a particular type of crime. It is practically impossible for someone who does not know where to look for the information to know what kind of sentence they are facing if they commit an offence. It is therefore not a factor for the vast majority, if not all, of the people who commit offences.
Senator Simons: Thank you very much.
[English]
Senator Pate: Thank you to all of you for your work over decades and decades. Some of the witnesses who came forward suggested that we should look at creating a national repository of data for crimes with the objective that police officers and court officials will have the available information about people in front of them. One suggestion was that we could use the Canadian Police Information Centre, or CPIC, for this and expand it and turn it into a repository.
I’m wondering what each of you would say about that kind of suggestion and how you would see adding it into this bill to help collect data.
Ms. Myers: Thank you. I think we have some very serious data needs. But I’m not sure that this taps into our most pressing needs. I will certainly acknowledge that there are opportunities to improve the transmission of information from police to Crowns to make sure that they have all the information available to them.
But we also struggle with a lack of data on some of the most basic questions about our system. How many people are on bail right now? We don’t know. What conditions do people fail to comply with? We don’t know. What proportion ends up with a custodial sentence? All of these kinds of pieces we don’t know. I would be very interested in a more robust conversation about data collection. I just don’t think this is necessarily where we would want to first target our efforts.
Mr. Doob: I think what we do need is some general thought about what we want to accomplish in bail and what is reasonable to accomplish in bail and then go look for data. I think starting with the idea that we’re going to have a national comprehensive system is a formula for failure. What we need to do is decide what we need to know and then look for those data.
A few years ago, a number of us worked with the Ontario government. I’m looking at the bail system and remand system. Of course, what happens is that there is an enormous amount of data that is available. In that case, we were working with somebody in the Ministry of the Attorney General. They made data available to us quite quickly.
It’s never going to be perfect data, but we want to know things like what was just mentioned: What are the conditions that are causing trouble? What are the conditions that aren’t followed? What kinds of people are brought back?
Those are all things that are available if those who have the data want to make it available.
As I said, years ago when I was doing this work with the Ontario government, they could provide me with very good data in a day or two. That’s what we’re talking about. It wasn’t perfect data and it wasn’t on everything I wanted to know, but they could do reasonable things. They could tell me where the problems were. They could tell me how often people were being charged with offences while they were on bail.
It’s not as if we don’t know that; it’s just that we don’t aggregate it because nobody, I think, really wants to know.
Senator Pate: I apologize —
The Chair: We haven’t heard from Professor Leclerc yet.
Senator Pate: Oh, sorry.
[Translation]
Ms. Leclerc: I would add that I think police officers are starting to get better data. Where action is really needed, especially for what is important to you as senators, I think, is sentencing. The data for that part of the system is pretty poor. It’s nearly impossible to assess the impact of the reforms.
After the Safe Streets and Communities Act was passed, I applied for a grant to assess the impact of that reform and the quality of the data. The information available in the databases did not allow us to analyze the majority of effects.
So, if there were a concerted effort to collect data, I think researchers would have to be included to ensure that the key information needed to properly analyze the impact of the reforms is available.
Let me give you an example in Canada. I think 94% of cases end with a guilty plea, without going to trial. In most cases, agreements are that are made between the two lawyers, and the judge has very little discretion to refuse the agreement.
In a context like that, most of the reforms relating to judges will have very little effect because, ultimately, the judges do not make the decisions; rather, they are based on recommended sentences.
That is the type of information that absolutely should be in the data, but we don’t have it. A concerted effort is needed. I’m not sure that police officers are necessarily in the best position to go and get the information we need to answer all the questions that are of concern to you.
[English]
The Chair: Do you have a question generally, Senator Pate? We can’t get an answer right now because we have only three minutes remaining.
Senator Pate: Yes.
Before your panel started, I was speaking to a very senior police officer who said that we need to stop doing the siloed approach to crime, homelessness, poverty and mental health. If you have suggestions about that, I would appreciate it.
Sorry, Senator Clement, for eating into your time.
Senator Clement: Thank you to the witnesses for your work and your careers.
And I always want to hear from Senator Pate, so no worries.
