(Chair) in the chair.

[Translation]

Good morning, honourable senators. I call to order this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

[English]

We will begin by introducing ourselves, starting with the deputy chair.

[Translation]

Pierre-Hugues Boisvenu, senator from Quebec.

Good morning. I’m Marc Gold, government representative in the Senate and senator from Quebec.

[English]

Good morning, Senator Marty Klyne from Saskatchewan, Treaty 4 territory.

[Translation]

Bernadette Clement, senator from Ontario.

[English]

Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.

[Translation]

Renée Dupuis, senator for the senatorial division of The Laurentides, Quebec.

[English]

Welcome. Mobina Jaffer from British Columbia.

I am Brent Cotter, a senator from Saskatchewan and the chair of the committee.

Honourable senators, we are meeting once again to continue our study of Bill C-48, An Act to amend the Criminal Code (bail reform).

We have three groups presenting. I will introduce them in the order in which they probably appear on your list. Given that our first presenter is still catching his breath from arriving straight from the airport, I think we’ll invite Mr. Bytensky to speak second.

From the Criminal Lawyers Association, we have Boris Bytensky, Treasurer. Welcome, Mr. Bytensky. From the Indigenous Bar Association, by videoconference, we have Christa Big Canoe, Member at Large. Welcome back, Ms. Big Canoe. From the Canadian Association of Black Lawyers, we have Kristian Ferreira, Community Liaison, joining us also by videoconference, and Theresa Donkor, Member, Advocacy Committee and Criminal Justice subcommittee, also joining us by videoconference. Welcome and thank you for joining us.

We will begin the remarks from you, if we may, Ms. Big Canoe. I invite you to present for about five minutes. We will ask each of the presenters to do the same for five minutes, to be followed by questions and dialogue with the committee members.

Thank you, Mr. Chair, and good morning, senators. I am Christa Big Canoe. I am a member at large with the Indigenous Bar Association, or IBA, in Canada. I am here as a witness on behalf of the IBA.

I would just like — [Technical difficulties]. Last week we heard Senator Gold comment about how having discussions on bail reform with Indigenous organizations like the IBA has been an important part of developing a legislative approach that will help protect Indigenous communities from violent crime while recognizing the need to continue combating the over-representation of Indigenous people in the criminal justice system.

Just so it is clear, the IBA did not consult or make any substantive contributions in drafting this bill. It is rather disingenuous that a broad comment is made, and the IBA wishes to make it clear that in no way was any prior discussion on bail reform an endorsement of this bill. The IBA does appreciate the opportunity to appear before the committee to share their position on this bill in a more formal way. It is also noteworthy that Aboriginal Legal Services was not consulted on the bill, nor were they invited to speak to this committee, despite their known advocacy and mandate on law reform.

Previously, there had been submissions made to the standing Senate committee in relation to Bill C-75 — the predecessor to this one — and at the time, Aboriginal Legal Services had taken the position that domestic violence is very serious, particularly in the way that it impacts Indigenous women and girls. They addressed the issue that — and this legislation raises a similar concern — the well-meaning attempts to address the scourge of domestic violence not only failed but had unintended consequences that can be damaging to the very people they are supposed to help, specifically Indigenous women. Very often, what we are seeing is a phenomenon of dual charging, which occurs when a man is charged with domestic assault, and he insists that his partner started it and should be charged. This has led to more and more women, particularly Indigenous women, becoming enmeshed in the criminal justice system. Police policies that grant no discretion to police officers when domestic violence is alleged exacerbate this problem.

With the passage of Bill C-75, there were some problems that came out of that that continue, particularly when we look at the practical outcome this bill will have as it relates to Indigenous women who are being charged for intimate partner violence. This is one of the main concerns with the provisions that we would like to address on behalf of the Indigenous Bar Association and jointly submit with Aboriginal Legal Services that there is potential harm, particularly to Indigenous women, as it relates to prior charges of intimate partner violence, knowing that Indigenous women and Indigenous individuals will often plead out, even when they are not guilty, because the consequences are less serious than when they are convicted in a trial.

