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Standing Committee on Justice and Human Rights


NUMBER 055 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, May 9, 2017

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    Good afternoon, ladies and gentlemen.

[Translation]

    Welcome to the Standing Committee on Justice and Human Rights.
    Today, we move to clause-by-clause consideration of the Senate public Bill S-217, An Act to amend the Criminal Code (detention in custody).

[English]

    Before we begin the clause-by-clause, though, the clerk has asked me for 30 seconds of our time to look at paying the witnesses who testified before us, so I'm going to turn it over to the clerk to ask for approval of the budget, basically.
    Do you want me to just read it out? Basically, it's a budget of $12,200 for witnesses and $1,500 for miscellaneous, so it's a total budget to approve of $13,700 for our study of S-217.
    Does everybody have a copy?
    Some hon. members: Yes.
    The Chair: Is everyone okay with approving this?
    Mr. Falk.
    I just have a point of clarification. You indicated we were paying witnesses. Are we paying them, or are we just in fact reimbursing the expenses?
    We are reimbursing the expenses of witnesses. That's an excellent clarification.
    Well, you're all lawyers. I wanted to be sure.
    Precision is absolutely the key. I completely agree.
    Is everyone okay with adopting the budget?
    Some hon. members: Agreed.
    The Chair: Now, ladies and gentlemen, we will turn our heads to S-217. I would like to welcome Laura Hodgson, who is the counsel for the criminal law policy section of the Department of Justice and is here to answer any questions we may have.
    We'll now move to clause-by-clause consideration of the bill.
    Mr. Bittle.
    Thank you, Mr. Chair.
    I have a motion that this committee report back to the House and recommend not to proceed further with this bill.
    The motion is received.
    Mr. Bittle, do you want to speak to your motion?
    Yes, please.
    First, I'd like to commend Mr. Cooper on this bill. I was impressed with the intent and the passion and commitment he's put forward on this, so much so that I voted for this bill despite the government's opposition to it when it first came through the House on second reading. I know a number of my colleagues on the Liberal side of the House, including some members of our committee, did the same thing, because the intention of the bill is noble. There are issues with the bail system in this country, and an attempt to reform the bail system is a noble objective.
    That being said, I came to committee with an open mind, to listen to the witnesses and to hear evidence on the effects and impacts of this bill. Going into it, I knew there would have to be some changes. I had hoped we could make some changes to make this bill palatable and to make this an effective piece of legislation. However, listening to the witnesses and hearing from them one after another, I was immediately left with the impression that this bill misses the mark unfortunately. It will have the opposite impact of making the bail system worse, and it will lead to significant delays.
    I'd like to briefly go through what some individuals—the witnesses that we heard—discussed. The first one, Mr. Michael Elliott, who is president of the Alberta Federation of Police Associations, supported this bill. After examination, he asked himself whether it would slow down the system, and answered yes. That's a supporter of the bill.
    Mr. Rick Woodburn is president of the Canadian Association of Crown Counsel. Crown counsels are individuals who want to see criminals in jail. They want to see the right people go to jail: that's their job.
    He said of the tragedy that brought forward this bill, that it was “human error: [the constable dealing with the bail matter] failed to put the record before the court...It is not something we normally do. We put the record before the court. It's important. That's meat and potatoes; it's the first thing we're trained to do.”
    He went on to say of his concerns about Bill S-217, that “bail hearings will double and triple in time. And it's not necessary.” He said that S-217 “will add nothing to bail hearings, but it will take away a lot,” and that if “bail hearings expand and take longer, other matters will fall like dominoes, and it will end up having the opposite effect.”
    Rachel Huntsman, on behalf of the Canadian Association of Chiefs of Police, said that this bill “may cause confusion, create added delay, and impose challenges upon a bail system that is already operating at full capacity. Instead of strengthening the bail provisions, we fear that these amendments may create a result counterproductive to what the bill is hoping to achieve.” She said of the bill that this amendment is not necessary.
    Detective Superintendent Dave Truax from the Ontario Provincial Police added that this bill would cause a challenge for Canadian law enforcement agencies.
    Dr. Cheryl Webster, an associate professor at the University of Ottawa, said that legislation can't change human error, which is what caused this tragedy. She said it seemed to her that “this bill will very likely only add volume to an already exploding problem.”
    Ms. Nancy Irving, who has done some incredible work looking into this tragedy and how to improve the bail system in Alberta, said, “I share the concern that this new language could turn bail hearings into mini-trials.”
    I tried during many of my questions to ask witnesses for amendments or potential amendments to make this bill an effective tool for law enforcement and for crown prosecutors. The response we received from witness after witness was that they couldn't propose anything, and that even minor changes—minor or major amendments to this bill—would have negative impacts on the justice system. My fear is that this bill will have the opposite effect and could in fact make Canadians less safe.

  (1535)  

