Orders of the Day

Hon. M. Farnworth: In this chamber, I call the esti­mates for the Ministry of the Attorney General.

In Section A, the Douglas Fir Room, I call continued estimates debate for the Ministry of Transportation and Infrastructure.

[2:35 p.m.]

Committee of Supply

ESTIMATES: MINISTRY OF
ATTORNEY GENERAL

(continued)

The House in Committee of Supply (Section B); S. Chandra Herbert in the chair.

The committee met at 2:37 p.m.

On Vote 15: ministry operations, $581,587,000 (continued).

M. de Jong: When we broke from this conversation just over a week ago, we were having a discussion about the challenges associated with the behaviour of prolific offenders within our society generally and in particular locations, and the understandably negative reaction and concern that has elicited from local leaders and citizens and families themselves. I’m not going to try to summarize the nature of that conversation.

I did indicate, though, to the Attorney, at that time, that what I’d like to do is canvass with him, having had that conversation, what some of the impediments or challenges are, in his mind, to dealing with this issue more effectively than it has been dealt with thus far. Ultimately, I hope to be able to provide to the Attorney some thoughts and suggestions for things the government could do now — as opposed to three or four or five months from now — to address the issue and solicit from him his reaction to the viability of some of those proposals.

With that in mind, what I’d like to do is to begin by exploring some of the jurisprudence that the Attorney has referred to in comments in the House as representing an impediment — that might be my word, not his — or, at least, the jurisprudence from the highest court in the land that has had an impact on the ability for the province to deal with prolific offenders and, in particular, to arrest their abilities to perpetuate criminal behaviour in B.C. communities.

The second component of that, of course, relates to amendments to the Criminal Code that the Attorney has referred to in the past, in conversations in this chamber relating to this issue. We’ll come to that momentarily. I think I have indicated to the Attorney there were three cases that I was hoping to canvass with him: Zora, Jordan and Antic.

[2:40 p.m.]

Let’s start with the case of R. v. Zora, a decision that flowed from the Supreme Court of Canada in 2020. I will very briefly refer to the facts, because although the Supreme Court of Canada makes decisions that speak to law and legal tests that are applied, the context in which those legal tests are developed — the factual context — I think is important.

The accused in this case was charged with drug of­fences. He was granted bail with conditions that included a curfew that required him to appear within five minutes at the door of his house when peace officers arrived. He failed to do that on a single evening, which led to charges relating to the bail conditions and whether or not those bail conditions were appropriate.

That, of course, led to a larger discussion on the bench of the Supreme Court of Canada about circumstances in which bail was appropriate and, in particular, the nature of what those bail conditions should be.

I’m not going to quote verbatim from the court’s ruling, but I will say this. In a number of cases, the court had something like this to say: the default form of bail is release on an undertaking to attend trial without any other conditions. It said that bail conditions can be imposed but only if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances and sufficiently linked to the accused’s risks regarding the statutory grounds for detention.

Those are, as enumerated by the court, securing the accused’s attendance in court, ensuring the protection or safety of the public or maintaining confidence in the administration of justice. It includes those provisions and references those Criminal Code provisions a number of times.

The general question to the Attorney, which I think he’s probably had some time to consider since we left off…. The case is frequently cited as having altered and made more difficult the ability of Crown counsel to detain prolific offenders who are brought in, released and then conduct the same criminal activity, sometimes within hours of having been released.

What is it about the decision that continues to recognize the legitimate role of ensuring the protection and safety of the public? What is it about the decision that has created the challenge, or the added challenge, that the Attorney has referred to in the past around detaining prolific offenders?

[2:45 p.m.]

Hon. D. Eby: I think this will be an interesting discussion as we work through these decisions and the bill. I understand, for reasons of clarity for the member, for the members of this place and for the public, the desire to go one by one through these cases in the bill. We’ll do that.

It’s also important to know that these pieces all work together and reflect a shift in the directions from the federal parliament and from the court. At a high level, Zora is a piece of these integrated cases in Bill C-75.

With respect to the Zora decision, the really significant piece of this decision, in terms of the implications for prosecutors on the ground, for defence counsel and for the public, is the case’s holding of the importance of establishing the mens rea, or the guilty mind, the intention to break the law.

The proof of a breach has a very high onus on the Crown — to prove the breach of bail conditions. It’s not a simple procedural thing: “We knocked on the door. You didn’t answer.” The Crown’s obligation is to prove this breach went well beyond that, including that this individual was at home and didn’t answer the door intentionally, that he knew it was a police officer at the door, that this was part of his bail condition and still continued in his conduct — or to prove that he was not, in fact, at home and demonstrate that he had wilfully breached the condition.

That high onus on the Crown to prove the breach condition brings with it an obligation for Crown to have conditions in place that are demonstrable and provable when they do come to court. They shift the thinking of Crown about how and when particular conditions will be imposed.

The second piece of the decision — it’s dicta, but it’s consistent with other decisions in C-75 — is this step principle. When you’re restricting an individual’s rights with bail conditions, the court advises that has serious implications. Someone may be waiting for trial, and that’s fine. But if you want to restrict their rights while they’re waiting for trial, which can be for an extended period, you’re going to need to demonstrate that they are failing to adhere to conditions that are less restrictive before you start, right out of the gate, imposing very highly restrictive conditions.

Those are the two pieces of Zora that are quite significant for Crown: reinforcing this step principle, which is consistent with C-75 and with other decisions out of the courts, and also the very high level of proof that Crown must meet — and by extension, police — in order to prove that someone is in fact breaching conditions and that they intentionally are doing so.

M. de Jong: When I read through the decision…. I appreciate the Attorney’s summary, but let me offer this for his thoughts and reaction.

The court was very, very clear in addressing the question of bail conditions. The majority decision observed that bail orders frequently include conditions that don’t address an individual accused’s risk.

[2:50 p.m.]

It talked about boilerplate conditions and general risk aversion as it relates to the attachment of bail conditions, the expeditious nature of bail hearings and the inclination that an accused might be inclined to agree to more onerous conditions than would be necessary, simply to avoid any risk of detention. It’s a pretty comprehensive examination of the analysis that that would go into and that prosecutors on a daily basis are obliged to undertake in terms of deciding what conditions might be appropriate or reasonable.

What it doesn’t seem to do, though, is in any way detract from the legitimate analysis that relates to the preservation or the need to assess whether, with respect to the release of an accused person, there is public protection and safety. For our purposes, as it relates to the kind of behaviour that we are concerned about and that the communities are concerned about, that is a paramount concern.

I’m curious to know how prosecutors have taken Zora and how that has influenced, if at all, that fundamental decision about whether or not detention is warranted. Once that decision has been made, if the decision is made not to seek the detention, then all of the things that the Attorney has mentioned and that the court referred to come into play as it relates to what appropriate conditions of release are.

The concern that has arisen — that has, I think, in part, prompted the Attorney to strike his panel and seek a report — is from community leaders who are saying: why has this accused person — who has been convicted 24 times previously and has embarked on a steady two or three years of criminal activity — been released? Why hasn’t that concern for public protection and safety figured more prominently? Again, with respect to that very narrow consideration and that part of the decision, I don’t see how Zora would or should have altered the consideration about when detention is appropriate.

Maybe I’m wrong. Maybe Zora has been interpreted by the B.C. Prosecution Service as influencing that fundamental decision about whether or not to seek detention of an accused. If it has, then I’m interested to know how.

[2:55 p.m.]

Hon. D. Eby: I’ll refer the member to the discussion where I think I said that it’s sort of a step principle, but the actual wording from the decision is the “ladder principle.” The idea is the same, and it’s legislated in C-75: that there needs to be an incremental approach to bail conditions that restrict rights, and they need to respond to specific behaviour of the specific offender that is in front of the Crown and, by extension, in front of the court.

Now, a couple of pieces. First of all the member, I think, asked how this decision has changed Crown’s behaviour in seeking detention. I’m advised that it has not, that Crown will still seek detention. When they’re concerned about public safety, the attendance of the person at court, or the confidence of the public in the administration of justice, they will seek the detention of the individual. This decision is being implemented by our Provincial Courts currently, as well as Bill C-75. So they will be in an exchange with the court back and forth.

Also, in a smaller community where the Crown and the judges are seeing each other on a regular basis, they’ll be back and forth and working with that judge’s understanding of the judge’s limitations and powers under Zora and C-75. It may be that in certain communities there’s a judge that has a certain understanding of the decision, and Crown are working with that. I don’t want to say that there has been no behaviour change following this. However, there’s no formal policy change that has responded to this.

In fact, I’m advised that Crown will continue to seek detention consistent with the Criminal Code and the values the member talked about: protection of the public, confidence of the public in the administration of justice and attendance of the accused at court.

I don’t know that that advances us much further beyond or completely addresses the member’s question. If it doesn’t, then perhaps he can underline the areas that he’d like me to go over in more detail.

M. de Jong: Well, it actually does, in large part. To come back to where I started — I’m not trying to be cute or coy about what I’m trying to explore with the Attorney here — it is the degree to which Supreme Court of Canada jurisprudence, coupled with C-75, in the minds of the Prosecution Service and the Attorney as their representative here, has somehow altered or created additional challenges around a pretty basic question: when is it appropriate for an accused person to be detained?

More importantly, I suppose, when is it appropriate for the Prosecution Service to seek detention? The decision lined with that third order of government called the judiciary.

What the Attorney has said…. I’ll just confirm, so that if I have misinterpreted or misunderstood what he said, he can correct me and the committee. That is that the Zora decision, in and of itself — whilst it has provided some specific rulings, guidelines, around the question of what are appropriate bail conditions — hasn’t in any way altered, impacted or influenced, in the operation of the B.C. Prosecution Service, the determination of that basic question: whether or not it is appropriate to seek the detention of a particular accused.

[3:00 p.m.]

If the answer to that question is that detention won’t be sought, then I think it is fair to say that Zora becomes very relevant, and prosecutors must have regard for what the court has said about the kinds of conditions that might be applicable. But the Attorney seems to be saying that on the basic question of whether or not an accused person should be detained, Zora hasn’t impacted that question, nor has it led to any policy changes or procedural changes within the prosecution service. If that’s correct, then I’m glad to hear it.

Hon. D. Eby: A couple of pieces here. One is that Zora itself, as I said, is part of this grouping of Bill C-75 and Jordan and Antic, which have changed, have made significant changes in the criminal justice system in Canada.

Zora is specifically cited in the Crown bail policy document, but it is for principles that are encoded in C-75 that come from changes to the Criminal Code made by the federal government around this laddering principle and the principle of restraint, which was codified in C-75.

The interaction between Zora and C-75 and so on…. I think it’s correct to say, which I did, that Zora doesn’t change the behaviour of Crown around the key values of the attendance of the accused, protection of the public, confidence in the administration of justice to seeking someone’s detention versus their release. But Zora, with Jordan and Antic and C-75, has changed what courts will do with accused, and Crown need to be sensitive to that.

The main reason, I would say, that Zora has not had that influence is because there was a statutory change in C-75 that was significantly more influential, but we’ll talk about that, I suspect.

M. de Jong: We’ll come to the legislation and the amendments to the Criminal Code momentarily, and the Attorney will get no dispute from me that they impact upon sections of the Criminal Code that are certainly relevant to the question of release and conditions of judicial interim release. But we’ll come there in a moment.

[3:05 p.m.]

I think maybe one last question or two on the Zora case. If it is so, and I believe it is — the Attorney has, I think, confirmed this — that Zora hasn’t impacted the approach or the analysis adopted by the Prosecution Service around the basic question of whether detention will be sought of an individual or not, it clearly has set out a blueprint for what prosecutors must consider as it relates to the application for conditions of bail in cases where an accused is released.

What can the Attorney tell the committee about how the Prosecution Service has changed, how its procedures have changed insofar as the question of conditions for release? I’m going to look ahead to a conversation we’ll have down the road, or a little bit further in these debates. Has it led to the adoption of not just new policies but new approaches around the use of technology, whether it’s electronic monitoring technology?

Clearly, the decision has had some relevance with respect to conditions of release. How have policies within the Prosecution Service been impacted here in the last couple of years?