Last year, the House of Commons committee heard from the John Howard Society of Canada that, compared to other countries, Canada’s proportion of total prisoners in pretrial detention is shockingly high. Canada’s pretrial prisoners amount to 38.7% of the total prison population. Compared to other developed countries, that proportion jeopardizes Canada’s reputation as a country that takes the presumption of innocence and rights to reasonable bail seriously.

This is even more important to contextualize when we talk about Indigenous people, because Indigenous people are less often granted bail and more often face remand than non-indigenous people. In 2020-21, Indigenous people in Canada were incarcerated at a much higher rate than non-Indigenous people. We’re talking current and contemporary statistics. On an average day that year, there were 42.6 Indigenous people in provincial custody per 10,000 population compared to 4 to 10,000 population of non-Indigenous people. This is a statistic from Statistics Canada from this summer, 2023.

The federal incarceration rate of Indigenous women continues to be much higher. In fact, it is 12.5 times higher than that of non-Indigenous women. As of May 2022, Indigenous women accounted for half of the female population in federal penitentiaries.

In 2021, for all provinces and territories, 67% of persons supervised in adult provincial custodial centres on an average day were on remand. If they are on remand, this is pretrial custody.

The IBA and Aboriginal Legal Services fear that the intimate partner violence, or IPV, reverse onus could further criminalize Indigenous women because of dual charging.

Colleagues of ours, who I believe will be testifying before you next week, the Canadian Civil Liberties Association, or the CCLA, have already submitted written submissions, and in their submissions, they discussed this issue. We support their submissions in relation to this. They quite properly point to the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls and note that Indigenous women may fear reporting violence because they themselves may be arrested or charged with abuse or violence. As a former lead counsel to that national inquiry, we heard across the country, as people testified, the impacts that this had when they tried to call the police for help but they either feared that they were also going to be charged or they were, indeed, charged.

Duel charging often results in women, who find themselves either in poverty or in circumstances, potentially, of more serious domestic violence, facing the criminal justice system in a way that the reverse onus will be very difficult for them. We already know that Indigenous people do not receive bail at the same rate as others.

As a final point — and this is my wrapping-up point — the Indigenous Bar Association in Canada and Aboriginal Legal Services support the CCLA’s submission, specifically their Recommendation Number 2, which is a suggested amendment to address the over-representation of Aboriginal and vulnerable populations in the criminal justice system. It is important that this be done, because the prior section 493.2 of the Criminal Code that came in with Bill C-75 needs to have the adequate uptake, and there needs to be a recognition, and it needs to be done in a way that can be seen on a record if this legislation is going through. We would implore you to make that amendment as suggested by our colleagues at the CCLA.

Thank you for your time.

Thank you, Ms. Big Canoe.

Mr. Bytensky?

We are short one speaker for the next panel, so with your indulgence, we might extend this panel another five minutes or so.

Thank you very much, honourable chair and members of the committee, for having myself and the Criminal Lawyers Association attend to make these submissions to you.

We’re here because the bail system in Canada is broken. It’s just not broken in a way that you would think if you only read 280 character tweets on social media.

We have an enormous number of people in custody. Ms. Big Canoe just spoke of the percentage of people who are in pretrial detention compared to those who are sentenced, and those numbers have actually gone up. In Ontario, we are now at nearly the highest level of incarcerated individuals in our detention centres that we’ve ever had — the highest ever; we are pushing 10,000 — and 85% of them have never been convicted of the crime for which they are incarcerated; 15% are serving sentences.

The number of days that it takes to get a bail hearing in Ontario has gone up by 55%, in the measurable numbers that we have, the known statistics from 2019 to 2022, and, anecdotally, it seems that those numbers continue to grow rapidly. The vast majority of courts in Canada — and if I knew a little bit better, I would say all courts in Canada — are simply unable to process their bail matters in a timely way, resulting in significant bail delays to all manners of people throughout the country and, of course, disproportionately affecting our Indigenous, our racialized, our impoverished and our mentally ill.