    It could do this in terms of significant delays, which the Supreme Court has ruled on, especially in the Jordan case, which we've talked about. This may see more people out on the street who should be in jail, and that's not something I want to see. Despite the good intentions of the bill, I'm concerned that this bill may put Canadians at risk, and unfortunately, I can no longer support Bill S-217.
    Thank you.
    Thank you, Mr. Bittle.
    Mr. Nicholson.
    I only speak on behalf of my colleagues who will perhaps have something to say afterwards. We don't support shutting down this bill. This bill was introduced for a very legitimate reason. It's one that remedies the problem that was faced, particularly in this case. I hope members are not going to vote in solidarity on the other side of this. I appreciate that my colleague, Mr. Bittle, is proposing this. I hope they will consider what we heard.
    It was pretty compelling testimony by Shelley Wynn about what happened to her husband. My colleague says that it puts certain Canadians at risk. Well, I know the Canadians who are at risk. They are called victims, victims of crime, the people who become the target of these people who should be detained, but aren't detained.
    That is one of the disappointments if this thing does not go forward because I think it's very important, when we study the criminal justice system, to make sure that we are looking after victims of crime. I appreciate that the system has to work on everybody's behalf, but how can we better protect law-abiding Canadians, how can we prevent victimization? This is a step in the right direction. I believe this was well thought out by my colleague, Senator Runciman, as well as by my colleague, MP Michael Cooper. They have thought this thing out, and they are remedying something that is a gap that could be, I believe, very easily filled.
    Now people say, “Well, you're going to slow down the system.” Well, I have news for you. If somebody is up on a first offence, very quickly the courts can be informed that the individual has no criminal record and hasn't breached any bail provisions. There is no slowdown at all on that. In the vast majority of cases, that information is before the courts. It's before the justice of the peace, the court, whoever is handling that. There is no increase on this. We're trying to catch those times when it doesn't happen.
    Now, are there times when it will be slowed down? Yes, I can believe that. For instance, you get somebody—and we've had examples of these people here—who has had 38 or 52 convictions, and they have continuously breached their bail provisions. I have no doubt that it might take you half an hour just to get all that information before the court. Then you would say, “Well, you slowed down the process.” I know we slowed down the process, but we have made the process safer by making sure that the judge, the justice of the peace, or whoever handles these cases, depending on the province, has that information. So, when people say that in some instances it will slow down, yes, right. If this individual has a long, bad record, I think we can handle it. The courts can handle it. We can slow it down long enough to make sure that everybody has all the information on the individual because what we want to do, ultimately, is better protect the public of this country. We want everybody to have a fair hearing, but if you're one of those individuals who continuously breaks the law or has been charged or has had convictions, it seems to me that that is something that should be before the courts.
    I appreciate that trying to get this information 30-40 years ago was very difficult. It was very time consuming, no matter who was before the court. Well, that was the 1980s. This is not the 1980s anymore. We can have this information in seconds, and this information is something that should be before the court because we can better protect the people who need protection in this country.
    To that challenge here—that somehow this poor fellow has 30 years of convictions and we tell about all the times he's violated bail—I say tough luck. It's something that should be before the court, and they should know every single word of it. If it takes an extra half an hour to read the individual's record into court, good, because I think we're all better off for that.
    I say to my colleagues across the room, “Think about the victims. Think about possible victims. Think about somebody like Shelley Wynn.” I don't think I heard any synopsis of her testimony, but her testimony was very riveting, important, and emotional.

  (1540)  

    If a law like this had been in place, her husband wouldn't have been killed. This matter was before the court. This is the kind of information you have to have.
    I say to my colleagues across, we don't always vote unanimously on all these different things, and I would hope that some of them would have a look at this and say, yes, this makes a lot of sense. This makes sense, this is the age in which we live, and information like this should be before the court, and if it's not before the court, then the whole system can be called into question.
    It erodes people's confidence in the criminal justice system when they hear something like this, that this information wasn't before the court or it wasn't considered.
    Do you want to have confidence in the criminal justice system? Do you want to better protect Canadians? If you want to stand up for victims, this is a perfect example of what we can do. I'm urging my colleagues around this table to do the right thing and to support this.

  (1545)  

    Thank you very much.
    Mr. Cooper.
    Thank you, Mr. Chair.
    It is with disappointment to learn of the government's intention to kill Bill S-217. It is not lost upon me that no mention was made of Shelly Wynn and her testimony. No mention was made of the former attorney general of Alberta. No mention was made of the evidence of John Muise, who has extensive experience as a Toronto police officer, and who served on the Parole Board. No mention was made of all of the associations that represent the front-line police officers who put their lives on the line every single day to keep our communities safe and who bear full support of this legislation.
    What we did hear at the justice committee was a lot of MPs searching for every excuse to try to kill this bill. There were two arguments that were put forward, in essence, in opposition to this bill, both of which are equally flawed. One was the suggestion that it would increase the evidentiary burden. Mr. Woodburn tried to make that argument as a prosecutor. He tried to lead this committee into interpreting the bill to change the standard of proof by saying that the crown “shall prove”, as opposed to “may prove”. Of course, Mr. Woodburn conveniently ignored the fact that the legislation says no such thing, and members on that side ignored that fact, and continued to ignore that fact even when it was pointed out that the bill provides that prosecutors “shall lead evidence to prove”.
    By contrast, the bill does nothing to change the standard of proof which is provided for at section 518(1)(e), which provides that a judge or justice of the peace may accept evidence that is deemed credible and trustworthy. Of course, the case law is very clear that evidence from a police agency or from a police department is credible and trustworthy evidence, and that would encompass the CPIC record. Frankly, that argument is baseless.
    It comes down to this argument of delay by requiring the crown to lead evidence of the criminal history of someone seeking bail. We heard at committee from none other than Mr. Woodburn, who said that this was the bread and butter of prosecutors. It's what they do every day. It's the first thing they learn. Indeed, I challenge any member of the committee to cite any credible evidence put forward before the committee as to a scenario when the criminal history of a bail applicant should not be presented. There was no evidence. There was no credible evidence. There was no credible example provided for, and there was no credible example because such information is always relevant in material. Indeed, it is impossible for a judge or justice of the peace to exercise their discretion without such information. That's, in essence, all this bill does.
    Yes, there were some aspects of the bill in terms of the language that arguably needed to be tightened up. Based upon the evidence, I was prepared to work in a co-operative fashion to bring forward amendments to clean up some areas of the bill that needed to be amended. However, on the key question of whether evidence shall be presented at a bail application hearing, the essence of the bill, that was not in question in terms of the evidence before the committee. I would reiterate the point that Mr. Nicholson very astutely made in terms of when we talk about delay. Who are we talking about? Which bail applications are we talking about?

  (1550)  

