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Criminal Code

Bill to Amend--Third Reading--Debate Continued

November 1, 2023

Honourable senators, I rise today to speak to Bill C-48, An Act to amend the Criminal Code (bail reform).

I want to start by telling you the story of Shawn Rehn and give a warning: The stories I’m about to tell today are difficult to hear.

Shawn Rehn earned his first criminal conviction for assault at the precocious age of 15. He was 18 when he served his first jail sentence: 60 days for break and enter and theft. Over the next 16 years, he created a rap sheet that ran for pages: dangerous operation of a motor vehicle; possession of stolen property; housebreaking; careless storage of a firearm; driving while disqualified; refusing to provide a breath sample; escaping lawful custody — dozens of charges and dozens of convictions.

But the longest sentence Rehn ever received was five years in jail. He served three because he got credit for time spent in pretrial remand. His final conviction was in 2013 for assault. He served just one day because he had already spent almost two weeks in pretrial detention.

Certainly, the Parole Board of Canada was under no illusions about Mr. Rehn:

The Board believes you are a dangerous person who has demonstrated blatant disregard toward the criminal justice system as well as lack of respect to the public in general. . . . Your crimes are continuous and increasing in seriousness and often resulted in serious psychological, emotional and financial harm to victims.

You have engrained attitudes, values and beliefs that support crime. . . . Prior sentences failed to stop you or rehabilitate you from committing crimes.

Then, on a cold Saturday in January 2015, Shawn Rehn, 34-years-old and out on bail, shot RCMP Constable David Wynn, 42, and Auxiliary Constable Derek Bond, 49, at the Apex Casino in St. Albert, a peaceful suburb north of Edmonton. Constable Bond recovered physically, but suffered profound emotional trauma that left him unable to work for years afterward. David Wynn died later in hospital.

What happened to Shawn Rehn? He sped away in a stolen truck, broke into an empty house and killed himself.

Why had Rehn been granted bail in the first place? That was the answer everyone demanded. In the aftermath of that terrible tragedy, the Alberta government launched a public inquiry into Alberta’s bail system headed by Nancy Irving, former general counsel for the Public Prosecution Service of Canada.

Back in 2015, Alberta had a system of bail hearings that usually happened without any lawyers present. Police officers, without legal training, acted in the role of prosecutors in 99% of all bail applications. The accused didn’t have counsel either. In her inquiry report, Irving found that only 7% to 10% of people arrested by the Edmonton Police Service actually had legal counsel when they appeared before a justice of the peace to ask for bail.

At that time, there was no access in Alberta to legal aid for initial bail hearings, so roughly 90% of those arrested had to represent themselves.

To add to the problems, back in 2015, there was no reliable way for the presenting police officers to access an accused’s criminal record. The police officer who appeared at Shawn Rehn’s bail hearing didn’t have Rehn’s record available to them. That wasn’t atypical; many times, said Irving, the presenting police officers, who had no legal training, didn’t even realize they could demand a revocation of bail for someone like Rehn, who had allegedly committed more crimes while on bail.

In the wake of Irving’s powerful report, which was issued in April 2016, the Notley government enacted some real bail reform. It stopped using police officers to oppose bail applications and assigned that role to Crown prosecutors. It started providing legal aid duty counsel to every person applying for bail, all across the province. It made sure that the Crown and the duty counsel had access to criminal records.

Those were concrete, common sense reforms that simultaneously increased the safety and security of the community and protected the rights of the accused. Those reforms made the bail system run more smoothly, more transparently and more fairly for all concerned. They were, in short, reforms that served the cause of justice writ large. Yet if you ask most Albertans today what they really remember about the whole affair, it is that a police officer on duty was murdered by a man out on bail. It’s the kind of ugly memory that haunts our society. No matter what positive changes were made afterwards, what remains is a lingering impression that our bail system is broken and makes our country more dangerous.

So what should we emphasize in terms of public policy: changes that make our bail system better and safer or changes that make us look tough on crime without making our lives much more secure? This, my friends, is the problem with Bill C-48. It is not bail reform. It is tough-on-crime cosplay. Yes, the bill has the unanimous support of all 10 provinces and 3 territories. Yes, it received unanimous consent of the House of Commons. That, alas, does not make it good public policy.

The bill, as we have heard, reverses the onus in bail applications for a handful of crimes and circumstances that the government has deemed particularly heinous. What does that reverse onus mean? Well, normally the default is that people are granted bail, often with some kind of strict conditions, and it is traditionally up to the Crown to prove why someone should be denied bail. The Crown has all kinds of resources at its disposal to make that case. It is the Crown that must make those arguments and take on the responsibility of demonstrating its case.

Reversing the onus means that defendants must prove why they deserve bail, and they won’t be released until they can do so. That puts the burden on individuals who don’t have the power and resources of the state behind them. The end result will be to weigh the balance of justice against people who may not be equipped to advocate for themselves and will presumably lead to more people being denied bail and held in overcrowded remand facilities pending trial.

Just this week, The Globe and Mail released a bleak investigation into this very problem. It found that in Ontario only 15.9% of inmates in provincial custody had actually been convicted of a crime, and 80.4% were being held in remand, with another 3.7% in immigration detention or police custody. In Alberta, things weren’t much better. There, 77% of inmates in provincial custody had not been convicted or sentenced. In British Columbia, it was 74%. That’s a dramatic change from 25 or 30 years ago, when the ratio of inmates on remand in Canada was between 23% and 30%.