We must recognize that a successful bail system does not require perfect compliance. No matter how stringent a system we have — and we do have a fairly conservative system, as many have commented — we will not have perfect compliance, and outlier dangerous events will continue to occur. Even if you took the obviously tongue-in-cheek step of incarcerating everybody without bail, that also would not affect public safety, because jails are very criminogenic and people will come out more dangerous than when they went in. The long-term and medium-term impacts on public safety would actually still be negative even if you incarcerated every single person who was charged with an offence, not to speak of the obvious constitutional and other practical problems that every one of them would face.

Bill C-48 seeks to address public safety concerns almost exclusively through the creation of a series of reverse onus provisions. Simply put, in our view, you cannot jail your way out of public safety risks; you will always have to be smarter about our bail reforms.

The proposed legislation has a series of very important points in its preamble. One of those is, after restating the various constitutional principles that apply to bail, that confidence in the administration of justice is eroded when people are either released on bail when their detention is justified or — and this is the important part — when an accused person is unnecessarily detained. Bill C-48 does attempt to target the first part of that provision, but it doesn’t do anything to address the second.

In my respectful submission on behalf of the Criminal Lawyers Association, we are not arguing that reverse onus bail provisions are unconstitutional. The Supreme Court of Canada has already decided that it is not. It is rather the unintended consequences of creating new reverse onus provisions. Those unintended consequences combined with today’s shameful inability to get bail hearings done on time will cause an even greater delay in bail courts. It will simply back up the system beyond the point that we’re already at while really doing nothing to address public safety. I believe that the CCLA, as well as Professor Myers, who may be testifying before this committee, have more specific data.

The experience of our members is that reverse onus does not make the detention of an accused more likely. It has a negligible impact on whether an accused is released or whether they are detained in custody after a bail hearing. What it does is make bail hearings longer. It takes longer to get them on, it takes more time to put plans together, it requires more sureties to testify and it backs up the system beyond where we’re at already. You are not going to have more people detained; in my view, you are just going to have more people waiting to have their day in court.

In my respectful view, in order to combat the problems of these unintended consequences, you must address three things.

Section 516 of the code, which permits three-day adjournments, must be clarified to say that adjournments can only be granted if requested by the prosecutor for legitimate and valid investigative reasons. It cannot be granted just because a matter is not reached. That is the law in Ontario already, but it needs to be codified in legislation to ensure it is applied throughout Canada.

The right to appear before a justice within 24 hours under section 503 must be clarified to say that anybody who attended within 24 hours, as they are currently required to do, must be given a chance to have their bail hearing that day, if they want it, with no excuses for lack of resources.

In my respectful view, without implementing these additional changes, you are simply going to throw the system further out of balance and compromise the rights of Canadians facing bail hearings throughout the entire country without meaningfully helping public safety. In fact, you will have the inverse effect in the long run.

Thank you.

Thank you, Mr. Bytensky.

We will now hear from the Canadian Assoication of Black Lawyers.

Thank you and good afternoon. My name is Theresa Donkor, and I’m here today with Mr. Kristian Ferreira. We are both criminal defence lawyers and, as mentioned, we are members of the Canadian Association of Black Lawyers’ criminal justice and police reform committee. We are honoured to speak on behalf of CABL today.

Last week, the Honourable Minister of Justice Arif Virani urged the House to pass this bill quickly in order to make Canadians safer. We share his desire to make our communities safer. We echo his sentiments that Canadians expect laws that both keep them safe and respect the rights that are entrenched in the Charter. However, we do not believe that Bill C-48 achieves those goals. We would like to provide three comments on the proposed bill.

First, we must express our concerns about the implications of the proposed bill on the Black community. There is no empirical evidence that this bill will achieve the public safety goals that it aims to address. There is, however, overwhelming evidence that a bill that seeks to incarcerate more people will disproportionately impact Black Canadians. Black people are denied bail more frequently than the general population, Black people spend longer in pre-trial custody than the general population, and while incarcerated, Black people experience harsher conditions of imprisonment, experiencing use of force, solitary confinement and maximum security more than other racial groups. Race-neutral laws do not always have race-neutral effects. In our view, the proposed bill will worsen existing racial disparity within the criminal justice system. Simply put, by passing this bill, you will be sending more Black people to jail. This undermines the government’s Black Justice Strategy and stated goal of addressing anti-Black racism and systemic discrimination that has led to the over-representation of Black people in the criminal justice system.