    If an individual has no criminal history and is charged and appears and there's a contested bail hearing, there is no delay because there is no criminal record, but when you have someone like Mr. Rehn, who had a criminal record longer than my arm, shoot and kill Constable Wynn, yes, there will be some delay. Yes, there will be a need for a thorough analysis, for due diligence, for a need to provide voluminous information on that criminal's history before a judge or justice of the peace so that judge or justice of the peace can properly exercise their discretion, including keeping the public safe.
    Frankly I was disturbed by the attitude about efficiency on that side and perhaps on other sides. We heard this over and over again. I would submit it is precisely that lax attitude that contributed to Constable Wynn not being with us today. It was an example of a bail hearing that was rushed, unfortunately. Let's process the application without the evidence in front of us, and what were the consequences? They were fatal, Mr. Chair, and that is absolutely untenable.
    It is unacceptable, and in terms of delay, the irony is not lost on me and it shouldn't be lost on Canadians. These Liberals would talk about delay in the context of the murder of Constable Wynn and trying to fix the bail system, when they have stood in silence as their Minister of Justice has failed to do her job, a Minister of Justice whose conduct has been nothing short of negligent in failing to fill one of her core responsibilities, and that is to fill judicial vacancies in a timely manner. We have a minister who gets up in the House of Commons and pats herself on the back as we have a near-historic number of judicial vacancies. We have judicial advisory committees that are almost half vacant and have been almost half vacant since October. We have murder cases, sexual assault cases, child abuse cases thrown out of court, and the minister says she's proud of her record. We have thousands of cases at risk, and the minister can't even appoint judges.
    These Liberals talk about delay. The irony is not lost, and I can tell you that as the member of Parliament for St. Albert—Edmonton and as the deputy justice critic, we're going to keep fighting for this bill regardless of the outcome of the vote this day because the stakes are too high. What happened to Constable Wynn should never have happened, and this law, if it could be passed, would help prevent such an incident from happening again.
    Thank you.
    Thank you very much.
    Mr. Fraser.
    Thanks very much, Mr. Chair.
    I'd like to start by saying that I recognize that this was a good-faith effort to bring this bill forward, and obviously thank Senator Runciman and Michael Cooper for sponsoring it in the House and bringing it forward. I supported this at second reading, and support the comments of Mr. Bittle. I supported it at second reading because I saw some problems with the bill, but I thought there were some aspects to it that would be good, and that we could actually make right to improve the effectiveness of our bail system. Just as there was a good-faith effort to fix a problem that we recognized in the case of Constable Wynn, I hope that those proponents of the bill will also understand that there's a good-faith effort on members of this committee to do what they believe is correct and right based on the evidence and the testimony that we heard here at committee.
    I knew there were a number of problematic provisions with the bill, but the central element of the bill, as I understood it from Shelly Wynn, and from discussions with colleagues, was about the provision of changing the requirement from a permissive “may” to a requirement of “shall” lead evidence for the prosecutor.
    Throughout my thinking and my deliberations on this bill—and I can tell you that I've arrived at my conclusion independently and on my own, thinking about the evidence that's been presented here at committee—the principle of doctors came to my mind, and that is, “Do no harm.” That is, I think, a responsibility that this committee, which is changing the law on people's liberty, should take very seriously: “Do no harm.”
    My conclusion, at the end of hearing the evidence and thinking about this, is that despite the good-faith effort to fix a problem, this bill, even with some changes, would still, if we changed “may” to “shall”, have the opposite effect and have the opposite intention, and would actually lead to more people out on bail who should be behind bars, and therefore make our streets less safe, not more safe. That's the reason that I support the motion.
    I want to go through some of the testimony we heard. By the way, we heard testimony, of course, from Shelly Wynn, which was compelling testimony, I grant that, but we also heard from experts in the field. We heard from the Canadian Bar Association. We heard from the Ontario Provincial Police and Newfoundland police. We heard from prosecutors. Mr. Cooper mentions Mr. Woodburn, who was here representing crown counsels across the country. He wasn't here as an individual. As well, we heard from defence lawyers. For all of those organizations to come to the same conclusion and give us evidence based on the same rationale is compelling to me, and convincing to me, and persuaded me that this bill would do harm if we passed it. Therefore, despite supporting it at second reading, thinking about it, and honestly coming to a good-faith conclusion on my own, I've decided that this bill should not be proceeded with. That's why I'll be supporting Mr. Bittle's motion.
    I can say one further thing on delay. My friends across the way do mention, of course, criminal records that should be presented, as well as failures to appear. There's another element to this. In fact, if you go back and look at some of my questioning, it was about the circumstances of offences. Evidence would need to be led on that in every instance. Even a first-time person before the court, who has no criminal record, would take longer than usual because the evidence of the offence would have to be led as evidence to show whether the circumstances rose to the problem of the public losing confidence in the system. That's every case now. There would need to be, we heard some people say, a mini-trial on the circumstances of the offence, when normally the crown in that circumstance would never ever rely on that third round of bail to detain someone, but they'd be required to produce that evidence anyway. If they didn't have it, I suppose, then they wouldn't be able to meet their burden. And what would happen then? The person would be let out on bail, perhaps without a clear plan for securing his or her release.

  (1555)  

    That, in addition to the uncertainty this would create by adding new terms that are undefined and untested by the courts, would lead to further litigation of our bail system entirely, and with mini-trials, it would create backlogs in the system. In light of the Jordan decision, we know that delays are now a very difficult situation that this country has to come to grips with.
    Concerning the mention of judges, I know that the Minister of Justice has appointed I believe now 56 judges, and there will be many more to come. I recognize that there is a problem, if our judicial system is not filling vacancies in a timely fashion, but I believe the need is being fulfilled by the minister. Of course, there are always things that can be done better and more efficiently.
    I think I'll leave my comments at that, Mr. Chair, and reaffirm my position that this bill would do harm. We are required as a committee to study and deliberate on the evidence we heard. That is what I believe I am doing. I cannot support a bill that would have the opposite effect and would actually make our streets less safe.
    Thank you.

  (1600)  

