Ladies and gentlemen, welcome to this meeting of the Standing Committee on Justice and Human Rights. We are resuming our study of Bill .
Today we have three witnesses before us. We will hear them as a panel before we ask questions. We have Ms. Shelly MacInnis-Wynn, as an individual; the Alberta Federation of Police Associations, represented by Mr. Michael Elliott, president; and the Canadian Council of Criminal Defence Lawyers, represented by Mr. William Trudell, the chair.
Ms. MacInnis-Wynn, on behalf of all members of the committee, all parties, and on a non-partisan basis, we want to express our deepest condolences to you for loss of your husband. I'm sure you've heard it over and over again, but just know that we say this with meaning as all members of Parliament from all parties.
We look forward to hearing your testimony today. Please, the floor is yours.
It's been two years of what I'd like to call my journey of picking up the broken pieces. I call it this because that is exactly what has been left for me and my family to do, that is, to pick ourselves back up and try to put our lives back together, not only as a family but as individuals.
On January 17, 2015, our lives were torn apart in just four seconds, torn apart and left forever broken because of a career criminal, Shawn Rehn, who had been let back out onto the streets after a bail hearing, a bail hearing that didn't disclose his lengthy criminal record. These four seconds could have been prevented, and my husband would still be here today. Every day for the past two years, I have woken up and realized that Dave is really gone. I start each day crying in the shower. Every day I have to pull myself together and try to continue living and play the role of both parents—and that's not easy. Every day I have to watch my children grow and try to continue their lives without their father.
Every day we are reminded so many times that he is no longer here, and it breaks our hearts that we can't have those simple moments back that we had every single day with him. There were the moments of hearing the cereal bowl hitting the table in the morning and his asking who ate the last of his Froot Loops and the simple moments of hearing the teapot rattle and knowing that it was three o'clock because Dave was making afternoon tea. I even miss the moments of him complaining about how I made the bed in the morning. All those little moments add up during the day, and we are reminded every single moment that he is not there.
Our lives have changed in a way you would never understand unless you have walked the path. I am so grateful for the people I have in my life who have had to walk this path as well. We call it a bittersweet relationship because we're thankful for each other—but we wish we had never met. It's a life that we wish no one should have to live.
There is not enough time today to explain or tell you the struggles that we have to go through every single day of our lives and will continue to go through every single day. However, I'm going to share just one moment with you, one that happened a few weeks ago. This is a pretty significant moment.
When Dave was shot, he was taken to the Royal Alexandra Hospital in Edmonton. I had to go back there after this had happened, and I thought that first meeting would be the worst and that I'd get it out of my system, and that would be it. Just recently, I had to go there for work. When driving there, I was very anxious but was able to get through the day.
Just before I left, I caught a glimpse of the emergency entrance, and then I saw an ambulance. In those few seconds, I was taken back immediately to the night that Dave was shot and reminded of everything that we had to go through in those four days that followed. In those few seconds, I could feel everything, the chest pain, the anxiety, the feeling of not being able to breathe, and the uncontrollable tears that were rolling down my face. It was like it was happening all over again.
These are the things we are reminded of daily, and trust me, it happens every single day—not to this degree, but it happens every single day. We are constantly reminded of what has happened and that Dave is not with us anymore. This is so draining, not only emotionally, but physically. This affects not only me, but also my children. It affects Dave's mother and it affects his sisters. By changing this one simple word, another family can be saved from going through this heartache and torture that we have to go through every single day. This is something that absolutely no one should have to endure.
I ask you to, please, do the right thing. Make this change and make our streets a safer place to be, not only for our law enforcement, but for everyone.
This can affect the safety of every single person in our country, including you and your loved ones.
Good afternoon. My name is Michael Elliott. I have been a police officer for 12 years. I'm currently the president of the Alberta Federation of Police Associations. We represent approximately 4,500 municipal police officers across the province of Alberta.
I wish to thank the committee for the opportunity to speak in regard to Bill.
Before I begin, I would like to provide a brief synopsis of the terrible event that has brought the attention to bail hearings.
