Good morning. I call the meeting to order.
This is meeting number 2 of the Standing Committee on Justice and Human Rights. For the record, today is Tuesday, March 16, 2010.
You have before you the agenda for today. Today we are considering private member's bill, Bill .
With us to introduce the bill is MP Scott Andrews. Welcome here, Scott.
We also have with us a number of additional witnesses to assist in our review. First of all, representing the Canadian Resource Centre for Victims of Crime, we have Krista Gray-Donald. We also have Heidi Illingworth, who is the executive director.
As individuals, we have David and Kathleen Bagby. Welcome here.
Once we've heard from the witnesses, we are prepared to move to clause-by-clause on this bill. We have with us justice officials who can provide us with advice on clause-by-clause, Anouk Desaulniers and Laura Hodgson.
As is our customary process, Mr. Andrews, you'll have up to 10 minutes to present. Then we'll also give the Canadian Resource Centre for Victims of Crime 10 minutes.
Mrs. and Mr. Bagby, we have 10 minutes for you as well.
Mr. Andrews, you may start. You have 10 minutes.
Good morning, Mr. Chairman and members of the justice committee.
First of all, let me thank the committee for advancing the discussion on my private member's bill, Bill . It was introduced on October 23, 2009, followed by second reading on December 4. I look forward to the discussion and your support as we move this important piece of legislation forward.
All of us in Newfoundland and Labrador and many across the country heard the terrible story concerning the murder of a young, upcoming doctor in 2001. Dr. Andrew Bagby was murdered in a Pennsylvania park, and at the time, the police in the United States questioned Dr. Shirley Turner of St. John's, Newfoundland, in connection with the murder.
Soon after, Dr. Turner returned to Newfoundland and made her pregnancy known, with her child of the late Dr. Bagby. Court proceedings followed, and Dr. Turner fought to stay in Canada during an extradition process.
Soon after, Zachary was born to the grandparents Kate and David Bagby, and they moved to Newfoundland to file for custody of their grandson. During the court proceedings, Dr. Turner was granted bail, and Zachary remained in her custody, with the grandparents given supervised visitations.
On August 18, 2003, Dr. Turner took her own life and the life of 13-month-old baby Zachary. While on bail, Dr. Turner jumped into the Atlantic Ocean in Conception Bay South with Zachary, and both died.
Since that time, Kate and David Bagby have been presenting their story and seeking the reform of bail legislation in Canada. In addition, I would be remiss if I didn't acknowledge the efforts of our friend, Kurt Kuenne. Kurt is the producer of a documentary called Dear Zachary: A Letter to a Son About His Father that played throughout Canada and across the national media. I can assure you that this is near and dear to Kurt's heart. He used his talents to have this story told and to promote legislative reform.
Just a year ago, shortly after I was elected, I received an invitation to attend a special screening of the documentary Dear Zachary for senators and members of Parliament in Ottawa. At that time, I had the pleasure to meet and talk with Kate and David and Kurt for the first time.
Watching this documentary and listening to their personal stories had a profound impact. It was shortly after this that I knew my first ever private member's bill would try to advance the efforts of bail reform in Canada. Obviously, I had to come quickly up to speed on the procedures of private members' bills and options for amendments to the Criminal Code of Canada pertaining to bail.
We have to balance the Charter of Rights and Freedoms and we need to have a court system to reflect the requirement to protect the safety of minors while those accused of serious crimes are being considered for bail.
After consultation with Kate and David and discussion of my intentions with my colleagues and lawyers, and working with the legislative branch of the House of Commons, I introduced Bill on October 23.
In summary, this bill when enacted will amend the Criminal Code to provide that the detention of the accused in custody may be justified where it is necessary for the protection and safety of the accused's minor children.
Bill is not about me. MPs create a private member's bill for two reasons: to make a political statement, knowing it will go nowhere; and, secondly, if you believe a realistic change can be made and it's possible to make a difference, then you will have success.
Bill is an accomplishment that reflects the strength and determination of David and Kate Bagby, parents and grandparents of the late Andrew and Zachary. I am delighted that Kate and David have joined us here today. These two amazing people have used their strength and determination to attract the attention of decision-makers and have had them focus upon the need to bring about change to our current bail legislation in Canada.
It is in the memory of Andrew and Zachary that we move this bill forward and do everything in our power to prevent this from happening to another family.