Hon. D. Eby: On the question of electronic monitoring — I understand it is used by corrections — it is one of the areas that I’ve asked our investigators to have a look at to see whether there would be benefits from using electronic monitoring in relation to non-probation uses. For example, release on bail, making that available to courts. We’ll see what comes back on that.

The key policy changes within Crown counsel policy that have followed from Zora and C-75 and these other cases are this idea of the ladder principle, which the courts and C-75 emphasize. The idea of a principle of least restraint is also coming from those decisions in C-75, and reforms — and it’s not related to any of these cases — related to the overrepresentation of Indigenous offenders.

The member would surely have seen the coverage recently about the growth of Indigenous women being incarcerated in jails disproportionately in Canada. Also, messages from the federal parliament and Supreme Court of Canada in some different decisions.

M. de Jong: Can the Attorney offer maybe a more practical example? For example, the Supreme Court of Canada observed a tendency on the part of Crown counsel…

[3:10 p.m.]

By the way, Crown counsel across the country. I don’t want to pretend that the Supreme Court of Canada was picking on the B.C. Prosecution Service. This was a commentary, I think, on Crown council across the land — a propensity to seek boilerplate-type conditions without a lot of regard for the particulars of the individual involved. If that is so, how has that changed in the intervening, I guess, two to four years since the decision?

If one were to look and examine the types of release conditions that are sought and ultimately applied by the courts, how would they be different today than they were prior to Zora? Again, it really was a case about conditions of release, as opposed to whether or not there should be a release.

Hon. D. Eby: Some of this may sound a bit contradictory, so if it does, I invite the member to ask me a question to clarify.

The general theme of the courts and C-75 is to tailor conditions to the specific value that you’re trying to protect. Is it the attendance of the individual in court? Is it the protection of the public by preventing future crimes? Is it confidence in the administration of the justice system, that this appears responsive to the situation that’s in front of the court? And the conditions should be tailored in that way.

The member is right that the court was critical of boilerplate conditions. Now, here’s the potentially contradictory part, and I’ll try to thread this needle, because there are a lot of people going through court. There are busy Crown and busy judges and busy defence counsel, so wordsmithing specific conditions for each offender that comes through is a significant enterprise.

The courts and the Crown have a desire to meet the conditions of the federal law and the federal Supreme Court of Canada decisions, but also it would be nice if we didn’t have to figure out the wording of the specific condition every time someone needs it in order to respond to one of these values.

[3:15 p.m.]

So there has been an expansion in — I guess, for lack of a better word — a menu of potential conditions that creates more possibility for tailoring to the specific value that you’re trying to protect, as well as the conditions of the offender, but also have the standardized language.

So in a sense, it is kind of boilerplate, but it’s a far more sophisticated and nuanced set of options for language, and they can be modified to respond to the conditions of the particular offender.

There’s another piece that’s underlying this that we should talk about, which is the uses of bail. One of the areas, one of the values, that I didn’t mention, which I think the member and I, I suspect, share, is the desire for people to get treatment for mental health and addiction issues that may lead them into criminal activity. The courts have been clear — the law is clear — that we cannot use bail to impose treatment for illness and mental health. That’s not the purpose of the bail system.

Now, this is a fairly significant challenge, because I think the reason that a lot of people end up in court is because they are mentally ill or they are grappling with addiction, and it would make sense to be able to have that as an option to respond to that issue that that person is facing.

We have a drug court in Vancouver. We have a community court that tries to craft sentences that are responsive to these issues that someone might face, so that we’re dealing with the underlying issue on sentencing rather than sort of the surface issue or the fact that a window was broken or something was shoplifted. The reason why this happened is that the person was sick. We do have ways to respond to that through sentencing. The challenge is around bail — that that is not available.

I invite follow-up questions from the member if he has them in relation to that.

These are the significant constraints and challenges and how the courts and Crown have tried to work within this framework to try to deliver what’s needed for communities in the province.

M. de Jong: I think a final question, with respect to this decision of the Supreme Court of Canada…. I think it speaks to a scenario that prosecutors are confronted by on a fairly regular basis. We talked about prolific offenders, and I described a type of prolific offender last day that most assuredly exists. The Attorney, again, has referred to another type of offender whose behaviour is perhaps less deliberate, although that is, I suppose, a legal term that one has to be careful with, but is more strongly influenced by a mental condition that the person may be suffering.

Yet in both cases, members of the public might say or a reasonable observer would say, whatever the cause, whether it is a person who has rationally, if that is an appropriate term, chosen to pursue a life of crime or a person who has been driven into that behaviour by a mental condition or an addiction…. If, at the end of the day, the behaviour that flows from that person constitutes a threat to the public, what is to be done? The Attorney has pointed out the restrictions that the Zora case places on a prosecutor who might wish to request the imposition of a condition of release that requires treatment. But that option doesn’t exist in the way that it once did or maybe at all.

A long-winded way of saying: how does the Prosecution Service today, notwithstanding the obvious concern that one would have for those whose behaviour is influenced by mental health conditions…? How does that weigh against behaviour that a reasonable person would say constitutes a threat to the safety of the public, and how does that drive a decision or the decisions that prosecutors have to make on a daily basis?

[3:20 p.m.]

Hon. D. Eby: The process is described to me as follows. An individual comes who’s dealing with a mental health or addiction issue that is resulting in their behaviour, which is criminal in nature. So vandalism, shoplifting, threats — these kinds of things. Crown will say to defence counsel in court: “You can’t consent to release for this individual. Their behaviour is such that they’re a risk to the public, and this is one of the values that we need to protect.”

What can flow from that…. It doesn’t always but what can, often, for individuals who are represented, is…. Defence counsel will attempt to put together what’s called a release plan, which responds to the health issue that the person faces. They may propose that there be a condition that the person be released with a reside-at order. You reside at this address, and the address is, in fact, a treatment centre that deals with addiction.

They may have conditions related to sureties or people who are willing to say: “I will take responsibility. I will watch this person. This is my son, and I will make sure that he’s not back out in the community, committing offences, and will attend court.” It could have any aspect of supports related to those underlying health conditions.

On occasion, these release plans will not be acceptable to the Crown. The court will get involved, and the three parties will try to work out something that will respond to the core concern, the protection of the public, and the underlying reason for that concern, the mental health issue or the addiction issue, through any release conditions. Then sometimes a person won’t be released. They’ll be remanded to jail. Sometimes a release plan will be able to address those issues.

That is how it happens. The person, essentially, agrees to these conditions in lieu of a custodial remand, in lieu of going to jail. It can’t be just imposed. It’s a challenging dance that the Prosecution Service is put into with defence counsel and with the court. The overriding goal — Crown know this, and they implement it — is to protect the public, and that applies whether the reason the person is behaving in this way is because of their mental health issue, because of an addiction issue or just because of straight criminality.

M. de Jong: I guess, to be fair…. From the accused’s perspective, though, the decision is whether or not to accept release conditions as proposed or run the risk of detention, insofar as…. It isn’t the Prosecution Service that has the ability to simply impose the alternative. It involves running the risk that the judicial branch would do that.

Here’s my question, which flows from that. As a matter of policy within the prosecution branch on these questions of detention versus release — and then, in the case of release, appropriate conditions of release — is public safety a paramount consideration? I mean, there is a balancing of considerations here. But is public safety paramount in circumstances where there are risks?

[3:25 p.m.]

I hope I’m articulating the question in a way that the Attorney General and his staff can understand. All things being equal, does public safety, safety of the public, assume a paramount consideration?

Hon. D. Eby: The Crown policy does not assign a hierarchy to the three values of section 515. They say that the conditions of 515 must be met, that you need to be satisfied that the accused is going to be attending court for hearings, that the public will not…. Their safety will not be imperilled by the release of the individual. The confidence of the public in the administration of justice needs to be preserved.

These conditions must be met in the decisions by Crown. So certainly, the safety and protection of the public is one of those requirements that must be met in the Crown’s decisions.

M. de Jong: Is there anything that would preclude, in the case of a prolific offender…? I recognize that we have not, here, definitively defined what a prolific offender is. We have canvassed what other jurisdictions have done, which, I will suggest to the committee, most reasonable people would consider a reasonable definition.

Is there anything to preclude the adoption of a policy within the Prosecution Service when dealing with an accused who falls within the definition of “prolific offender” to assign a hierarchy or a priority around public safety?

[J. Tegart in the chair.]

Hon. D. Eby: Crown is bound by the Criminal Code, section 515(10). It says that conditions may be placed to ensure attendance in court, protection or safety of the public, maintain confidence in the administration of justice. It does not allow a hierarchy of these things.

I should say that the expectation is — my expectation is, the expectation of the policy is — that Crown will seek the necessary conditions or will seek detention in a situation where the protection and the safety of the public are at risk.

M. de Jong: Of course, in addition, I suppose, to the Crown, it is ultimately the courts which are bound in applying these provisions of the Criminal Code. We’ll come back to this conversation about the degree to which the Crown can adopt a policy that is not inconsistent with the statutory provisions of the Criminal Code but may be helpful in addressing the unique safety concerns, public safety concerns, represented by prolific offenders.

[3:30 p.m.]

Let’s move to the Jordan case. I should say, in this…. It was a B.C. case, to be fair, one that emanated in…. I think 2008 was the trial-level decision, if I’m not mistaken. It made its way to the Supreme Court of Canada from the B.C. Court of Appeal in 2015, 2016. This case is also frequently cited — in the context of discussions we have been having in this House around public safety and prolific offenders — as having represented a shift, a complicating factor in the task that prosecutors in British Columbia and the B.C. Prosecution Service have in performing their task of ensuring public safety.

I’ll begin by making this observation. I think it represents a potentially complicating factor, but not in the way that I have heard it referred to, because it is, in effect, in my reading, a further iteration of the rule around unreasonable delay. The majority of the Supreme Court of Canada has taken a fairly prescriptive approach. This was an individual who was charged in ’08 in a dial-a-dope operation, and his trial ended in 2013, so there was a five-year delay.

The court went through the jurisprudence around delay. Back 100 years ago, when I was practising, Askov was the definitive case, and of course, some cases — I think Morin and others — came along since then. Now we have Jordan, which talks about, I think, an 18-month outside period for the conclusion of a trial. Then it talks about how the burdens shift in cases where there is a delay beyond that, how the Crown is then obliged to…. The burden shifts to the Crown to explain and justify those delays, all of which are informative.

Again, when the Attorney General mentioned that in the context of the discussion we were having about prolific offenders and what has been referred to as catch and release of accused persons, upon reflection, I’m not sure what the relevance of Jordan is in that context. These are delays that may flow, if they do at all, and become problematic. But they occur well after decisions have been made about whether or not a prolific offender should be released. Those are decisions made very quickly.

Now, bad things can happen in terms of judicial stays of proceedings, where the delay goes beyond what is deemed reasonable by these decisions. But the initial question is: what is it about Jordan, the Supreme Court of Canada decision in Jordan, that has further complicated the lives of Crown prosecutors as it relates to their role about determining whether or not a prolific offender should be released or detained?

[3:35 p.m.]

Hon. D. Eby: The Supreme Court of Canada decision in Jordan imposes strict timelines on the resolution of a criminal justice matter: 18 months for a provincial court, 30 months for the superior courts in Canada. The start of that clock is the laying of a charge. So if your interest is the individual actually being tried for the offence and potentially convicted — at least having that day in court on the offence — then you need to be very aware of how much time you need to get to court and when that clock starts, and that clock starts with the laying of the charge.

One of the ways to respond to the Jordan decision that provinces have come to is to be very careful that when the charge is laid, you have all your ducks in a row. One of those ducks is disclosure. There is a full disclosure policy. It started in…. There was an MOU in 2005, following Jordan.

It was updated in 2011 and then again in 2012 to say: “Police, you need to have all of your disclosure for the case ready before Crown can lay the charge, because as soon as Crown lays the charge, that clock starts, and we want to get this person to trial, so they’re actually tried on this, within the Jordan window. We don’t want to have gangsters. We don’t want to have prolific offenders. We don’t want to have ‘name your group’ walking away on a ‘technicality’” — which is actually a serious principle, a trial within a reasonable amount of time. “We don’t want them walking because of Jordan without being tried for the offence.” So we need to be very careful when we lay the charge.