I wonder if you’re familiar with the amendments from the Canadian Civil Liberties Association, or CCLA, around data collection, because I’m interested in those amendments. I know the witnesses can’t answer now, but it would be appreciated if you could comment on those. Going to what Professor Leclerc was just saying, some of those CCLA amendments suggest organizations that possess expertise on data collection would be consulted and coordinating the collection of data in the report with Statistics Canada — anyway, they go into some detail around that. We would appreciate receiving further comments on those amendments.
Then I had a question about systemic racism and the overrepresentation of Black and Indigenous folks. In 2023, the Senate amended Bill C-48 to require a judge to give particular attention to the circumstances of Black, Indigenous and other vulnerable groups. There hasn’t been much uptake of it, so the CCLA is suggesting that we strengthen that in this bill to require that judges say on the record that they have considered the circumstances of Black, Indigenous and vulnerable populations.
Would you be supportive of that type of initiative? Do you think it’s useful to get judges to say such on the record?
Professor Myers, please go ahead.
Ms. Myers: On the one hand, it could be a helpful reminder of the kinds of elements that must be considered. I do think we will soon need to develop a checklist for them, however, because there are so many items that now need to be spoken to on the record.
Then you worry about it becoming a performative check rather than an actual one. I don’t know if making an amendment is going to mean that somebody has properly and fulsomely made that consideration rather than just saying they have.
[Translation]
Senator Clement: Professor Leclerc, do you have any comments on how to require judges to consider the specific circumstances of the groups in question here?
Ms. Leclerc: Sorry, I missed the question. I think you were asking whether judges should be required to consider membership in certain groups. Is that correct?
Senator Clement: Yes.
Ms. Leclerc: I think there are more and more initiatives that are moving in that direction with the Gladue reports and the new ethnic and cultural impact assessments, for example, which ultimately ask the judge to consider where the person comes from and the systemic issues they may have experienced. I think those are good steps. It is always a question of resources though. We can ask the judge to do that, but if no one is able to provide the right information to the judge, there won’t be any improvement. It’s really a question of training people to be able to help the judge understand what’s going on.
It’s also important to understand that one of the issues for judges is that they’re being asked to do several things at the same time. So we do want them to consider systemic issues, and then we definitely want them to consider certain aggravating factors that may also affect those communities. That’s the issue I see with adding aggravating factors while at the same time considering any systemic issues involved.
[English]
Senator Clement: Professor Doob, do you have a comment? Would you be able to respond to the CCLA recommendations around data collection?
Mr. Doob: I will look at those, and I will try to respond to them, but some of the very specific things go back to what Professor Jones talked about earlier: If a judge is making comments that they have taken various things into account, it may make salient the fact that they are taking into account things where disadvantaged groups are, in fact, disadvantaged. If the people you know who might otherwise be able to be a surety have a criminal record, then they are out. That means they couldn’t get a surety. Well, why couldn’t they get a surety? It’s because they had a criminal offence that was a little bit too recent in time, or they don’t necessarily have a stable address. One of the things that might have led them to whatever it was that got them before the bail court might be that they didn’t have a stable address. Maybe they don’t have the kinds of supports that a middle-class person would have.
Making mention of all of these things in court — such as “I looked at this person, but they didn’t have a surety and a stable address, and the people they knew had criminal records” — doesn’t tell the story. What tells the story is, “We have a person before us who doesn’t meet the kinds of middle-class criteria for getting bail.” If that’s the end of the story without really going into it, then I’m not sure we have accomplished very much. What we have done is told half the story, but other people aren’t necessarily going to realize that it is only half the story.
Senator Dalphond: Thank you very much to all the panellists. Time is flying, so I’ll ask you, Professor Myers.
First, I thank you very much for this research. It was done in the field, if I may say. In 2025, you published the article entitled “The bail process is both the trial and the punishment.”
Do I read correctly that you observed for a certain number of days — over 31 days — a specific courthouse, another courthouse and then a third courthouse in a big city, a small city and a northern area? Then you noticed that on the day of the bail appearance, about 18% are released right away. Less than 1% are formally denied bail, and the rest, more or less, is 74% are adjourned. Then you explain that consistent with previous research, about 60% of the requests for adjournment came from the defence counsel or the accused person, and another 2.3% came from the Crown. So it’s not the state who is asking for an adjournment. About 15% came from the presiding judge. I suppose they said, “I would like to consider and I will render a judgment.” For the last 23%, it is unclear who requested the adjournment. Overall, the adjournments are coming from the accused or the attorney for the accused.
