The federal government is looking to nix a Senate bill on bail reform that would require Crown prosecutors to bring up someone’s criminal record as part of a bail application, citing broader criminal justice reforms on the way.
Lawyers note that if MPs vote to have the bill go ahead, it could have consequences for courthouses across the country. Meanwhile, they wait for a sign from the government as to when the long-overdue review of the criminal justice system will actually get underway.
“It’s not necessary,” says Anne London-Weinstein of Weinstein Law and also a University of Ottawa law professor.
“I have never done a bail hearing where the Crown did not lead evidence of a criminal record in a bail hearing . . . our bail courts are overloaded and it’s creating a huge problem with the administration of justice.”
Bill S-217 would amend the Criminal Code to expand the grounds for the justification of detention in custody. It would require prosecutors lead evidence to prove the fact that the accused has failed to appear in court when required to do so, as well as provide insight about whether the accused has previously been convicted of a criminal offence or is awaiting trial for another criminal offence.
The bill’s sponsor, Senator Bob Runciman, said it was inspired by the 2015 death of Const. David Wynn in St. Albert, Alta. while confronting a suspect about a stolen vehicle.
That suspect, Shawn Rehn, who was later found dead, had been granted bail despite a lengthy criminal record.
“This is not beyond the pale that a Crown will do this,” says Runciman, a former provincial minister of Public Safety and Security in Ontario.
In Runciman’s estimation, the bill would mostly involve the Crown attorneys checking the Canadian Police Information Centre, which he says is already routine practice.
“To me, to be concerned about workload of Crowns is a crock and is a shameful, appalling position to take,” says Runciman.
The bill is now in the House of Commons, with a final hour of debate at second reading and a vote coming up in the weeks after Parliament resumes at the end of January.
London-Weinstein says, however, that while she feels for Wynn’s family, all evidence points to the fact that the suspect’s release was an oversight in a rare constellation of factors rather than an improper exercise of discretion.
“Any time you take away discretion from a judge or a prosecutor, you create a potential for scenarios where there’s going to be unfairness,” says London-Weinstein.
“I would rather that the Crown retain that discretion, but honestly, the Crowns always run records. If it was a mistake, I’m sure the legislation wouldn’t change that.”
London-Weinstein adds that the recent Supreme Court of Canada decision in R. v. St-Cloud already expanded the grounds for detention based on public interest, and she notes that the new rules in many ways force defence counsel to show their hand.
“If you’re required to call evidence on every fail to appear and every fail to comply, that is going to ground things to a standstill,” says London-Weinstein.
“The other steps are already being taken. If you have outstanding charges, it’s a reverse onus. Your record is always put into evidence.”
This sentiment is echoed by David Butt, a former Crown attorney who is now in private practice in Toronto.
“It’s a recipe for disaster and additional delay,” says Butt.
“It is disrespectful of this long-standing constitutional norm that you have variable application of the laws across the country, sensitive to local conditions.
The government has stated its opposition to the bill, citing both its commitment to undertaking a substantive review of the criminal justice system including bail reform and an on ongoing review of the bail system being undertaken with the provinces and territories. Its report did not seek the remedies asked for in Bill S-217.
“We are doing everything we can and are working in partnership and in collaboration with the provinces and territories around the administration, and ensuring that we reform the bail system in a manner consistent with the needs, discussions and realities of the different jurisdictions across the country,” federal Minister of Justice and Attorney General Jody Wilson-Raybould told the Senate in December 2016, when asked about the bill.
The federal government hasn’t been forthcoming as to the timing of that broader review, nor has the minister’s office, when asked by Law Times.
On her part, LondonWeinstein says that she would rather there be a better working relationship between health-care providers and the justice system to ensure that people with mental illness and addiction issues aren’t tying up the resources in bail courts.
“I had a client call me the other day who is schizophrenic who was in an altercation because he was eating out of the garbage at a shopping mall,” says London-Weinstein.
“He’s in jail now — he’s taking up the space. If we had more resources in the community, we would have less backlog in the bail courts.”