Thank you very much, Senator Boisvenu.

It is wonderful to be here today to appear before Bill C-48. I am particularly pleased by the number of well-spoken and well-prepared witnesses that you have already heard on this bill. I think they shed light on some of the dysfunction in our bail system, which this bill will exacerbate. Certainly, it doesn’t do anything to improve that.

I’ve asked that the comments I made before the House of Commons committee in March, as well as the speaking notes I prepared for today, be circulated in advance, which will allow me to speed through them a little bit and focus on those elements that I think are particularly important.

The extent of the dysfunction in our bail system has been made spectacularly clear by other witnesses. This has come to light in terms of international fora. In its concluding remarks in 2018, the committee on torture specifically asked Canada to ensure that there was not an overuse and prolonged use of pretrial detention. Since those concluding remarks were given, the situation has actually gotten worse, which takes me to the three concerns I wanted to raise with you. They are essentially in connection with the presentation of the bill by the Minister of Justice and his officials.

The first concern I have is that they indicate that the bail system is essentially working well, thus justifying the surgical approach they are proposing in Bill C-48. There were probably 30 witnesses who appeared before the House of Commons committee to give a general look at the bail system. We did an analysis of the testimony of those witnesses, and I would be hard-pressed to conclude that people felt that, generally, the bail system was working well. If anything, I would say the administration of justice is being called into disrepute by the way our bail system is currently functioning. I think many of the witnesses here have indicated that.

They also indicated that the premiers have only wanted this narrow surgical approach. In fact, as Senator Batters pointed out, the letter of the premiers has called for an overview, investigation and comprehensive review of the bail system.

I think this narrow approach and complacency on the Department of Justice’s behalf about how well the bail system is working really gives me pause about whether the five-year review required by this legislation will be broad enough and deep enough to really have an evidence-based assessment of what’s wrong with the bail system. The position of the John Howard Society of Canada is always that reform should be evidence-based and principle-driven, and I think there are real concerns about that.

Given that they blew through the House of Commons without seeking the advice of the House of Commons committee on bail, and given their interpretation of what was heard in the general review of the bail system there, I’m not really comfortable with the House of Commons committee being the one looking at the bail reviews.

John Howard’s position is that we do need an evidence-based, comprehensive review and overhaul of the bail system.

The other comment that was made that I think requires more thought is the idea that the presumption of innocence applies at trial but not at pretrial. As many of the witnesses have pointed out, the heart of the presumption of innocence is vested in a well-functioning pretrial detention and release system which does not unnecessarily detain people who are innocent of the crimes they have been alleged to have committed.

As the witnesses have pointed out, Canada’s pretrial detention rates are enormously high compared to other countries. If you just look at the rate of detention, the numbers or the proportion in provincial institutions, 79% in Ontario is outrageous. It really signals a significant problem with the bail system. We essentially entrenched a system where we punish people by detaining them in prisons before they are found guilty of offences. As Professor Myers pointed out, a good number of the people —

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Okay. I think I have basically covered what I wanted to say, which, essentially, is that we need a complete evidence-based, principle-driven review of the bail system to address what is significant and serious dysfunction of the system. There are ways of getting more people safely in the community awaiting their trials through bail supervision programs and other mechanisms that need to be funded.

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I think that’s an excellent question.

The John Howard Society provides community-based supervision and alternatives to detention for immigration purposes and for bail purposes. On the bail purposes, these are enormously underfunded but extremely successful programs because you are dealing with people who would otherwise be incarcerated. They may have mental health challenges and may have difficulty respecting conditions, but they are being supported and supervised. If they go off track, they are quickly breached and brought in to protect the public from any harm. Because they are getting support, most are able to successfully stay in the community until their trial dates. Those programs are very important and need to be funded.

I think you are absolutely right. There is a real problem with bail conditions, enforcement and respect for those. I think that is easily addressed with more programming.

Transparency is always a good thing. Operating from data and evidence, even if people disagree with what happened, at least we are operating from a common set of understandings. Yes, the more opaque it is, the more you get into misunderstandings.

I absolutely agree with that.

I have yet to see the results of the discussion that was held last March by the House of Commons, but absolutely it needs to be done. There are issues that have been raised by witnesses that really reflect a serious dysfunction in the bail system. Far too many people are being detained pretrial, and one of the most galling elements, I think, is that if you are found guilty, the time you’ve spent in pretrial detention counts against your sentence. Basically, it’s recognized that that’s a penalty or a punishment that offsets your sentence. If you’re acquitted or the charges are dropped against you, as Emily’s example cites, your life is ruined and there’s no compensation for that.

I would welcome that enormously. I would hope that we could now start to collect evidence that would allow for an informed review, and I think certainly the Senate should be part of a joint committee looking at the review or doing it independently.

I think we could start the review as soon as we have collected the evidence. Statistics Canada and others should be engaged to try and bring that information about data gaps. Professor Myers, who appeared before you, is probably Canada’s leading expert on the available data and where the gaps are. I think she would be a good resource in terms of assessing what evidence needs to be collected in order to have a clear picture of what’s happening.

Sure.

There was considerable work done on crime prevention and how you prevent people from falling into crime.

One of the issues that I think has recently emerged, which has caused a greater public focus on concerns about crime, is the downturn in the economy. You almost always see an uptick in crime when the economy is on the rocks because poverty is affecting more people. Poverty and absence of services to support those who are struggling with mental health and addiction and other social ills is a real driver of criminality, unfortunately. A lot of this could be addressed by having adequate supports in the community so people don’t need to seek desperate measures to feed their families and to look after themselves.

I think there is quite a bit of information that’s available through crime prevention work on spend a dollar now, save seven down the road. There’s no question that a lot of even the community-based supervision and support is a lot less expensive than detaining someone in pretrial remand. There are economies that support this argument as well, but much more should and could be done to address the issues that lead to people getting in conflict with the law in the first place and ending up in pretrial detention.

One of the noteworthy things is that international organizations that respect human rights look at about 25% of your overall prison population being held in pretrial detention as the borderline for having human rights problems in your country. The United States is 22%; Britain has 11%; Canada has 38%. There is a huge problem here, and I am very confident that we will have some international human rights organizations knocking on the door to ask why this hasn’t been addressed. This is a significant problem that really undermines our visible commitment to the presumption of innocence and the right to reasonable bail and speedy trials and everything else. It’s a relatively complex issue to figure out exactly how we improve that, but we need to do that.

I think people’s rights are being violated significantly. We have fallen into a system where we are complacent about people being punished before there’s a conviction. It’s a fundamental criminal law principle: nulla poena sine culpa. You can’t punish without guilt, and we do it all the time. If the person is convicted, they get a discount in their sentence, but if they are not convicted, they are left high and dry, which to me really speaks to a fundamental injustice in our system.

Going to your point about data collection, I have been fuming in my office when I saw the percentage of pretrial detention in the provincial institutions reach 40%, reach 50%, reach 60%, and now they are at 70%, 79% in some provinces. You’re right that the variation across jurisdictions will be significant. It’s all high just because of the way we operate. B.C. has always been a bit more progressive and a bit of an outlier in terms of having supportive programming and recognizing some problems, so I wouldn’t see B.C. as the model. If you look at pretrial detention rates in the Prairie provinces, about 95% of the people detained are Indigenous. It’s huge. It’s a really significant, galling problem that we turn a blind eye to, and I really hope that when we start collecting the evidence it will mobilize public reaction and concern about whether we are actually operating consistent with our values as Canadians.

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