THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, September 27, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. [ET] to study Bill C-48, An Act to amend the Criminal Code (bail reform).
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. I want to invite senators around the table to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Arnot: Senator David Arnot, Saskatchewan.
[Translation]
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec, and I am the committee’s deputy chair.
Senator Gold: I am Marc Gold from Quebec. I am the Government Representative in the Senate and the sponsor of the bill.
[English]
Senator Klyne: Welcome. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: I am Senator Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
[English]
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Dupuis: I am Senator Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec.
[English]
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Jaffer: Welcome, minister. Mobina Jaffer from British Columbia.
Senator White: Kwe. Senator Judy White from the province of Newfoundland and Labrador, the ancestral homelands of the Mi’kmaq and the Beothuk.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, representing Senator Bernadette Clement.
The Chair: My name is Brent Cotter. I’m a senator from Saskatchewan and the chair of this committee. Just before we begin, and for your information, Senator Arnot and Senator White are not officially members of the committee, but they are joining us today out of interest in the bill, and perhaps for the opportunity to see the minister in his first performance at this committee in this capacity.
Honourable senators, we are meeting today to begin our study of Bill C-48, An Act to amend the Criminal Code (bail reform). Appearing on our first panel to discuss this government legislation, we are pleased to welcome the Honourable Arif Virani, Minister of Justice and Attorney General of Canada. At this time, I would also like to introduce his colleagues, some of whom will stay for the second hour of our meeting: Isabelle Jacques, Associate Deputy Minister; Matthew Taylor, General Counsel and Director, Criminal Law Policy Section; Chelsea Moore, Legal Counsel, Criminal Law Policy Section; and Shannon Davis-Ermuth, Senior Counsel and Manager, Criminal Law Policy Section — welcome to you all.
As I think you know, minister, we’ll invite you to deliver approximately five minutes of opening remarks, to be followed by dialogue, which usually means questions from senators for the better part of the following hour. I’m going to turn the floor over to you now, minister.
Hon. Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada, Department of Justice Canada: Thank you very much, Mr. Chair, and thank you to the members of the committee. I’m pleased to be here speaking to you from the traditional unceded Algonquin territory.
[Translation]
I am delighted to be here today to discuss Bill C-48. The bill seeks to strengthen our bail laws so that they continue to protect our communities and ensure public confidence in the system when it comes to cases involving repeat violent crime and weapons offences.
[English]
This bill comes at a time when we’ve all been deeply disturbed by a number of tragic incidences of violence that have shaken the public’s sense of safety and their confidence in the criminal justice system.
I want to start by offering my condolences to the victims involved, as well as their families, and acknowledge the hardships of all those who have been impacted by these senseless acts of violence.
[Translation]
I would like to remind you that this bill is the result of extensive discussions with our provincial and territorial counterparts. Our Indigenous partners, particularly national Indigenous organizations, and law enforcement agencies across Canada were also involved in the discussions.
[English]
It is also the result of a study on the bail system in Canada undertaken by the House of Commons Justice Committee earlier this year, which heard from approximately 30 witnesses over the course of seven meetings. That testimony from the House of Commons Justice Committee was reviewed carefully by my office and department, and considered in the drafting of this legislation now before you.
All the provinces and territories support this legislation, as did all members of the House of Commons, which is somewhat rare; I will confess that to you.
We have also received support from police and victims’ groups. We have heard calls to pass this legislation swiftly, and I look forward to working with you to do exactly that.
[Translation]
The basis for the current bail legislation, in accordance with the Canadian Charter of Rights and Freedoms, is that every person has the right to reasonable bail.
For most criminal offences, the onus is on the Crown to convince the court that the accused should be detained. A person may be held in pretrial detention for three reasons: to ensure the accused’s attendance in court, thus avoiding the risk of flight; to ensure public safety, particularly when there is a substantial likelihood that the accused will reoffend; and to maintain confidence in the administration of justice.
[English]
Bill C-48 would add a reverse onus for repeat violent offending involving weapons. For this reverse onus to apply — in the bill’s context — the accused must satisfy three conditions: They would be charged with a violent offence involving the use of a weapon; they must have been convicted in the last five years of a violent offence involving the use of a weapon; and both the offence charged and the past offence must have a maximum term of imprisonment of 10 years or more. This approach would encourage the courts to focus their attention on those who present a higher risk of reoffending at the bail stage of criminal proceedings.
Second, in terms of the general aspects that are touched by this bill, there are four firearms offences that would be added to the reverse onus provisions. I can delve into this in more detail later, but they relate to possession of a firearm; breaking and entering to obtain a firearm; robbery that involves a firearm; and making a firearm. This responds to the concerns we’ve heard from law enforcement agencies across Canada about gun violence, and would implement the call from all 13 premiers to add a reverse onus for the offence of possessing a loaded prohibited or restricted firearm.
The third general category that is touched upon by this bill is strengthening the existing reverse onus that applies to accused persons charged with an offence involving intimate partner violence, where they had previously been convicted of this type of offending. This provision would be expanded to apply to accused persons who have not only been convicted of such an offence, but also those who have been discharged after being found guilty of such an offence.
[Translation]
Senator Boisvenu, I know you have a bill that does exactly the same thing that is currently being examined by the House, so I’d like to thank you for your work in this area.
Beyond the proposed reverse onus amendments, the bill would bring clarity to prohibition orders made at the bail stage.
[English]
The final two changes relate to the considerations that courts must take into account when making bail decisions. This bill would require bail courts to consider if the accused person’s criminal record includes a history of convictions involving violence, regardless of whether or not the accused is subject to a reverse onus.
In addition, the bill would add a further requirement that bail courts must expressly consider the safety and security of the community in relation to the alleged offence when making a bail order, in addition to the safety and security of any victim. This would ensure that specific concerns from smaller municipalities, Indigenous communities and racialized or marginalized communities are taken into consideration at the bail hearing.
[Translation]
It is just as important to ensure that the measures introduced do not exacerbate the overrepresentation of Indigenous, Black and racialized individuals in the criminal justice system. I am confident that our decision to bring forward measured reforms, focused on a group of individuals who pose a higher risk to the public, is consistent with our government’s mission to tackle systemic discrimination in Canada’s criminal justice system.
[English]
I would also like to emphasize that bail is a joint responsibility. This is not some sort of magic wand piece of legislation. All levels of government have a part to play in ensuring that our bail system is working as intended. Non‑legislative changes — such as the need to continue reinforcing community bail supervision programs; access to sustainable housing; and mental health and addiction supports, amongst others — are also important prongs in improving our bail system. I applaud the work that has been done in these areas recently, and I will continue collaborating with all levels of government to ensure the objectives of the bail system are being met.
I am also committed to ensuring that we gather accurate and comprehensive data on bail in Canada. That data is not sufficient at this point. In the same federal-provincial-territorial, or FPT, meeting where the government committed to introducing this very legislation, my provincial and territorial counterparts committed to better data collection on bail so that we will be able to see what kind of impact this legislation has.
Mr. Chair, thank you for the opportunity to speak today on this important bill. I look forward to answering your questions.
The Chair: Thank you, minister. There’s a good deal of enthusiasm to engage with the minister. I will invite each of us to pose questions and answers with a limit of five minutes. Without being disrespectful, I might be fairly disciplined on that so that colleagues will get the chance to ask their questions.
We will begin with the deputy chair, Senator Boisvenu, and, more or less, end with Senator Gold, who is the sponsor of the bill. I’ll do my best to make space for everybody, but we are challenged by the enthusiasm of the committee.
[Translation]
Senator Boisvenu: Welcome, minister. Congratulations on your appointment. I hope to meet with you soon to discuss issues that are especially important to victims of crime.
Bill C-75 was passed in 2019. For the past four years, sexual assault and domestic violence crime has risen by 32%. The number of women killed has gone up by 60%. With this new bill, are you now admitting that your government made a mistake in passing Bill C-75?
Mr. Virani: Thank you for your question, senator. To be perfectly frank, I don’t think it did. Bill C-75 was brought forward to address a number of aspects of the justice system, particularly domestic violence, which has been a priority for you as well as for our government.
The statistics show that violence against women is increasing. A number of systemic factors come into play, especially given the pandemic and the fact that people had to stay home, stuck in private spaces, whether home or elsewhere. When a space is unsafe for a woman, we are going to see more violence against women.
Our government can certainly address these types of situations through funding. We have funded programs to prevent domestic violence.
Our goal with Bill C-75 was to impose, for the first time, a reverse onus for bail in intimate partner violence cases. Thanks to the bill, we are going to broaden or expand the regime, by targeting that same threat of violence not only when an individual is convicted, but also when someone is discharged.
Senator Boisvenu: Your bill deals with a few aspects of crime, including in connection with firearms offences. All of Canada’s premiers have called for an in-depth reform of the bail system. British Columbia’s justice minister was the one who said that the exception has become the norm. Bail is granted almost automatically.
Why didn’t you do an in-depth review of the current system in order to bring forward much more robust bail legislation, instead of a bill that touches on only a few aspects of the Criminal Code, such as bail in cases involving firearms offences? Take, for example, attempted murder without a firearm. That offence would be subject to bail. Why didn’t you expand the exceptions around bail to all serious crimes?
Mr. Virani: I want to emphasize something. In our federal‑provincial-territorial discussions, as well as in discussions with our provincial counterparts, they asked us — in October 2022, if I recall correctly — to make changes to the bail system.
Senator Boisvenu: Do you see the bill as a major reform?
Mr. Virani: It’s a specific and measured reform, one that was called for by the very government you just mentioned. Mr. Eby said this, and I quote:
[English]
From the British Columbia perspective, this is a huge priority. We need this bill passed. This is something that has wide support — all-party support, and support from all the premiers — and action needs to be taken.
[Translation]
That’s from the same government of British Columbia you just mentioned.
Senator Boisvenu: Do you think your bill is a comprehensive reform of the bail system or simply one aspect of crime, specifically in relation to firearms offences?