I have pledged my support to the Bagbys and to all Canadians wanting legislative reform within the Criminal Code that will hopefully strengthen bail requirements and achieve a common goal, so that no one has to witness or live through the devastation of losing loved ones in circumstances that are later determined to have been preventable.
Following this tragedy, the Government of Newfoundland and Labrador reviewed and investigated the circumstances surrounding the death of Zachary.
Dr. Peter Markesteyn was appointed to conduct the review and report findings to the provincial government. Dr. Markesteyn has had extensive experience in the conduct of children and adult health death reviews and has been a consultant to the Department of Justice federally. His professional experience includes many years of teaching in the faculties of medicine in several Canadian universities, including the University of Alberta, the University of Manitoba, and Memorial University in Newfoundland. He has also been trained as a consultant by the RCMP training division in Regina, the Atlantic Police Academy in Charlottetown, and the Canadian Police College here in Ontario.
Dr. Markesteyn conducted an exhaustive investigation over a 15-month period, and at the end of his research there were two distinct conclusions: one, Zachary Turner's death was preventable; two, Zachary was in his mother's care when he should not have been.
Although Dr. Markesteyn's mandate did not include a review of federal legislation concerning bail conditions, the provincial minister of justice at the time did bring these findings to the attention of the federal government.
From a tragic ending, we bring this new beginning of bail reform so that no other family has to go through this devastation that Kate and David have gone through so far. During the past short while, we have made considerable progress with the bill. It is my hope that such progress can continue so that we can move my private member's bill through the committee stage and into the House for third reading with minimal required legislative timelines.
Senator Tommy Banks has been part of the debate and the progress of Bill . He has pledged his support and is ready to sponsor this bill for approval through the Senate.
Once again, I would like to thank the committee members for their timely response to Bill , and I look forward to continuing the debate on this very important piece of legislation. I'd like to thank David and Kate for their continued support and for joining me here today. I'd also like to thank the Canadian Resource Centre for Victims of Crime for their interest in and support for Bill C-464.
I look forward to hearing from other witnesses and to continued discussion and debate.
In closing, we support the proposed amendment that was brought forward by the parliamentary secretary. It puts more clarity and defines “minor children” so that there will be no misunderstanding when this needs to be used in a court of law.
Once again, thank you for your time. We look forward to answering your questions.
The Canadian Resource Centre for Victims of Crime is a national, non-profit advocacy group for victims and survivors of serious, violent crime. We provide direct assistance and support to victims across the country, as well as advocating for public safety and improved services and rights for crime victims.
The CRCVC is pleased to appear today before the Standing Committee on Justice and Human Rights to take part in the debate over Bill .
Before we begin, we would like to acknowledge David and Kate Bagby, who have travelled a very long distance to share their story with us today. Their story is truly tragic, and I'm sure you're aware of the details. We are here, along with the Bagbys, to make sure that another family does not have to endure the same suffering.
The decision to grant bail is inherently difficult. A judge is asked to balance the rights of an accused, who is presumed innocent until proven guilty, against the protection of public safety. It is our position that the protection of the public must take precedence over an accused's right to be released from custody pending trial.
The Criminal Code has provisions that govern when detention should be ordered, and Bill seeks to amend these provisions and correct what is, in our opinion, a gross oversight. Bill C-464 modifies paragraph 515(10)(b) to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused’s minor children. It is hoped that this modification might save the lives of children, children like Zachary Turner, whose life would not have been lost had the judges who twice granted Shirley Turner bail not done so. There are a number of examples where Zachary Turner was failed by the systems put in place to protect him, but ultimately the fact that he was not considered in the evaluation of Shirley Turner's risk led directly to his death.
We are fortunate in Canada that cases of homicide where the victim is a child are rare. It is, however, alarming how many of these young victims are killed by their parents. Statistics Canada reports show that in 2006 there were 60 homicides committed against children and youth under the age of 18. This represents 10% of all murders committed during that year. Thirty-six of these young victims, or 65%, were murdered by family members. In 2003, 33 children under the age of 12 were murdered. Twenty-seven of these cases were solved, and of those, 85% were found to be murdered by a parent. Over the past three decades, from 1977 to 2006, 90% of family related homicide victims under the age of 18 were killed by a parent, the definition of which includes step and adoptive parents. These statistics tell us that a significant number of murdered children lose their lives at the hands of their parents, and that the younger they are, the more likely it is that their parents take their lives.