When I hear the phrase “catch and release,” it’s probably some of the frustration of police. They’ve caught this person. They have reasonable probable grounds to arrest them. They’ve done the report to Crown counsel. They’ve brought it to Crown, and Crown said: “Listen, we need you to have full disclosure before I can lay this charge. I’m not going to charge this person before you have the full disclosure, because as soon as I lay that charge, then the clock starts.”

That can be incredibly frustrating from the police perspective. It’s like: “Well, related to this offence is a person’s cell phone, and there’s maybe an issue with the cell phone records, and now I’ve got to deal with the phone company and all these other things to get warrants and whatever. I know this is the guy, and now we’re just going to — what? — let this person go.” That is the balance.

We want them to come to trial. The court has imposed these very strict timelines. The Ontario Crown recently, at the Supreme Court of Canada, made an argument saying: “This is really not a great system, Supreme Court of Canada. This is a big problem for us on the administration of justice side.” The court said: “Tough.” Actually, they were much harsher in their language for the prosecutors in Ontario that made that argument. They said: “This is a constitutional right. It’s trial in a reasonable amount of time, and you need to figure that out.”

That is one of the implications for Jordan, and it relates not just to prolific offenders but to accused across the board for offences serious and more minor.

The Chair: Member.

M. de Jong: Madam Chair, welcome to the chair.

Okay. So here’s what that sounds like, I am certain, to a mayor — one of those mayors that signed off on the letter to the Attorney General. To them, that would sound like, having regard for the Jordan decision, we — meaning the state, meaning the prosecution service — are not confident that we can prosecute and try this person within the 18-month period prescribed and required by the court. Therefore…. Well, we’re not confident we can do that if we charge this person and detain this person today, so we will do neither.

[3:40 p.m.]

I understand that part of what the Attorney General is saying is that, no question, there is frustration at the end of the exercise, when a court says in response to what I guess are now called Jordan applications…. They used to be Askov applications but now are Jordan applications. The court says, “Yes, this took too long, and we’re imposing a judicial stay,” and there is frustration.

There is at least as great a frustration when the person who has been brought in by the police with video camera evidence of an assault or criminal behaviour is released, because there is concern about meeting the timeline, to repeat that behaviour, in the case of a prolific offender, three more times before the expiration of the 18 months. Leaders of B.C.’s communities are saying, “If that’s the response to a requirement imposed by the Supreme Court of Canada, if that’s the proposed solution, we don’t like the solution,” because out of a lack of confidence that the timeline can be met, people who might otherwise be charged, which would trigger a detention application, are simply being released to go forth and commit again.

If I’ve misstated that — but I don’t think I have — this is the time for the Attorney to tell me how I have misstated that.

Hon. D. Eby: The member asked me…. He said: “I don’t understand how Jordan relates to prolific offenders.” So I tried to explain the connection there may be in some cases. The member then, in his follow-up question, took it another level and said: “Okay. Well then, if people aren’t being charged, then that puts the public at risk.”

The error was mine in that I should have, in my initial answer, been a little bit clearer about the discretion on the part of Crown and police here. Police have the discretion under C-75 to arrest someone and to release them, including with an appearance notice or generally. They have that authority under this bill, and they do, do that.

Police also have a discretion about when they bring a report to Crown counsel, whether they have all their disclosure in line or not, and they have a discretion about telling Crown that this is something called an in-custody matter, which is where someone has been arrested, brought to cells, and not released because the police have concerns about protection of the public, protection of victims, and so on.

[3:45 p.m.]

For in-custody matters, where police are advising Crown, “Look, we have a concern about public safety; there’s an issue here,” the Crown has the discretion to depart from the full disclosure policy to ensure that the public is protected. The reason I want to underline that is that the member’s colleague from Kamloops South was under the impression that that full disclosure policy meant you couldn’t charge someone with a homicide and you couldn’t charge someone with a serious assault until all the lab work was in or whatever. That’s not the case. Crown maintains that discretion.

But it is part of the challenge of the work of policing and Crown counsel when you have this decision and you have a suspect and you’re making a decision about when to recommend that charge, for police, and when to lay that charge, for Crown. We’ve had very upset municipal leaders come to us and say: “Why have Crown not approved charges on this file?” It turns out that Crown doesn’t even have the file yet from police, because the police know that they don’t have the materials that they need for that trial to go ahead. They’re concerned about Jordan, just like everybody is, and it’s a serious offence.

I don’t pretend it’s not challenging. It is. A lot of the frustration from the front line of the criminal justice system was expressed by Crown counsel in the Supreme Court of Canada very recently in an opportunity for the court to revisit Jordan, which they declined to do.

I wanted to provide that clarification, though, to the member, just so that he wasn’t left with the impression that this was just what was happening as a matter of course. For the majority of the low-level, prolific offender–type offences — the mischief, the shoplifting, and so on — these aren’t complicated cases waiting for disclosure. But when mayors complain about catch-and-release, Jordan could be one of those reasons. In some serious police investigations, it has been one of the reasons they feel that the system’s not working.

M. de Jong: For the purposes of calculating the 18 months that the Supreme Court of Canada refers to and imposes, I presume that the clock starts ticking at the time a charge is laid, except in circumstances where detention has been sought or, I suppose, even bail conditions have been imposed. I presume the clock would start ticking at that point. Is that correct?

Hon. D. Eby: I’m advised that the clock starts to tick when an information is sworn by Crown counsel. Or in some cases, in an urgent matter, police can swear an information themselves. That is what starts the clock.

M. de Jong: I’m surprised to hear that. I would have thought that able defence counsel would make the point around delay, where an accused has been detained, perhaps, for a period of time pending the formalization of charges, and that period when that person’s liberties have been removed or severely constrained would factor into the calculation of delay. But the Attorney is saying that that’s not the case?

[3:50 p.m.]

Hon. D. Eby: I’ve got some information that may assist the member in understanding some of the complexities here. When an individual is arrested, they have the right to and must appear in front of a judge within 24 hours. Crown will have either, themselves, sworn an information or approved the information sworn by police within that 24-hour period.

Technically, the person could be remanded for two days, following that appearance, for the charges to be sorted out, but as a matter of practice and policy, those matters are dealt with in the first 24 hours. So there’s not an extended period that defence counsel could say, “Well, this is part of the Jordan timeline,” where the individual didn’t have a charge.

M. de Jong: What I was trying to explore is to what extent, if at all, the application of the rules in Jordan would again influence, one way or another, a decision by Crown counsel to seek detention of a prolific offender. It sounds like it wouldn’t. By the way, I say that, acknowledging that the decision in Jordan imposes other burdens on the Crown that are very relevant, as it relates to the expeditious dispensation of justice.

It doesn’t sound like anything in Jordan would influence or change the considerations around whether or not an individual’s, who falls into the category of prolific offender, detention should be sought or not. I think that, at the end of the day, is the essence of my question on this and the other cases that we’ve been considering.

Hon. D. Eby: It took us a few minutes to figure each other out on this side, so hopefully I do this justice.

First of all, I said two days additional remand period. The correction is it’s actually three days potential additional remand before an information is sworn. The distinction here is whether or not an information has been sworn. So Jordan is influential about when that information is sworn, and the process that’s followed leading up to that, and the charge is formalized. But it is not influential once the decision has been made to swear the information by police or by Crown, and that clock is started. It is not influential about the decision whether or not to detain a person on that charge.

To somebody from outside the justice system looking at it, this may be a distinction without a practical difference, but it is a distinction.

[3:55 p.m.]

M. de Jong: There is a distinction. I think, obviously, the Attorney is alive to why I’m exploring this, and that relates to the influence these decisions and, ultimately, the legislation have on that key part of the decision-making process. There are different stages of that: the decision to lay an information and decisions around detention or release and, if release, on what conditions. It is that question around detention as it relates to prolific offenders that obviously has engaged the opposition’s attention, because it has engaged the attention of communities across British Columbia as it relates to the scourge of repeated criminal activity by a very small number of ill-motivated individuals.

The third in the trilogy of cases that the Attorney and others have referred to is Antic, which was an appeal to the Supreme Court of Canada from the Ontario Court of Appeal. Again, for the purposes of time, I’m going to make this observation for the Attorney, with the assistance of his staff, to respond to. That is this.

In the Antic case, it strikes me that again the issue that was before the court related to the proper application of bail conditions. In this case, we’ve got a person charged with drug and firearms offences. He was denied release at his bail hearing and then sought review, as an individual is certainly entitled to do, and was confronted by a review judge who observed that he would have released the accused if he could have imposed two conditions simultaneously.

The court, all the way up to the Supreme Court of Canada, assessed and then that made its way through to the Ontario Court of Appeal whether or not that was an appropriate consideration for the review judge to make. Again, it didn’t touch on the original decision around detention, so the question again remains the same.

To what extent, if at all, has the decision in Antic influenced the approach and the policy that guides the B.C. Prosecution Service around the original decision about whether or not to seek the detention of any offender? We are focused here today on prolific offenders.

Hon. D. Eby: I am advised this case is influential because it is the first of the more modern cases that kicked off this discussion that culminated in C-75 about the fact that more and more people were being detained, waiting for trials despite the implication of the Charter and the right to be presumed innocent in advance of being convicted.

[4:00 p.m.]

It was one of the first significant cases that talked about, at Supreme Court of Canada, this ladder approach of moving up the ladder and tailoring conditions to the specifics of the offender and shifting from this broad understanding of detained people as sort of a presumption of detention to a presumption of the right to be presumed innocent and to tailor the conditions to the specific situation of the offender. It is of a piece with Zora and C-75 and is relevant in that way.

M. de Jong: In the case where the accused counsel, on behalf of the accused, sought a declaration of unconstitutionality of provisions, that was ultimately denied. I think the Court of Appeal made a finding of the Criminal Code provisions being unconstitutional. The Supreme Court of Canada reversed that decision; the Supreme Court of Canada said these are things that are important. I’m not sure how this altered the law.

The court said that the right not to be denied reasonable bail without just cause is a key element of our criminal justice system. That right not to be denied bail without just cause is tied to the effect of the presumption of innocence at the pretrial stage of a criminal trial. It safeguards the liberty of people, including the accused. A person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail.

There is just cause to deny bail only if the denial occurs in a narrow set of circumstances and the denial is necessary to promote the proper functioning of the bail system. It then goes on to discuss the whole notion of “reasonable bail.” In fact, the vast majority of the decision is about what constitutes “reasonable bail,” as opposed to the test that is to be applied as it relates to detention versus release. The essence of the case is what constitutes reasonable conditions once a determination has been made that someone will be released.

Again, we say these things, and we’re going to come to C-75 in a moment. But on its own, just as we talked with the previous two decisions, I’m going to ask the Attorney whether or not the Supreme Court of Canada decision in Antic in any way influenced or altered the policy, within the Prosecution Service, about when it was appropriate to seek detention or not.

I’ll be very surprised if he says that it somehow influenced the test the prosecutors apply in determining whether or not detention is appropriate. It may well have influenced the approach they take as it relates to conditions of release but not the original question about whether or not detention should be sought. I’m all ears to hear the answer.

[4:05 p.m.]

Hon. D. Eby: The member is drawing a distinction, in these cases, between the decision to release somebody with conditions or on what conditions they’re released and whether it influences specific decisions to charge. There are two components to this. Antic relates to the content of conditions, absolutely. It is of a piece with Zora and C-75 in this respect. Also, though, is the distinction — and I try to draw it a bit in Jordan — that there is an impact these cases have on the decision to lay charges, especially in the category of offences called administration-of-justice offences.

Conditions that are imposed…. As we discussed in Zora, the condition was: “Listen. Answer the door, when the police officer knocks on the door, within five minutes.” In that decision — about whether or not he answered the door and whether or not he had the requisite mens rea, the guilty mind, to satisfy the requirement of a conviction for an administration-of-justice offence — these cases do have an impact on charges related to administration of justice.

I wanted to draw out that distinction a little bit, because it is related to the core of these cases as well, which is about the content of the conditions and the decision on whether or not to remand into custody or to agree to a release plan for an individual that’s proposed by defence counsel or submissions to the court about what reasonable conditions should be if the person is going to be released by the judge.