    Thank you, Mr. Fraser.
    Mr. MacGregor.
    First of all I want to thank Mr. Cooper for his passionate defence of this bill. I certainly appreciated his reaching out to me in a phone conversation to talk about some of the finer details of the bill. I too voted for this bill at second reading because I agreed with the principle. I don't think there's a person in this room who denies that what happened with Constable Wynn and Shawn Rehn wasn't a good thing. It was a problem. It's a failure in the way things currently operate.
    I too have independently given my full and legitimate consideration to this bill and to all the witness testimony we've heard and the briefs that were submitted. I've also consulted with caucus colleagues who are expert lawyers and with people outside of the caucus in the legal community as well. Weighing what I have seen, witnessed, and read, the evidence in my considered opinion is stacked against this bill.
    I do want to say, however, that what happened to Constable Wynn does not.... We can honour his memory. This does not have to be the end of the road for honouring his memory. I sincerely think that what happened in this particular issuance does not warrant a legislative solution. I think we've heard from many witnesses that there is plenty of room for administrative solutions, whether it's through more resources for our justice system, making sure police records are timely and up to date in every part of this country, or even giving more educational opportunities to crown counsel to learn from this opportunity. I don't think we should end the road at this particular issuance.
    Now, the Minister of Justice has met just recently with her provincial colleagues. I'm glad to see that this meeting has finally occurred, that the Liberal cabinet has finally acknowledged the crisis that is in our justice system, because the Jordan decision was a long time ago. I think Mr. Cooper's criticisms of the justice minister are valid; I share many of them. There have been vacancies in our courts for far too long. The legislative agenda of this government, particularly with justice bills, seems to be in tatters. It has taken 18 months to get bills forward on marijuana legalization, on impaired driving laws, and the zombie provisions of the Criminal Code. I have to ask myself what the cabinet, particularly the Minister of Justice, has been doing all that time, because there are some very important bills sitting on the Order Paper that have not yet come to second reading debate.
    If I may impart some advice to my Liberal colleagues, the next time you have the opportunity to speak to the cabinet, say that there are several very important justice initiatives that can wait no longer; that we need to see properly funded resources for our justice system, whether it's in legal aid, appointing members to the bench, or providing for more administrative services in courtrooms.
    We also need, though, to see this legislative agenda put forward so that we can start debating it, because if you look at the remaining timeline we have in Parliament, June 23—the last possible day we have to sit until September—is fast approaching. I would say that it's time to roll up our sleeves and really get to work on some of these pressing issues.
    While I will not be supporting Bill S-217, then, don't think for a minute that this is the end of pressuring this government to get to work on these outstanding justice issues.

  (1605)  

    Thank you, Mr. MacGregor.
    Everybody is going to get a chance to speak, and as much as you want.
    Ms. Khalid.
    Thank you, Mr. Chair.
    I do, along with all of our colleagues, want to commend Mr. Cooper on his great efforts in bringing light to this very important issue.
    We heard some very compelling testimony from Madam Wynn with respect to what she suffered, and my heart goes out to her and others who have suffered at the hands of this issue. However, we, as legislators, often find ourselves in a very difficult position where we have to separate our emotions from something that would affect the country nationwide.
    We heard testimony that this was an error or a mistake, and we can't legislate away mistakes. There has to be a robust solution to this. I am very much in favour of having a review of the whole bail system and seeing how we can improve it administratively, and how we can improve efficiencies.
    Although the intention is very great and noble, I don't think this bill achieves the effect of reforming the bail system, so I too will be supporting the motion presented by Mr. Bittle.
    Thank you.
    Thank you.
    Mr. Falk.
    Thank you, Mr. Chair.
    I, too, just want to express my disappointment in the motion that's before us to terminate moving ahead with this bill. I think it's a bill that has been well thought through. I think there were some amendments that would have been tendered in the event that we would have an opportunity to proceed with clause-by-clause.
    It was mentioned earlier that there were no amendments suggested by any of our witnesses, and I think that's not entirely accurate. I think some of them did suggest that they had trouble with the terminology “to prove the fact”, and there's an amendment that would address that. I think there's a response to that particular testimony; there were amendments that would have made the bill stronger.
    I take comfort in the fact that this bill was through the Senate already, and that the Senate did their due diligence on it. The Senate sent it along to us, and Mr. Cooper took up the cause here on the House side of government. I think the Senate did a good job. I think Mrs. Wynn's testimony was very compelling. It was very emotional, and I would agree with Ms. Khalid that emotions aren't enough to change laws. We need something more substantive than just emotional testimony to warrant changes to our Criminal Code, and I think there was much more to it. I think there was a deficiency in the existing law. Emotions, perhaps, allowed us to see the flaw more clearly and see some of the impacts of that flaw.
    We didn't hear from a broad variety of witnesses about other situations where similar decisions were made that didn't result in the consequence of a homicide, of someone being murdered. I'm sure there are numerous victims who have been victimized because somebody somewhere along the line didn't produce the evidence to a justice or to a judge that would have prevented someone from being released on bail. I think the flaw in the existing legislation is the word “may”. That's primarily what this legislation seeks to change, and it has been identified here today in several different ways. It has been called a human error. It has been called a mistake.
    I don't think it is a human error or a mistake because the word “may” is there. When “may” is there, people have a choice to make. They may do it, but they may choose not to. So, if they choose not to, has a mistake been made? Has there really been a human error? I would suggest not. It's a choice that has been made. If we change that word from “may” to “shall” and it doesn't happen, now there has been a mistake made. Now there has been a human error.
    The testimony that we heard from different witness groups seemed to be lopsided in favour of reducing the onus that changing that terminology would place on any group of people and that could have negative consequences for themselves or people within the association they represent. However, I think it's our responsibility to victims and to potential victims to make sure that we are providing a Criminal Code, a process, that is fair to them and that is fair to the accused. I think we've heard from the previous comments here that the only time delay would be when really lengthy rap sheets are presented. That would perhaps cause a bit of a time delay, but it would be a justified time delay. I think the changes that this bill seeks to make in our Criminal Code are necessary. I think they're good, and as we heard from many of our witnesses, it's happening anyway. We're doing it anyway. To that my response would be that if we're doing it anyway, then let's just say we're going to do it. Let's say we shall do it because nobody said it wasn't a good idea to lead the evidence. Nobody said that we shouldn't do it. In fact, they almost always said that it was happening anyway.
    In this case, there was a mistake made, and I get back to my point. There was no mistake made because we gave them the option when we had the word “may” in there. I think it's important to change the word to “shall”, and in essence, that's really what this bill is doing. It is changing the mandate to “shall” from “may”. If we're going to do that, and if it doesn't happen then, then a mistake is made, and there's a matter of accountability.