Unfortunately, Statistics Canada does not record statistics on the number of cases that involved a parent who was released on judicial interim release when they murdered their child. We must therefore rely on individual cases reported in the media to capture these crimes. The media shows us that Zachary’s case was not unique.
Peter Lee of Victoria attempted to murder his wife in 2007. He was charged but granted judicial interim release despite a recommendation by police that he not be released by the courts. Conditions were imposed that required that he not have contact with his wife, yet in September 2007 he murdered his six-year-old son as well as his wife and her parents.
In Cumberland, Ontario, in April 2006, Frank Mailly murdered his two sons, ages six and nine, his daughter, aged twelve, and their mother. He then burned down their home, with their bodies in it, killing himself in the process. He was not to have contact with Francine, but he had visitation rights to the children, and he committed these murders at the conclusion of one of their visits. Mailly had a long history of domestic violence and was on bail at the time he murdered his family.
In 2002, Lawrence Mends was released on bail in St. Catharines following an attempt to take the life of the mother of his child. When he returned to her home to attack her again, he wounded her and murdered their two-year-old son, Robert, stabbing him in excess of 20 times with a knife.
These are just a few examples where the risk to children was not properly assessed. In addition to these cases where children lost their lives, there are numerous cases where children were left orphaned when one parent was murdered by another, frequently in the presence of the children or when their mother was trying to protect the children from harm.
These children often survive because of the sole actions of their murdered parents and will likely be irreparably harmed by these offences.
It was argued in the Turner case that Shirley Turner need not be detained, as she had allegedly sought to harm and ultimately murdered the only person she would have wanted to harm. Our experience in working with victims of domestic violence tells us this logic is flawed, and this is generally not the case. Abusers, especially those who prey on a spouse or a significant other, generally don't differentiate between their spouses and their children. They seek to harm those who are vulnerable and dependent on them. The children are quite frequently harmed in order to inflict pain on the spouse or in response to the relationship shared by the spouse and the children.
Our experience and media reporting tell us that the public is concerned about crimes committed by those people who are on bail and awaiting trial for other offences. This is especially true in cases involving serious or violent offences, the cases that this amendment was drafted to address. As written, it will enable a judge who is considering a bail application to take into account the risk that the accused is likely to commit a serious crime if he or she is given bail, and to include the accused's minor children in the determination of that risk.
The proposal does not suggest that all accused be denied bail or that the conditions under which a person will be granted bail be made so onerous that no accused will be granted bail. It asks that meaningful consideration be given to the minor children of the accused when determining risk—children who are quite often at the greatest risk of harm at the hands of the accused. It does not dictate that bail will be refused in any given case or that having children would unfairly predispose an accused to remand.
On a daily basis our centre assists Canadians like the Bagbys. Serious, violent crime has had an impact on their lives. These victims and survivors want more than anything else to ensure the justice system has the tools in place to prevent what happened to them or to their loved ones from happening to anyone else. The legislative change proposed in will compel the judiciary to consider the minor children of the accused when they are making decisions on judicial interim releases. Had such consideration been given to Zachary Turner, Christian Lee, Jessica, Brandon, and Kevin Mailly, and Robert Mends, among many others, they would likely be alive today.
First I'd like to thank Mr. Andrews and Senator Banks for taking up this issue and introducing legislation to improve this bail situation.
Here are five facts I want to put in evidence with this committee: murderers are dangerous; most people accused of murder actually did the killing; repeat killings are unpredictable; courts have no means, other than incarceration, to prevent second killings; and murder is not just another crime. I want to back up those five things with a little data.
One, murderers are dangerous. That's intuitively obvious, but the literature on murder is sprinkled with notations that the recidivism rate is very low, under 1%. That's nice and that's comforting, until you consider the fact that even at less than 1%, it is about 17 times the murder rate for the general population of Canada. That factor, 17, is based on recidivism statistics from the Canadian National Parole Board and population statistics from Statistics Canada. If you want to tune that number for more accuracy, I'm sure one of your staffers would have access to complete statistics on all murders throughout Canada for as far back as you care to look. I doubt very much that the number will change dramatically with more data.