M. de Jong: I accept the proposition advanced by the Attorney General around the distinction between administration-of-justice offences and other types of offences against public safety. I think the court does address that, and that’s the case. Maybe the easiest way for me to do this, rather than deal in the abstract: I’m going to use a practical example.

[4:10 p.m.]

An accused is brought in by the police and brought before the court — one of the individuals whom this conversation revolves around, that prolific offender in Kamloops, in Kelowna, in Abbotsford, in Victoria — who has now, for the 20th time in the last three years, committed an assault and a serious, property-related offence against a person, and, along the way, may well have accumulated some administration-of-justice-type charges as well, and convictions as it relates to conditions of release.

But I’m going to suggest that the public preoccupation is with the public safety aspect of this. The prosecutor with conduct of the case is confronted by a decision about whether or not to seek the detention of this individual on, presumably, the basis of public safety considerations, because of the threat of reoffence, given the person’s recent record and behaviour as a prolific offender.

The case we’re now dealing with certainly does, again, speak to conditions. It speaks to conditions that might be appropriate as it relates to administration-of-justice offences, but I don’t see anything in the Supreme Court of Canada’s decision that would require Crown counsel to adjust or alter the approach or their analysis of what constitutes public safety and the policy that would exist around when detention is deemed necessary to protect the public safety.

If I’m wrong, it’s merely a case of pointing to the component or the part of the decision that says I’m wrong. But as I’ve…. The Attorney, presumably, and his staff, understand what I’m getting at here, because at some point I’m going to want to offer some suggestions for things that could happen. I don’t think the Supreme Court, in this decision or the other ones, has provided any constraints around some policy shifts that might better serve the interest of public safety.

I won’t ask the Attorney to comment on that until I’ve offered the suggestions. That wouldn’t be fair. But my proposition, as it relates to this case, remains the same. The court was not critical of the approach taken and the decision to seek detention, or even the original detention order. It was critical further down the process, around the conditions that a reviewing judge and appellate-level courts decided to impose or not impose, and the analysis that they employed in determining which conditions were applicable. That’s the proposition I am putting to the Attorney, and I’m interested to hear his reply.

Hon. D. Eby: C-75 and these cases are an interpretive guide to implementing the provisions of the Criminal Code around bail and release. So when people and communities say, “catch and release,” often they’re talking about the decision made by the court to release an individual who has been arrested on an offence.

[4:15 p.m.]

These are squarely related to the perception the public have about: “Hold on, this guy just appears to have committed a crime, and now he’s back out in the community. How did this happen? What’s wrong with our catch-and-release justice system?” That’s why these cases are relevant to public confidence in the justice system and concern about prolific offenders.

The member and I can have these…. We’re both members of the bar. We’ve studied law, follow law. We’re interested in law. We can have this discussion about this point in time and this condition and how these cases relate to it. But from the perspective of the shop owner that just had someone walk a canoe out the front door, and then the guy…. It’s a small town. “I know that guy. He was just arrested for that, and now he’s back downtown. How does that work?”

So this is, to my mind anyway — the member might agree; he might not — the core confidence issue that I feel the need to do my best to address as Attorney General. I know that the Minister of Public Safety shares the interest of addressing this concern that the mayors have brought forward to us. It’s how these cases influence people’s perceptions of how the justice system is working or not working.

It could be that he’s back downtown because there’s an issue around Jordan timing. It could be he’s back downtown because the principle of least restraint required that. It could be any number of reasons. It is hard. The member is trying to give shape and concrete examples to this, but it is hard to talk about these things in the abstract. It’s often easier to talk about in specific fact patterns, which is why the courts are very reluctant to work on reference cases and are much more interested in strong evidentiary foundation before they go to the Court of Appeal or Supreme Court of Canada.

I’m not sure if that’s helpful to respond to the member’s question, but that’s my understanding of the issue that we face currently.

M. de Jong: I hope the Attorney will agree, based on the submissions he’s received from others than myself or the political opposition in the province, that the strongly held belief that that phenomenon of the person returning to the streets and committing the same crimes — sometimes crimes against people, serious crimes against people — on a repetitive basis is occurring with greater regularity. That’s certainly the view of the people in communities strewn across British Columbia.

The argument that has been advanced…. I think I’m being fair during these proceedings — and earlier. The Attorney has said that our ability as a society, as a state, to address that has been influenced — but I think he means, to be fair, made more difficult — by a series of Supreme Court of Canada decisions and some legislative changes that the federal parliament has introduced.

We’ve talked about some of the Supreme Court of Canada decisions. but I think the three main ones…. I’ll leave with this observation.

Notwithstanding the general degree to which these decisions serve as guides to trial-level courts on issues like bail and bail conditions, I am not certain that they should be influencing questions of detention to the degree that we are being led to believe. That’s the jurisprudence from the Supreme Court of Canada.

Let’s go to C-75 and the straightforward question. Having advised the House and the province that this legislation has directly influenced the ability the Crown has to preserve public safety as it relates to public offenders and the detention of public offenders, let’s simply start with this. It’s a specific piece of legislation that amends specific sections of the Criminal Code of Canada.

[4:20 p.m.]

Which ones are the problems? Which amendments, which sections of C-75 have emerged to be the most problematic as it relates to public safety and questions of detention of prolific offenders?

Hon. D. Eby: There are several provisions of the bill that restrict the ability of Crown and police in the conditions that can be imposed. I’ll run the member through a few of them, but the “too long, didn’t read” version of this is that there was a significant compression of the options that are available to Crown and courts in terms of conditions on release on bail.

Overarching this restriction is the principle of restraint to the least onerous measures that are available to achieve the goal of section 515. It translates into, further on in the bill, restrictions on the use of cash bail requirements, restrictions on the use of sureties. This is someone who’s willing to step up and say: “I’ll take responsibility, and I’ll make sure that this person attends court and is prevented from reoffending.”

There’s a new process established, called a referral hearing process, which is meant to cause Crown counsel to think twice before imposing charges for breach of condition and instead use this referral hearing process to have the judge reconsider bail conditions when a person breaches, rather than a formal charge, as would have previously taken place.

[4:25 p.m.]

All of these principles are used by reviewing courts. On a breach, for example, a person has a condition. They go out. They violate the condition, and then you want to do an administration of justice offence, which is the old way, frankly — pre- these cases and C-75 — of controlling the behaviour of a significant number of people in the province.

You want to go ahead with the breach charge, but this will be the test that the court is applying. Is it, in fact, appropriate to go ahead with a breach charge in this circumstance? The whole spirit of C-75 as well as Zora and Antic say: “Don’t use the bail system in this way.”

Taken on their own, I think that you could say: “Okay. It makes sense” — least restrictive measures and this referral hearing process, and so on. Put together with the cases that we’ve been discussing, it is a significant reduction in the tools that used to be available to control the behaviour of a small but influential group of people in the province in terms of people’s feeling of public safety, which complicates the solutions.

The member is coming to one of the pieces in his questioning, one of the pieces that has challenged the government. Certainly his caucus has been clear about their feelings about the approach the government has taken to retain these experts in this area. But it’s not hard to come to the conclusion I think the member is that the solution to this is probably not, and the issue itself is probably not, laid at the feet of Crown but is more complicated than that.

And I can take the member through clearance rates by police, which are down, reports to Crown counsel, which are down — and not just down like sort of in a political 1 percent; significantly down over the most recent five-year period.

Then you layer this piece on as well, and it becomes clear that we’re going to need another way to respond. We’re going to need to address some issues that aren’t immediately obvious — frankly, at least not to me. Although, I look forward to hearing the member’s suggestions that he’s advised are coming. So that is the challenge that we face, in my opinion.

M. de Jong: We did have an opportunity last day to review some of the data that the Attorney has referred to in terms of reports to Crown counsel. We talked about timing and charge approvals and no-charge statistics. I think we had a pretty thorough conversation around that.

What I’m trying, now, to determine is the extent to which the specific amendments to the Criminal Code around judicial interim release are deemed by the Attorney and the government to be problematic. I guess I might as well use the term, because I will say this — and I hope fairly.

I have heard on a number of occasions the Attorney General profess some understanding and appreciation for the frustration of community leaders who see prolific offenders inflicting harm on the people in their communities and on the businesses in their communities and on property owners in their communities. And when asked, the Attorney points to jurisprudence, and he points to changes in the Criminal Code that have made it more difficult for the prosecution branch, the Crown prosecutors, to address those issues.

So now I want to be a little more specific. C-75 included specific amendments to section 210 of the Criminal Code relating to judicial interim release and the detention of people pending their trial. Is the government and the Attorney supportive of those amendments? If not, what specific part of those amendments would he point to as perhaps requiring alteration or reconsideration?

[S. Chandra Herbert in the chair.]

[4:30 p.m.]

Hon. D. Eby: I think the challenge of C-75, Zora, Jordan and Antic is their cumulative impact. It’s hard to point to any one provision of these sections — the principle of restraint, for example — and not say, “Well, that makes a lot of sense. You should use the least onerous method, and we shouldn’t be using bail courts in this way,” and so on, but it is pretty clear to me, and I think that it’s clear to committee members, that there’s a group of people that this is not responsive to.

We’ll certainly define that group of people. I think it’s really about people who are committing multiple criminal offences, who have extended and long histories with police, are frequent fliers in the justice system and probably in the emergency services system as well, and it is not responsive to the needs of those individuals.

At the provincial level, we’re going to identify what we can do to respond to that, I think, unintended consequence of these provisions, to close those gaps and find ways to respond to the needs of this population. I think it’s probably necessary for the federal parliament to have a look at this within the Criminal Code, to figure out how the Criminal Code responds to this particular group of offenders.

I’m not sure of the exact situation faced in other prov­inces, but I have read about — for example, in Alberta, in Edmonton — concerns about very similar issues to what we face in British Columbia, which makes me think that there are aspects of this that are national — and certainly in large centres in Ontario as well. The national retail council has raised issues with me that they say are consistent nationally, so it may be necessary, and I think that it would behoove the federal government to have a look at this.

The challenge, and the member’s question is, frankly, from my perspective…. Look at any one of these provisions and say: “Why wouldn’t you have a process where someone could refer over to a judge to consider?” But the effect on the front lines for this group has not been positive.

When I engage with the federal Justice Minister, I’ve raised this issue. He’s aware of it. He’s aware of my concerns, but I also share his concerns and the Supreme Court of Canada’s concerns — at least as articulated in these decisions — that people do have the right to be presumed innocent. They do have the right to a fair trial in a reasonable amount of time.

It should be the role of the province to identify and respond to health issues proactively for people, whether or not they’re involved in the criminal justice system and, certainly, before they’re involved in the criminal justice system.

I appreciate the opportunity to put on the record my perspective that there is an opportunity for the federal government to support our work here. I will say that it has been a challenge to get the federal government to take up our Criminal Code recommendations. Whether it’s on prolific offenders, on money laundering or on the Jordan implications of the pandemic, it has been a challenge.

I know there’s a lot going on. However, my provincial counterparts at our federal-provincial-territorial meetings tend to be of a mind on some of these amendments that are needed. To the extent that I can support the federal Attorney General in getting that time in the Legislature to get some of these amendments done, I would like very much to do that by putting these concerns on the record.

M. de Jong: All right, we may be getting into the meat and potatoes of this aspect of the discussion. The Attorney and his colleagues across the land aren’t able to say to the Supreme Court of Canada — except in a very formal way, as part of a case — what their views are, but he can make those views clear to the federal parliament and the person charged with administering this, the Justice Minister there.

I’m going to press the Attorney a little bit. I thought I heard him say he has recommended specific changes or has provided specific recommendations around amendments to the Criminal Code as it relates to prolific offenders. What are they?

[4:35 p.m.]

Hon. D. Eby: I’ve raised with the federal Attorney General, with whom I meet regularly — thankfully, and which I appreciate the opportunity to do — this issue of prolific offenders, this issue of crime that we’re seeing in downtown cores. I know that he’s aware of it. I asked that he look at not just that issue through the Criminal Code lens, but also, and related to some of our conversations, issues related to Jordan and the pandemic.