  (1610)  

    I think that's the part that frightens the people who said we're fearmongering here, that this would create some kind of erroneous burden on people from a time perspective and from a workload perspective. I just don't think that's a warranted criticism.
    I'm disappointed. I won't support the motion. I'll vote against the motion, because I think it's a bill that has been well thought through. There are amendments coming to address the concerns inside the bill.
    I would urge my Liberal colleagues and my NDP colleague to reconsider their position. I think it's a good bill. I think it's been drafted very well.
    Thank you very much.
    Mr. McKinnon.
    I too laud the purpose of this bill. It's well intentioned. The intention is to enhance public safety.
    I've heard a lot of testimony. I've read the bill. I had a private conversation with Mr. Cooper. I find it most persuasive, on the whole, that it will not in fact enhance public safety.
    Mr. Nicholson said that this bill remedies a problem. Well with all due respect, that begs a question. The question is whether it will in fact remedy the problem. My interpretation of the evidence and the testimony is that it will not. In terms of thinking of the victims of crime, we would serve the victims of crime much better by recognizing that this would not improve their safety.
    Mr. Cooper says that we're implementing the government's will. With all due respect, frankly, I take that comment amiss. He says that we are ignoring evidence. I can assure Mr. Cooper that we are acting—I certainly am acting—on the basis of all the evidence, all the details, all the arguments that I've heard. I'm acting on my own behalf, in good faith. I take it quite amiss that Mr. Cooper would impugn the good faith of me and of my colleagues in this manner.
    The comments about the minister I think are totally irrelevant. This is about the bill. If Mr. Cooper can't address the issues of the bill without slagging the minister, I think it underscores the weakness of his argument right there.
    The bottom line is that I therefore concur in recommending that this bill not be proceeded with in the House.
    Thank you, Mr. McKinnon.
    Mr. Fraser, since this Mr. Fraser is a permanent member of the committee and you are a most welcome visitor, let me just call you the second Mr. Fraser.
    Thank you very much. I'm happy to play second fiddle to my colleague from West Nova.
    You've mentioned that I'm not a regular member of this committee, although I've sat in for virtually every minute of this particular study, in part by coincidence in filling in for colleagues, but really, what motivated me to volunteer for those openings was the serious consideration I gave this bill during second reading and the attention that I thought it deserved. When it was first presented to me, I thought, as some of my colleagues have explained, that there was some merit to the ideas behind this bill.
    I'd like to thank Mr. Cooper in particular, who took time to speak to me privately, even on a weekend, to sell some of the virtues of this bill. I enjoyed that level of engagement. His work as a parliamentarian has been exemplary.
    Of course, after considering the evidence, I do find myself in a position of disagreement, despite having supported it at second reading and, of course, against the position of the government.
    Some of my colleagues have mentioned the role of emotions, and emotions not being enough.... I find this an incredibly emotional experience. To hear Ms. MacInnis-Wynn's testimony was compelling, but I don't apply my emotions to the exclusion of reason and logic. My emotions have convinced me that we need to adopt a law that will not jeopardize the safety of Canadians in having more criminals on the street. Reason and logic have led me to a place where I believe that adopting Bill S-217 into law will have that countervailing effect.
    I'll address some of the concerns, but before I jump into a few of the substantive issues that I see with this, let me say that I spent hours and hours toiling over this bill. If I had a friend who was a crown prosecutor or a police officer, I asked them what their thoughts were. I wanted to get feedback from those I know in my personal life who may deal with this issue. That helped inform my perspective, but I did find the evidence that came before this committee to be very compelling. I share Mr. Nicholson's point of view that what this is about is protecting victims, but more than just protecting victims, it's about reducing the number of victims we have in Canadian society.
    With respect to the arguments about delay, Mr. Nicholson suggested that maybe it's 30 minutes. If this were a 30-minute delay or a matter of clicking “print” on a CPIC record, this would have my unequivocal support, but on the facts, the evidence hasn't borne out that suggestion. What we've heard is that this has the potential to turn bail hearings into mini-trials. They're already a source of significant delay.
    One of the pieces of testimony that I found compelling, which was on behalf of prosecutors across the country, was that if the prosecutor were to show up seeking victory in a bail hearing and failed to produce the criminal record because of negligence—they simply forgot—the solution would not be readily available. What the evidence suggested is that a judge would likely say, “Well, I can't do this for you”, and the crown would have to adjourn, which would lead to the accused person being led out without having their bail hearing considered in the first place. I don't believe that this bill makes it more likely that the criminal record would be brought forward.
    To your point, Mr. Falk, you've suggested that this was not a mistake, that it was permissible. I've heard that line of argument a few times, and I do appreciate the ingenuity behind the argument, but I disagree with the impact that it will actually have on the ground. We heard Mr. Michael Elliott, I believe it was, who appeared alongside Ms. MacInnis-Wynn, describe the introduction of criminal records at bail hearing as “protocol”. We've heard, on behalf of crown counsel, evidence suggesting that this is the first thing that a crown prosecutor learns, that it's a matter of routine.
    From the evidence, the only instance that I can understand where this evidence would not be led is human error, and I don't believe changing the word “may” to “shall” or any sort of permissive to mandatory switch in the language would have the desired effect of making a criminal record appear on the record of evidence where it would not otherwise appear.
    With respect to the government's intention, which Mr. Cooper alluded to, I can say with my right hand to God that this conclusion I have arrived at independently through consultation with those who have knowledge and through hearing the evidence.

  (1615)  

    This is not something that is being driven by the government in my experience, but instead by the response of the individual committee members to the evidence we've heard.
    With respect to the argument that we haven't introduced any evidence from the front-line workers, the Canadian Association of Chiefs of Police was unequivocal in its opposition to this particular piece of legislation going through.
    With respect to the issue of judicial appointments, I take some exception to having a finger pointed across the way at me with the saying, “these Liberals are responsible for this.” Judicial delay in appointments has been a problem for, I dare say, decades in Canada.
    When I practised law in Mr. Cooper's province of Alberta, I remember leading a training session for the Legal Education Society of Alberta—prior to this government's coming into power—about the fact that the mandatory judicial dispute resolution provision in the Alberta Rules of Court could not be implemented at the direction of the chief justice because there were insufficient judges in Alberta then.
    This is not a problem that magically appeared under the new minister, but it is a problem—delay in the justice system. Given my conversations, the questions I've seen in the House, and the responses, I do have faith that this is being taken seriously, and I will continue to push alongside members of every party to ensure that we fill those vacancies expeditiously.
    To conclude, I do not see a route that Bill S-217 can have to become law that would improve safety because the central component of this bill is the source of my reticence. For that reason, I plan to support Mr. Bittle's motion.
    Thank you.