Mr. Virani: What I said initially, senator, is that, if we indeed want to keep our communities safe, our priority as parliamentarians, in any government — and it’s a priority I have, as minister — is that we have to make specific efforts, while also playing a role and having a dialogue with our various counterparts. I would say there’s an element of municipal and provincial involvement, because those governments have a role to play alongside us.
[English]
Senator Batters: Minister, if Bill C-48 on bail reform had been in place in Canada for the last five years, how many criminal offenders would have stayed in jail as opposed to being released on bail? Given the conditions you described in your opening statement, it sounds to me like this Trudeau government bill has a very limited scope. My guess is that the actual number of offenders this would apply to is tiny.
Mr. Virani: First, it’s difficult to respond to that with exact precision. As I mentioned at the outset, Senator Batters, the data — which is accumulated at the provincial level — is not as sufficient as it needs to be. What I would say to you — as a senator from Saskatchewan — is that I would encourage you to reach out to your Saskatchewan colleagues, and encourage them to ensure that their data is more robust.
This is the second point I would say to you: With respect to the logical supposition, a bill like this — which does not make bail impossible, but much more difficult to receive — will result in fewer repeat offenders who are serious and violent, and who use weapons while being out on the streets prior to their trial. Ipso facto, that means that unless they’re committing a crime inside a prison, there’s likely to be less criminality. I think this is a step in the right direction. However, I cannot provide you that data because despite my pleas for better and more accurate data, while some provinces have stepped up to the plate on that, not all the provinces have.
Senator Batters: Minister, I received a similar response from the government leader in the Senate — the sponsor of the bill, who is here with us today — when I asked him about this. He stated that your Department of Justice had no data on bail decisions made by judges recently, or data on the number of offenders to which the bill would apply.
Are you saying that when your predecessor drafted this bill, they did not conduct an assessment to determine how many offences would potentially be covered by this bill?
Mr. Virani: We absolutely did an assessment with respect to the offences, and that’s why you see a targeted measure that relates to repeat violent offenders.
I’m not sure I understand your question. I think you’re asking two different questions. The first question relates to how many crimes have been prevented, but the second question is with respect to the kind of analysis we put in to verify which types of offences would be caught. It was very specific and very targeted at people who are repeat violent offenders. I gave you the definition of what constitutes “repeat violent offenders.”
What we heard from communities right across the country, particularly on the Prairies — including from your own province — is that bladed weapons are a problem in Saskatchewan. Bear spray is a problem in Manitoba, for example, and we took great lengths to address those very concerns. The concerns were expressed by the provincial premiers, and the premier of your very own province of Saskatchewan is absolutely behind this bill, and has indicated as much quite publicly. I think that’s an encouraging sign.
Obviously, we looked to the information we had before us with respect to who has the highest likelihood of repeat offending. Importantly, I see everyone wearing orange shirts; it’s terrific that you have an Orange Shirt Day here in the Senate of Canada. We also heard from Indigenous communities who said that it’s important for us to mandate — which we are doing in this bill — that judges or justices of the peace who are making bail decisions have to consider the impact on a community when releasing a person back into the general population. We have heard that directly from Indigenous communities across Canada.
Senator Batters: What I was actually asking — in both of those questions — was about the number of offenders this bill would have applied to in the last five years. Perhaps, I can delve into that in more detail with your departmental officials in the next hour.
Certainly, the premiers of the provinces support significant bail reform, but what they want to see is actual significant bail reform. I’ll have to move on.
Minister, where is your GBA Plus document? As I’ve said a number of times to your predecessor at this committee, it is much more helpful if we can receive your GBA Plus document before you appear here, rather than after. Minister, a portion of my personal gender-based analysis on Bill C-48 would be that this bill is much too narrow in scope, and, as such, it leaves too many Canadian women — who may be victims of violent crime — vulnerable.
Mr. Virani: It’s excellent that you are raising this. The same B.C. government that Senator Boisvenu — your Conservative colleague — mentioned was here a couple of days ago. Niki Sharma and I had a discussion; she’s the Attorney General of British Columbia. She said this to me quite directly: If you’re concerned about violence against women, this bill is a huge step in the right direction. She’s specifically hearing in her community in Vancouver that there are people being abused by their former spouses or partners at the time when those individuals are let out on bail. So the reverse onus that we’re expanding with respect to intimate partner violence is a significant step in the right direction.
With respect to the GBA Plus, I’m very pleased that you’re asking me about that. If I’m being frank, I don’t often get asked about that by Conservative politicians in the House. I’m glad you’re asking about it here. What I would say to you is that it will be forthcoming. We have to redact certain information based on privilege and confidentiality. My officials have informed me that it will be forthcoming, as it has been in the past.
Senator Simons: I want to look at this from the other perspective. Reverse onus provisions make me extremely uncomfortable because they reverse the long-held British common law tradition of innocent until proven guilty. We’re making a presumption that because somebody has been guilty of previous crimes, we’re going to suspend their liberty — even though we don’t know if they’re guilty of this new crime with which they’ve been charged.
I have concerns about what this means in terms of a Charter Statement. I also have practical concerns about what this means downstream for remand centres all across the country, which are overflowing with people. I’m worried about what this will mean for cases where people are held in custody, and then the Jordan decision comes into effect, and their case may never reach trial because they would have run down the clock. I worry about what this means for people when faced with being in remand for 18 to 20 months, and they might choose to plead guilty just to expedite things. Then, if they are charged with a serious crime, they go to a federal facility, which is sometimes deemed more comfortable.
I think I’ve fit five questions in there.
Mr. Virani: Thank you, Senator Simons. Let me say at the outset that it’s really important to delineate the difference between what’s happening in pretrial situations versus trial. The presumption of innocence that is entrenched in section 11 of the Charter relates to one’s trial. We’re not talking about trial. We’re not talking about presuming a conviction. We’re talking about time spent, and whether you’re spending that in the community or incarcerated prior to your trial — that’s important. The section 11 presumption of innocence is not triggered in the same context as you’re describing.
It’s fair to ask these questions; it’s important at a parliamentary committee or otherwise. In regard to the issue of a reverse onus on bail, the bail is subject to certain parameters. I outlined some of them: confidence in the administration of justice, if there is a flight risk, et cetera. That has been tested in the courts, including in the Supreme Court of Canada in a case called R. v. Morales. In that case, the court found that when there’s a connection to public safety, it can be legitimated that — we have the evidence to show a risk of reoffending — a reverse onus in that context is constitutional. It doesn’t violate what is otherwise an entitlement to reasonable bail under section 11(e) of the Charter. Section 7 of the Charter also protects liberty interests, et cetera.
I feel very strongly about the role I have vis-à-vis the oath I take, which is very different from every other minister. I have an oath to uphold the Constitution; I’m the only one who swears that. I practised constitutional law before taking on this role. The Department of Justice Act requires me — vis-à-vis that Charter Statement you mentioned — to ascertain and make sure I’m satisfied that a bill being tabled is Charter-compliant, and table that very document you’re referencing.
We’ve taken all those steps. I’m very much satisfied that this kind of surgical, targeted approach toward serious, violent offenders who use a weapon is measured and appropriate because of the evidence that demonstrates that risk of reoffending. On constitutionality, it’s fair to raise those concerns. I don’t share the concerns about constitutional infirmity here — far from it. I think this is in compliance with the law.
With respect to the Jordan situation, I would say to you that it is an important issue. The Jordan case is about ensuring a trial within a reasonable amount of time. The issue of plea bargaining is a facet of our justice system, but certainly pleas that are not entered in good faith or with honesty are something that, obviously, the system of justice needs to eschew and not promote — and that is a concern for all of us.
If you have questions about overrepresentation, I’m also very happy to address that. Maybe that’s where you’re going next, so I’ll let you ask the questions.
Senator Simons: There are other people who are going to ask those questions about overrepresentation of racialized people and Indigenous people, in particular, but I’m really more concerned with the practical circumstances. There is only so much room for remand. If you’re not releasing people into the community, even with strict conditions, then you’re remanding them. There are only so many beds in the remand centres, and there are practical consequences to — well, I shouldn’t use the word “incarcerating” — holding people pretrial.
There is no funding attached to this. Are you concerned that there may be problems housing more people, or getting more people to a timely trial?
Mr. Virani: On the funding point, we have broad funding for the Gun and Gang Violence Action Fund, and some of that money is being used by the provinces on bail, and it’s upward of $300 million. Mr. Taylor is nodding, so I think it’s $330 million.
On the second piece, I would also emphasize, Senator Simons, that when you reverse an onus, in the normal course, the Crown must prove an individual is a risk and, therefore, should not be given bail. In this case, we’re reversing the onus, but when reversing the onus, that doesn’t mean an automatic detention. It doesn’t mean, ipso facto, by virtue of passing a piece of legislation, that all people in the category that I’ve mentioned — repeat offenders who are serious and violent, and with a weapon — are going to be denied bail. It’s just that they have to work harder to prove it. And it sends a signal to the courts around the country that this is what Parliament believes is necessary in order to keep Canadians safe.
I would urge you to consider this: In the parliamentary and political climate that we inhabit right now, to have unanimous consent on a bill — and to have all 13 provinces behind it, and all of law enforcement around the country behind it — is quite rare. The sentiment around the country is that this type of bill is needed for security and safety.
Senator Pate: Thank you very much. And I echo [Technical difficulties] the House of Commons Standing Committee on Justice and Human Rights was considering the issues that you referred to and referenced in your opening comments. On February 15, 2023, you had a discussion with Mr. Caputo about the Supreme Court cases Antic and Zora where you stated:
I read those cases as saying . . . the cardinal rule that the Supreme Court talks about . . . is that release ought to be the norm and detention ought to be the exception. There’s a presumption in most cases that an accused ought to be released.
Given that increasing numbers of victims of intimate partner violence — particularly Indigenous and Black women — are finding themselves countercharged and as the recipients of the presumptions against being released, I’m curious as to how you see this expanded definition impacting, in particular, women, Indigenous women, Black women and other racialized women, who may otherwise be criminalized. If you could, please provide any studies, any of the research and any of the data that’s available which you’ve looked at in terms of how you would mitigate against that result.