One of the challenges with the pandemic was that the availability of courtrooms was dramatically reduced for all matters, including criminal matters. The member will be familiar with the statistic from the urban mayors’ letter that showed an increase of 100 days for Crown to conclude a file from somewhere like 80 days to about 180 days. It was directly related to the availability of courtrooms, in order to be able to conclude files.

B.C. is not the only province that has been in this situation. With the backlog in the justice system, we do face increased Jordan pressure, which results in increased potential that someone may be released pending their trial, which increases the potential of not just the perception but the reality of mayors seeing in their communities individuals being released back into community after committing an offence.

I’ve provided some detailed recommendations to the federal Attorney General around Jordan timelines and around virtual hearings and things that we can do to work through that backlog as well. All these things are interrelated. I will also point out to the member — to the extent that we partner with the federal government and continue to push them on improved housing options, improved health care options for people with mental health and addictions and supports — that that is taking place as well. It’s not exclusively a Criminal Code push, but that is a component of our work.

M. de Jong: The Attorney has referred back quickly and specifically to Jordan, and, fair enough. I think I understand the linkage he has referred to between the strict timelines imposed by the Supreme Court of Canada and the challenge posed by the pandemic. I understand that. I’d be interested to know what those recommendations are, and whether he’d be prepared to share them, either with the committee or myself.

To be fair, the conversation we’ve had has been about how changes in the jurisprudence and the federal government’s view of these matters have intersected and coalesced into the presentation of Bill C-75, which introduces some other concepts. As it relates to judicial interim release, it talks about vulnerable populations. I don’t know who the Prosecution Service deems vulnerable populations, but it suggests, in the Criminal Code, that the approach prosecutors take will be influenced by whether or not they are dealing with someone deemed to be from a vulnerable population.

Does the Attorney General agree with that? Is there a policy in place now determining, for the Prosecution Service at least, who is in a vulnerable population? How is it influencing the decisions? Is it influencing decisions, for a prolific offender, about whether a decision is made to seek detention? I always say “seek detention,” because I get the fact that it’s not the ultimate decision of the prosecution branch but of the judicial branch.

The Attorney has talked about the complicating features of C-75, and I’m obviously pressing him a little more. He said he’s made submissions to the federal government about timelines arising out of Jordan. Okay, I hope he’ll share those. He doesn’t have to do it right now, but I hope he’ll undertake to share those with me.

[4:40 p.m.]

Apparently, some things in C-75 have made the task of preserving public safety more difficult. I’d like — the community leaders would like — to know what those things are, what those amendments are, and how the Attorney is seeking the agreement of the federal government to change or eliminate those things.

Hon. D. Eby: There are a number of policies related to vulnerable people. There’s a policy related to children and vulnerable youth. There’s a policy related to intimate partner violence. There’s a policy related to sexual offences against adults, and there’s a policy related to vulnerable victims and witnesses. There’s a section in the bail policy related to impoverished and vulnerable persons, who are described in the policy as people who lack either a support network of family and friends or financial means and are less able to get access to bail — which is, the member will recall from our discussion of C-75, an incorporation of that as well as a decision called R. v. Summers, 2014, Supreme Court of Canada.

There is also a lengthy description of Indigenous persons, which goes through in detail. Actually, I am tempted to read it into the record. I don’t think I will, but I recommend it. I’m sure that the member has reviewed the bail policy. But it does discuss the history of government commissions, reports, judgment in the Supreme Court of Canada, the history of colonialism and the rates of victimization of Indigenous persons in relation to crime, especially Indigenous women and girls, and discusses Gladue reports and factors of seeking detention in relation to Indigenous accused.

So an example of some of the categories of vulnerable people contained in the bail policy.

M. de Jong: Look, one of the amendments contained in C-75 reads as follows, and it’s an amendment to section 493.2 of the Criminal Code, and it says, “In making a decision under this Part,” and we’re talking about whether or not to grant release or detain, “a peace officer, justice or judge shall give particular attention to the circumstances of…” and it lists two considerations. The second one is: “accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.”

My question is: to what extent, if at all, has the amendment that is now part of the criminal code…? That amendment — to what extent has that altered the decision-making process around seeking the detention of a prolific offender? And then, secondly, is that a provision that the Attorney General, on behalf of the government of British Columbia, is content to see remain in the Criminal Code, or does he believe an amendment to that provision is required?

[4:45 p.m.]

Hon. D. Eby: Some of the individuals we’re discussing, who would qualify…. And accepting the member’s valid point that we’ve not defined the term “prolific offenders,” but let’s say working from the U.K. definition that he has. Some of that population would overlap with a group of people who would be described as vulnerable for the purposes of C-75.

When Crown counsel are faced with a decision-making process around bail, for example, and they’re applying C-75, that aspect of federal law is incorporated in the bail policy, on the first page of the bail policy, that talks about the increase in the remand population that has been noted by courts and the overrepresentation of Indigenous people in the criminal justice system that’s been noted by the courts, and also the section that I read to the member about vulnerable people that don’t have access to a network of friends and family or cash bail supports, and so on. This is all an incorporation of C-75 policies into the bail policy for Crown counsel.

Here may be — in fact, I would say that there likely are — overlaps in prolific offenders and individuals that would be considered vulnerable for the purposes of C-75. That may be influencing decision-making about Crown counsel as they apply the federal law and make their decisions accordingly. I suspect strongly that there are opportunities for us, at the provincial level, to provide support to Crown counsel, to police and to courts, but most specifically, to these individuals who would be defined as vulnerable, to interrupt this offending cycle, which is why I’ve asked these two esteemed people with experience in both policing and mental health and corrections to help us to thread that needle with C-75 and the definition of vulnerability.

But the goal that I have as Attorney General is to preserve confidence in the justice system and to ensure the protection of the public. It makes the job very complicated. Yet it’s work that we have to do. I have not flagged that specific section for the federal Attorney General. Frankly, it’s more the interaction of C-75, Zora, Antic and Jordan, in my opinion, that leads us to where we are currently, and any one section in isolation makes sense. I don’t have such a neat excision — “take this section out and our problem is solved” — kind of response to that particular section, but I do recognize that that is part of our challenge here that’s in front of us in the province.

[4:50 p.m.]

M. de Jong: I’m going to try to shorten up my questions. It’s not to be in any way disrespectful, but we need to push on here.

What would the Attorney General change about the amendments to the Criminal Code contained in C-75? We keep coming back…. I think I’m being fair. I have heard repeatedly that one of the sources of the challenge the prosecution service is facing is contained within C-75. Maybe I’ve missed it, but the Attorney has said: “I’m not concerned about the amendments to 493 or section 210 of C-75.” So what is it? What is it about the amendments that were contained in C-75 that, when we have this conversation — sometimes a robust conversation, in this political setting — about public safety, prompts the Attorney to say: “But now we have to contend with C-75”?

All right. If he was Justice Minister for a day in Canada, what would he change? What is he saying to the Justice Minister should be changed about those provisions to eliminate those obstacles or those hurdles that this now represents?

Hon. D. Eby: I think it’s important to draw a distinction here between the multiple sources of how we end up in this situation that we’re in, in British Columbia, and C-75. I believe that it is the cumulative impact of Zora, Jordan, Antic and C-75 that has made it far more challenging to deal with the small population of offenders with serious mental health and addiction issues who, by definition, are vulnerable — by definition under C-75 and the incorporation of that and a decision called Summers into the Crown prosecutor policy.

That cumulative impact on Crown’s decision-making is one factor in a series of factors that have led us to a situation where crime generally is within, if you’re talking about property crime, some of the lowest rates in the province for a couple of decades, but, if you’re talking about violent crime, certainly within the ten-year average. Yet the reasonable perception by reasonable people in their downtown cores in many different parts of the province and, in fact, the country, is that things feel a little bit different. They don’t feel safe, and they’re concerned about it.

I’m going to give the member…. I want to be really clear about why I feel this way. It’s these cases and C-75, but it’s also changes that have clearly taken place in policing. In 2011, the clearance rate, which is…. When an offence takes place, police investigate, and then they conclude with a report to Crown counsel, that’s called cleared. It’s cleared when they’ve completed the report to Crown counsel. It doesn’t have anything to do with the Crown. It’s all within the police. It’s reported to police. They investigate. They do the investigation. They put the file together. They complete the report to Crown counsel.

They cleared 30.4 percent of files in 2011 and 29.7 percent of files in 2012, but in 2020, it was 25 percent. So there’s been a 5 percent reduction in clearance rates for police.

For violent crime, the reduction is even more stark. It was 55 percent of files that were cleared in 2011 and 2012. In 2020, 43 percent of files were cleared. So that’s another factor. Why are there fewer files being cleared by police that end in a report to Crown counsel?

Then, when we look at reports to Crown counsel themselves going to Crown…. Crown cannot approve what they don’t get. It doesn’t matter what C-75 or Zora or anything else says. If they don’t get the report to Crown counsel, that’s that.

For Vancouver, there’s been a 27 percent reduction in reports to Crown counsel from 2017 through 2021. Provin­cially this trend has held.

[4:55 p.m.]

Overall, provincially, reports to Crown counsel are down 18½ percent in the last five years. Vancouver Island, 24.9 percent; Vancouver, 25.39 percent; Fraser region, 13.26 percent; Interior region, 18.13 percent; northern region, 8.77 percent down over the five-year period — a dramatic reduction in clearance, a dramatic reduction in reports to Crown counsel. And those files that do go ahead then face this intersecting array of Zora, Jordan, Antic and C-75, which results in people being more likely to be released, and there was a pandemic that led judges….

I believe judges were far more reluctant to remand people to prison because of the pandemic, especially in the early days, than they were before, which resulted in a significant decline. Not only that, but criminal trials weren’t running, so people weren’t being sentenced in the same way. So there was a significant decline in the prison population in the province.

If you put all of these factors together, then it starts to make sense why people are seeing this change in their downtown area. Really complicated to explain that. Way easier to say: “Oh, it’s section 273 of C-75. We just change this section, and we solve the problem.”

The complex nature of the challenge that we face has led me to say to a couple of people who ought to know, a former chief of police with significant on-the-ground policing experience and an expert in mental health and corrections: “This is a complicated, multifactor problem that we’re seeing in our downtown cores. Help us identify the solutions that are going to make the biggest change.”

If they come back and they say: “Look, you need to lobby the federal government on the change of this particular legislation or to establish a prolific offender provision….” I note that there was an MP, a backbencher, federally, that has put forward a proposed amendment related to prolific offenders. If that should be part of our response, I’m all for that.

But it is not immediately apparent to me, of the cumulative Supreme Court of Canada decisions interpreting the Charter, as well as C-75, combined with all these other factors that I’ve outlined for the member, which is the most appropriate target, or, in fact, if any of them are, if there may be other opportunities for us to pursue to address this issue and make communities safer. That’s the work that we’re doing.

M. de Jong: I’ll offer a couple of observations. They are not meant to be needlessly argumentative.

I would say this: over the course of the discussion that has taken place, in this chamber and outside of it, and of the very real concerns being expressed by community leaders and members of communities about what they see as a proliferation of criminal behaviour by prolific offenders, the clear impression that has been left on the part of the government is that this is the result of people who are suffering from mental illness, and that requires a very complex type of multidisciplinary response. I think people accept that, with respect to that group of individuals who may be suffering from those challenges.

I think people also have heard the government and the Attorney General say, to the extent that they have recognized there is this other group of criminal-minded individuals who have made this choice to profit by a life of crime — that includes crime against people, crime against property — that the state and the prosecution service’s ability to address those individuals, happily a much smaller group, I believe, has been impacted by Supreme Court jurisprudence and Bill C-75.

I will say — and if the Attorney wants to respond, he, of course, should — that I don’t think, in the course of our discussion today, that a very convincing case has been made for that cumulative impact and how C-75, specifically…. It may be that a convincing case can be made, but I don’t think the Attorney General has made it here.

[5:00 p.m.]

I was hoping that he would present some concrete examples of the kinds of changes that he would like to see on the legislative front, federally, recognizing that he can’t direct the jurisprudence or what the courts and the Supreme Court of Canada have ruled in the past.