On January 17, 2015, RCMP officer Constable David Wynn was serving his community and his country. Constable Wynn encountered a stolen vehicle parked at a casino in St. Albert, Alberta. Constable Wynn identified a suspect, Shawn Rehn. Upon making contact, the suspect proceeded to shoot Constable Derek Bond in the arm, and then shot Constable David Wynn in his face. Constable David Wynn succumbed to his injuries a few days later in hospital.
Who was Shawn Rehn? Shawn Rehn was a career criminal with at least 100 offences over a period of two decades. Between 2010 and 2015, Shawn Rehn was sentenced to a total of 10 years in jail. His charges included a variety of offences, such as break and enter, theft, dangerous operation of a motor vehicle, possession of property under $5,000, house break-in and the commission of theft, obstructing a police officer, failing to attend court, assault with a weapon, and possession of property obtained by a crime over $5,000. The list goes on.
You may have an attachment in front of you that provides a list of the charges he was subject to, what he was convicted of, what he was released on, and the charges that were before him, unfortunately, during the event that unfolded.
Mr. Rehn also had a history of firearms-related offences. He had been prohibited from possessing firearms for life. He was on conditions prohibiting him from possessing ammunition and firearms. Shawn Rehn had a total of 29 Criminal Code outstanding charges before the courts while he was on bail.
This brings us to bail hearings. Many questions were raised about why Shawn Rehn was released on bail via a justice of the peace. We can sit here today and discuss what or what wasn't provided. The bottom line is that not all of the information was produced.
You may ask what is required at a bail hearing. As a police officer in Alberta, I provide the just cause for detention. When a person is arrested, I have to provide a bail package. This information is provided in three levels to a justice of the peace to determine if the accused is granted bail or remanded.
The first level in the bail package is what we refer to as the “primary grounds”. I provide information to ensure that the accused will or will not appear in court to face his or her charges. The criteria include the nature of the offence, the strength of the evidence, the accused's criminal record, previous court orders against the accused, and his or her behaviour when arrested.
The second level of the bail package is what we call “secondary grounds”. This is for the protection and safety of the public. The criteria include the accused's criminal record and compliance with previous court orders, whether the accused is already on bail or probation, the nature of the offence, and the stability of the accused.
The third level of the bail package is what we refer to as “tertiary grounds”. This information is to maintain confidence in the administration of justice. The criteria include the strength of the case against the accused; the severity of the offence, such as whether a firearm was used; the criminal record of the accused; and finally, the potential sentencing of the accused if convicted.
The judicial system relies on all the evidence and information to make an educated and well-informed decision. When matters are before the court, disclosure and evidence are paramount to a fair and equitable outcome. The problem is that not all of the information is provided at bail hearings, as the Criminal Code states that information “may” be presented.
After Constable Wynn's death, a review of the bail system in Alberta was conducted. The following is an excerpt from the study:
||The bail system can also suffer from a perception that bail hearings are less weighty and perhaps less consequential than other steps in the judicial process. The rules of evidence are more relaxed, the burden of proof is less onerous, and bail hearings do not generally involve the testimony of witnesses and experts. Most who work in the bail system, however, would be more likely to agree with the prosecutor who told this Review “a proper show cause hearing needs to have the same sense of importance and urgency as a murder prosecution.” The stakes for the accused and the public can be that high.
A study by Ms. Nancy Irving recommended the following, and provided strong evidence of the importance of implementing Bill . It would make a small but significant change to section 518 of the Criminal Code. The recommendations are as follows.
Before a bail hearing, a police officer should provide the crown counsel with the following information, at a minimum: a copy of the information setting out the criminal charges, an accurate synopsis of the allegations and circumstances of the offences, an up-to-date criminal record including both a CPIC printout and JOIN sheet, information on outstanding charges, and copies of forms of release of those charges, and, finally, details of the accused's personal circumstances such as residence, employment, and ties to the community.
Changing the wording in section 518 of the Criminal Code from “shall” to “may” by implementing is the correct way to proceed for the judicial system and the Criminal Code. Bill S-217 would not overburden the system, in my opinion. Bill S-217 would not create any financial hardships on any level of the government.