Two, most people accused of murder actually did the killing. I used a 25-year study of murders in the Toronto area to demonstrate this fact: 85% of those accused actually did the killing. Again, a funded researcher could get a more accurate number, but the basic proposition stands. Most people accused of murder actually did the killing.
Three, repeat killings are unpredictable. Shirley Turner provided the most recent example that I know of in Canada, killing her son Zachary while free on bail, pending extradition to Pennsylvania for the murder of Andrew Bagby. In 1994, also in Newfoundland, John Cousins murdered Edward Shaw while free on bail, pending his trial for the murder of Marvin Squires. In England in 2007, Garry Weddell murdered his wife Sandra. He was charged with the crime, examined by a psychiatrist, and declared safe for release; that is, he presented no danger to himself or others. The court released him on bail, whereupon he shot and killed his mother-in-law, Traute Maxfield, and then himself.
Four, courts have no means, other than incarceration, to prevent second killings. A piece of paper won't stop a killer. Shirley Turner was ordered to appear in court and agreed to obey that order. She did in fact obey that order many times over the 20 months of the extradition process, but she always had the option to thumb her nose at the court and disappear whenever she felt like it, and to hurt as many people as possible on her way out. The same was true for John Cousins and Garry Weddell.
Five, murder is not just another crime. For every other crime, the primary victim and all the secondary victims--those who care about the primary victim--have at least the potential to recover something like a normal life. Even the victim of a brutal repeated rape or any other kind of vicious assault has an opportunity, with a lot of help from family and friends and maybe professional counsellors, to restore some semblance of normalcy to his or her life. It's not so for a murder victim.
When the last breath is drawn, all negotiations are terminated, all bridges are burned, and there can be no recovery. All is lost. Murder is the only crime that leaves such desolation in its wake.
The general population gets these facts. Here is a quote from University of Ottawa law professor David M. Paciocco:
||Many Canadians are losing faith in the criminal justice system. They believe that courts are letting too many people go and are being too soft on those who are punished. It is not too strong to suggest that some of these people are disgusted with what they see.
That is from the first paragraph of the preface of Professor Paciocco's 1999 book, Getting Away with Murder: The Canadian Criminal Justice System. In that book he explains, in layman's terms, why this happens--why some people get away with murder. I found it very helpful and mostly palatable, but Professor Paciocco's elitism shows through on at least one issue.
After carefully explaining why the rule of law is so important in combating arbitrary variations in the delivery of justice, he turns right around and applauds circumventing the rule of law through plea bargaining. In response to the wishes of Canada's voters, Parliament passed a law imposing a sentence of life imprisonment for murder, but Professor Paciocco decries this loss of prosecutorial and judicial discretion, citing cases where prosecutors--and he--considered this sentence to be too harsh.
He applauds the bargaining down of an actual murder to a charge of manslaughter in order to avoid a life sentence for the killer. Apparently the rule of law is a wonderful thing when it works to the advantage of a criminal, but it's okay to sneak around the rule of law when a prosecutor, a professor, or a judge doesn't agree with a particular statute.
I have one more example of elitist disconnect from the real horror of murder. This is from a judicial decision in which Quebec Court of Appeal Justice Jean-Louis Baudouin explained the release of accused murderers on bail. I quote:
||...certain inconveniences with respect to effectiveness and the repression of crime [are] the price that must be paid for life in a free and democratic society...
This is an asinine use of the word “inconvenience”. This is in a written judicial decision. Zachary, Edward Shaw, and Traute Maxfield had suffered enormously greater harm than can be described by “inconvenience”. I submit that a case in which an innocent person who is unfortunate enough to appear guilty and is forced to await his or her trial in custody is a much more accurate application of the word “inconvenience”. Once acquitted, the innocent accused has an opportunity to go on with his or her life. It's not so for second victims of actual murderers.
A free and democratic society should be able to minimize the inconvenience to an innocent accused who is held in custody while awaiting trial through liberal visitation and communication rules. But a free and democratic society should also be able to protect its innocent citizens from the actual monsters that arise among us.
You, the Government of Canada, are too late to help Zachary, and I was too late in realizing that I was his only hope. If you leave the bail law as it is, siding with the monsters against the rest of us, eventually someone like me will do the right thing and kill one of these monsters you routinely set free. You will then have to send an innocent person to prison for the crime of protecting himself and his family from a murderer.
No. All I want to know is....