Bill C-48 will only make this situation worse, especially for those — many of them Indigenous or racialized — who don’t have the money or the settled living conditions that allow them to make bail or live up to their bail conditions.

The way the bail system works now, justices of the peace and judges already have the right to deny bail if the accused is a flight risk or a danger to the public or if releasing them could bring the administration of justice into disrepute. In cold, practical terms, Bill C-48 does not actually give judges or justices of the peace any new powers, and it will make neither our streets nor our homes any safer.

Still, we do need bail reform in this country — real reform. We need to ensure that when people are released on bail, they have the supports and supervision they need to meet and maintain their bail conditions and they are not a danger to the community at large. We cannot, practically or constitutionally, deny bail to everyone charged with a crime or everyone who might be a threat. What we really need is a robust bail system that ensures that when people are out on bail, they are abiding by their conditions of release and are not a risk to the public or their families.

Let me share another, more recent story with you.

On April 29, 2022, a young man named Justin Bone was released on bail from the Edmonton Remand Centre. He had been charged with breaking and entering. Between 2005 and 2018, Bone had accumulated more than 30 convictions, ranging from failures to comply with court orders to escaping lawful custody to assault with a weapon to robbery to sexual interference.

By the terms of his bail conditions, he was to live in Alberta Beach, a little village west of Edmonton, with his surety, a family friend who had agreed to supervise him. His bail conditions specified that he was not to be in Edmonton at any time without supervision. He was also supposed to attend an addiction treatment facility but was apparently unable to do so because the program had no places available.

On May 15, the friend with whom Bone had been living — his bail surety — called the Parkland detachment of the RCMP to report that Bone had become threatening and violent. The surety said that Bone could no longer stay there. The RCMP could have rearrested Bone and charged him with breaching his bail conditions. Instead, in a kind of reverse starlight tour, the RCMP officers actually drove Bone some 70 kilometres to Edmonton and just, well, dropped him off.

Three days later, on May 18, 2022, two men who worked in Edmonton’s Chinatown, Hung Trang, age 64, and Ban Phuc Hoang, age 61, were assaulted and brutally beaten in two separate attacks. Hung Trang had worked at a well-known local autobody shop. Ban Phuc Hoang owned his own electronics store. Mr. Hoang died at the scene of the assault. Mr. Trang died the next day in hospital. Justin Bone was arrested and charged with two counts of second-degree murder.

After the tragedy in Edmonton, the city’s mayor, Amarjeet Sohi, remarked:

This person should never have been released from the remand centre without a proper plan in place for housing and access to treatment services.

Those are words that apply all across Canada to communities large and small. Our bail system cannot work if we release people under conditions they cannot meet.

Just this past July, Rukinisha Nkundabatware, age 52, a father of seven, was stabbed to death at Edmonton’s Belvedere LRT station. Edmonton police arrested Jamal Joshua Malik Wheeler, age 27, and charged him with second-degree murder. Court records show Wheeler had an extensive criminal record, including convictions for assault, forcible entry and robbery.

According to an open letter that Mayor Sohi wrote to then‑Justice Minister David Lametti, the accused man was out on bail on the condition that he was under 24-hour house arrest. Instead, according to the mayor, the suspect was unhoused and living rough on the streets in a tent not far from the LRT station. To quote Mayor Sohi yet again:

I struggle to comprehend why someone who could be a risk to others was released into our city without a plan in place to ensure they would not reoffend.

If we’re serious about bail reform at all, what we need are systems in place to ensure that people who are released on bail — especially if they have serious mental health and addiction issues — aren’t just dumped in the middle of some city somewhere without support, supervision or even a place to sleep. We need to ensure that those released on bail aren’t set up to fail or left unsupervised to hurt others. We need to ensure that treatment facilities and bail beds are properly funded. We need to ensure that our Crown prosecutors, legal aid defenders, justices of the peace and judges have the resources they need to do their jobs well. We need to restore public trust in our bail system, which starts with doing a better job of explaining how and why people get bail in the first place. The administration of justice should not be a kind of popularity contest where we adopt dubious policies simply because people are angry, nor should we push legislation through by preying on the fears of Canadians.

Today, I have told you three terrible, chilling stories about bail releases gone wrong. But you’ll never hear the thousands and thousands of stories of people who were released on bail without incident, who came to court when they were supposed to and who were either acquitted or served their sentences. We remember the horror stories because they haunt our nightmares. If we’re going to draw on those terrible outliers to shape public policy, let’s be sure we draw the right lessons and not the wrong ones from what they teach us.

In Canada, we probably remember Lord Sankey best for his decision in the Persons Case, where he argued that women were persons and that Canada’s Constitution was a living tree, capable of growth and change. But Lord Sankey’s remarks about reverse onus in our common law also bear repeating:

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

A bail hearing, of course, is not a trial. The thresholds are not the same. But the principle at the heart of our justice system remains. Bill C-48 whittles down — just a bit — our traditional and treasured presumptions of innocence. It frays the golden thread that binds our common law together. And it does all that without giving Canada the bail reform it actually needs to keep our country safer. Thank you, hiy hiy.

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