We’re going to, I think, differ somewhat in our view of that matter. But I promised earlier on that I would try to, in addition to prodding the Attorney around where he saw some of the challenges, offer up some ideas for his consideration and get his reaction to some of those ideas. I’ll try to do that now, as it relates to the specific issue about how to better address and deal with prolific offenders who are causing this chaos and a sense of lack of safety in communities.

I’ll begin by saying that I drew on the experiences of this assembly and even my own, just prior to arriving here, when the then government of the day determined that a form of criminal behaviour was of sufficient level of importance as to warrant a very specific strategy and a very specific focus.

Back in 1993, violence against women and children fell into that category, and the government of the day, under then Attorney General Gabelmann, introduced a comprehensive set of policies that guided Crown behaviour as it relates to those matters. I recall it from both perspectives, because oddly, at the time, I was practising and then, shortly after, arrived here in this place. But at the time I was practising, I was very much confronted by the impacts of the decisions around the creation of that policy.

I looked it up, from the 1993…. The charge process is referred to there as to guiding Crown counsel as it relates to charges in cases involving violence against women and a specific policy as it related to bail hearing. I’m not going to read it all into the record, and I’m sure the Attorney has access to it, but policies around the accused who poses a danger to the victim and a whole set of criteria to guide Crown counsel as to when a detention order should be sought — no guarantee they were going to get it, but when a detention order should be sought.

It occurred to me that if you combine that…. And that, by the way, manifested itself in updates — violence against women and relations policy in 2010 and a subsequent update to that policy later, and a coordinated governmental approach to violence against women in relationships. I think there’s a new term now, as it relates to intimate relationships, that governs the policy.

The point being that there is a specific policy, and I haven’t been able to find anything specific, anything similar relating to prolific offenders but think I could make a pretty compelling case for why it would make sense to have such a policy that provided direction, on a general basis as opposed to specific cases, to Crown counsel around how to address prolific offenders.

Now, the Attorney General I expect will say: “Well, we’ll see what the report says.” I’m not hostile to it if the report makes those recommendations.

[5:05 p.m.]

My submission to the Attorney in these proceedings is: why not begin that work now? The case has been made, in my view, for why a specific policy around the prosecution of prolific offenders is warranted. But I’ll listen to his reply.

Hon. D. Eby: A couple of pieces to respond to the member. The failure is mine, I guess, in terms of trying to convince the member that his colleagues stand up during question period and accuse me of running a catch-and-release justice system.

[5:10 p.m.]

I tried to point out to him, in these answers, that there are actually new laws and cases that say to Crown prosecutors: “You must release more of the people that you catch while they’re waiting for trial.” So when I say the federal government…. There have been changes. There have been cases that result in more people being caught and being released. It’s not this level of government. It’s a different level of government. I don’t know why I wasn’t successful, but, maybe, when I just put it that plainly, that will assist.

I guess some of the complexity comes from the fact that, you know, when you look at any one of these cases or provisions, at least when I look at them, they seem to make sense independently. It’s the cumulative impact of these, and especially in relation to a small group of offenders, that I believe has contributed to — in part, by the way — what we’re seeing downtown in a number of communities in the province and nationally. It doesn’t recommend itself to a tidy solution. Cumulative impacts, other factors feeding into this, and so on. I accept that I haven’t convinced the member, but I want to put on the record my understanding of things anyway.

The member raises the precedent of K files. It’s the designation put on a file involving intimate partner violence. A K file identifies the nature of the offence that is alleged, which is violence against an intimate partner. It does not designate anything about the alleged offender other than this is the crime that they are accused of. It leads to an expedited administrative process to get the matter in front of the court quickly, and that is based on evidence and research that suggests that better outcomes arise from expedited processes in these particular types of offences.

The proposal to have — for lack of a better descriptor — a P file for a prolific offender file is the member’s suggestion, and I’m open to the suggestion. Let me just start with that. I’m open to that suggestion, if that is something that would make a difference in the system.

But I need to point out some of the policy challenges that it faces. A P file is a designation, not about the offence — shoplifting, level 1 assault, mischief. It’s a designation in relation to the person that is in front of the court. One of the key principles of criminal law is that you get to walk into the court. It’s not about who you are; it’s about what you are alleged to have done and whether or not it can be proven beyond a reasonable doubt.

So if you’re going to put a P on somebody’s file and say, “This is a prolific offender, Your Honour,” then it raises concerns about leading a judge to, essentially, infer character evidence, in the absence of an application from the Crown or anyone else, to say that we should be able to leave this character evidence or this similar fact evidence related to other offences. There’s actually a whole process that you have to go through to prove that somebody has committed similar offences in the past, and this is consistent with those offences and so on, and the court has to make an independent decision about that. So that is the big challenge of this particular proposal.

Now, I’ve actually already done some work. And the member says: “Why not get started on the work?” The member raised this proposal for my consideration in informal conversations. He’s put it on the record now. So I asked for our policy team to have a look at that, and the conclusion was that there is a significant risk of a court not permitting these designations because of the impact on neutrality and basic decisions solely on the evidence in front of them rather than the designation of the offender.

That’s not to say that there aren’t advantages of the member’s proposal. An advantage would be a convenient way of tracking prolific offenders in the system. We don’t have a convenient way of tracking them in the justice system. It could be useful for the prosecution service and the correction service. One of the members on the other side proposed a designated Crown for particular prolific offenders. It might make it easier to identify those individuals for managing the prosecution of these offenders and having dedicated Crown.

There might be, sort of, a nuanced version of this. That’s my immediate…. Well, I say immediate reaction, but it’s actually considered, in part, by the policy team at the Prosecution Service — some of the advantages of the member’s proposal and some of the challenges that it presents.

[5:15 p.m.]

Certainly, any other suggestions that the member wants to put on the record or informally advise me of, I’ll ensure that our investigators consider those possibilities as well, and also, that the Prosecution Service considers them in their discussions internally with police and with me.

M. de Jong: I certainly appreciate the distinction the Attorney has drawn between a policy that is geared towards a type of offence versus a policy that is geared towards a type of offender or accused.

Insofar as we are dealing with internal policy, I’m going to suggest that as the officials examine this…. You wouldn’t have to work hard to convince me that an attempt to legislate that kind of approach would be problematic in provincial legislation or in federal legislation. But as a guide to prosecutors, as to how they might consider proceeding, I noticed….

The distinction notwithstanding, in the 2010 update to the intimate partner violence provisions — what was then still called violence against women in relationships policy — on the question of bail, the policy said the following, and this is the policy guide from the Ministry of Attorney General to Crown counsel: “Crown counsel should have particular regard for the safety of victims and other family members, particularly children, and will consider all available…information in relation to the risk presented by the accused. If Crown counsel concludes that bail conditions will not adequately ensure the accused’s attendance in the court or promote the safety of the victim, other family members or the public generally, Crown counsel will seek detention of the accused.”

Now, to be sure, that relates to a particular kind of offence as opposed to a particular kind of an offender. I don’t think that the Crown would incur the wrath of the court if it internally adopted something similar.

Sometime earlier in these proceedings, the Attorney referred to some of the types of directives and policies that have been given. I don’t think what I have just read falls under either section 5 or 6 of the Crown Counsel Act, but as the Attorney knows, he has the authority under that legislation to provide specific direction under, I think, section 5 to specific prosecutions and more generally under section 6. I’m wondering to what extent he has considered, or is open to, the possibility, probably in this case, of a section 6 direction to Crown counsel.

We have seen in the past, in 2011…. This was a section 5 — the Attorney referred to this earlier — around prosecutions relating to the Stanley Cup riots of 2011 — June 15, 2011. In 2012, a specific direction as it related to, actually, the community of Bountiful, B.C. In February 2013, a direction under section 6 of the Crown Counsel Act on provincial firearms and other weapons, speaking to immunity, amnesty and limitations. In 2016, again, a direction under section 6 of the Crown Counsel Act that was issued by the then Attorney General of the day, Anton.

Some authority that exists for the Attorney General. Is he sufficiently…? Well, two questions. I don’t want this to be argumentative, needlessly argumentative. I love a good argument, but it doesn’t need to be needlessly argumen­tative.

[5:20 p.m.]

Does he believe this is a circumstance that could warrant the kind of direction contemplated under section 6 of Crown Counsel Act?

Hon. D. Eby: There are two types of direction that the Attorney General can issue. One is, as the member says, in relation to a specific allegation against an individual, to direct a charge. I have directed Crown counsel to obtain a second opinion on a charge, and I know that there’s a history of directing Crown counsel on particular files.

I’ve advised mayors across the province and said: “Look, if you have a specific file — the police are coming to you — and you’re saying, ‘Why is this not being charged?’ bring it to me. I’ll have a look at it with the lens of a direction on that specific file, to direct a charge.” They haven’t taken me up on it yet, I suspect largely because by the time they become aware of a file, it has already marched down the road on the criminal justice side a fair bit. But that offer remains open. I put it on the record. I’m glad to look at those concerns.

There is an internal review process that police can take, right up to the ADAG responsible for the Prosecution Service, to appeal the decisions of Crown counsel, to say, “Look, we just don’t understand why this front-line Crown is not approving these charges or has made a decision to release,” or whatever. They can push it up the line, all the way up, to have that review internally. It’s something important to put on the record, as well, because it may not be obvious to a particular police officer facing that kind of challenge that that’s something that’s available, but it is.

On the specific question of directing policy, I am completely amenable to doing that. I have issued directions related to Crown policy, and the key for me is that there is a reason to do so — that either there’s a gap between what I believe needs to be done and what Crown counsel believes to be done that needs to be addressed, or Crown feels that a direction is needed from me.

I can’t direct Crown to ignore Supreme Court of Canada decisions or federal law. I know the member’s not suggesting that. But as he says, there are areas of interpretation. There are areas where policy fills that gap or a direction from the Attorney General can fill that gap about how particular files are to be administered in the system and so on, and K files are a good example of that.

[5:25 p.m.]

All of this is to say that if our investigators come back and say, “Look, part of the issue here is with Crown policy related to this, and this needs to be addressed,” I am completely open to directing such policy change, should the Crown, for some reason, not be willing to take on that change on their own initiative. This maybe would have been a sufficient answer to the member’s question if I’d started with that, but I did want to provide that background.

M. de Jong: Well, we have talked about the report and the investigation, and the Attorney has heard me observe that there are perhaps some things that he could move ahead with prior to the completion of that work, but I won’t retill that ground. We had a conversation. I was mildly critical of the Attorney General a little bit earlier about, maybe, a lack of specifics in a couple of areas that we were talking about.

I will offer up…. I’ll put it on the record because I want to put it on the record, and then I can provide the Attorney with a copy. So here’s my version of what a directive might look like under section 6 of the act to deal with this problem that I think we’ve established is a genuine problem and has certainly elicited the concerns of community leaders across B.C. It comes in the form of a directive, and it says, from the Attorney:

“Please accept this letter as my direction pursuant to section 6 of the Crown Counsel Act relating to prosecutions of adult accused persons who are determined to be an adult prolific offender as defined by this directive.

“(1) Any person over the age of 19 who has been convicted 16 or more times for a Criminal Code of Canada offence or an offence under the Controlled Drugs and Substances Act shall be deemed an adult prolific offender.

“(2) In circumstances where an adult prolific offender is brought before the courts on additional charges, a presumption shall exist on the part of Crown counsel that the public interest, including the safety of the public, is best served by seeking the detention of the accused adult prolific offender pending the disposition of the matter.”

And following:

“In applying the presumption as set out in this directive, I would direct that the prosecutor with conduct of the matter also be guided by the following: the bail policy on adults of January 15, 2021, and the relevant sections of the Criminal Code of Canada.”

I think that the Attorney sort of gets the gist of what I’m proposing there. I can send him the copy over. But the point I would make is, as was the case in 1993 and 2010, the significance of the direction…. The law is not changed, but it is a clear indication of the priority that the government and the Attorney are attaching to a particular area of law and law enforcement and public safety. For that reason, I believe, examining this approach and making clear that priority to the Crown prosecutors who ply their trade in the courts around the province would be helpful.

But there is an initial, unsophisticated stab at what a direction might look like to give priority to this question of prolific offenders and dealing with prolific offenders in B.C.