Excuse my speech. I had an accident and had an intracranial hemorrhage in 2006, and my speech isn't as good as it used to be.
It's a very personal thing, murder. It goes to a grief too deep for crying. People don't seem to understand that. It's as if.... Well, “God doesn't give you more than you can bear”, or things like that, are said to you. It could have been managed; it could have been deterred. We were there; we were two people who could have Zachary. But she walked around that courtroom, adjusting drapes, pouring water, and we were sat in the back, not saying a word, and no one could come to the courtroom with us, because she was walking free, and they knew that if they came, she would just go over to them and indicate friendship. Although they loved Andrew, they didn't want her in their lives, and we didn't blame them. But it was lonely.
We managed. To actually interface with her was tremendously painful. I used to look at her hand and think to myself, everybody seems to think that she's a delicate little doctor and couldn't possibly have done this. I haven't pulled a gun, but I figure it doesn't take much to pull a trigger. It was a very brutal crime, as that judge well said, but it was a very particular one. Only my son Andrew was her victim.
She fooled everybody, because everybody was giving her the victim's rights, that everybody is innocent until proven guilty, and that America would change the law and give her the death penalty. But the death penalty was never a problem, because in Pennsylvania only police murderers, or people who murder two people, or who torture.... Those are the three murderers who might be getting the death penalty. Her lawyer would say that the Americans tell lies and could change that. But they never would. Why would they? Then nobody would ever extradite anybody to America.
She got all these things. Judge Green said to her one day, “Dr. Turner, I'm so sorry the law is slow and that we have your life on hold.” I wanted to scream from the back, “My son's life is on hold forever, and you have the audacity to apologize to this woman?”
But of course the victim's survivors have no rights. The crown prosecutor said, “I'm not your son's lawyer; I represent Canada and America.” He didn't even want to be seen with us, because it would mean that perhaps he was biased towards us. I find that absolutely abominable, because in Pennsylvania we were treated so well by the police. I know that doesn't always happen in America. We came to Newfoundland with great expectations. We thought, America and Canada are friends; they have an extradition process. Shirley—the murderer—told us that her lawyer told her that he could easily get two to three years in Canada before she was extradited, so that would give her time for the baby.
I just want people to know that we lost Andrew; nobody could have prevented that except Turner. But it was total disregard for Zachary. We were there, but we got searched. We had an hour visit with him because she said we might hurt him. We had to pay a lady to sit there and supervise us while we had that hour.
We did all that; we didn't care. We got searched all the time. You can't imagine how wonderful it was to walk down that corridor and know there's part of Andrew there. He was beautiful. But we were put through terrible pain to get to Zachary, and then this happened.
So I just want you to know there are changes that could be made, and I'm hoping they will get made.
I want to thank the witnesses from the resource centre.
I also want to thank our colleague, Scott Andrews, who, in untypical humility, really, underplays the role he played in bringing this forward. I think there's going to be unanimity, and it was done without any fanfare or politics, so congratulations to you. Well done.
And lastly, but really firstly, to the Bagbys, it's a very compelling situation that we have before us, and we all feel quite moved by your testimony. We could call this Zachary's law. We could make it fact specific. It does relate to a number of fact situations that the resource centre brought forward. But I would urge committee members and the general populace and politicians in general to look at laws that we make in a more general sense, so they can affect in a positive way or a less negative way the general criminal law. That's why we might do a disservice in narrowing the discussion today. I haven't heard, in my four years, a lay person suffering from grief and having a high emotional hold on an issue more succinctly talk about reforms that could be made than you, Mr. Bagby, in your five points.
On your first two points, with respect to statistics, we do have those resources, and immediately after this meeting I will make inquiries, for the committee's benefit as well, from Juristat, our service, with respect to the issues of recidivism and how often guilt is actually the case in murder and capital cases. So thank you for that point.
I'll skip to your fifth point, which is the gist of my question, that murder is not just another crime. In fact, it unites the members that we're very concerned about violent crime, the rise in violent crime in this country, which includes of course life-ending crimes and life-changing crimes. The idea that murder is not given the hierarchy it should be, and violent crime is, is something we can all agree on.