Mr. Virani: Just to clarify, Senator Pate, when you were citing that citation, was that a conversation between my predecessor and Mr. Caputo? I was not at the committee at that time in this capacity.
Senator Pate: It might have been your predecessor.
Mr. Virani: My appointment was July 26, not back in February.
To address your question, it relates a bit to what Senator Boisvenu was raising about Bill C-75. We heard that criticism about Bill C-75 when it was being enacted back in 2018 or 2019, if I remember correctly, and the GBA Plus will be instructive for you in terms of understanding our thinking on this provision.
We have had consultations in the process of developing this bill that went beyond just looking at what the Justice Committee had done at the House of Commons. It also involved Indigenous organizations, including national ones and more localized ones — and those consultations did not discern or raise an issue that relates to the specific issue you’ve raised. I’ll ask my officials to jump in if there is anything further to add with respect to intimate partner violence and the reverse onus, and how it may have a disproportionate impact on Indigenous women accused.
We’ve taken great lengths, as a government, to ensure that the overrepresentation piece is being addressed for Indigenous as well as Black individuals in Canada, who are overrepresented greatly. I can point you to many examples, but I will just highlight a couple right now.
One is Bill C-5, which dealt with mandatory minimum penalties, and the fact that those were resulting in the over‑incarceration of Black and Indigenous persons. I’m currently working on an Indigenous justice strategy with Indigenous leaders — looking not only at Indigenous women in Canada, but also all Indigenous people in Canada, and their overrepresentation in our justice system. We’re working on this from multiple areas. That’s important for situating the context in terms of how seriously we treat the issue of potential overrepresentation of Indigenous people.
Senator Pate: Thank you very much for that.
In terms of Bill C-5, I’m curious as to whether there is data now. Certainly, all of the information we are receiving — particularly from the groups who represent Indigenous women and Black women and other racialized women — is that the deputizing of them to protect themselves in intimate partner violence situations had not been alleviated. And there was no evidence that Bill C-5 would actually address the mass incarceration, in particular, of Indigenous women — who you know are now 1 in 2 — and Black women, who are 1 in 10.
If there is new data, if you could share that with the committee, that would be very much appreciated.
Mr. Virani: My officials are letting me know that we don’t have that data yet, but, as soon as it’s available, I will definitely be sharing that with you. It’s important in terms of evaluating the success and any challenges that arise from the implementation of legislation.
In terms of my conversations with one of the provinces that was spurring the initiation of this bill — the Government of British Columbia, which is a very progressive provincial government, as you know — they indicated to me that concerns expressed in cities like Vancouver about intimate partner violence were also grounded in the experience of Indigenous women, such as in Vancouver’s Downtown Eastside. I put that to you, for what it’s worth. I’m sure you can receive deputations in writing or orally from different provincial levels as well.
Senator Pate: I have had conversations with them as well.
[Translation]
Senator Dupuis: Thank you for being with us, minister. Can you share with us today some of the highlights from the Gender‑based Analysis Plus, or GBA Plus, that your department prepared? Perhaps you would prefer we put the question to the department officials appearing in the next couple of hours. I think it would be helpful to hear your comments on the GBA Plus findings and what you see as the key elements in relation to Bill C-48.
Mr. Virani: Thank you for your question. First, I can tell you that our government always strives to protect women and advance efforts to tackle domestic violence. Second, when we heard from all the provincial representatives, they repeatedly mentioned those accused of violent crimes involving a weapon. We decided on our own to add an intimate partner violence component.
As I said in the beginning, it’s about more than just convictions. Discharges are also examined or analyzed. The GBA Plus findings that will be presented to the committee will help you understand the phenomenon we are seeing in Canada. I want to reiterate something I said to Senator Boisvenu: The figures and statistics show that violence has been on the rise, especially during and after the pandemic.
Senator Dupuis: Thank you. My other question is about the parliamentary review that the bill provides for after five years. Bill C-48 calls for a parliamentary review by the House of Commons alone. From a policy standpoint, why did the government opt to exclude the Senate from the parliamentary analysis or review process?
Mr. Virani: I noticed the same thing about the provision. The approach differs somewhat depending on the bill.
For instance, Bill C-36 — back in 2014, I believe — stipulated that the review be undertaken by the House of Commons. In the case of Bill C-14, the review is to be conducted by either house or both at the same time. For Bill C-24, which dealt with organized crime, it was either house or both at the same time. Bill C-5 called for both houses to conduct the review, and in the case of Bill S-4, there is an independent review, but the review is conducted by both houses.
What I can say is that you are indeed masters of your own destiny when it comes to your process. You can undertake a review of any bill. I also want to point out that, certainly, in bills going forward —
[English]
I can give you an undertaking that I will ensure that all Department of Justice legislation you receive going forward will include a clause that talks about review by both chambers — not simply one.
[Translation]
Senator Dupuis: If I understand correctly, you’re pledging to rectify the situation. Does that mean you would be amenable to an amendment to Bill C-48 calling for either house to undertake the parliamentary review in this case as well?
Mr. Virani: What I want to make clear is that, going forward, for the bills you will be examining, we will always be able to —
[English]
We will be there to ensure that the parliamentary review includes both chambers. Frankly, I think you’ve seen the speed at which this piece of law was developed. From October 2022, we have a suggestion; we have an expert study; and we have another FPT meeting.
[Translation]
In March 2023, we have a bill that was introduced eight weeks later and a bill that was unanimously supported in one day in the House of Commons. I think the fact that we have to protect the safety of people and communities in Canada is a priority for both houses of Parliament.
[English]
I think it’s a priority for all of us, and we should all be working as efficaciously as possible to get this passed.
The Chair: Thank you, minister. We have six senators still on the list, and, with the minister’s indulgence, we may go to 20 or 25 minutes after 5 p.m.
Senator Coyle: Thank you to all our witnesses for being here with us this afternoon. Congratulations to you, minister, on your new appointment.
Keeping Canadians safe is a responsibility shared by every one of us in this room. This bill, as you have stated, is really about that: keeping Canadians safe. It came about, as you have said, in a pretty heated context, where there have been recent violent incidents which scare everyone and scare me. It came about because of a united call from the provinces and territories. It has all-party support. The House did a study on the bail system, as you have said, but this particular bill has not been studied until this moment when it’s coming to us. Let’s not forget that this is the first time we actually get to look at this particular bill.
This makes it difficult for the Senate. We didn’t have the benefit, which we normally do, of having seen the research, the work and the probing that’s been done, as well as the debate that has occurred in the House — so that’s difficult for us.
What data, reliable evidence and research results does the government have regarding the measures outlined in this particular bill resulting in the intended outcomes that we all want: safer communities, safer streets, safer highways and safer homes? That’s my first question. What do you have?
Mr. Virani: This is similar to the question that Senator Batters asked me, and this is what we’ve seen, both anecdotally and statistically: a rise in crime in Canada — and that rise in crime touches on certain indicia, and certain areas, and this is available through Justice stats and StatCan statistics. The rise in crime includes things such as violent offences using weapons. Some of the recent events that have been highlighted took place around the country.
I can’t give you the prognostication with absolute clarity about how much less bail will be provided. As I mentioned to your colleague Senator Simons, these are ultimately discretionary decisions made by a judge or justice of the peace around the country. They take the guidance that Parliament provides them. As a matter of intuitive logic, if you’re making it harder to access bail, it likely will be received less. If you’re giving pretty explicit instructions about the importance of considering community safety, and giving explicit instructions about where the onus needs to be altered in the case of a serious, violent offender using a weapon, that will likely keep those types of individuals off our streets.
I’m quite confident that will have an impact. Can I measure it for you now? I cannot. I’m not sure if my officials have anything they would like to add in respect of that, but we’ll endeavour to provide you with as comprehensive an analysis as possible.
The notion of a quick fix being promoted here is not accurate. Yes, we worked fast, but we worked with extreme diligence, and you see that with the October 2022 ask at the FPT table — an expert panel that does rigorous work, and then provides us with suggestions about a tailored bill. We see that tailored bill being developed, and the very same House Justice Committee study that Senator Pate was citing is a study that heard — on seven occasions — from 30 different witnesses about bail and how to reform bail. I would use that as instructive for your analysis here.
You’re here to do important work. You are a chamber of sober second thought. I appreciate and respect that. It’s a critical role in our parliamentary democracy. However, it’s also critical to be attentive to the needs of Canadians; the concerns that are being expressed in our communities; and the overwhelming support that is behind this bill, which I would say is rare — not just on the party side, but also on the intergovernmental side when we have every province in the country behind this bill, including our important law enforcement officials. I don’t know if our officials have anything to add on the data analysis piece.
Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice Canada: We can supplement a bit during our time. I know you have a lot of questions for the minister.
Senator Coyle: That would be great.
Senator Klyne: Welcome, minister and guests, and also congratulations again.
As you alluded in your opening remarks, Bill C-48 came before us on the heels of some appalling acts of violence. Nevertheless, and with all due respect to the victims of such acts, your predecessor is quoted as saying there is a lack of statistics backing up conjecture that more people are committing crimes while out on bail. Given the outlier nature of offenders committing crimes while out on bail, how does the government justify such a broad bill?
Mr. Virani: I’m just trying to understand your question because I’m being accused of having a bill that’s not broad enough by some of your colleagues, but you’re saying to me that it’s too broad a bill; fair enough. I guess that’s the diversity of the heterogeneity of the Senate. That’s what makes Parliament a good and useful thing.
I don’t think this is an overly broad bill, senator. I think it is very targeted. We received a number of suggestions about certain types of offences, which we incorporated. In a few instances, we enlarged them, but that was, again, based on provincial and territorial consultation. I’ll say candidly that we took a direct step with respect to intimate partner violence, but what we’re doing is targeted at people who have a history of repeat offences and, because of that history, are likely to reoffend. They are committing violent crimes, as well as crimes that carry serious penalties, and they have done so recently. You heard me define what constitutes a serious, violent offender. They’re using weapons such as knives, guns and — in some cases on the Prairies — bear spray, and they’re using those for ill-gotten gains and, effectively, to foment fear and concern in those communities. I think that’s a targeted approach to what we need to do to keep communities safe, and that’s why we stand by this approach.