After that, you don’t follow how long it will take to get the next decision, which would be the decision on release when they reappear the following day or two days later before the judge. I guess you and your people left the courthouse that day and didn’t know.
Do you have data about what happens when they reappear? I suspect that the overall majority is released on conditions, but you don’t have this number there.
Ms. Myers: Thank you. It’s not meant to be an omission. I have other works that do speak to some of that data.
Senator Dalphond: Okay.
Ms. Myers: I can absolutely talk to you about that. You’re right in identifying that any day that you sit in bail court, the most likely outcome is that the matter is going to be adjourned to another day. We see that across courts, across different jurisdictions, across different decision makers and all of that. Most of those invariably come from the defence or the accused person.
The reason for many of those requests for adjournment is that what people are trying to do is put together a bail plan. They want to try to secure a consent release from the Crown, rather than a contested show-cause hearing. Knowing that the Crown maybe has a variety of concerns, they are doing the best they can to try to put together a plan to alleviate some of those concerns. That may take some time, and that kind of explains why there are these number of adjournments.
We also see increases in the number of adjournments because the more requirements that there might be put on bail, the stricter we expect that decision to be.
You also rightly point out that for people who apply for bail, most people are ultimately released. It’s a small proportion of people who have their bail formally denied. The thing that is missing here — and I only have the data for Ontario, so I don’t know for across the country — is that we have a very sizable proportion of people, around 40% to 45%, who never actually apply for bail. They remain in detention until their case is resolved. That brings up another host of questions: Why are they doing that? That’s a problem we need to deal with. But it does also mean we have to reconsider how we look at that bail decision, where about half of folks get out and about the other half end up staying in.
Senator Dalphond: This is an issue of either no access to an attorney or legal aid or mental health problems or other types of things. Do you study that part? That is something which is not really related to what we are trying to target here.
Ms. Myers: I just want to clarify: Do you mean people struggling with those issues or conditions being imposed to try to address those issues?
Senator Dalphond: I mean the 45% who stay in —
Ms. Myers: I understand.
Senator Dalphond: Why is it? Is it they don’t have access to legal aid? Is it they don’t have access to a lawyer? Or do they stay in for a week or two and they plead guilty the following week?
Ms. Myers: All of those things. My next research question to pursue is to try to tap into all of this.
Senator Dalphond: I’m anxious to read it.
Ms. Myers: But speaking to the defence counsel, they have explained that sometimes, yes, it’s about trying to get the plan or they are trying to apply for legal aid.
It may also be a strategic decision where perhaps at the front end, they say, “We don’t want to have a bail decision and then you get denied. If we gave this another week or two, we could put together a much stronger plan. We will wait this out and see what happens there.” Often, because of the difficulties in custody, people may make the decision to plead guilty to get the matter resolved.
Senator Dalphond: These people are considered to be on remand in the statistics here?
Ms. Myers: That’s correct.
Senator Dalphond: Even if they stay for only 2 days or 5 days or 12 days?
Ms. Myers: That is correct. The statistics capture lots of people who are there for short periods and the small number of people who are there for very long periods of time.
Senator Dalphond: On Saturday morning, for example, at the court, it’s overcrowded because it’s Saturday. The Crown is there, but they don’t have all the papers, so it’s adjourned until Monday. They will appear on remand, but they will be on remand only until the Monday.
Ms. Myers: That is correct, yes.
Senator Dalphond: Thank you.
The Chair: Thank you, senators.
Thank you to all the witnesses who have come forward to help us today. Your contributions have been very valuable to our study, and they will help inform and shape our discussions over the next couple of weeks.
As well, I think it’s quite clear that all the witnesses have something to amplify their testimony here today, with perhaps some memorandums or further information. Please feel free to send that to the clerk, and it will be distributed to all the senators.
(The committee adjourned.)