The federal government’s long-awaited changes to the bail system, making it more difficult for repeat violent offenders to be released pending trial, are on their way to becoming law after Bill C-48 cleared Parliament on Thursday.
The changes come as a result of intense political pressure and advocacy from the premiers, who unanimously pushed the Liberals for reform in the wake of serious violent offences allegedly committed by people who had been out on bail.
The Ontario government praised the bill when it was introduced in May for bringing “meaningful and much-needed changes,” while the president of the Canadian Police Association described it at the time as “common-sense legislation that responds to the concerns that our members have raised.”
Critics including academics and criminal defence lawyers have charged that the new law is a knee-jerk reaction that is not based on evidence, and will worsen the problem of the overrepresentation of Indigenous and racialized people, particularly women, in the country’s jails.
For most criminal offences, a person must typically be released on bail — often with conditions — unless the Crown can show why they should remain detained. In some cases, known as “reverse-onus” offences, that burden shifts to the accused person, who must show the court why they should not remain detained.
Bill C-48 expands the list of reverse-onus cases to include individuals charged with a violent offence involving a weapon who have been convicted of a similar offence in the last five years. It also expands the number of firearm charges that lead to a reverse-onus bail, including unlawful possession of a restricted firearm.
The right to not be denied reasonable bail is guaranteed by the Charter of Rights and Freedoms and, ultimately, the decision to release a person on bail remains with the judge or justice of the peace.
Calls for changes to the bail system grew louder after the December killing of OPP Const. Greg Pierzchala. One of the people charged with his murder, Randall McKenzie, was wanted at the time for breaching his bail conditions.
The bill was fast-tracked through the House of Commons by a unanimous vote after very little debate and, unusually, no study by the justice committee. The task of reviewing C-48 and hearing from experts fell to the Senate, which passed the bill with some minor changes this week. The House agreed with those changes Thursday, and the bill will become law after it receives royal assent from the Governor General.
“All levels of government have a role to play to ensure that our bail system works as intended. Our government is doing its share,” Justice Minister Arif Virani said in the House on Thursday.
“We need to ensure access to housing, we need mental health supports and addictions supports. Those are also critical elements to improving our bail system.”
The lack of comprehensive and accurate data on the bail system to back up the need for the bill was highlighted in the Senate’s study, something Virani said Thursday he would work on.
“The fact of the matter is that data collection regarding bail is the responsibility of the provinces and territories and not prioritized in the gathering of justice statistics and information,” said Sen. Brent Cotter, chair of the legal and constitutional affairs committee, in the Senate last month.
“I think it’s fair to say that the empirical basis for the adoption of this bill is weak.”
Sen. Kim Pate questioned whether the upper chamber should pass it, expressing concern it will lead to the incarceration of even more Indigenous people, particularly women. Pate is a former executive director of the Canadian Association of Elizabeth Fry Societies, which advocates for, and supports, women in the criminal justice system.
“The reality is this is all about politics and not fundamentally about public protection,” Pate told the Star, saying what’s actually needed are more supports including housing and mental health services.
“We know the more people we jam into prisons — because every other system fails them — the more likely it is that we’re making the situation worse. We’re not increasing public safety, but increasing the overall risk to public safety.”
A particular concern for Indigenous women
A person facing a charge related to intimate-partner violence, who previously received an absolute or conditional discharge for a similar offence — meaning found guilty, but no criminal record — will also now face a reverse-onus bail under C-48. Previously, such individuals only faced a reverse-onus bail if they had actually been convicted and received a criminal record.
This change risks further Indigenous women ending up in jail pending trials, said Jonathan Rudin, special projects director at Aboriginal Legal Services. That’s because of “dual charging” by police, in which both parties are charged during an intimate-partner violence call, leaving it to the courts to sort out who did what.
Rudin said Indigenous women are particularly vulnerable in such situations, and will often plead guilty even if they did nothing wrong, to avoid further repercussions like losing their children — referred to as “wrongful conviction guilty pleas,” he said.
Rudin said courts recognized this issue by granting discharges, so that the women would not get criminal records. But now, women in such cases who end up charged again will face an even more difficult time in trying to get bail as a result of the C-48 changes, both Rudin and Pate said.
“So there is no question that these provisions, the reverse-onus on domestic violence, are going to make it harder for Indigenous women,” Rudin said.
“We’re not at all suggesting that domestic violence is not a very serious offence. But what we know from how these issues have been dealt with by police and the courts is that Indigenous women are disproportionately getting caught up through dual charging.”
The Senate’s legal affairs committee recognized this issue. Cotter said the new provision “tends to scoop up relatively vulnerable people in this net” and that witnesses told the committee it would “inappropriately target and criminalize survivors of intimate-partner violence.”
A majority of the committee proposed removing the provision, but it was re-added by the full Senate after a proposal by Conservative Sen. Pierre-Hugues Boisvenu. He said removing it sends the message to an individual with a history of violence that they “could be granted a type of clemency if he reoffends.”
The federal Conservatives have said C-48 does not go far enough. Opposition Leader Pierre Poilievre said in May that as prime minister he would bring in a law to ensure that repeat violent offenders who are newly arrested for a violent crime “stay behind bars, with jail not bail, until their trial is done and their sentence is complete.”
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