  (1620)  

    Thank you very much.
    Everyone has had the chance to speak once. Is there anybody who wishes to speak again or has anything further to say that wasn't already covered?
    If not, I'm just going to read out Mr. Bittle's motion because it has been given to me now in longhand, beautifully written by whoever actually wrote it out.
    It was moved by Mr. Bittle:
That the Committee, pursuant to Standing Order 97.1, recommend that the House of Commons do not proceed further with Bill S-217, An Act to amend the Criminal Code (detention in custody) because:

This bill will cause increased delay in the bail system;

This bill will have the effect of making Canadians less safe by leading to more people released who should be in jail; and

That the Chair present this report to the House.
    Does anybody have anything further to say? If not, I'm going to proceed to a vote.
    (Motion agreed to on division)
    The Chair: I have been told by Mr. Colin Fraser that he has another motion to present, so I'm going to ask if he would be willing to now move it.
    Thank you, Mr. Chair.
    I would like to make a motion that the committee, through you, Mr. Chair, write a letter to the Minister of Justice, Jody Wilson-Raybould, and the Minister of Public Safety, Ralph Goodale. I'll read for you the draft letter that I have here:
The Standing Committee on Justice and Human Rights...carefully considered Senate Public Bill S-217. Upon division, the Committee is reporting the Bill back to the House recommending that the House not further proceed with the Bill.

Members of the Committee thank the sponsor of the Bill in the Senate, Bob Runciman and our colleague House sponsor Michael Cooper. We are united in our appreciation of the intent of the Bill, which is to ensure that bail courts have the appropriate information and that tragic, senseless deaths like that of Constable David Wynn are prevented.

However, the majority of our Committee does not believe that Bill S-217 achieves this objective. Having heard from witnesses including those who are charged with keeping Canadians safe, we have concluded that the Bill has the potential to have the opposite effect.

Based on testimony, we are concerned that the Bill may have the effect of:

1) Augmenting the burden of proof that prosecutors would need to meet at bail hearings leading to more defendants being released on bail not less1; and

2) Creating mini-trials at bail hearings, further slowing down an already clogged justice system potentially leading to more charges being stayed under the Jordan decision234567.

In either case, more dangerous offenders could be released. As such, although we applaud the intent behind the Bill, we are unable to support it.

Notwithstanding the foregoing, we were pleased to have considered the Bill. We acknowledge the hard work being done by the Minister of Justice to improve the criminal justice system, including her commitment to introduce comprehensive legislation on bail reform. We equally acknowledge the work of the Minister of Public Safety on bringing the Canadian Police Information Centre (CPIC) records up to date. It is in that vein that we would like submit a number of recommendations that we would ask you to consider in your ongoing reviews.

1) We appreciate that the Minister of Public Safety and his department are working hard to improve the CPIC records system and applaud the advances in this regard made by both the current and previous governments. We would like to encourage the Minister to continue to put adequate resources into updating these records so that there is no backlog allowing the Court and its officers to have the best possible information about each defendant.

2) As part of your ongoing review of the criminal justice system we strongly support streamlining the bail provisions in the Criminal Code in order to make them less complex and to eliminate inconsistencies. As part of that undertaking we would ask you to consider how best to ensure that the courts always receive information related to the accused's criminal history and outstanding charges without prolonging the bail process or imposing a higher burden on the prosecution. As the administration of justice is a shared responsibility, we recommend that you work with your provincial and territorial counterparts where necessary to implement appropriate reforms.

Thanks very much for your consideration of our suggestions.
    That is the letter. I have a copy of it to circulate for colleagues. It's in English. I would of course suggest that if the letter is to be sent out it be done in both official languages.

  (1625)  

    It would have to be translated, absolutely.
    Perhaps you could pass out the letter so that everybody has a copy of it. Then we can have a discussion.
    Mr. Fraser, while we're waiting, do you want to speak to your motion? You've read out the letter. Is there anything else you want to say before I go to another speaker?
    Mr. Chair, I think it speaks for itself; however, first of all, I do think that it supports the comments made here today by all committee members in support of the intent of the bill, but it outlines the reasons why the committee voted—albeit on division—against proceeding further, and it also highlights some things that we do think could make a difference in addressing some of the issues that have been raised while we have been studying this bill.
    Can I suggest that I give everybody a few minutes to read the letter before we have the discussion?

  (1625)  


  (1630)  

    Has everybody had a chance to read through the letter?
    Now we'll go to discussion and debate.
    Mr. Cooper.
    Thank you, Mr. Chair.
    I have to say that I take exception to a number of the points that are raised in this particular letter as it relates to Bill S-217. The letter states that there is concern that the burden of proof “that prosecutors would need to meet at bail hearings” would be increased. The fact is, to the degree that if there was any argument that the standard of proof would be increased as a result of Bill S-217, it was as a result of the additional words “to prove the fact”. There was an amendment here today to delete that language to remove any question and to remove any ambiguity that Bill S-217 would not change the standard of proof, but would merely require prosecutors to lead evidence, which, as Mr. Woodburn reminded everyone, was the bread and butter. Unfortunately, the government members opposite, the majority members of this committee, decided to instead vote for a motion to prevent any opportunity for there to be an amendment to remove that particular language.
    Secondly, with respect to mini-trials, again, I have to say that no matter how many times the argument may have been made by certain witnesses, it really is unclear how Bill S-217 would create mini-trials. The fact of the matter is that whether you change the word from “may” to “shall”, a defendant, a bail applicant, already has the right to challenge the evidence and to cross-examine witnesses. That occurs all the time. Bill S-217 did nothing to change that fact. Instead, all it did was to require prosecutors to do something that they almost always do and make sure that they always do it. With respect to prolonging the bail process, again, it doesn't make sense that simply requiring prosecutors to do something that they almost always do would have any impact in significantly prolonging the bail process.
    I for one would not support a letter that would congratulate the Minister of Justice for her work to improve the criminal justice system, based upon the comments that I've already made about, number one, her failure to do the easiest thing with respect to delay, and that is to fill judicial vacancies in a timely manner. I will not be supporting this motion.
    Thank you very much, Mr. Cooper.
    Mr. McKinnon.
    I have no substantive problem with the bill. I just have a grammar complaint.
    You mean with the letter? Not with the bill, but with the letter?
    Yes. The paragraph numbered one on the first page says “leading to more defendants being released on bail, not less”. It should be “fewer”. That's all I have.
    The word “less” should become “fewer”.
    Yes.
    Got it.
    Mr. MacGregor.
    Thank you, Mr. Chair.
    First, Mr. Fraser, I should have raised an objection. The next time a letter is delivered to this committee, I will insist that it be written in both official languages. I think it should have been done before it was distributed. I would just ask for that courtesy, that both English and French be respected any time something is delivered to this committee.
    Second, I think this letter definitely needs some amendments, so I will move some amendments to the motion. Because there is division in this committee about the reasoning behind this bill, I don't think we need to include the specific reasons, such as our concerns about the bill. I think that entire section, starting with “Based on testimony...” and including points one and two, should be completely deleted. I think anyone who reads the committee's proceedings can find out why certain members of this committee had a problem with the bill. I don't think we need this to further the aims of this letter. I would delete that entire section and just end it at “...we have concluded that the Bill has the potential to have the opposite effect.”
    Turning to the next page, I agree with Mr. Cooper. I don't think this letter is in any way strengthened by acknowledging the hard work done by both ministers. There are varying opinions on that, and I don't think the language is necessary. I think all of the language around acknowledging the hard work of both ministers on the justice system and the Canadian Police Information Centre should be completely eliminated.
    If you go further down to point one, it talks about the Minister of Public Safety: “We would like to encourage the Minister....” I think we should change “would like to encourage” to “encourage”. I'm always in favour of making verbs more direct and not putting in a bunch of adverbs.
    Similarly, in point two, where it says, “As part of that undertaking we would ask you to consider...”, let's just take out “would” and say, “we ask you”.
    Those are my amendments, Mr. Chair.