Hon. D. Eby: I thank the member for the suggestion, I will absolutely consider his suggestion.

[5:30 p.m.]

M. de Jong: I’m going to make sort of a blanket observation as it relates to the announcement made by the Attorney as it relates to the investigation. I don’t in any way want to dismiss the abilities of the individuals that the Attorney has chosen to deploy and employ. I have repeated several times my concern around the delays. The announcement, I think it’s fair to say, was viewed as somewhat underwhelming in terms of the comments made by the Attorney prior to his announcements.

Having said all that, let me say this. In the government’s release, which I suspect the Attorney had an opportunity to approve before it was issued, there’s commentary about prolific offenders experiencing mental health and substance use challenges and how additional treatment is required.

What I thought was missing from the government’s release was, similarly, an acknowledgment — a lack of mention and recognition — of that other group, people that we’ve referred to as having chosen a criminal lifestyle and chosen, very purposely, to profit by imposing misery and criminal activity on others.

[J. Tegart in the chair.]

Conveying that there is an appreciation for that component of the criminal element is, I think, important, and I think it was a mistake not to include it.

The final page of the report speaks of the investigation into prolific offenders. It’s the terms of reference. It refers to offenders, chronic property crime and violent offences, and I think this gets back to the definition. Are we going to emerge from this with a sort of acceptable, accepted definition of prolific offender? Is that something that the Attorney is looking for?

I’ll ask the second question at the same time so the Attorney only has to stand up once. There was also an invitation to look at offering courts the option of the real-time electronic monitoring on interim release options. I’m just curious why that wouldn’t be…. That seems so self-evident — to use that technology now. What is it the Attorney is looking for to validate taking that step? It seems to me to be a logical thing to do. What does he see as the impediments to moving ahead with that, and why does he want to wait?

Hon. D. Eby: I specifically asked, in the terms of reference, for our investigators to assist me in defining the relevant terms. One of the reasons for that was that we met with the Vancouver police department. I said, “Well, tell me about what you’re seeing in terms of these prolific offenders,” and they were at pains to distinguish two groups. One was prolific offenders creating chaos through multiple property crime, low-level mischief and property destruction and so on, and a group of other offenders committing random violent attacks that are of great concern to them in the downtown area in Vancouver.

That distinction gave me pause, because I thought I understood this kind of broad category of prolific offenders, but they were very clear that these are very different groups of people with different motivations and different backgrounds and will require different policy responses. So I’ve asked for the definitions specifically in relation to these, informed a little bit by those meetings with the Vancouver police department.

The background on the real-time monitoring is a pretty straightforward question of government resources. Implementing a significant, real-time, provincewide monitoring program for people being released on bail is…. Certainly it’s the capital investment, but that’s not the barrier.

[5:35 p.m.]

What it really is, is the training. Who’s doing it? Who’s monitoring? Is it police, funding for police? What are the policies? Training of police, training on the new systems, rolling out…. The member will know that we have RCMP, who wish to do a two-year training cycle. We have municipal forces through the JI. I want to know that it’s worth it.

Will the courts take us up on this? If it’s going to be ordered or agreed to, the courts need to sign off on it. Do the police believe that this is something that would be useful to them? Would they use it? Are they willing to commit the resources to train up and deploy it and so on? They would be very involved in that.

Maybe that’s not the best use of our resources in terms of responding to this problem. Maybe that’s not the core issue. So I am content — I know the member has disagreed — to take the time to get the solutions that are going to have the biggest impact as quickly as possible. This may be something else entirely.

That does not take away from the very real concerns and community. If it were the only thing we were doing, I would accept the member’s critique that it’s just not okay to wait 120 days without other things going on. But there are other things going on. We currently have our Crown counsel working on policy related to this with police. We currently have 500 complex care beds rolling out across the province for people with serious mental health and addiction issues, and we know the link between that and disorder in downtown cores.

For example, in Vernon, where we have deployed housing for people with mental health and addiction, they’re reporting that there’s been a dramatic reduction in certain crimes downtown related to that kind of housing. There are other pieces that we’re doing to respond to this, and yet — as the member, I’m sure, agrees — we need to do more. We need to respond to the specific issues of those offenders who — even when they’re housed, even when there are supports — are still going to be committing these offences, still causing this chaos. How do we best respond to that?

I hope that’s helpful background about why it is we’ve taken this particular approach. We might agree to disagree on that, but I think it’s critical that we know the problem we’re dealing with, what’s feeding into it and the solutions that are going to be the most effective to respond to it.

M. de Jong: In a moment, my colleague from Richmond is going to pose some questions to the Attorney on multicultural aspects of his responsibility. I have two quick areas that I wanted to canvass, though. Last year, in these same proceedings, we had a fairly detailed conversation about updates and amendments to wrongful death legislation. Interest in that topic, of course, has not diminished. The Attorney knows that. A year has passed, and I’m not going to read quotes from the Attorney and me having our exchange.

His undertaking was, at the time, that…. I shouldn’t say his undertaking. His statement at the time was that this remained a priority for him and the government. Although I think it disappeared from the mandate letter, he was still committed to taking steps to introduce updated legislation. That large body of people who are interested, some of whom are members of families that have suffered, I think it’s fair to say, great injustices, period — certainly relative to other parts of Canada — continue to wait.

What can the Attorney say by way of offering assurance to them that they will see legislation updating our woefully out-of-date wrongful death legislation? We are nearing the halfway point of this government’s term, and time marches on.

[5:40 p.m.]

Hon. D. Eby: I can advise British Columbians who are interested in this issue, and members of the committee, that policy work continues on reform in this area to explore opportunities for us to address the injustice that the member has raised. I can advise the member that we are maintaining our commitment to deliver reform in this area before the end of our term of government.

M. de Jong: After a period of 12 years of contracted service and, I think, reasonable contentment in 2019, the contract with the Crown prosecutors — and we’ve spent a fair chunk of our time in these estimates discussing the important work they do — expired. What update can the Attorney offer in terms of the prospects for settlement, and what is the issue that seems to confound the ability to settle this matter? I understand it’s a remuneration issue. The linkage between what prosecutors are paid and Provincial Court judges are paid — is that the issue? If it’s not, what is?

Hon. D. Eby: Thank you to the member for the question. The agreement between the employer and the B.C. Crown Counsel Association expired on March 31, 2019. The key provisions of it remain in force until a new agreement is reached, and that’s what’s governing the relationship currently.

The expired agreement was struck April 1, 2007, and part of it involved linking the general wage increases of Crown counsel salaries to that of Provincial Court judges, plus an additional annual amount as a catch-up provision. At the expiry of the agreement, top Crown counsel salaries had reached what I understand was the intended target of 85 percent of judges’ salaries. The parties commenced bargaining a new agreement in January of 2019. Those negotiations broke off in March 2019 for an arbitration to determine whether the annual salary adjustment provisions in the agreement, including the pay linked to Provincial Court judges, would continue beyond a March 31 expiry.

In December 2019, the arbitrator ruled that the annual salary adjustment provisions would continue as long as the current agreement remains in force, but without the additional catch-up amount. That ruling had the effect of providing a 1.51 percent increase to Crown counsel salaries, effective April 1, 2019. There have been attempts to reach an agreement through bargaining in 2020 and, most recently, in July 2021.

However, an impasse does remain. The previous agreement remains in effect, and the salary linkage to Prov­incial Court judges continues. Crown counsel received a general wage increase of 2.22 percent, effective April 1, 2020; an additional 2.26 percent increase on April 1, 2021; and a further 2.21 percent on April 1, 2022. That is the update I can provide the member on that issue.

[5:45 p.m.]

M. de Jong: I understand that the employer — the government, in this case — went to the Labour Relations Board seeking a declaration that following the expiration of the contract in 2019, the linkage between what prosecutors are paid and Provincial Court judges are paid should be discontinued. I understand that that application failed, which has given rise to the increases that the Attorney has pointed to.

One, am I correct in that regard — that the government sought and failed to receive that declaration from the Labour Relations Board? Two, is it the Attorney’s and the government’s position today that the amount that prosecutors are paid should be delinked from what Provincial Court judges are paid?

Hon. D. Eby: I believe that is the arbitration that I described to the member that took place when negotiations broke off in March of 2019. The ruling of the arbitrator, which was received in December of that year, was that the annual salary adjustment linked to Provincial Court salaries would continue. However, there was an additional catch-up amount in addition to that link, which was discontinued.

I would say that it would be probably more fair to characterize that as a mixed decision between the employer and the Crown Counsel Association. The link continues, but the catch-up amount was discontinued.

With respect to individual bargaining issues at the table, those will be negotiated with Crown counsel as we, hopefully, work to reach a mutually satisfactory agreement.

M. de Jong: Right. I thought the Attorney would end his comments with something like that.

The fact that the application was made, though, I think, does give me licence to pose this question. What is it about that linkage that troubles the government and the Attorney, troubles them enough to have given rise to the application in the first place?

Hon. D. Eby: Maybe I’ll take a step back and comment on the judicial compensation process. I think what grieves me about it — I imagine it did the member when he was Attorney General — is the uncertainty that that process generates around judicial salaries and the lengthy court processes. We are backlogged on a couple of different judicial compensation commissions. They often go all the way to the Supreme Court of Canada on interlocutory matters as well as the decisions themselves.

The process is challenged. We have done some scoping of whether there is an opportunity for us to reach a mutually agreeable set of changes to that process to provide more predictable outcomes for everyone, and some of those discussions resulted in legislation that the member will recall was in this place, as we try to refine some of the processes around the setting of judicial salaries.

Given the uncertainty of that process — the multiple pieces of litigation that arise from it, the multi-year processes that flow from it — from a purely technical point of view, that process itself is not working as intended, in my opinion. Without commenting on bargaining or whether or not our government would be able to reach an agreement with Crown counsel that maintained that linkage or not, that is part of the challenge of judicial salaries and anything linked to them.

I could not tell the member right now what a Provincial Court judge is being paid in British Columbia, because it’s dependent on several court decisions related to unanimous votes that have been taken in this chamber about what those salaries should be.

M. de Jong: I think final question on this topic. It has now been some time since the prosecutors, who play this very key role in the preservation of public safety through our justice system, have been without a contract. How much longer is that likely to continue, and perhaps more importantly, is the Attorney at all concerned about the impact and effect that is having on morale within the Prosecution Service?

Hon. D. Eby: I think I’d agree with an assertion that I feel is implicit in the member’s question, which is that uncertainty around labour relations does have an impact on morale of employees, and I am very hopeful that we reach an agreement with Crown counsel to resolve these issues.

[5:50 p.m.]

Being without an agreement is a challenging situation for Crown counsel, and certainly, I hope we’re able to reach an agreement soon. I think that’s all I really feel comfortable saying in terms of an ongoing bargaining process.

T. Wat: Thank you to the staff for staying so late, until the end of the day. I will try to be as brief as I can, given that I don’t have much time.

Today the MLA from Vancouver–Capilano introduced a petition, with over 4,000 signatures in the legislation, calling for the removal of racist language in decades-old land covenants. Is the minister aware of this?

Hon. D. Eby: Yes, I am. The land title registry is one of the responsibilities of the Minister of Forests, actually, and I know that she is aware of the issue as well. All of government is. This has been a topic of conversation for a number of years in the Legislature. The disgusting and disturbing language on land titles in British Columbia, I know, is both telling of our history, and significant in that way, and disturbing to people trying to buy a home. They want to sell their place, they get the title, and they find this on the title. It’s a serious issue. I’m very aware of it, and I know that my colleague is interested, concerned and working on the issue.

T. Wat: Staff reported to the West Vancouver council last week. In fact, they wanted to take action on this issue, because it’s quite unimaginable that at a time when we have a 700 percent increase in anti-Asian racism in Vancouver alone, and when Vancouver has been branded as the anti-Asian-racism capital in North America, many property owners — not only in West Vancouver, but in other parts of the North Shore — can see their covenant with the wording clearly saying that no Chinese or African descent can live on the property.

So the staff took it upon themselves to look into this issue. They wanted to work with the land title office in trying to search through all the land covenants, but they found that the cost it took for them to do so would be in excess of $1 million, which is beyond their financial capability. They suggested to the council that they should put a motion in UBCM asking the provincial government to take on this action.

