Thank you. I am CEO and president of Legal Aid Ontario. I am here with Marcus Pratt, also from Legal Aid Ontario, to speak on behalf of the Association of Legal Aid Plans, or ALAP, with respect to Bill C-48.

ALAP represents legal aid programs from all provinces and territories. We are pleased to be able to contribute by both our written submissions and our testimony today to the committee’s study of this important bill. Legal aid plans provide representation for the majority of accused persons in bail court. ALAP is well positioned to provide input on Bill C-48.

ALAP is concerned about the unintended consequences of the bill for our clients, the vast majority of whom are neither violent nor dangerous, and many of whom are themselves victims of abuse, suffer from mental health or addiction issues and deal with poverty, systemic racism and the legacy of colonialism. While this bill is directed to improved community safety, our clients will be less safe. They will be denied bail more and remanded into custody more often and for longer periods. In remand, they will be housed in overcrowded conditions with little or no access to treatment or rehabilitative programs. They will find it more difficult to raise a defence, thereby making false guilty pleas and wrongful convictions more likely. They will become more likely to engage in criminal activity once they are released. The bill will add to what has been fairly called the remand crisis in Canada.

The percentage of inmates on remand awaiting trial compared to inmates serving provincial sentences has grown dramatically over the last several decades, irrespective of any changes in the crime rate. Over 70% of individuals in provincial or territorial custody are awaiting bail or trial. They may well not be convicted of the offence with which they have been charged. In fact, less than 50% of decisions on criminal charges are findings of guilt.

The remand crisis does not impact all Canadians equally. Indigenous persons make up approximately 5% of Canada’s population but represent 32% of individuals in remand. That percentage is significantly higher in certain provinces.

ALAP’s written submissions detail how the specific provisions expanding the use of reverse onus are not, as a matter of law, sufficiently targeted to a subset of violent offenders. These provisions will disproportionally affect legal aid clients.

ALAP’s concerns with the wide scope of Bill C-48 have only been heightened by the absence of any additional supports, including more funding for legal aid, to assist accused persons in establishing that they should be granted bail. In contrast, significant additional funding for police and prosecutorial services have been recently announced to aggressively identify allegedly violent offenders who should be detained and not be released prior to trial. In our view, providing enhanced police and prosecutorial resources into bail court, without more defence resources and supports to temper them, will make it harder for all accused to obtain bail, not just violent offenders.

Bill C-48’s implications for timely justice in bail court, which is already in peril, cannot be ignored. Recent data from the Ontario Court of Justice shows the average number of days that a case will spend in bail court has increased over 50% from 2019 to 2022. In the last several years, courts across Canada have stayed serious charges based on the time that it took for a bail hearing. With Bill C-48, bail hearings will become more common and also more complex and lengthy. Courts will have difficulty scheduling hearings without taking court time from other proceedings, putting into jeopardy the accused’s Jordan right to a trial within a reasonable time.

With the onus for release now on the accused, more defence preparation will be required, including interviews for additional sureties, putting stricter release plans together, making additional referrals to community supports, calling more witnesses and spending more time making submissions. More adjournments will be sought as a result.

Without additional resources to legal aid and other agencies to meet these new demands, the real burden that will shift as result of Bill C-48 will fall on the poor, Indigenous and racialized accused and those struggling with mental health issues — in other words, legal aid clients.

Thank you.

[Translation]

I will start, and maybe Marcus can provide additional information.

The way legal services are provided is quite varied across the provinces. Many of them have staff models. We have a sort of mixed model here. We have a lot of duty counsel who do all the bail hearings. Other jurisdictions have hired staff to do it. I wouldn’t say that I could really provide you a solid answer on that except to say it varies quite widely province to province. In Ontario, duty counsel, which is a combination of per diem lawyers and staff lawyers, do 80% of the bail work.

The big issue would be the time it takes to do that and how expensive that is. Right now, we don’t have the resources to provide additional hours to lawyers. That’s one of the things we are looking at in terms of tariff reform. How many hours do we provide to a lawyer to do a bail hearing, for example? It is a combination. I would say it will impact our staffing levels. There hearings will be much more technical in terms of complexity. That means we need to look at having staff who are specialists in bail. We have been looking at whether we need to invest, perhaps hire five or six lawyers who really focus and provide advice to our duty counsel who really are bail specialists, for example. One in each legal jurisdiction in Ontario is the kind of things we are thinking about, and then additional hours for private bar lawyers who already have a relationship with a client and would do this work.