The requested information, in my opinion, is already available via the police to provide to the crown at a bail hearing. I have personally acquired the aforementioned information via available programs police agencies use.
In life, we make decisions. When making those decisions, we research, educate ourselves, and learn what is best before we forge ahead with our plans. It is no different with our judicial system. We want to make an educated and well-informed decision during bail hearings. This bill is not about being tough on crime. This bill is about being fair, honest, and open with the public about crime. In the end, we want to ensure that the public has faith in our criminal judicial system and that we can look at every citizen in Canada, including those accused of crimes, and tell them that we made the decision with all the information that was available. Our citizens deserve the truth. Bail hearings are no different.
Thank you very much, Mr. Chair, and honourable members of the committee. It's an honour to be here.
I am chair of the Canadian Council of Criminal Defence Lawyers, which was formed as a council in 1992. For those of you who don't know, where there is a strong criminal defence organization in a province, we have a representative. Where there is none, like in the north, we have a representative. We voice and assist on legislation from across the country from a defence council's point of view.
Before we started, I said to Ms. MacInnis-Wynn that I, too, thought she was incredibly brave. I acknowledged as best I could the pain she has gone through. I also said and apologized in advance that I would probably be saying things that she, and perhaps Mr. Elliott, would not agree with. But it comes in the spirit of all of us trying to help and make the criminal justice system work better. With the greatest respect, I hope that you accept these comments in the spirit in which they're given.
Something has happened in this country in the last five years that is remarkable. Actually, I'm going to expand it to maybe the last eight or nine years. One of the things that happened was that in Vancouver, about 10 years ago, the Canadian Association of Chiefs of Police, together with a couple of judges, decided there should be a forum on reinventing criminal justice. Fifty people were invited to a closed-door meeting. At that meeting, we found that all the different stakeholders have more in common than not. That has led to the 10th and its collaborative study of criminal justice.
The federal-provincial-territorial ministers of justice formed the Steering Committee on Justice Efficiencies and Access to the Justice System, a committee of 15 defence counsel, chief justices from the high courts and provinces, representatives from the Canadian Association of Chiefs of Police, and deputy ministers to meet collaboratively to look at criminal justice issues. One of the common features in both of those studies, those programs, those committees, is the front-end management of the criminal justice system, including the problems with bail and with mental health.
I want to recommend to the committee the report of the National Criminal Justice Symposium on reinventing criminal justice, and the report of the Steering Committee on Justice Efficiencies, which has studied bail, which has studied early case consideration, as you're probably aware. Probably in every province right now, provincial governments are studying criminal justice because of the impetus here from Parliament in Ottawa in looking at restorative justice, looking at the Criminal Code, and looking at bail. Bail is actively being studied in just about every province.
I understand. I commend, for what it's worth, the person who introduced this bill to try to deal with a tragedy, to see whether or not there needed to be a legislative change. But the legislative change that you—and this is your job, not ours—may introduce and pass is legislation that affects the entire country. It is not legislation that responds to a terrible tragedy.
My respectful submission is—and I'll help as best I can—is that we do not have a legislative failure here in this case, but a systemic failure. All of the factors that my friend, Mr. Elliott, referred to, the primary, secondary and tertiary grounds, are considered every day by the courts. The failure to pass information down the line is a mistake. It's a human mistake. I would like to respectfully submit that, as a result of that mistake, attention has been energized.
My friend has referred to Ms. Irving's report. I've just been told that Deputy Armstrong did a report in Alberta. You are considering this. Indeed, criminal justice is a live topic.
I hope that when you consider these provisions, you look at this in the big picture and try to understand the impact in Nunavut, as well as in Toronto, in Prince Albert, as well as in St. John's.
Let's look at paragraph 518(1)(c) of the Criminal Code and its proposed replacement subparagraphs, starting with:
|| (iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused,
That's nothing new in some respects, but if you're putting it in there, what does it do? Does that mean that crown counsel has to make sure that they have more evidence to put to a justice of the peace? Then it becomes almost a trial as opposed to.... We, the system, just cannot afford that. We are concerned right now about time and pressure in the system.
