The Power of Perspectives

The Canadian Bar Association

Kim Covert

Sympathy for fallen cop basis of flawed proposed legislation

April 25 2017 25 April 2017

 

A proposed bill that made it from the Senate to the House of Commons on a wave of sympathy for the police officer whose death prompted it is so flawed it should not pass into law, says the CBA’s National Criminal Justice Section.

Bill S-217, sponsored by Conservative Senator Bob Runciman, was drafted in response to the death of Edmonton RCMP Const. David Wynn, who was killed by a “career criminal” out on bail.

The bill would amend the Criminal Code to “expand the grounds for the justification of detention in custody” and require prosecutors in bail hearings to lead with, among others, information about an accused’s criminal record and any other outstanding charges.

The bill does not have the support of government, for many of the same reasons outlined by the CBA Section in its letter to the Justice and Human Rights Committee.

“We believe it is constitutionally vulnerable, unnecessary and contrary to current efforts to improve justice and justice efficiencies,” the Section says.

Starting with first principles, the Section notes that the cornerstone of Canadian law is the assumption that a person is innocent until proven guilty, and pre-trial detention is the exception, not the rule. “To automatically order detention would be contrary to the ‘basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.’”

Putting S-217 into practice would have the effect of increasing court delays and delaying bail hearings, the Section says. It is vulnerable to constitutional challenges because it can be seen as interfering with prosecutorial independence and discretion – by requiring prosecutors to lead with evidence of an accused’s prior criminal records – as well as with the independence of provincial and territorial attorneys general.

Moreover, many of the proposed bill’s provisions already exist in law, rendering them unnecessary.

“In sum, we believe that Bill S-217 would not help to improve the criminal justice system, but would be more likely to impede fairness, prosecutorial independence and discretion, and justice efficiencies. We recommend that it not be considered further for inclusion into Canadian criminal law.”

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