  (1635)  

    Okay. I hear a number of amendments. Let me first go to the less controversial ones.
    I would ask Mr. Fraser if he is in agreement with the two proposed changes. First, “We would like to encourage the Minister...” would be changed to “We encourage the Minister...”, and second, “As part of that undertaking we would ask you to consider...” would become, “As part of that undertaking we ask you to consider...”.
    I think those are perfectly—
    I agree with those changes.
    In the same way, Mr. McKinnon's earlier change, which I should have asked you about as well, about “fewer”—
    I agree with that amendment.
    Okay.
    The other proposal was to remove everything after “...opposite effect.”
    Mr. MacGregor, let me just understand better, so that Mr. Fraser understands better, where you would end the deletion you're proposing.
    The deletion would start at “Based on testimony...” and end on page two with “...we are unable to support it.”
    All of that needs to go. We can simply end with “...we have concluded that the Bill has the potential to have the opposite effect.”
    Just so I understand, what is your proposal in the next paragraph?
    I would eliminate all of the sentences that deal with acknowledging the hard work of the ministers. There are varying opinions on that. I agree that both ministers are very dedicated to their departments and to their craft, but if we're trying to craft a letter that is unanimously supported at this table, I think it's alway best to just get to the point, without flowery language, and just tell the ministers what we would like them to do.
    Mr. Fraser.
    I appreciate the comments from Mr. MacGregor.
    I recognize that it's not a unanimous decision of the committee, but I do think we should outline the problems we heard from witnesses at our committee that caused members to vote against it in the majority. I think it's important to outline that in this letter. I don't agree with deleting that section on page one, ending on page two. I think that's an important part of the letter, to ensure that it's crystal clear why the majority of members of the committee did not support Bill S-217.
    I will concede that we can remove the language thanking the ministers for their hard work. The point of this isn't to pat the ministers on the back, necessarily, but to acknowledge that there is work being done, and obviously to make some recommendations about how we would see things as a committee. I recognize, of course, that this will be on division.
    I take your points, Mr. MacGregor, and I would support removing the acknowledgement of hard work and thanking the ministers.

  (1640)  

    So basically as I understand, it would read, “Notwithstanding the foregoing, we were pleased to have considered the Bill, and it is in that vein that we would like to submit a number of recommendations.”
    Yes, exactly.
    Mr. MacGregor, I'll let you continue the back and forth.
    Okay, so I have a question, Mr. Fraser.
    Who is the intended audience of this bill?
    I'm pretty sure that both ministers were aware before this meeting even started as to why the majority of the members are not going to be supporting this bill. I think your side has been keeping the cabinet up to date on the proceedings. Indeed, they've been held in public. The testimony, the witness briefs are all available online.
    I'm not convinced by your argument that we need this reasoning in the letter. I think it's quite evident from the committee's proceedings as to why we are proceeding with not recommending that the House pass this bill. I won't make that a hill to die on if the committee wishes to keep that language, but I just want to get on the record that I don't think it's necessary.
    With regard to my second part about acknowledging the hard work, I say this with all due respect: I think that both ministers are very dedicated. I'm just in favour of making a letter that gets straight to the point, and that's why I raised that particular point.
    Mr. Chair, that's why I agree with the removal of that acknowledgement on hard work. I recognize that to keep some collegiality here, obviously it would be beneficial in that regard.
    On the point, though, we've discussed this and contemplated it, and individually put all of our independent thoughts on the record. I believe this sums up the position of the majority of the committee. I don't think that the ministers are necessarily going to listen to the audio transcript of today's proceedings—
    Mr. Alistair MacGregor: No?
    Mr. Colin Fraser: —so we're putting it in this letter to make it crystal clear why the majority could not support the bill. I don't think there's anything untoward with doing that.
    On one other point, I thank Mr. MacGregor for mentioning the fact that, of course, any letter or documentation that is distributed at committee should be done in both official languages. I hesitated as to whether I should actually pass that letter out. That's why I read it into the record in its entirety, to make sure that through simultaneous translation, anyone, in both official languages, could understand what the letter said.
    It was a courtesy to committee members that I passed it out. Given the short time that I had to put together the letter, I couldn't get it translated. Of course, any time that a document is handed out, I take your point that it should be in both official languages. However, I want to make the point that it was done by reading it into the record with simultaneous translation, so anyone could understand it in both official languages.
    Thank you.
    We have Mr. Nicholson.
    Mr. Fraser, you have a point of order?
    On a point of order, I don't believe there's a requirement in the rules that individual committee members circulate documents in both official languages, because there's no requirement for individual committee members to be bilingual. My understanding of our rules, and I stand to be corrected, is that if you read into the record for translation—
    Again, we often do this collegially. There's no rule that requires him to move a motion in both languages. We would have the obligation to translate it, and we would.
    That being said, again, we would explain that. I don't want to ever tell a member that they're wrong. It's fine. There's a way to do it. We always want everything to be in both official languages.