Senator Klyne: As to the constitutionality of Bill C-48, given the honourable minister’s extensive background as a constitutional litigator and human rights advocate, can we expect this bill to be constitutionally sound?
Mr. Virani: Yes, absolutely. I believe this bill is sound. Does that mean it’s going to be immunized from a Charter challenge? Lots of things get challenged all the time. My job, fundamentally, is to ensure that what I’m putting before Parliament meets constitutional muster, and this bill does.
Senator Klyne: Thank you.
Senator Jaffer: Thank you, minister, for being here. I have to say that I’m really happy you are here at the Senate Legal and Constitutional Affairs Committee, and it’s probably a proud moment for me as well because you are not only the first Ismaili minister with the Government of Canada, but you’re the first Ismaili justice minister as well. And that’s where my niceness ends; he’s used to me.
Under the circumstances of Canada’s criminal justice system, there is no doubt that we have overcrowding. The challenge for many of us is this: Does the reverse onus add pressure on the accused to plead guilty in advance — toward lengthy delays in detention long before trial when evidence-based arguments are made? There would be pressure to plead guilty so that there won’t be a longer sentence.
Mr. Virani: Thank you, Senator Jaffer, for both your initial comments and for your candour and professionalism at all times. Yes, I’m used to it.
I think the issue you’re raising is an important one. It was raised by Senator Simons, I believe, at the outset that you’re not supposed to count in. I’m going to put on my lawyer’s hat right now as opposed to my ministerial hat. When a plea is entered into, it’s supposed to be done in good faith. There are certain ethical norms, rules and guidelines that govern the conduct of a Crown attorney who is seeking a plea. That’s the first point and an important check.
Are there issues that relate to the administration of justice and things such as prison populations? Of course, there are. I’m not trying to sound like I’m passing the buck here, but you know very well, especially at this committee — given what you study on a regular basis in Parliament — that the administration of justice, including provincial detention centres, is a jurisdiction of the provinces. We need to be working in a coordinated way with our provincial counterparts to ensure that the way they’re administering justice meets the needs of Jordan, ensures fairness to the accused, et cetera. That’s fundamental and critical.
I do think a targeted approach here is going to address what we need to do about serious, violent offences. Again, it doesn’t go to the presumption of innocence because that is the trial. The presumption of innocence protected under section 11(d) of the Charter informs an analysis, generally speaking, about how bail is provided. As I mentioned earlier, in the Morales case, the Supreme Court clearly said that a reverse onus on bail passes constitutional muster and conforms with Charter rights, provided it is tailored to a public safety imperative. That is exactly what we are addressing here.
I will link back to this question: Is this too broad or too narrow? It is narrow for a reason. If we cast it overly broad, it would suffer from potential constitutional infirmity. I don’t think we have done so in this case. I’ll stop there.
Senator Jaffer: Minister, when I used to practise criminal law, the big challenge was if there was the likelihood that someone would go to prison, they would be entitled to legal aid. My concerns are the following: First of all, will your government be increasing legal aid? Second, if the number of people who may be going to jail is higher — so there’s more legal aid needed — then other sectors suffer, such as the matrimonial sector, which always suffers because more money is going to criminal legal aid.
Where I sit, and with the number of women I see, even now, they do not receive matrimonial legal aid because a lot of money goes into criminal legal aid. Have you thought about this? How are you going to help the provinces?
Mr. Virani: I feel like there are two questions there. Let me say one thing by way of background. I helped create a legal aid clinic in Toronto before I ever got elected. I firmly believe in access to justice and supporting legal aid. When Ontario stepped out of immigration and refugee legal aid, I was one of the individuals who personally ensured our government stepped into the breach. That’s the first point.
The second point is we expanded legal aid in 2022 by $60 million, on top of the original amount that we were already providing for criminal legal aid. Perhaps, you think criminal legal aid is more the focus in this context because we’re dealing with crimes under the Criminal Code of Canada — ensuring that people aren’t overrepresented in our prisons, and aren’t unfairly treated by the justice system, is assuaged, in part, by ensuring that they have counsel. We are doing that, and we will continue to do that. The annual funding allotment from the Government of Canada is $202 million a year for criminal legal aid.
With respect to the matrimonial side, I can answer that, though it’s not germane to this bill in particular. Going back to what we did with our Divorce Act reforms, we are constantly trying — in matrimonial situations, divorce situations and marital breakdown situations — to ensure the justice system, and the way we structure our laws, is more amenable to people making claims by resolving their claims faster, in a less costly manner and in a manner that is more accessible to them. Some examples are accessing resources and having people talk to the Canada Revenue Agency, or CRA. We found that some of the roadblocks — in that context on the matrimonial side — were issues that related to people not being able to access tax records, or where people could outright be hiding their income as a way of not providing support payments. That’s a long digression, but I just wanted to make sure I covered it.
The Chair: Thank you, minister. I don’t mean to interrupt, but maybe I’ll give you a chance to answer that question when the next matrimonial bill comes forward.
[Translation]
Senator Dalphond: Welcome to the Senate Committee on Legal Affairs, minister. I know we’ll be seeing a lot of you here. I want to acknowledge your department officials, whom we’ve had the pleasure of hearing from previously a number of times. Their being here is always appreciated.
[English]
I checked the letter from the premiers, and the things they were asking for — it’s the fourth paragraph of their letter — and this is the specific measure they were calling for:
A reverse onus on bail must be created for the offence of possession of a loaded prohibited or restricted firearm in s. 95 of the Code.
I see you have responded by doing exactly that in your bill. The letter doesn’t call for any other specific measures; that’s the only one they were calling for. The next paragraph says:
This is just one proposal for much-needed reform, and we would welcome the opportunity to work with you and your government on this pressing and important issue.
I understand there were some further discussions on this letter. We’re here today, and many people have expressed concerns, including myself, about the data collection, and the fact that we have some data but we don’t necessarily have the full picture. You referred to it in your testimony that the provinces are the gatekeepers. They are collecting the data, especially for those not serving in federal penitentiaries.
As part of these discussions — which would be relevant when we do the review in five years from now — do you have an agreement with the provinces to collect more data? Did you direct them or suggest to them to collect some data about the gender or ethnic origins, as well as all these types of data that are often missing, which doesn’t provide us with the ability to assess the true impact of legislation?
Mr. Virani: I’ll answer both of the things you referenced. Senator Dalphond, you started out with the specific ask in that bail letter. They asked for one firearm provision. We then heard later from Ontario, in particular, about three other areas: robbery with a firearm, breaking and entering to obtain a firearm and trying to fabricate a firearm. We added those in response to what Ontario and some of the territories had asked us. That’s the first point.
With respect to the data, we absolutely have been discussing this. The information I have shows that about 7 out of the 13 total FPT ministers are doing the data collection. We want to see 13 out of 13 doing it. We had discussions with them about filling the gaps and ensuring this would happen. I raise this with them constantly whenever I have a meeting with an homologue, such as Attorney General Downey or Attorney General Sharma. What I know is that Justice Canada is actively collaborating with StatCan to ensure that the provinces and territories are prioritizing this important work.
The data that you and many of your colleagues are seeking is an important question. I’m not telling you how to do your work, but, in these following meetings, if you’re having meetings with witnesses who are from the provincial levels of government, please get them to give you an undertaking to provide you with the important data because it’s important going forward, undoubtedly, to see how this bill evolves, as well as the success or challenges that arise from the implementation of the bill.
Senator Dalphond: I’m happy to see you because you are a constitutional lawyer by training. There’s a very delicate balance here because there’s protection in the Charter under section 11(e) about if you are waiting for a trial, you should be released unless there are competing reasons.
I guess you have decided to do a balancing act to see how far we can go without making it constitutional in preserving the Charter.
Mr. Virani: To return to a question that was asked by Senator Boisvenu, Bill C-75 entrenched the principle of restraint, which comes from the Antic case. That’s important codification of Supreme Court jurisprudence. We stand by both that jurisprudence and what the Charter requires.
What we’re doing is very surgical. We believe it remains onside of the protection under section 11(e) of the Charter, which you were mentioning.
Senator Arnot: Minister, you have already touched upon many of the questions I want to ask, but I want to drill down on them because I think we can safely predict some of the consequences of this bill: increased pretrial detention for individuals. Particularly in Saskatchewan, we predict those will be Aboriginal men.
When I look at those consequences, I think about the facilities that are already overcrowded. We have a lot of security issues when moving prisoners in Saskatchewan — because of gangs — in order for them to safely appear before the court for bail hearings. I’m looking at the contest on legal aid, which has been mentioned, but also the contest in the courtroom, with Crown prosecutors and judges conducting more bail hearings and needing to delay. We know that’s going to happen.
You’ve mentioned mental health and addiction issues that need to be addressed. In Saskatchewan, I can say that programs are woefully inadequate. I think it’s fair to say that about most places in Canada. People in detention generally don’t get access to those kinds of programs at all.
When you talk about working in collaboration, it comes down to pressure on resources — financial pressure. Are you going to be able to work with your colleagues in the provinces and territories — who have to administer the criminal law with real resources — on these very vital issues, which I think, safely and predictably, will occur, and then assuage the negative consequences of the implementation of this bill by providing the kind of funding that will be effective in dealing with those issues?
Mr. Virani: Thank you for that, Senator Arnot. I appreciate your concern and your long track record in advocating for these types of human rights issues in Saskatchewan.
Of course, I’m already doing that type of work, and I hope to do a lot more of it. That’s the first response.
Second, I would refer back to the $330 million for the Gun and Gang Violence Action Fund that is being used to assuage some concerns and financial pressures with bail.
On the mental health front, you’re absolutely right; this is about looking back at the root causes of criminality. What I appreciate about our government’s orientation is that we appreciate that some people end up interacting with the criminal justice system because of poverty, housing, mental health or addictions. I would direct you to the almost $200 billion of the national health accord that was struck. Among the five things enumerated there, mental health was one of them.