Bill C-48 aims to target repeat offenders, but the reality is that Black communities are more heavily policed, making Black individuals more likely to be repeatedly arrested. Over-policing and over-incarceration do not make our communities safer.

The proposed reverse onus provisions will also deepen inequities in our justice system. Wealthy defendants have more resources to displace the legal presumption of their detention, but because of the ongoing legacy of colonialism, the trans-Atlantic slave trade and institutional racism in Canada, Black and Indigenous people in this country are more often members of under-resourced communities. As a result, Black and Indigenous people are more likely to bear the weight of Bill C-48’s changes to the existing bail regime. Our laws should seek to push back against inequality, not further entrench it.

Second, we share the concerns of various stakeholders about how the government has bypassed the normal procedure of studying this bill before passing it in the House of Commons. We agree with the Canadian Civil Liberties Association that this is a fundamental departure from making evidence-based criminal justice policy in this country and could set a dangerous precedent. Performative legislation or quick Band-Aid solutions do not engender trust in the administration of justice and certainly do not make our communities safer.

Third and finally, we urge you to consider what actually does make our communities safer. If we care about protecting the public, we need to consider policies that make social services such as safe housing, mental health and addiction services, and guaranteed livable income more accessible.

At the very least, we recommend amendments to this bill to address the potential discriminatory outcomes against vulnerable groups who are already over-represented in custody. We understand that the CCLA will be recommending an amendment to the bill, as previously discussed, to require a statement in the record of proceedings on how a justice has considered section 493.2 of the Criminal Code in reaching their bail decision, which is the provision that requires the consideration of the over-representation of vulnerable populations in the criminal justice system. Similar to our colleagues at the IBA, we support this amendment as a small step towards remediating the disadvantage that Black, Indigenous and other vulnerable groups face at the bail stage.

We would be happy to discuss our concerns further or discuss further amendments with this committee. Thank you.

I would now invite senators to pose questions to our witnesses, beginning with Senator Boisvenu.

[Translation]

Good morning, and welcome to our witnesses. My first question is for Mr. Big Canoe. In your brief, you state that this bill could increase the proportion of incarcerated Indigenous people. Did I understand you correctly?

[English]

Yes, in terms of the one provision specifically in relation to intimate partner violence as it relates to Indigenous women. It is a potentially unintentional consequence, but it is a real consequence. We know this. We have known in reports and research as early as 2013 that Indigenous women in this country are often dual-charged when there are allegations of domestic violence, and they will more readily plead out. If we see this trend continue, you will see an increase.

[Translation]

In order for me to ask you questions, your answers will have to be shorter, otherwise we’ll run out of time.

My second question is this. You are no stranger to the Supreme Court’s Gladue ruling, which calls on the courts to find alternative solutions to the incarceration of Indigenous people in this country.

Did you know that twice, in 2004 and 2016, the Supreme Court called judges to order because they rarely used the Gladue ruling to find alternative solutions to the incarceration of Indigenous people? Is the problematic disproportionality in the number of incarcerated Indigenous people also a consequence of the way our judges treat this population and often forget to use the Gladue ruling to find alternative solutions to incarcerating these persons?

[English]

I believe that that could be part of the contribution. When section 718 of the Criminal Code was first put into place, there was little uptake by the bench or lawyers, so that could be part of the problem.

The other part of the problem is, for example, in this bill, the preamble talks about the importance of recognizing that over-incarceration, but then there are no actual provisions within the bill itself to address that. That’s why the IBA, my colleagues on the panel and ALS are supporting the CCLA amendment to address that.

If you require judges to then write why a person from one of these vulnerable groups is being remanded as part of their — [technical difficulties]

[Translation]