[Translation]

    I want to assure our francophone audience that it really is true.

[English]

    We'll pass it over to Mr. Nicholson.
    Thank you.
    On that particular subject, I acknowledge that my colleague Mr. Fraser, number one, read it all into the record here, which is the appropriate way to do this. Anything else is just a courtesy. I appreciate his comments as well as Mr. MacGregor's comments. To the extent that we can, we want to see any document in both languages, because they're not exactly the same and the translations have to be. However, it was read into the record here, so after that it will be translated.
    Colleagues, we don't agree with the principle of this letter, which is that somehow this bill doesn't work. I will make only one point on that, and that's with respect to some of the comments that more defendants will be released on bail.
    Mr. Fraser gave an example of a crown attorney being asked to provide the information on this, and if the crown, for whatever reason, has made a mistake or doesn't have the information on there, that somehow the individual is going to get released. I don't think that's the case.
    I suppose in different parts of this country, it may happen differently. But I know in the part of the world that Mr. Bittle and I come from, if you had a requirement like that for the crown to come up with that in the morning, if they didn't have it, presumably they would put it over to the afternoon until the crown got the information, or possibly the next day. I can't imagine, wherever it is, that the judge or the justice of the peace is going to say, “Oh, you're required by law to give me that information.” If he doesn't have it, he's not going to tell the guy he can walk out the door. I don't think that's what would happen.
    I just wanted to put that on the record.

  (1645)  

    Thank you very much, Mr. Nicholson.
    Mr. McKinnon.
    I'm wondering if our colleagues Mr. Falk, Mr. Nicholson, and Mr. Cooper would support this letter if Mr. MacGregor's amendments were adopted.
    Mr. McKinnon, the premise of the bill is that somehow this bill doesn't work, and so we would ask and we believe it would be wonderful if the minister would look at it and study bail reform, etc.
    We don't agree with the premise of this bill. We do believe this bill would be effective, and that's the position we've taken, and we want that part on the record here so there's no confusion on that.
    Understood.
    Mr. McKinnon again.
    I'm not sure that answered my question. Given that the majority of the committee has already decided the question in fact, and this letter says the majority of the committee has said this, I'm wondering if you would be amenable to supporting this letter, given that that question has been decided on division, if Mr. MacGregor's changes were adopted.
    Because we support this bill, we are not supportive of any other information that is going to go to the minister, or that is in a press release or anything else that suggests there is some belief that this bill is flawed. So, you know, you can put anything you want, quite frankly. You can say it's wonderful that the bill is not going forward and offer all the praises you like of the minister, but in the end we're not supportive of it.
    I think it's clear. I think from what I understand right now, what's on the table is the letter that now includes....
    Can those who want to follow please look at the letter?
    Do you want us to leave the room?
    No, no, I fully respect your position. As you say, I don't think you care so much what's written here—
    Mr. Chair, maybe it would actually be more appropriate if the letter would just come from the Liberal caucus of the committee.
    I believe Mr. MacGregor is carefully considering it as well, so basically, “Dear Minister Wilson-Raybould and Minister Goodale,” stays the same.
    Paragraph 1 stays the same.
    Paragraph 2 stays the same.
    Paragraph 3 stays the same.
    Paragraph 4 stays the same.
    Paragraph 5, the word becomes “fewer” instead of “less”.
    Paragraph 6 stays the same.
    Paragraph 7 stays the same.
    Paragraph 8, the wording from “we acknowledge” to “up to date” is deleted.
    In the first recommendation, the words “would like to” are deleted, and in paragraph 2, the word “would” in the fourth line is deleted.
    Mr. McKinnon.
    Can we go back to paragraph 8?
    There is no paragraph 8 on any page. Which paragraph is it on which page?
    You just went down paragraphs 1, 2, 3, 4, right?
    Okay, so—
    The paragraph just above the one numbered 1 on the second page, I believe, is paragraph 8.
    Okay, so it's the second paragraph on the second page.
    So in keeping with the wording changes that we're making down below, instead of “we would like to”, it would maybe just be “we submit”?
    And also—
    Yes, one at a time.
    So it would be “Notwithstanding the foregoing, we were pleased to have considered the bill. We have submitted a number of recommendations that we would ask you to consider in your ongoing review.”
    Is that basically what you're proposing?

  (1650)  

    I'm sorry, say that again, please.
    It would read, “Notwithstanding the foregoing, we were pleased to have considered the bill. We would submit a number of recommendations that we ask you to consider in your ongoing review.”
    No, it's, “In that vein, we submit a number of recommendations.”
    We're going to use the words “in that vein”? Okay.
    I thought that's what you said.
    No, I took that out, because if it's “it is in that vein” but the words before that are coming out, I'm not sure it needs to be there.
    That's okay.
    It could be “Notwithstanding the foregoing, we were pleased to consider the bill” or “We hereby submit” or “We submit a number of recommendations that we ask you to consider in your ongoing reviews.” And we take out all the “woulds”.
    Yes.
    I think you had another one too.
    No, that was it. I just had a softwood problem.
    We'll lumber on.
    [Inaudible—Editor] will be receiving letters from English teachers.
    Absolutely.
    Mr. Fraser, are you okay with all of those changes?
    Yes.
    Does anybody have any comments about these changes or is everybody good with these grammatical shifts? Is everybody okay, of those who are interested in the letter?
    So basically, we'll come back to Mr. Fraser's motion on the understanding that of course this will be translated and circulated to the committee to check the translation, to make sure it's correct. Mr. Fraser moved that we approve the letter as we most recently read it out, and again, I will also make sure that we come back with the proper English and fixed wording, so that it's clear in black and white, and we'll come back to it at our next meeting to review.
    Those in favour of Mr. Fraser's motion to approve the letter?
    Some hon. members: Agreed.
    The Chair: Those opposed?
    (Motion agreed to on division)
    The Chair: Ladies and gentlemen, it has been a powerfully interesting meeting, and I think we've stimulated Canadians across the country with these deliberations. Thank you very much.
    The meeting is adjourned.
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