I feel strongly about the overrepresentation of Black and Indigenous people in the criminal justice system. I know we are working hard on this. You’ve heard me mention Bill C-5 and the Indigenous justice strategy we’re developing. We’re also developing a Black justice strategy. We’re also working on multiple fronts with things like funding for Gladue reports. We have also implemented something we took from the East Coast: Impact of Race and Culture Assessments. We’re also funding legal aid, as I mentioned, and we’re working on an anti-racism strategy.
We’re coming at it from multiple fronts. This has been raised by my predecessor, and it will be raised by me in Quebec: I give you an open undertaking — when we have the next FPT meeting with Public Safety and the attorneys general — that we can’t have an increase in already overrepresented communities, which are Black and Indigenous accused, as a by-product of this bill. I believe we’re doing this in a targeted way.
I will say this quickly, Mr. Chair, with your indulgence. I’ve also heard from Indigenous communities that they sometimes feel over-policed — that heavy hand of law enforcement — and, at times, under-policed. That means that when there is a serious or violent threat, the response is two hours late, and it’s not robust enough. It cuts both ways in terms of overrepresentation of the accused side and victim side.
What I’ve heard from Indigenous and Black communities is they want a targeted approach that addresses — with significant measures — people who are doing serious, violent crimes with weapons. That’s what we’re trying to do here.
Senator Gold: Congratulations, minister. All of the questions I was going to raise have been asked.
I just want to briefly ask you something: You’ve talked a lot about the process leading up to the bill, including the consultations with the provinces, territories, Indigenous communities and the like. Now we have a bill. What can you tell us about the reaction to the bill as it is? To what degree are the provinces, territories, Indigenous communities and other stakeholders that you mentioned satisfied with the bill as it is?
Mr. Virani: They are extremely satisfied. I feel like I’m in that honeymoon period where people — like you — are offering me congratulations, and people are getting on board, but I’m also having conversations with people who are not exactly our partisan bedfellows, and they are gung-ho about this bill and the importance of it. They are keen on ensuring its passage.
What I take equal comfort from is that there are communities behind it, such as the Federation of Canadian Municipalities representing the municipalities. Law enforcement is universally behind this at the national, provincial and local levels. It is really receiving a strong amount of support.
I always temper that by saying this is not a universal panacea. There’s work to be done at the local level, law enforcement level, city level and provincial level. However, there’s a lot of interest in securing the passage of this bill quickly. What I will say to you — candidly — is to please take note of that desire because it’s rare to see it with such uniformity. Certainly, you deal with a lot of legislation that doesn’t have that uniform appeal.
But when I’m getting complimentary calls from people who are usually a bit less than positively disposed toward me and my government, I take that as a sign of this being a non-partisan issue, and it should be treated as such.
I’ll leave it at that.
The Chair: We’re down to about two minutes, and I don’t think it would be fair to launch a second round with a number of questioners, with respect.
If I may, minister, I have two questions for you: First, you answered the question about increased legal aid. Almost each time that the Government of Canada does an initiative like this, whatever the resourcing was two weeks ago, the costs go up. I think it would be valuable if your ministry were attentive to the additional costs of what will now be people incarcerated or held in custody having to prove or justify their release — at a greater burden to them and to the legal aid system. The $60 million last year was great, but this is an addition that will happen in the next few weeks.
It seems to me there was an answer that money was provided previously, but it wasn’t provided for this. It’s Ottawa’s decision, supported by the provinces, but it burdens criminal legal aid.
Second, in an answer to Senator Simons and perhaps to one other question, you suggested that the presumption of innocence was somehow different or less applicable in the context of people in trials versus while people are held in custody. I just wanted to observe that the reference to the presumption of innocence with respect to bail occurs in the preamble of this bill. I wanted you to have a chance to elaborate on that point because it seemed to me, with the greatest respect, that you were a bit dismissive of the application of the presumption of innocence in the circumstances to which this bill applies.
Mr. Virani: Thank you for giving me that opportunity, chair.
The presumption of innocence is entrenched in section 11(d) of the Charter. What the Supreme Court has said, particularly in the Morales case, and what I was trying to distinguish is that the presumption informs the analysis when looking at bail, but bail is not about a determination of guilt or innocence, prima facie. Bail is about what happens to you while you are awaiting trial, and that’s an important distinction for Canadians and parliamentarians to understand.
That’s a little nuance, but it’s entrenched in the legislation because we have concerns about the presumption of innocence, and we’ll always defend it. By altering an onus on bail, you’re not directly tampering with the presumption of innocence. We should evaluate what we’re doing on the reverse onus in keeping with the norms and ideas of innocence, but it is not directly applicable in a straight line. The granting of bail is in section 11(e) of the Charter, which says you’re entitled to bail subject to some reasonable conditions.
The Chair: That’s helpful, certainly to me.
Mr. Virani: And if I can correct the record in terms of the criminal legal aid: It was a $60-million addition, so it’s now $202 million per annum that is being provided by the Government of Canada.
The Chair: Thank you.
That brings this panel to a close. On all of our behalf, thank you, Mr. Virani, for being here, as well as for your presentation, for being open and frank and for being engaged in response to our questions.
We will continue our discussion during the second panel with officials from the Department of Justice.
Once again, thank you, Minister Virani and Ms. Jacques, and thank you, senators, for your engagement.
I would like to once again thank the Department of Justice officials who are staying with us to answer our questions. Mr. Taylor, Ms. Moore and Ms. Davis-Ermuth, thank you for staying with us. We’ll dive right into questions.
[Translation]
Senator Boisvenu: Thank you to the witnesses for being here. Mr. Taylor, this bill amends certain aspects of Bill C-75, which was enacted in 2019. Under Bill C-75, a man accused of domestic violence who is discharged and goes on to commit another act of domestic violence is not considered a repeat offender. Therefore, he isn’t subject to the reverse onus. The reverse onus applies only to a man who is convicted and victimizes someone again. The onus would be reversed in that case.
Does this bill take that privilege away from a man who has been discharged and engages in an act of violence against another partner? Would the reverse onus apply to him despite his being discharged?
Mr. Taylor: That’s exactly right.
Senator Dalphond: As far as the bill’s development goes, I understand that you received the letter in January, you held consultations immediately afterwards and the bill was introduced in May. That’s a rather quick process. Can you talk about the consultations you conducted? The minister mentioned the fact that you consulted not only the provinces and attorneys general, but also other groups. What other groups did you consult?
[English]
Mr. Taylor: Amongst us — as officials — we engaged with the provinces and territories for quite a significant amount of time on the issue of bail. This goes back to the work on Bill C-75, but it continued subsequent to Bill C-75.
On the specific issues that have been the focus of this bill, we have met regularly at a senior official level for over a year. Following the special ministers’ meeting in March, we met weekly — as officials — to develop options for law reform. Deputy ministers were involved in those conversations as well.
As officials, we did not engage with stakeholders directly. We did benefit from the study by the House of Commons committee, and observed the witnesses from organizations there. That was taken into consideration in the development of the bill, but the Office of the Minister of Justice did engage with stakeholders, police organizations and Indigenous organizations quite extensively. I know that informed the decision-making process of former Minister Lametti in terms of the specific proposals that you see in Bill C-48. I don’t have that list of organizations with me. If that’s something the committee wishes to see, I’m sure we can track that down.
The Chair: Consider that a request, Mr. Taylor. Thank you.
Senator Pate: I just want to correct a mistake I made with the minister. It was you, Ms. Moore, who had the interaction with Mr. Caputo. I don’t know if you want to elaborate at all. You know what I asked in terms of the data.
I also want to ask a bit more about the data as well. Given the issues that have come up from the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Mass Casualty Commission about the importance of a Charter-driven approach that looks at substantive equality — in particular, for Indigenous women, other racialized women and poor women — it strikes me that this kind of approach is a little too after the fact. Horrifically, and coincidentally, after the minister spoke, I started getting texts from a family member of an Indigenous woman whose sister and niece had just been taken to a remand centre, and charged with exactly the sorts of situations we are talking about.
This bill isn’t in effect, so hopefully they will get out, but this struck me: While there is all kinds of work being done on a strategy for reducing the number of Indigenous and Black prisoners, there isn’t the same strategy being done to prevent the criminalization and victimization that we know every commission of inquiry, every recommendation and all of the research show needs to be in place if we actually want to address intimate partner violence in this country. I’m curious as to what the intersections are between the Department of Justice and the departments that need to look at this, including federal‑provincial relations, and whether there was any pushback on that with respect to this particular bill.
Shannon Davis-Ermuth, Senior Counsel and Manager, Criminal Law Policy Section, Department of Justice Canada: Unfortunately, I don’t have anything specific on the strategy, and you’ve kind of jumped ahead to what my next point would have been. You have raised the issue of dual charging and cross-charging, which is a significant and serious problem. And one of the conundrums with the Criminal Code is if it were to be drafted in a way that didn’t capture these types of crimes — that these women are also victims of — then we cannot use the Criminal Code to prosecute those. The approach that has generally been taken — and it’s something I believe we’re continuing to work on through some of the other strategies on gender-based violence — is to do exactly what you’re talking about.
What needs to be changed is the charging that’s happening, not the treatment of the charges once they’re in place. That means working with federal-provincial-territorial partners to look at charging and prosecution policies.
Senator Pate: As we also know, the recommendations that keep coming out have charging as the end result. The lack of available options really got underscored during the pandemic. B.C. was one of the ones leading this, needing to see economic and other kinds of supports in place, and yet there hasn’t been the same progress on those fronts. Is there any progress that you can point us to, other than what’s already been discussed in broad strokes by the minister?
Mr. Taylor: It’s a difficult question to answer, Senator Pate. My colleague is right in that the issue is really around implementation, and implementation is something that is done primarily, as you know, with the provinces and territories, given their responsibility for the administration of justice.