Right now, one of the factors that is taken into consideration on the tertiary ground is the strength of the crown's case. If you're going to mandate that the crown has to produce that evidence, what does that mean? It's not available yet. The police have not done it. What you get at a bail hearing is a synopsis because the file isn't ready. What you're doing here is introducing a potential step that is absolutely impossible with the resources we have and will add to the problem of the Jordan decision. That's one thing. Another is:
||(i) to prove the fact that the accused has previously been convicted of a criminal offence,
Obviously, that's a secondary ground. Moreover, there's the following:
||(ii) to prove the fact that the accused has been charged with and is awaiting trial for another criminal offence,
In an indictable offence, it's a reverse onus. Finally, there is:
||(iii) to prove the fact that the accused has previously committed an offence under section 145,
Those are the administration of justice offences. With respect, I would suggest that every police officer, every judge, every defence counsel, every crown counsel in this country would say that we have a real problem with the administration of justice offences in the criminal system being prosecuted and loading up the remand. This, as I read it—
Thank you very much, Mr. Chair, and my thanks to all of you for being here today.
Ms. MacInnis-Wynn, I echo the comments of the chair in thanking you for everything you have done to bring this forward today and for being here and sharing your story with us. I'm so sorry for your loss, but thank you so much for being here and the courage it took to do that.
Mr. Trudell, I'd like to ask you a question. I'm first going to ask you a question on subsection 515(10), the justification for detention in custody. This bill seeks to add a couple of factors on the third ground of reasons justifying bail detention. The rationale put forward for this bill is to ensure that the relevant evidence is always presented to the court or to a magistrate in a bail hearing.
These additions to subsection 515(10) on the third ground seem to expand the ability of a court to detain a person, or it's giving them another kick at the can, if you will, on things that have already been considered in paragraphs (a) and (b) of the justifications.
I'm wondering if you have any thoughts on that and if you believe that the grounds added to subsection 515(10) would be useful.
Ms. MacInnis-Wynn, you might be tired of hearing this, but I also want to offer my condolences. It must be challenging to be involved in this process. The fact that you're taking the time to do it is certainly remarkable. We thank you for that, for what it's worth.
Mr. Elliott, I want to ask a question about some of the issues that were raised when this bill was before the Senate, in particular with regard to the Canadian Police Information Centre. The Irving report mentioned that some of the information can be outdated, and it's sometimes difficult between jurisdictions for a whole slew of reasons.
We're dealing with the bill, but there are other moving parts around it, information for bail packages and things like that. I'm just wondering what your thoughts are on that. If this bill were adopted, would anything need to be done to fix that structure and to make sure that law enforcement is able to provide the right information so that the process can go forward in as unhampered a way as possible?
I think when we're looking at criminal justice issues, we have historically looked at it with siloed approach. Health is not at the table with justice and corrections, and it's the same thing with the provinces, in my respectful submission.
The committee would benefit from knowing what happens in the provinces. I know that right now in Ontario a very vibrant bail study is going on through the ministry, and in deciding whether or not this bill is necessary you may benefit from finding out what's going on in the provinces and how this bill may impact them.
But there's no question about the following. Let's just say for the purpose of this discussion that if my interpretation of the increased onus to show the strength of the case is correct, then that seriously impacts the crown's ability to run a file. That means that instead of having three files a day, there might be one. It means you need more crown counsel and judicial officers, and you probably need more police officers in charge of getting that material together.
When we make a legislative decision in the system, the repercussions to make it work on the ground would go out to the provinces. I could only begin to touch the tip of the iceberg on the work that's being done by the provinces, which, as you point out, are in charge of the administration of justice. That's what happened as a result of the Jordan decision. All the provinces are trying to react.
With great respect, the committee would benefit from hearing from some of the provinces on what they're doing and on the impact of the bill.
I greatly appreciate the testimony of all three of our witnesses and the perspective each of you has offered.
I have only one question and it'll be aimed at Mr. Trudell. My gut reaction when this issue came before the House of Commons was that I want to do my part to make sure, to the extent possible, that all bail decisions are made with full information. I think everyone agrees on that much.