In fact, getting into my point about section 515 and show cause, you'll notice in the beginning of it, in every case, there has to be this consideration of release, except for those offences in 469. You might all look and say, 469, those must be really serious crimes, and I suppose they are, but it shows how outdated our laws are. They go back to the time of the kings and queens, when sedition and treason...I don't know the last sedition case that I've ever heard of. So in the hierarchy in this old law we give precedence to crimes that aren't as heinous as murder. Murder should be given a priority that it is not given in section 515.
In section 515 we might consider going forward, reversing the onus that has been reversed. We may all be aware that the crown has to show why, on the balance of probabilities, someone should not be released except in certain circumstances. We might look at that, because a defence lawyer might well be able to meet that burden and the balance of probabilities. It's a suggestion that comes to mind based on your reasons.
My question to both the resource centre and to you, Mr. Bagby, would be this. Do you see some broader amendments or improvements that we can make to section 515 in general? I've suggested one, the reversing of the onus, the hierarchy being changed with respect to certain circumstances where it's not really allowed.
And overall, my second question, because I think Mrs. Bagby is particularly interested in this question, and I know it's not in the purview of this act, is this. Is our extradiction process so unwieldy, even between cooperative and friendly states, that we must urge other ministries of the government to move on the issue of expediting extradiction in capital or in murder cases?
If you look at the facts of this situation and some other extraditable offences, the delay is often quite inordinate, and it does often lead to other offences occurring that wouldn't otherwise occur. That's quite aside from the aspect that people are basically flouting their freedom against the rights I think of people to feel that there ought to be a reckoning. You could say punishment, but that's only one aspect of the Criminal Code in sentencing. But they're flouting, by their freedom, the conclusion--or the reckoning--for what their actions are.
That's a two-part question, I guess. First, what other reforms could we look at within section 515 or otherwise, and what about expediting this expedition process?
Let me explain, so that things are clear.
As a criminal lawyer, I have defended people like those whom you described in no uncertain terms a little earlier. I understand your pain and I respect it, but the law in Canada has changed. In fact, a person who has committed a murder cannot be granted bail unless he shows that he is worthy of release. So it is the accused who has to show that, under section 515 of the Criminal Code.
In murder cases in Canada, people are certainly released on bail. I could send you statistics about that. There are repeat offences, but, for murder, these are few. Those cases are unacceptable. Courts have to take appropriate steps so that there are no repeat offences. If there is the slightest doubt, a court keeps the person in custody. That part has fundamentally changed.
That is why I asked myself these questions. I have looked carefully at the amendment to the Criminal Code you are proposing. That is why we are going to vote for it. Henceforth, when children are involved, there will be questions for the accused. Now, the proposed amendment deals with minor children.
Would you go as far as to protect unborn children? That is a problem. We are going to protect minor children, but what do we do about unborn children? I do not know if you have views about that, but, if you do, I would like to hear them.
First of all, Mr. and Mrs. Bagby, I'd just like to say how sorry I am that this tragedy happened to your family. On my behalf and that of my colleagues and everyone here, I'd like to express our deepest condolences and sympathies to you for your loss.
Mr. Andrews, I'd like to commend you and thank you for bringing this bill before Parliament. Far too often, in the partisan nature of this place, we lose focus of the jobs we are sent here to do. It's my view that one of the paramount jobs we're sent here to do is to enact legislation that protects our communities, our families, and especially our minor children. I think this amendment to our Criminal Code is long overdue. I want to thank you for bringing this forward. I think this is a perfect example of the sort of thing that can happen when all parties work together for the benefit of all the people we represent.
As you know, our government has worked very hard to revise our criminal justice legislation to ensure that our families and our communities are protected, as evidenced by the announcement by the earlier today of some proposed amendments to the Youth Criminal Justice Act, which I hope will also be seen by all parties in the same light.
I'd like to ask you to describe for us, if you can, how you believe this change to the Criminal Code of Canada will ensure the protection of our youth.
One of the things that got me in this job, being a new person and on the job for less than 16 months, is that we're flooded with so much information. So many things come across our desks.
In particular, we all look at things in our own home province. I had the opportunity to see this documentary. I knew the story and I knew what the Bagbys had gone through, but when I went out and took in the documentary--and we get asked to view many things and hear many stories--it did have a profound impact on me as to how we could change things. By working together, by making sure we gather all-party support on things, and by compromising, we can move forward.
I thank you for those comments. I just wanted to add that. That's why I brought this forward.