I just want to try to recall what I did when I was the Minister for Multiculturalism. The minister at that time worked with the Ministry of Justice to reveal nearly 2,000 pieces of legislation dated from 1871 all the way to 1982. We’ve done that for a couple of years, even though this is not the jurisdiction of the Minister of Multiculturalism.

We did take on this task, and eventually, after going through the almost 2,000 pieces of legislation — some of them are in the basement, as the minister is well aware — we identified 19 obscure historical private acts that contained discriminating provisions, even when they were not effective when you present those to the court. But to have this still appearing in the pieces of legislation is totally unacceptable.

We passed through the three readings and got through all the royal assent, and, eventually, we haven’t seen any of those discriminatory languages in the legislation.

[5:55 p.m.]

The minister should really take action to help the municipalities to remove all these discriminating provisions, especially as next year is the 100th anniversary of the Chinese Exclusion Act on July 1. I am sure British Columbians wouldn’t like to see those still appearing on our land covenants.

Hon. D. Eby: Yes, I recall the member doing that work when she was Multiculturalism Minister. Certainly, I think all British Columbians appreciated that work. I know, as well, that the then Leader of the Opposition, the current Health Minister, did a significant piece of work with the Legislative Library, pulling 89 bills and 49 resolutions of similar character that informed some of the member’s work as well. I do remember the historic and bipartisan effort that that reflected, and I’m grateful for it. I think we share that perspective on this issue as well.

The member knows, I think, some of the technical challenges of the volume of the number of titles that need to be reviewed and corrected, edited, to remove the racist covenants. I know that my colleague the Minister of Forests is very interested in this issue and wants to address it as much as anyone in this House wants to address it.

I regret that this is not our ministry’s file, only because I would like to provide more detail to the member about the work that has been undertaken and that will come. But I will work to get the member a response from the Minister of Forests so that she has updated information about this issue. I know it’s important to her, and certainly it’s important to me.

T. Wat: Can I confirm I can have the minister’s commitment to work with the minister of forestry to ensure that all this kind of discriminatory language won’t appear in our land covenants?

Hon. D. Eby: I have full confidence in my colleague to be able to work with the member on this issue, and I will get, for the member, an update for her about what’s happening on this file.

T. Wat: I would like to be mindful that July 1, 2023, is the 100-year anniversary of the Chinese Exclusion Act. Hopefully that’s the day when we will not see any of those discriminatory languages.

On another issue, I’m hoping that the minister can consider establishing a working group within the ministry to reveal granting requirements to ensure that the governing bodies of organizations receiving government funding reflect the demographics of the community they are located in — that is, the participants and also the participants of the program are also reflective of the community they serve.

As a background to my suggestion, in the city of Richmond, which I represent, there are two soccer clubs. Both of them are being funded by the B.C. government. However, the board of one of the organizations is comprised of almost 100 percent Euro-Canadians. As the minister is well aware, Richmond has at least 70 percent of Asian immigrants — Asian Canadians as well. Also, the majority of the youth soccer players are non-Asian.

Several attempts by my constituent in Richmond in trying to set this club to change were not successful. My constituents and many others residents in Richmond find this is quite unacceptable, especially when they are getting government funding.

I would appeal to the minister, since the minister is overseeing multiculturalism and is responsible for granting a lot of funding, that we should make the requirements that if they receive government funding, their board of directors should be reflective of the demographics of the community they serve and that for the kinds of programs they run, whoever participates also reflects the demographics of the community they serve.

[6:00 p.m.]

Hon. D. Eby: The member raises an issue I’m broadly familiar with. I heard about this concern from the community of Richmond. It’s, I’m sorry to say, not unique in terms of concerns about systemic or structural racism, where there’s not an explicit prohibition on someone of a certain background participating in or benefiting from a government program, yet the structure of it is such that people are excluded.

That’s why, the member will know, we worked together and unanimously passed anti-racism data legislation. The first tranche of data we’re expecting from that is to arrive in June 2023. All ministries will be receiving information back, including information about grant recipients, and ensuring that they are representative of communities and will assist government in ensuring that underrepresented communities are better represented in government’s granting.

It, in itself, in its initial stage, does not go that additional step that the member is asking to the grant recipients, participants and whatever programs are funded. I will take that request back with me.

This particular program, I believe, is funded through gaming grants. I will follow up with the relevant ministry — I believe it’s Tourism, Arts and Culture — to determine how, in the specific case of the soccer leagues, we’re responding to that and, more broadly, in terms of the gaming grants generally, what measures are being taken to ensure the diversity of participants and programs that are funded.

T. Wat: Sorry, I guess I didn’t quite get the response. Can you repeat it, Minister?

Hon. D. Eby: I’m happy to. The member will recall we passed anti-racism data legislation. The first tranche of data we’re expecting in June of 2023, which will include data about the distribution of grants in relation to who’s receiving them and that they’re representative of different communities in the province.

I’m aware of this issue of the soccer leagues broadly. The grant, as I understand it, is a gaming grant, and I believe it’s Tourism, Arts and Culture that is responsible for those grants. I will follow up. The anti-racism data legislation will look at who receives the grants, but it doesn’t go that additional step, of: who’s participating in the programs that are funded?

I’ll follow up with Tourism, Arts and Culture and ask them to connect with the member on the specific question of the soccer clubs in Richmond and the more general question of how we’re ensuring diversity of the people participating in the programs that are funded through these government grants.

T. Wat: Thank you so much for repeating the response. I really appreciate that. I’m looking forward to getting back the follow-up from the minister.

[6:05 p.m.]

On another one, the racist incident hotline. I have the news release dated April 30, 2021, that the ministry has committed to create the hotline. So far we haven’t heard of any progress on that one. I just want the minister to tell us what the progress is.

Hon. D. Eby: I can update the member that policy work has been underway on this. We believe we’ve identified a possible service provider, and I look forward to providing new updates to the member on this as we move forward.

T. Wat: Do we expect the hotline to be up and running within this year?

Hon. D. Eby: I don’t have a timeline currently for the member, but I will provide her with an update on it once I have a timeline for her.

T. Wat: Does the minister feel that the action is a bit too slow? This anti-racism has been going on for at least the last two years. Even in the news release, it’s quite clear that a devoted hotline is really crucial for victims of racism to report.

There are lot of unreported racist incidents. If the government cannot have a full picture of what’s going on, it’s not easy for the minister to fully understand and take action. I’m appealing to the minister. I mean, this has been going on for at least two years. By the time the hotline is set up, maybe, hopefully, we’ll have no more racism.

Hon. D. Eby: Hon. Chair, I hope the member is correct that we see the end of racism in our lifetimes, for sure.

The serious question she asks is about the timing on the hotline. Yeah, I would agree with the member that if this were all that we were doing on anti-racism, it is taking some time to implement this. However, it’s not all that we’re doing on racism.

We have been very busy on the anti-racism file on solutions in community, with the hub-and-spoke network, the Resilience B.C. initiative and specific initiatives with different communities. Just the weekend before last, there was a significant announcement, with the Japanese community, about the incarceration of Japanese Canadians during World War II. I saw the Leader of the Opposition there too; the Premier was there. I think there were almost a dozen of my colleagues at the announcement around the Chinese Canadian Museum, the community celebration around that this past weekend. There have been many, many anti-racism initiatives.

I accept the member’s critique that people in community want to see this hotline sooner, and I’ll certainly commit to the member to do my best to deliver this as quickly as we can.

T. Wat: I really appreciate that the minister has undertaken a fair number of issues against this racism, but as I’ve said earlier, in 2021, we were branded as the anti-Asian racism capital of North America, and Vancouver alone has seen an over 700 percent increase in anti-Asian hate crimes.

[6:10 p.m.]

Of course, nationally we are much higher even than the whole nation, by 47 percent. Even more worrying was that two-thirds of the anti-Asian racism incident victims were women. Has the minister continued to see this worrying trend in anti-Asian racism? What has the ministry done further? I know the minister has talked about what the ministry has done. But what other additional measures is the ministry going to do to combat this?

Hon. D. Eby: In relation to fighting racism in the province, we’ve done the following. We’ve reinstated the Human Rights Commission, along with the Human Rights Commissioner. We launched the Resilience B.C. Anti-Racism Network. They work with communities to respond to racist incidents in community, in a hub-and-spoke network, where the hub is able to provide support to community spokes when racist incidents arise, and it has proven itself on a number of racist incidents that have taken place in the province.

We’ve nearly doubled the anti-racism base funding. In 2017, it was $300,000, and now it’s $540,000. We invested $2.9 million in recovery funds to respond to the surge in need for anti-racism programming since the pandemic. We ran a provincewide anti-racism awareness campaign and increased funding for a provincial anti-racism network.

We committed to and delivered anti-racism data legislation in this legislative session. We initially provided $2 million to support Japanese-Canadian seniors as a first step to honour the traumatic incarceration of almost 22,000 Japanese Canadians during the Second World War, and then recently, this weekend, the Premier announced a $100 million package to respond to that community and ensure that their needs and, in particular, the needs of Japanese-Canadian seniors who were incarcerated are met.

With respect to public safety, we established a Special Committee on Reforming the Police Act, which members of all parties participated in, with a particular focus on systemic racism and ensuring the availability of police to different communities, including in relation to racist criminal activity.

In education, we’re developing a K-to-12 anti-racism action plan. We expanded the ERASE, expect respect and a safe education, strategy to be a more comprehensive resource for teachers and students and respond to current issues in schools and communities. We expanded B.C.’s curriculum to support the teaching of different topics related to B.C.’s history, including Black history.

[6:15 p.m.]

In relation to health…. I realize the member asked about anti-Asian racism, but these are broadly applicable responses. In relation to health, we committed to tackling anti-Indigenous racism in health care, following the In Plain Sight report, $45 million in Budget 2021 to fight anti-Indigenous racism that became very evident through that report in some very high-profile incidents.

Finally, with respect to Jobs, Economic Recovery and Innovation, there is a $50 million fund to support Indigenous, Black, people of colour, women and people facing socioeconomic barriers to participate in the economy with skills training and employment opportunities. There have been a number of initiatives in relation to anti-racism to address what the member rightly points out is a rising tide of hate, not just in British Columbia but across North America. British Columbia has an important role to play in being an anti-racist province, especially given our history.

T. Wat: Really appreciate all the initiatives and action taken by the minister. Thank you for pointing that out.

On other hate crimes, anti-Semitic hate crimes rose in B.C. by 110 percent in one year. What is the minister doing to help reverse this worrying trend of anti-Semitic hate crime?

Hon. D. Eby: There is funding that has been provided to the community through the Resilience B.C. hub-and-spoke model that I spoke about earlier. The Jewish community has been engaged in our anti-racism work in many different initiatives related to the anti-racism data legislation, for example, to ensure that the views and concerns of that community are addressed. We’re also partnering with the community on health and safety initiatives for community members through the funding of the Jewish community centre and associated housing in Vancouver, a large centre of the province’s Jewish population.

The Chair: Noting the hour, Member, perhaps this will be the last question.

T. Wat: Oh my goodness. I have tons of questions. Well, maybe…. Can I send the written questions, because I know that tomorrow will be Housing? I just want to have more info.

One final…. I guess I have to pick. I understand that the minister is also thinking about introducing the anti-racism bill, so can the minister let us know what is the progress of this anti-racism bill?

Hon. D. Eby: We’ve been engaging with communities about the contents of that bill and the best way to move forward. That engagement continues. Beyond that, we’re still shaping it with our partners and that.

I would encourage the member, if she does wish to ask further questions next day, if she works that out with her House Leader or whatever, just please let me know, and I’ll make sure to have staff present to answer further questions. If not, happy to provide answers in writing and more detail where the member needs it on answers that I provided today. I think we share a commitment to fighting racism in the province, and I’ll do my best to be complete in those answers, and timely.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:19 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of Supply (Section B), having reported progress, was granted leave to sit again.

Committee of Supply (Section A), having reported progress, was granted leave to sit again.

Hon. D. Eby moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow.

The House adjourned at 6:20 p.m.