We have waived our financial eligibility for bail, so if you are in custody, we represent all clients who are in custody, if they want to use legal aid. We have covered off that. Once a client receives bail, then they have the option of hiring a private lawyer. I think we have covered that off, but the resource requirements would be significant.

No.

I think what you have identified is that this is a very complex issue that requires all the parties to get together. We haven’t really talked about access to people who are incarcerated and are awaiting bail. The private bar and also our duty counsel don’t really have an opportunity to talk to the people in the institutions because they can’t find them. Just the organization related to getting a person in a remote situation in front of a monitor so he can participate in a bail hearing, for example, is very difficult.

I don’t want to criticize corrections. They have so many facilities they have to manage and get people to appear in six different courts on the same day. Many mechanics need to be sorted out. There is a lot of participation and disclosure that needs to be provided. So many complicated issues need to be thought about in a much more comprehensive way. Without pointing the finger at any party who is participating, there are so many factors really leading to this high remand rate that we are seeing, and there is no simple solution to this. This bill is really a simple solution that I don’t think will do what is suggested.

Yes. As I was listening to that conversation, the figure that came to my mind in Ontario is 40% of cases are withdrawn or not proceeded with. That’s high in Canada, but those are the numbers we are dealing with in Ontario.

I couldn’t speak to that. It is an overall figure that speaks to, in my mind, a number of factors: police overcharging, lack of Crown triaging, or discretion proceeding but withdrawing at trial. Those people, as you point out, may be in custody, in remand, for this whole time and ultimately the charges are withdrawn.

I don’t have that data with me, but I can certainly try to find it and share it with the committee.

I do think that confidence in the justice system is reduced when there are stays, but I think it’s the solution to that problem that we look at. How do we make sure that stays do not happen? The way to do that is to have a more efficient system, and I think this will just cause more complications. What’s proposed in the bill here will make it that much harder for the justice system to operate efficiently, and that’s what happens when you have people who are sitting without a bail hearing for a significant period of time and a judge feels it’s inappropriate. I think that’s the judge’s determination, but the solution to that is to fix the system and make it more efficient. There are problems related to the confidence that people have, but the solution to that is very different than what’s proposed here.

I think that’s beyond my scope. That’s really something that needs to be addressed and answered by the Attorney General for the province. I’m really here to talk about how we are administering this program, what this bill will affect and how it will affect our program. Getting beyond that and making determinations on investments the government makes in other areas is really something that I really can’t comment on.

Absolutely. Those are the kinds of things that would prevent high crime rates in any jurisdiction, making sure there are social supports for people. Addiction, mental health issues, we talked about all of those things, and many of the witnesses have said these are the kinds of investments that are required.

The minister is correct in that there has been additional investments in legal aid, but if you look at how it’s structured, it’s year-to-year, it’s in-year. We have met with the representatives of the Department of Justice as an association a number of times and said we can’t really plan. They have announced a number of times in the budget that it’s a one-time funding, so that doesn’t really help us in terms of long-term planning.

I was just looking at the base funding that legal aid gets from the federal government, and we get $100 million from the federal government, $58 million of which is base funding and the rest one-time funding, depending on the circumstances. Every year we have to go cap in hand to the federal government saying, “We’re short of money. We need you to assist us.”

I think the other plans are much more precarious than Legal Aid Ontario. We have a bigger base. The province provides us with a significant amount of money, but some of the other plans are much more dependent on federal funding than we are. That’s a serious problem for many of the plans across the country, because how do you plan when from year to year you don’t know exactly what the federal government is going to invest in legal aid? How do we make changes to the hourly rate we pay lawyers? We can’t next year reverse and say, “Sorry, we’re not going to pay you as much as we did last year.” Those are the kinds of planning challenges that this represents.

We can certainly provide the information. Our financial statements have this information available, but I can provide that.

That’s a tough one. I would say that this will always be an ongoing issue. Legal aid is not a popular thing, so governments cannot announce that they are spending money on legal aid and receive a lot of public support for that. That’s an ongoing problem. It will always be a challenge. There will always be pressure, or trying to pressure, governments to provide the resources that we need in order to do our jobs. There are constitutional issues that are affected by that. Our representation for clients and having people who are wrongfully convicted is certainly something that no government wants to see. It’s going to be an ongoing issue.

[Translation]