We can speak generally about how Minister Virani talked about the Gun and Gang Violence Action Fund. He misheard me about the number; it’s $390 million that has been allocated to support prevention initiatives in that space. That’s obviously important. The Building Safer Communities Fund, also by Public Safety, is important. Some of the work that our colleagues at Health Canada would be doing is important. I’d like to give you a more meaningful answer, but I can’t.
Senator Simons: I want to hone in on the issue of absolute discharges. As I always say — and they keep telling me not to say this — I’m not a lawyer. As I understand it, when you have an absolute discharge, the person is deemed not to have been convicted, and does not have a criminal record for the charges; and yet, in this bill, you are taking somebody who has received an absolute discharge and, nonetheless, using the expunged conviction as a prejudicial factor for a reverse onus for bail in cases of intimate partner violence.
Could you explain this to me: If somebody has had an absolute discharge, why is that a prejudicial factor when it comes to a bail application?
Chelsea Moore, Legal Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. You’re right that a discharge is a sentencing tool under section 730 of the Criminal Code that allows a person to avoid a criminal conviction, and usually this is in a situation where there are some mitigating factors, or the person could be a good candidate for rehabilitation, for example.
However, even though a discharge has been ordered in that case, the person has still admitted to guilt of the offence, and they have been found guilty.
When it comes to intimate partner violence, those who have been violent to an intimate partner in the past — regardless of whether they’ve been convicted or discharged — may still pose an elevated risk of reoffending toward their intimate partner, particularly when they are brought back into the justice system again. There is a heightened risk of reoffending at that point. The intention here is to ensure that the heightened risk is being addressed, even in cases where there may have been some mitigating factors at sentencing for that particular case — but now that there is a new charge before the court, there is a concern that this person may potentially reoffend.
Senator Simons: It just concerns me that is a trigger for a reverse onus because in a bail application, the judge or the justice of the peace is still looking at the second clause in the laundry list of things. It just seems to me that if we’re going to adopt reverse onus provisions, they should be for the most dangerous and heinous of offenders. A judge can look at the sheet and see there was an absolute discharge, and still make a decision to deny bail without the reverse onus, and I am concerned. I would never want to downplay the dangers of intimate partner violence, but we all know — because we are grown-ups — that some charges are more serious than others. Sometimes, just like what Senator Pate was talking about regarding cross-charging, you could have somebody charged with threatening violence, but no violence took place. They could have an absolute discharge, and then suddenly be treated like the most heinous of criminals with a reverse onus test. It just seems unfair to me.
Ms. Moore: Even though a person is subject to a reverse onus, the court will be looking at the grounds for detention primarily, including whether detention would be necessary for public safety. I would hope if the person is not a danger to public safety that they wouldn’t be at risk of being detained at the bail stage.
Senator Simons: Because of the reverse onus — and they may be a person, they may be self-represented or they have a very green legal aid lawyer — suddenly the weight is upon them to prove that they ought to be freed, instead of the weight being on the Crown to prove that they ought to be detained. It just seems to me that adding absolute discharges to the list of prejudicial factors is a lot of weight for some defendants to have to overcome.
Ms. Davis-Ermuth: I understand your concern. Part of this has to do with the nature of intimate partner violence and the nature of a bail court, as well as the quick decision that has to be made and then the information that’s before a court. Unfortunately, there has been a lot of experience in Canada of situations where women made complaints about intimate partner violence, and maybe charges weren’t laid, so then we have mandatory charging policies, and it’s gotten to the point where there are things in bail courts that don’t necessarily look that serious if they happened between strangers. However, because of all the dynamics of intimate partner violence, as Ms. Moore mentioned, at the time when you’re in bail court — where the government and the system are interfering in this relationship — studies have found that women can be at an increased risk.
If somebody received an absolute discharge the first time, it’s likely because the court looked at what happened, and it didn’t look that serious, but if it’s intimate partner violence, in this instance, coming before the courts, there is knowledge about how intimate partner violence — when it’s something that’s happening more than once in a relationship — is not a discrete incident. It’s more of a cumulative-building situation. So the courts are becoming involved at a stage where instead of there being this one incident that they need to decide on, it looks like there is this pattern of danger. We have a specific victim who is in danger if the accused person gets let out. We have a number of inquest reports and tragic incidents where women have been killed in these situations, so it’s due to the heightened risk. They can still be released, and they are not necessarily being detained, but it’s to make sure there is a very close consideration of the circumstances in that case.
Senator Klyne: I was going to ask the Associate Deputy Minister a question, but somebody else can maybe field my question here.
This is somewhat along the same lines as Senator Simons’s question. As noted by Statistics Canada for 2021, Indigenous adults accounted for almost one third of all admissions to provincial and territorial custody and 33% federally, while representing only 3% of the Canadian population. Does the government have any demographic analysis based on race as to the proportion of those committing the offences triggering a reverse onus under Bill C-48?
Mr. Taylor: It’s a very good question, and we don’t have that comprehensive data. Minister Virani has talked about it already in terms of the work that we’re trying to do federally with the provinces and territories, and through Statistics Canada, to get a more comprehensive picture on that.
We were able to provide some very preliminary data to the House of Commons when they conducted their study on bail earlier this year, and I could maybe highlight a couple of pieces. It won’t be directly responsive to your question, but it could be helpful.
Senator Klyne: Sure.
Mr. Taylor: There are seven jurisdictions, as the minister has said, in terms of the kind of data that we have available. The data does show, as you would expect, that most people who go before a daily hearing are released on bail. That is the way our system generally works, and it is acknowledged by all provinces, and was acknowledged in the House of Commons, that, by and large, that’s how it should be, and the bail system works well for most cases.
I can tell you the jurisdictions: Newfoundland and Labrador, Nova Scotia, New Brunswick, Quebec, Ontario, British Columbia and Nunavut are the jurisdictions where limited information is available. Between 2016 and 2021, we have 983,000 cases — of the information that was available — where a bail hearing was recorded, and, to my point, 67% of those cases resulted in release, 10% resulted in remand and we didn’t know approximately 23%. Even with the data that we’re receiving, we’re not getting that complete picture of what’s happening in those bail hearings.
Those are the jurisdictions that report.
Just very quickly, because I know I’m using your time, if I can focus on the specific concern vis-à-vis the bill: Cases involving offences of violence involving weapons — and, again, this is preliminary data. Statistics Canada and our folks are still working to try to get a better sense of it.
Of those charged with a new offence during release — so these were individuals whose originating violent offence was with a weapon — 39% were released on bail, and while they were on bail, 10% were alleged to have committed another offence involving a weapon. There was a small subset of violent offending that seems to be resulting in situations where bail release may occur.
My colleagues will be able to speak to this better, but in addition to the reverse onus that is proposed here — which is really requiring the courts to take a closer look at these cases — it may result in detention, but it need not result in detention. It may result in a more rigorous bail plan and more stringent conditions. It’s not only about detention; it’s about ensuring that the most appropriate outcome — a more rigorous outcome — is made in these cases.
I know that’s not your question, but I hope it helps.
Senator Klyne: It begs the answer. Thanks.
Senator Jaffer: Mr. Taylor, it’s always good to see you. Welcome back. It’s good to see you as well, Ms. Moore and Ms. Davis-Ermuth. Thank you for being here.
I’m still really troubled by what Senator Simons said, so I’m going to go back to it.
When I used to have to apply for a client’s discharge, you almost had to have a long sentencing hearing for the discharge, and it was almost as long as the sentencing. It was difficult to convince the judge to give a discharge, and it was granted in exceptional cases.
I’m really troubled. I heard what you said, but I’m still really troubled. You have not convinced me because one of the conditions here is the repeat violence. How does a discharged person then be said to have repeat violence? I’m having difficulty wrapping my head around that.
I’m also very concerned with what Ms. Davis-Ermuth has said; Ms. Davis-Ermuth, I’m talking to you. I’m concerned about what you said regarding all the statistics and what’s around it. Well, that’s not supposed to be this person, or what could be applied to this person. It’s got to be what is in front of the judge, not what is around and what you know. I have difficulty with your explanation. I actually find it very troubling because it’s only supposed to be what this person in front of the judge is supposed to say. So I have difficulty with what you’ve said.
Ms. Davis-Ermuth: Thank you for that additional question. This is the point that I made about the nature of intimate partner violence: By putting it in the Criminal Code, it is to ensure that the decision makers apply the right lens when they’re making certain types of decisions, and intimate partner violence, as I mentioned, is a very different nature of personal injury offence in the Criminal Code. Most of the Criminal Code has been structured on incident-based offences. You’re charged that on a certain date, and a certain thing occurred. But with intimate partner violence, if it is something that’s repeatedly occurring within a relationship, then often the incident that is put on the paper — on the charge — is just the tip of the iceberg. The idea is not necessarily that this person should be detained, but, in the past, case decisions have shown, and inquests have shown, that judges didn’t necessarily understand the nature of intimate partner violence when they were making these decisions. If they just based it on the type of offence that occurred — be it an assault or whatever it was — those are the types of offences where, if you didn’t have all of the relationship factors and the other types of factors, it probably wouldn’t even come before the judge. Originally, when these things were coming into courts, judges weren’t necessarily taking them seriously.
This is in concert with some of the other amendments that occurred in Bill C-75, including that judges are required to consider that intimate partner violence was involved.
There was a concern. When Bill C-75 was being studied by this committee, there was a motion made to expand that particular reverse onus so that for everyone who has been charged with intimate partner violence, there should be a reverse onus if they had been previously charged. Some people were worried about if this person has other charges — maybe they don’t have other convictions. That motion did not succeed, and this particular amendment was based on prior convictions.
People have been raising this concern: It’s not just that the person was charged, but they were also found guilty of this type of violence in the past. At the time when somebody is discharged, usually it’s felt that this is a one-time thing, and it’s not going to happen again — so if this is coming before the court again, they don’t want to just dismiss it, and say that it was discharged, so it doesn’t count. They want judges to make sure that they see the pattern aspect of it, which is what this reverse onus is about.
Senator Jaffer: I’m not completely convinced, but I think I have run out of time.