With respect to protecting children, we need to give the courts and the justice system the ability and the tools they need to deny bail in order to protect children. We need to have that ability. The courts need to do it. We cannot do it alone as parliamentarians. We have to rely on our judicial system, our public prosecution, and our lawyers. They need the tools to do the job. In this particular case, I just saw this as one opportunity to change the law to give them the tools they need to do their job in denying bail.
Thank you very much, witnesses, for being here—in particular, of course, Mr. Andrews, and more specifically, Mr. and Mrs. Bagby.
I have only three minutes and there are many things I would like to explore with you. The first one is that, quite frankly, I agree with your five points, and in particular, the point that murder is not just another crime. Actually, you have to live with the people who have experienced murder and/or any crime in their residence--sometimes it's just a break and enter into a person's residence. As a police officer, I saw time and time again where people could not live, or found it difficult to live, in their home because someone had broken into their home. They never felt secure after that. Their children cried at night.
The court system, I have to say, is moving towards listening more to victims, but I believe it needs to move a little bit further on caring about the victims, and in particular the victims of murder, because people live with it.
I have to apologize in a way, but I guess I don't in another way. I have mixed feelings about your coming here today, because you have to relive and keep reliving this. But I think when you go to bed at night, you know that it's part of your closure, that you're doing something about a tragic thing that happened in your family.
In terms of our justice system, although it has many warts and blemishes, I believe it to be one of the best in the world. As police officers, we were constantly reminded by crown attorneys and other lawyers that our system is based on the fact that better ten guilty people go free than one innocent person be convicted. I think we need to begin to look at that in terms of different crimes. There should be a different weight put to that thought.
Lastly, when I look at this committee, when I look at a Canadian looking at our committee, listening to us, finding out where our heads are at when we try to change the law, or if I were reading the results of this hearing or reading the testimony...I'd like to know as a Canadian why the justice gave the person bail.
Can you recall the reasons given for the person being released on bail?
You mentioned the famous quote about “Better ten...”, right? There was a great counter I came across while researching my book. Some theoreticians or jurists or whoever said essentially--I can't remember the exact quote and I will paraphrase--that any way you turn it, it's still ten times the number of errors. Wrong is wrong. If a decision is wrong, either way, it's still a wrong decision.
Why was Turner released on bail? In a nutshell, Judge Gale Welsh, in her written decision, stated--and Kate paraphrased it a while ago too--that her crime, while violent, was specific in nature. That's a quote--“specific in nature”. It meant that if she did the crime, she's already killed the person she meant to kill: Andrew Bagby. He's the one who really angered her. That does not imply that she's a threat to anyone else. That was her fundamental logic, as I interpret that phrase “specific in nature”. She also stressed that presumption of innocence applies.
My counter to both of those is that presumption of innocence is a very important principle in criminal law, in my opinion and apparently in the opinion of almost anybody who thinks about it, at least in the western world, but it has been stretched to ludicrous extremes. There ought to be some middle ground where precautions can be taken if someone is probably a killer but has not yet been determined to be a killer beyond a reasonable doubt.
Of course, I propose a blanket rule, but it could be somewhere in the middle, such as a halfway house. If you're accused of a violent crime, you go live in a halfway house where you have a lot of freedom and your friends can come see you, but you can't walk out of there and do it again. If you do walk out of there, then you go to a real jail.
I don't know; I'm making this up half on the fly. The point is that there ought to be a way to protect the truly innocent against the probably guilty until you get to the stage at which it is beyond a reasonable doubt at the trial.
I'd like to make a point about the extradition process as well.
Shirley Turner was accused of murder and had fled the country in which she was accused of murder. There is no way she should have been out on bail, ever. She was a flight risk, and that was not considered. She had a child while in Canada, and it's horrible that none of the protections that are theoretically put in place to take care of this child were even looked at, not the first of which is that the judge should have considered the child.
I'm actually saddened that we have to put this amendment into the Criminal Code, that minor children must be, that they have to be, considered. It should be a given that if an accused has children and has harmed a family member or has been accused of attempting to harm a family member, then the children automatically should be the primary concern, because they are truly the innocent and defenceless ones in this case.
As we said in our brief, there were a host of errors in which Zachary Turner was failed, but those are two of the very important ones, from our perspective.
