Justice Committee on Oct. 7th, 2025

[Boris Bytensky]

The nature of our litigation in bail courts, especially in Ontario, is that we cannot manage to complete our lists. Cases that are ready to proceed can't be reached because we have only so many hours in a day. In Toronto, we typically have 25 cases that are ready to proceed with bail. We typically get through 10 to 12 of them. The math doesn't add up.

Crowns need to consent to more reasonable releases. Fewer matters are being consented to than ever before. It's creating an untenable situation.

As I said, the problem isn't just that we detain too many people. Others have said that. I'm not so sure that I necessarily want to go down that road too far. It's that we wait too long to release the people who get released, and they end up losing jobs, houses, treatment and all sorts of things. The people who wait two weeks for their bail hearings may as well be detained because their lives are crushed. That's what causes further harm.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I don't know if you can answer this question. Typically, how many bail hearings are waived because of these systemic delays?

[Boris Bytensky]

How many...?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

How many bail hearings are waived? If you get through only 10 of 25, what happens to the other 15?

[Boris Bytensky]

They go over to another day. Then tomorrow's list will have 40 matters and, again, matters don't get reached. It's very difficult to get your client into court. People wait days in a queue to get a timely bail hearing.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

There are cases where the bail hearing can be waived through an agreement between the defence lawyer and the Crown.

[Boris Bytensky]

Sure, but I think Mr. Spratt has some personal experience. If you don't mind, he can jump in.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

By all means, go ahead.

[Michael Spratt]

You're quite right. Hearings can be waived.

I have a couple of these cases going on right now. The most insidious thing is this. Someone's arrested on a minor offence, a property offence, and they can't get their bail hearing for the next five days. I've sat in court, and I've had lawyers who work with me sit in court, day after day, to reach the same bail hearing. At the front end, the Crown says, “We could schedule your bail hearing, which might be available in five days, or you could plead guilty now and get out.”

My clients who are innocent.... The problem isn't, as Mr. Baber suggested, clients wanting to stay in jail longer to get time. The problem is innocent clients wanting to plead guilty to escape those terrible conditions that are caused by a deliberate policy choice of provincial governments.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Part of the problem is that there are not enough prosecutors and not enough jails. The Toronto South Detention Centre is in my community. It was like building a new school, and then you have to put portables out in the football field the next day. They just don't have the capacity.

All of these things play into the problem. There's a shortage of prosecutors and a shortage of courtrooms. There isn't enough capacity in the prisons. It's systemic. All these delays add up to a situation that, right now, is untenable.

A Crown prosecutor I know once said to me that the laws aren't the problem; the enforcement is. The enforcement we're talking about is of those things: the prosecutors, the prisons and the jails. Isn't that right?

[Boris Bytensky]

It can be, and it doesn't help—

[The Chair, Liberal, Marc Miller]

Please be brief, Mr. Bytensky.

[Boris Bytensky]

It doesn't help when every Crown knows that if they agree to somebody's release, they're going to be criticized for it in the media by somebody. It can be police officers or politicians sometimes. There's a culture of refusing to consent, in part because of that.

[The Chair, Liberal, Marc Miller]

Monsieur Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I will use these two minutes to give Dr. Myers time to answer my question from earlier.

Dr. Myers, I will ask you the question again.

What is the solution? I would like you to give me the figures again. I believe that you mentioned a percentage of inmates who are in custody only while awaiting trial, or a percentage of inmates awaiting trial who will be found innocent.

I think you had some figures on that. I would like to hear them again, please.

[Nicole Myers]

Just to go back to the figures you were asking about, when we look at our provincial jails, 76% of the people in our provincial jails are in pretrial detention. Then we look at the proportion of cases that end with all charges being withdrawn, which does include people who may have been released or in custody. We don't have the breakdown on data to only look at those who are in custody. However, 52% of individuals have all of the charges they're facing withdrawn. We're only convicting about 46% of individuals.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

What is your opinion on how to reconcile the presumption of innocence of the accused with the need for public safety, which is also important?

The presumption of innocence is important, but if society no longer has confidence in its justice system, we are headed for disaster. We want people to trust the courts to deliver justice. Right now, that trust has been shaken.

Based on your expertise, in one minute or less, how can we restore public confidence?

[Nicole Myers]

I think that to help the public, we need to make sure we're providing them with accurate information about what's happening, rather than feeding them mis-characterizations of a system that is apparently lenient, when it's precisely the opposite of that.

Protecting the presumption of innocence is critically important, but as has been said by all of us here, we do need to be thinking about victims, community safety and public safety. It is a balance.

We're left with the difficulty that we cannot perfectly predict. We're making imperfect predictions, but we want to do that as best we can. The best way we can possibly to do that is to get the minor stuff out of the bail system so that we can focus on that which is more serious and, when we are making decisions, to make them quickly.

Every single day in the bail court, the most common decision is an adjournment. We make very few bail decisions every day in court, whether that's a consent release or after a show cause hearing. Every day, that is the most common outcome. If we can reduce that and make that bail decision much sooner, we can avoid causing all the kinds of harm that come from that extra time in detention.

[The Chair, Liberal, Marc Miller]

Thank you.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thanks to all three of you.

[The Chair, Liberal, Marc Miller]

Thank you, everyone.

This concludes the first hour of this meeting. Thank you, all three of you, for coming in.

We will take a brief pause. You can leave, but you're welcome to stay, obviously. We have to do it because people are online, and there are a number of them. We have to do some sound tests.

Go ahead, Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Thank you.

At this time, I want to revisit the motion that I moved at the beginning of the first hour. With all due respect, Mr. Chair, there was a challenge brought by my colleague Mr. Lawton to your ruling. You disregarded the challenge, which is incorrect. That's a procedural error. The challenge requires an immediate vote and a debate.

[The Chair, Liberal, Marc Miller]

Is this about the challenge itself, or do you want to revisit the motion? There are two things you are asking here.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

If we can revisit the motion without the challenge, I want to revisit the motion right now and allow my colleagues to say what they want to say about the motion. If we have consent from all members of this committee, great. If not, we'll move to a vote.

I don't want to take the chance that we set aside 10 minutes at the end of the second hour and that, all of a sudden, someone decides to filibuster this. This is an important motion. Both studies, in my view and in our collective view, have equal weight and equal relevance, and we want to proceed with this motion.

[The Chair, Liberal, Marc Miller]

I understand.

I believe the Liberals have a point to this, Mr. Brock.