Senator Batters: There are a few things: First of all, in answering an earlier question from one senator regarding why Bill C-48’s five-year review wasn’t done by a Senate committee too, the minister gave, I guess, a reason for that — talking about the speed at which this legislation was developed. Yet, Bill C-48 does not include a review by both chambers of Parliament. This doesn’t seem to be anything that would have taken any longer to put into place in that one clause of the bill. In fact, clause 2 of the bill regarding the five-year review states, “. . . to be referred to the standing committee of the House of Commons that normally considers matters relating to justice.”
I’m wondering why our Standing Senate Committee on Legal and Constitutional Affairs was not included in that clause, as we do have two chambers of Parliament in Canada. Also, why was that clause drafted in that particular way to refer to the House of Commons committee? It seems a little strange to me.
I understand that the names of committees occasionally change, but I think that particular committee in the House of Commons has stayed the same for many years — it’s the Justice and Human Rights Committee, I believe. I don’t know why it would be referred to — in drafting that part of the bill — as the standing committee of the House of Commons that normally considers matters relating to justice. Is that the normal way that a piece of legislation would reference it? Why is it referenced like that?
Mr. Taylor: That’s a good question. Thank you. The minister did explain there are different models. There is no one approach to how these review clauses have been drafted. The recent ones that he highlighted included Bill S-4, which had two review clauses. One was a review independent of Parliament, and one was a review to be conducted by both houses, to your point. Bill C-5 spoke to a review by each house of Parliament. The Protection of Communities and Exploited Persons Act — the response to the Supreme Court’s decision in the Bedford case — was a House-only study, and the minister talked about other examples where it was one or the other.
When I reviewed those other kinds of examples, the language didn’t provide precision as to the name of the committee, so to your second question, Senator Batters, I don’t think it’s unprecedented to phrase it in this way.
When we gave the technical briefing yesterday, I talked about Bill C-28, or the extreme intoxication bill, and I noted there that it was a bill with a study done by both houses as well, but I misstated that it was in the bill. It wasn’t in the bill; it was something that was done independent of the bill — my recollection is because it was moving quite quickly. I think what occurred was Parliament noted its intention to study the bill independent of the fact that the bill itself required Parliament to do so. Of course, it is available to you, as senators, to study this issue — independent of what the bill says — or, of course, to propose amendments to it.
Senator Batters: All right. Yes, I could make a comment that, perhaps, by not having senators in the governing Liberal caucus, that is something that might occasionally be missed from time to time. I know that we would not have put up with that in a governing Conservative caucus on such a bill.
I will go on to another issue that I was asking the minister: the data, or perhaps the lack thereof. You referenced the certain provinces that you have this type of data from. I would like more information about the type of assessment, given the data that you do have — and I note that B.C., I think, was one of the provinces that you have data from. It’s quite a large province with, unfortunately, a lot of criminal charges; I’m sure that you would have done some sort of assessment to determine how many potential offences are actually covered by this bill. Please give me — as comprehensively as you can — information about that because I can’t imagine you didn’t conduct some sort of assessment to determine how many offences would actually be included by the bill.
Ms. Moore: If you’re asking —
Senator Batters: Not offences. I’m talking about potential offenders. How many people, as I was asking the minister, would have been retained — in the last five years, perhaps — in custody compared to let out on bail if this bill had applied to them?
The Chair: Or, could I say, Senator Batters, be caught in the net of the reverse onus? They might not have been kept in custody.
Senator Batters: Yes — potentially. That’s why I said “potential.”
Ms. Moore: Yes, because the bill does not dictate a specific outcome in each case. It would be impossible to know how many people would be detained.
I think the idea here is to provide more scrutiny of cases that come before the courts, and, in practice, this could result in stronger bail plans and more information before the court. Detention alone wouldn’t necessarily signal more public safety in every case. A stronger bail claim could also signal more safety.
Senator Batters: Did you really not do such an assessment to determine — in the last five years — how many potential cases could have been included in the parameters of this bill? From the evidence —
Mr. Taylor: It’s really impossible to answer that question, Senator Batters. I’m not trying to be unhelpful. As I talked about earlier, we have limited bail data in terms of the number of bail hearings being conducted in Canada. With the bail data that we have, we’re not getting outcomes in respect of those bail hearings; I mentioned the 23%. It is not possible with the information that we currently have to be able to say how things would be different. Even if we had that information, to Ms. Moore’s point, the proposed changes don’t dictate an outcome.
That complete information could provide, perhaps, a better sense of the types of cases where — to the chair’s point — the reverse onus was at issue. We hope to be able to collect that information going forward, but we can’t.
Senator Batters: It would need to potentially be a tiny number because, as you were explaining in your response to Senator Klyne earlier, it’s a small subset even with the limited data you had. You said this percentage was with a weapon. Well, “with a weapon” is a far cry from the very strict conditions that this bill would have to meet. It’s not just “with a weapon” — it would have to be somebody convicted in the last five years, and it has to be a maximum term of five years or more. There are very limiting circumstances there. The numbers you had were small enough. I can only imagine how much smaller they would get if the actual parameters of this bill were applied.
Mr. Taylor: It really is threading the needle. It’s responding to what the minister said — they are precise, targeted amendments. That’s very true. That’s exactly what it does. It is not meant to fundamentally alter the bail system because our provincial partners have told us that the bail system works well, by and large, for the majority of cases. The House of Commons committee said the same thing. This is about trying to target a very specific subset of serious offending involving weapons that was of particular concern to law enforcement, to our provincial partners and to the public.
Senator Batters: The premiers are looking for a much larger eye on that needle than what you all are trying to do.
The Chair: Could I bring this to a close? I confess I was so intensely interested that we ran well past five minutes. Thank you, Senator Batters. Thank you, Mr. Taylor.
Senator Coyle: Thank you to our witnesses. It is very helpful information that you’re providing.
Like Senator Simons, I am not a lawyer, and I don’t normally sit at this table, so I’m really asking very fundamental questions. It’s my understanding that the law — as it exists — already provides mechanisms to keep people in pretrial custody where appropriate, including for reasons of public safety.
Ms. Davis-Ermuth mentioned that judges may not have caught on to what we now know about the cycles and steps of intimate partner violence. There is probably a whole variety of things that require some work; that don’t require amendments to the Criminal Code; and that could, in effect, have the kind of outcomes we want, which is improved public safety. That’s actually what I was asking the minister earlier: What do we know? It’s not just about what the data is on violent crime. Fine, we can get the data. Data is usually easier to get than solid evidence in terms of research evidence, such as this will have this impact that we want. What other things could be having the kind of impact that we want? What are the other faults in our justice system that are resulting in violent criminals reoffending, which is what we’re worried about?
I’m just curious about the existing law — because these things are there. Maybe they’re not being used the way they should be. Could you speak about that in relation to this, and help somebody like me understand why this is needed if we already have provisions in law?
Mr. Taylor: You’re absolutely right. You have reflected the law accurately. I have a couple of things to say.
The objective, in general, with this bill is to, perhaps, inject into the criminal justice system a greater focus on a specific subset of serious crimes. It doesn’t in any way alter, as you’ve spoken about already, the grounds upon which somebody can be detained. It absolutely changes the process, though, with the reverse onus. It changes the process by which a court will make a determination.
Minister Virani talked a bit about how this is not a panacea; I think that’s well understood. Non-legislative work is critically important to reducing crime, but it’s around enforcement as well in terms of bail compliance, and that is something that has been discussed between the ministers, and will continue to be discussed. We have some examples of how some provinces are taking steps.
For example, earlier this year, Ontario allocated $112 million for bail compliance programs to help police monitor individuals on bail in order to ensure that they’re complying with their conditions for public safety purposes. In May of this year, Manitoba doubled the capacity of a probation program for supervision efforts. British Columbia has been implementing a Safer Communities Action Plan. They’ve allocated $230 million in funding for policing.
It’s absolutely true; it’s all of these other things that are so important as well in addition to law reform.
Senator Coyle: Just following up on that briefly, if we already have these provisions that could be used, and we are now introducing something new that has some potential unintended negative consequences — we hope it will have the positive consequences that we’re looking for — I’m curious what kind of research — not just data collection, but actual research — is going to be planned to look at the effectiveness of these new provisions and measures in our Criminal Code. Also, I think it’s a standard five-year review that is in this. Might we want to lower that a little bit in order to have a look at this sooner than five years?
Mr. Taylor: I don’t think I can speak to concrete research areas we’ll focus on, but we’ll certainly be doing that over the course of the next five years — should the legislation pass — in recognition of the parliamentary study. Also, it’s just part of our business at the Department of Justice to monitor the effectiveness of the laws, and to provide advice to the government on the effectiveness of the things that the government does in criminal justice work. We’ll work closely with the provinces and territories. We absolutely don’t want those unintended consequences. That is not the goal here. The goal is really about recalibrating and shining that magnifying glass on specific incidences of violent offending that are of particular concern, and ensuring that the law is administered in a way that we understand it should be. Bail can be denied for public safety grounds. Bail can be denied for public confidence reasons. The goal here is to make sure that in cases that might lend themselves to those considerations more readily, this system is taking a closer look.
[Translation]
Senator Dupuis: Thank you to all three of you, and welcome back to the Legal and Constitutional Affairs Committee.
I’m trying to understand the spirit and letter of Bill C-48. In reading the preamble, I noticed that every paragraph pertains to repeated acts of violence, serious offences committed with firearms or other weapons, and random acts of violence that have an impact on justice. The bill goes on to list the proposed amendments to the Criminal Code. I see something else is being proposed to paragraph (b.1), at subclause 1(4): “an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner.” That’s the first time the bill really addresses the issue. The second paragraph, paragraph (b.2), goes back to the whole matter of violent crimes committed with the use of a firearm.
Can you tell us about the consultations undertaken with the provinces? Quebec’s Compensation for Crime Victims program comes to mind. We have research, directives and policies on violence against women. We document what you were trying to explain, Ms. Davis-Ermuth. I’m referring to repeated acts of violence, the continuum of seven successive physical attacks against a woman in cases of intimate partner violence — Quebec documents that, but I’m not sure about other places. Who did you consult about those issues? Did the provinces share information with you? Did you ask for any?