I do not think that your amendment adds a great deal to what already exists in the Criminal Code. I imagine that a judge who relies on the present provisions in the Criminal Code would come to the conclusion that you are hoping for, that is, in this particular case, that the person will remain in custody. In this case, I can accept the idea that “you cannot have too much of a good thing“ and I am ready to add this possibility to the act, which judges already take into consideration, in my view.
But I would like us to bear in mind that people are falsely accused of murder in Canada. I was fortunate to have a wonderful criminal law practice. I never got mixed up with criminal organizations. I was fortunate to have a reasonably good reputation with the result that lawyers who did not do criminal law would send me their criminal cases. I have obtained four acquittals in murder cases and I see no reason why those people would not have the right to bail.
These are things that you never hear about. Let me just mention one case. It involved a doorman at a club, a bouncer. He was at the door to keep order and make sure that people came to no harm. There was only one bartender, who asked him to look after the bar while he went to the bathroom. A patron, who had been drinking quite a lot, ordered a drink. The doorman told him that he was the bouncer and that he did not serve drinks. The patron became aggressive and threatened the doorman, who still refused to serve him. The patron punched him.The doorman grabbed him as he fell backwards and punched him back. The patron fell to the floor and died. The doorman was charged with murder. I do not have to tell you that he was acquitted. The Crown was hoping that we would plead guilty to manslaughter, but I had enough experience that I was not concerned when the charge was more serious than the one they wanted. Yes, he was granted bail and I do not see why anyone would think that someone like him should not be granted bail.
I could tell you about other cases, domestic situations, but they will never make the front pages. The front pages are for the heinous crimes. In daily practice, we see that we have a country and a justice system where the presumption of innocence is important, thank God. It should apply right from the start, in my opinion, even though, in a murder case, the onus would be on the accused to show that it would not be dangerous to release him.
Good afternoon to all the witnesses.
First, my congratulations, Mr.Andrews. Introducing a private member's bill is not easy. You and I both know that it takes time and that it often comes to nought. You have my complete support.
I would mostly like to speak to Mr. David Bagby.
I would like to talk to you a little about what our government is doing. We have introduced bills on human trafficking and child pornography. My party sponsored them. Children are important to me. I have four children and four grandchildren. You can see already where I am coming from.
My question is simple. It seems that you have done a lot of research, which is very commendable on your part, and focused your argument very well. You are here with your member of Parliament, Mr. Andrews, and it is clear that there is good chemistry between you. You provide each other with support.
Do you believe, in your heart of hearts, that the amendment you are proposing to section 515 of the Criminal Code, simple though it is, is really going to put an end to this kind of crime?
I think the proposed modification to the bail law has value as it's written. I think of it like this. The crown prosecutor has a set of tools that he can use to try to get bail denied for an accused, and the Criminal Code lays them out. This gives him one more tool, one more screwdriver that might fit. In some cases, I can envision this being of value.
Another way to look at it is this. If this had been the law in Newfoundland in 2001 and up, would Zachary still be alive? I don't think so. My impression, from the legal arguments...well, there was no legal argument in the first bail hearing in December 2001. But Judge Welsh's legal decision, written on January 10, 2003, stressed that Dr. Turner was to be presumed innocent and therefore the crime she was accused of was not relevant to bail, and that she had obeyed the court order to come back many times, so she was not a flight risk. If, at that time, Mr. Madden, the crown prosecutor, had stood up and argued that she had a minor child in her custody and that child might be in danger, the judge would have simply said, “Show me a threat. When did she threaten the baby?” She never threatened the baby. To our knowledge, she never said a word about threatening the baby, or anyone. She was too smart, too careful.
I'm sorry, I don't mean to undermine what Mr. Andrews has proposed here. I simply mean to push the logic of this as far as I can see it going. I don't see any way a manipulative murderer can be kept in jail or in other custody unless it's a blanket rule, because some of them are just too smart.
Shirley Turner had us convinced, mostly convinced, that she was getting ready to go back to Pennsylvania and face trial. She never gave us a hint that she was going to turn wacko and do this. She was consulting a psychiatrist. That psychiatrist declared, after the murder-suicide, that he saw no indication of danger to herself or others.
So my point is, number three, repeat killings are unpredictable. Shirley Turner's a great example of it.
Gary Weddell is an even better example. The court ordered him to undergo psychiatric evaluation. The psychiatrist came back and said he was not a threat to himself or others, and he went right out and killed himself and another.