My concern is arose when I started to think about the potential implications of this policy from my own background in commercial litigation. I've had colleagues before show up in court where the rules required, as a mandatory feature of the application, that they introduce affidavit evidence in support of that application. When you try to make an application without that evidence, the judge is required to dismiss the application and the person who bears the burden of proof has their application rejected.
I have no background in criminal law, so I'm looking for your opinion to inform my own open mind. My concern is if the crown were to show up and simply make a mistake. I think whether it's mandatory or not, a mistake will happen at some point again; we can't legislate against negligence. In the event this inevitable mistake happens again, will the judge be required to let the person go, who should otherwise be kept, for failure on the crown's part to discharge the burden of proof?
Let's start with the police station. If the police officer at a station, the officer in charge, has the power to release and there's no information in CPIC or wherever about this person's background, that person will probably be released from the station if the officer can do it, because there's no reason to hold them. If it's subsequently found out that there was a mistake—and it probably would be pretty quickly—the person could probably be rearrested.
If you get into a bail hearing in front of a justice as an accused person who has now been in custody for at least a day or two and there's no information before the court, it is the obligation of the court, then, to ask the crown whether he's showing cause here. If the crown has no evidence, that person will be released. There is no question about it.
There's another side: that person could be detained wrongfully. That person could be detained by a lack of “credible evidence”, I'll call it. There are a lot of people in jail for whom a different result might occur if we had that extra five or 10 minutes to find out something about their background—not this man's background, but their background—such as a history of mental illness, addiction, or whatever. What that different result might be is a bail program, a bail supervision.
We can't legislate to prevent human error, but what's happened here is.... In the last few days, I've been overwhelmed by all of the steps and studies that have been done in response to this case, especially in Alberta. You learn from the mistakes. It's even to the point where there's a reference taken and Chief Justice Wittmann says no, police officers can't do bail hearings other than for summary convictions. The system has responded to this human mistake. I think you can benefit from how the system has reacted and is trying to address this terrible tragedy.
I would say again that it's not a legislative issue here, and that's a problem.
What goes on in a consent bail is this. Crown packages are available. A prosecutor, whether for the province or the PPSC in drug matters, looks at it, looks at the criminal record, looks at the accused, and in a drug case finds out whether there's an addiction issue. The prosecutor looks at whether the accused has roots in the community, and maybe whether they have a surety. If those boxes are ticked off and they have a discussion with the officer in charge, then they will consent to a release on terms that the officer may help with, such as whether or not to have a curfew on this person or whether or not they should report—whatever conditions reflect the case.
That's how it works in, I would say, 60% and maybe more of all cases. In other words, you and I are preparing to appear in front of the committee. We're working on what we're going to submit to the committee. You're going to ask me the questions. I'm going to ask you the questions. Then we're going to go to the judge and say we have agreed on this.
What that means is that crown counsel is going to ask the proper questions. Then what happens is that a defence counsel may show up or maybe get in early and say, do you know what, I've got a surety. I've got the bail program. I've got a drug addiction program. So you build that in. Then you add the third important party into that consent release. It's done like that. Sometimes what happens is that defence counsel and the accused person, particularly if the latter is not represented, often agree to all kinds of terms just to get out. Then you find that the accused doesn't have a house, doesn't have an alarm clock, and can't follow those terms.
Sometimes crown counsel will say, we want these terms, and they're not necessary. But that's what happens in a consent bail. The work is done in advance.
I have a couple of short questions. I'd like to start with Ms. MacInnis-Wynn. Again, thank you very much for your testimony.
In your testimony, you spoke from a very personal standpoint about what happened to your husband, but you also talked about what for you was the core of this bill, changing the word “may” to “shall”. As you've heard throughout all of the questioning, there are a number of other elements that have been introduced in this bill that may be of concern to a number of people, relating to how these elements are drafted and where they're incorporated.
What's important for you, and I'm talking about you personally, and what do you care passionately about? Is it for the purposes of proving that the accused have been convicted of a criminal offence, proving that they've been charged with or are awaiting trial for another criminal offence, or proving that they have failed to appear under section 145, and that the evidence “shall” be adduced as opposed to “may”?
Is that what's important for you?