Here’s my first question. Why does it suddenly appear on page 3 of the bill without any prior introduction? My sense is that it was added after the fact or that someone raised the issue all of a sudden. Who did you consult, and what did you learn from them?
Here’s my sub-question. Do you have any information from your GBA Plus you can share with us on that?
Thank you.
[English]
Ms. Moore: Thank you for the question. Clause 1(4) of the bill would make an amendment to section 515(6)(b.1) of the Criminal Code, so that provision already exists in the Criminal Code, and we would simply be adding an amendment. That provision was added by former Bill C-75 and will be expanded. Paragraph (b.2) would be an entirely new provision. That provision targets repeat violent offending involving the use of weapons. There’s a maximum penalty of 10 years for both the current charge and the past conviction on that. The intent there is to cover serious weapons that have been raised as concerns directly by the provinces and territories.
“Weapon” is broadly defined under section 2 of the Criminal Code as anything that could be intended to be used as a weapon. It would cover the weapons of concern from the different jurisdictions that the minister mentioned earlier: bear spray in Manitoba; knives in Manitoba and Saskatchewan; and firearms in British Columbia. It’s really a response to the input that we’ve received from the provinces and territories about those particular weapons and random offences involving those weapons that have occurred.
Same with the expansion of intimate partner violence, that was developed through consultations with the provinces and territories as well.
[Translation]
Senator Dupuis: That wasn’t my question. I’ll be more specific. Did you consult any organizations, and if so, which ones? What did they tell you? What did you take away from them?
Ms. Davis-Ermuth: We didn’t consult the organizations ourselves. We spoke to the provinces and territories. You also asked a question about where the amendment came from. It was proposed in Senator Boisvenu’s bill, Bill S-245. It was a provision in the bill that the government was supportive of. The minister and his office conducted the consultations. We can follow up with a list of the people consulted.
Senator Dupuis: Thank you very much.
[English]
The Chair: I have one question related to the review, data and the like, if I may.
If I were the Attorney General of Saskatchewan or the federal Minister of Justice, I would really like to know whether this bill is being effective. It seems to me, as Senator Batters was asking, that there will be a set of offences that will now fall under the purview of the reverse onus. It will be possible — with sufficient assistance from the provinces that are running the administration of justice — to identify how many of those cases there are and what the outcomes are. It might be probabilities rather than a definitive answer.
I would like to know that because I have to think about incarceration costs and costs to legal aid, as well as if this legislation is working to protect citizens or if it is overreaching. To be honest, I don’t want to wait five years to find out whether that’s the case.
I’m wondering if you have a sense — and I’m channelling Senator Coyle here — as to whether sufficient data will come your way from enough provinces and territories — quite frankly, hopefully my own province — to make that call sooner so that we can fine-tune this. We are engaged in the exercise of almost certainly taking away the liberties of some people whose liberties we weren’t taking away before. Someone will make the projection that 1 in 1,000 of these people will commit serious crime — or 1 in 100 or 1 in 10 — but will you have that information in three years so that I, as the Attorney General of Saskatchewan, can say to you, as the Attorney General of Canada, that you need to do more or we’ve overreached here?
Mr. Taylor: That’s a great question. One of the wonderful things about the work we do is that we get to work with our provincial partners regularly on these issues. My two colleagues here will be meeting in person with our provincial colleagues next week. I’m sure we will be discussing the progress of this bill and this appearance. I’m sure we can talk to them about how we might get some of that information — should the bill become law — sooner rather than waiting five years.
The Chair: There is an immediate implementation of this bill — a bit faster than a lot of the criminal law; normally, it’s purely prospective, and this is semi-prospective. There’s a message embedded in the bill that we want fast action here. That also seems to compel the argument that we want fast knowledge to know whether we have this right — that’s more of a statement.
There’s time for a brief second round. Without you having the opportunity to make an opening statement, you weren’t able to chew up enough of the time. As you know, that presents more time for us to ask questions.
For the second round, I will invite, maybe, two minutes each for three senators. Before I do that, I want to make sure that if Senator Gold, the sponsor of the bill, has any questions, he has the opportunity.
Senator Gold: First of all, I know how I’m going to vote on this bill, so I will leave the remaining time, limited as it is, to my colleagues.
The Chair: Thank you, Senator Gold.
Senator Dalphond: I will ask the witnesses to summarize the principles guiding — according to the Criminal Code — the granting of a discharge being absolute or conditional. One of the criteria, if my recollection is right, is the serious consequence of convicting the accused. They won’t be able to travel to the U.S. anymore, if it’s a businessperson.
Maybe I’m wrong, but my recollection — and I’m not far from it — is that it is the ultimate chance that the system is giving the accused. The evidence leads to the conclusion that the person is guilty, or the person admits to guilt. Then, they have to get treatment or go to a centre to control violence — because there are places that specialize in domestic violence. When we receive a letter back that says, “You completed the training with success,” then we grant the discharge.
This is the ultimate grace by the system to somebody who was found guilty. If that person — after the full years — ends up committing intimate partner violence again, then we say, “That’s too bad. This time, you have the reverse onus, and you will have to show that we got it wrong the first time with you. Now show us why we should be releasing you.”
Perhaps, you can refer to the criteria for discharge for the benefit of everyone.
Ms. Moore: Section 730 of the Criminal Code sets out what the court must consider when granting a discharge. It must consider if it’s in the best interests of the accused and not contrary to the public interest, instead of convicting the accused. As I mentioned earlier, I think part of that is assessing whether the accused would be a good candidate for rehabilitation or whether there are some mitigating factors.
One thing I would also point out is that for a conditional discharge, the accused typically has up to three years to complete the conditions of the discharge. The conditions could be to attend treatment or to follow certain conditions. At that point, if the conditions are fulfilled after three years, then the discharge is removed from the criminal record, whereas for an absolute discharge, it’s automatically removed after one year.
The Chair: Thank you. Senator Dalphond, I hope you were not asking that question in your own personal interests.
Senator Dalphond: No, it was asked for those who may be less familiar than me with the system.
The Chair: It was very helpful. Thank you.
Senator Simons: I have a question about transitional provisions. The bill states:
For greater certainty, the amendments made by this Act also apply with respect to proceedings that are ongoing on the day on which this Act comes into force.
So it’s not exactly grandfathered; it’s “great-uncled,” let’s say. Is that fair to have it apply slightly ex post facto?
Mr. Taylor: One thing we’ve heard about transitional provisions, and the value of them, is that they help provide certainty to the system in terms of the application of amendments. Ms. Davis-Ermuth might be able to speak more eloquently than me about it.
Generally speaking, procedural changes apply immediately. That had always been understood. Jurisprudence has kind of shifted that a bit, so the reason we’ve included this is to try to provide a bit of clarity on it.
I take your point, which is to ask, “Is it fair to the person?”
Senator Simons: If I commit the crime on Tuesday, the bill comes into force on Wednesday and then the bail hearing is on Thursday. I’m not saying that somebody is out there saying, “I have to commit this crime fast before this bill is passed,” but it does seem, to me, that there’s an implicit kind of justice that says you don’t penalize somebody for something they did before the law came into place.
Mr. Taylor: One thing this bill doesn’t do is dictate an outcome. That’s certainly part of the considerations that went into the way this provision was drafted.
Senator Simons: Yes, but obviously more people will be captured by the reverse onus provisions on the day the bill is passed.
Mr. Taylor: Yes.
The Chair: Thank you.
Senator Pate: I’m extremely troubled, as someone who’s spent most of their life working with those who have been victimized: women and children. Many of them — because of the other work I did — also end up criminalized and imprisoned.
I see a disturbing trend with this bill that we saw with the extreme intoxication bill, and that we’ve seen for a number of decades now, which is this: Instead of addressing the underlying issues, we present this response after the fact without looking at who it privileges. Who can afford to have the sorts of supports in place that Senator Dalphond so kindly took us to, such as treatment? With the limited availability of resources for people in terms of bail supervision and addictions and mental health treatment, we know who this will disproportionately impact.
Is there anything you can point to that would show this is not, again, going to allow the defence and the most privileged — who also have the most means and the best, most expensive and most extensive defence teams — to get the discharges, or to rebut their reverse onus? Is there something you can provide that would help comfort people — like me — that we are not just continuing on a trajectory to which there’s no end, and that we just have to keep getting tougher?
Ms. Davis-Ermuth: Thank you for that question. This is one thing I can mention — in addition to what Mr. Taylor was saying earlier — about the studies that will happen in the future: Because Bill C-75 was enacted in 2019, the department had to do research and report on that within five years. That research is already being built. Bill C-75 made a lot of amendments on a very large scale — not changing the law, but just modernization and effects on the bail provisions. They are already looking at designing research for those areas — including looking at some of these groups that you talked about — to see what the impact of the bail system is, and to see what they are finding with things like the particular circumstances provision in section 493.2 of the Criminal Code that was enacted in Bill C-75 to ask judges to look at systemic discrimination that happens during the course of bail decisions. That is part of the research that the department will be doing.
Those were the foremost concerns in the discussions with the FPT ministers. They did state that when they released their communiqué about their decisions, that was a very important factor to them. That’s another reason why they tried to make this a very targeted approach: to minimize those other types of impacts.
The Chair: I think we might have to call it quits there, Senator Pate. Thank you.
Senator Pate: [Technical difficulties] concerned about your problems, where 98% of the girls in custody are Indigenous.
The Chair: We’ll talk about that separately.
Let me wrap up our session of this second panel by thanking our witnesses today: Mr. Taylor, Ms. Moore and Ms. Davis‑Ermuth. Once again, thank you for the help you’ve provided to the committee. I want to also thank the members of the committee, and, in particular, let me call them the occasional members of the committee who provided thoughtful and insightful questions and dialogue, and enriched our consideration of this bill.
We often forget to thank and appreciate how seamlessly our committees operate. I want to thank all the staff who provide all of that support, including translation and the Library of Parliament. However well we do this job, we would do it a lot less well without their support. Thanks to all of you.
(The committee adjourned.)