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THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE

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OTTAWA, Wednesday, October 18, 2023

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. [ET] for the consideration of Bill C-48, An Act to amend the Criminal Code (bail reform).

Senator Brent Cotter (Chair) in the chair.

[English]

The Chair: Honourable senators, we are meeting to begin clause-by-clause consideration of Bill C-48, An Act to amend the Criminal Code (bail reform).

We are joined today, as we often are, by officials from the Department of Justice Canada to answer any technical questions, and at this moment I’d like to introduce them: 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.

Thank you once again for joining us for clause-by-clause deliberations.

Before we begin, a few reminders for senators. If at any point a senator is not clear where we are in the process, please ask for clarification. Don’t hesitate to interrupt. I think we all want to ensure that at all times we have the same understanding of where we are.

Second, in terms of the mechanics of the process, where more than one amendment is proposed to be moved in a clause, amendments would generally be proposed in the order of lines of a clause — although when we come to one set of amendments, with your indulgence, I will ask for a small change in that sequence. If a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but to vote against the clause as standing as part of the bill.

Some amendments that are moved may have consequential effects on other parts of the bill. It’s therefore useful to this process if a senator moving an amendment identifies to the committee other clauses in the bill where this amendment could have such an effect. Otherwise, it may be difficult for members of the committee to remain consistent in their decision making. So that asks a little bit of the leader of an amendment to provide the coordination that will inform the rest of us. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.

With one qualification to that observation, there is an amendment proposed by Senator Dalphond and an amendment proposed by Senator Clement that cover the same territory. I have proposed, with both Senator Clement’s and Senator Dalphond’s agreement, to take Senator Clement’s first when we come to that part of the clause-by-clause consideration.

If committee members ever have a question about the process or about the propriety of anything occurring, they can raise a point of order. As chair, I will listen to the argument, decide when there’s been sufficient discussion on the matter, and make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.

I wish to remind senators that if there is ever any uncertainty about the results of a voice vote or show of hands, the most effective route is to request a roll-call vote — which, obviously, provides unambiguous results — and the clerk will undertake a roll call in that event.

Finally, senators are aware, I think, that any tied vote negates the motion in question.

Any questions about that at this point, colleagues?

Senator Batters: Not about that, but I have a comment about another issue. I’m not sure, chair, when you would like me to bring that up. I don’t want to get into a situation where we’re already into the clause by clause, and then I’m unable to say it until the end.

The Chair: Could you offer a bit of a snapshot of what it is?

Senator Batters: Yes, I want to raise a point about the fact that we finally only received the GBA Plus on Sunday, a few days ago. Would you like me to bring that point up now?

The Chair: My sense is that you may want to speak to it. Are you proposing that we not proceed with clause-by-clause consideration today as a result?

Senator Batters: No, I just want to make a point. This issue has happened frequently with government bills recently with the GBA Plus analyses, and particularly with the one on this one.

I didn’t want to be in a situation like we were last time where we had no discussion about a more general matter about the bill until it was already passed.

The Chair: If you have a succinct intervention, this would be a good time for it.

Senator Batters: It’s very short.

The Chair: Frankly, I think the view you will share is shared by a fair number of committee members, so, Senator Batters, the floor is yours.

Senator Batters: I want to make the point that the justice minister introduced this particular bill, Bill C-48, in early June in the House of Commons, and then Minister Virani, who wasn’t the initial Minister of Justice but has been in his portfolio for a little while already, came to our committee three weeks ago.

At that appearance, I asked him, “Where is your GBA Plus?” He said, “Oh, you’ll get it right away. We just have to redact some things,” which I thought was a bit of an interesting reply.

It seemed like something that would be very quick. However, we only finally received it last Sunday, just a few days ago. That was after we had heard from all of the witnesses on this particular issue and almost three weeks after the Minister of Justice had come to our committee and made it sound like we would be receiving it imminently.

This is not acceptable. This is something that continues to happen on government bills with this government. Today is Persons Day, so I think it’s an appropriate point to make. This is a government that contends that they are a feminist government, and they have been the ones who have brought these Gender-based Analysis Plus documents into being. They say they are important, yet their actions don’t really show that.

There are many parts, as I read through this GBA Plus, that I would have really liked to have had this information in front of me both to question the minister and to question some of the witnesses that we heard from. It has pretty important information that I would have liked to challenge certain witnesses about, especially about showing rates of violent victimization among women.

I raise this point because, again, this has been a consistent thing. We need to receive these documents. This is a bill that has long passed the House of Commons, and yet we don’t receive it. We need to receive this kind of information when we’re dealing with these bills.

The Chair: Thank you, Senator Batters. Senator Jaffer, briefly on this point?

Senator Jaffer: I second what Senator Batters said completely. We have always insisted on having the assessment given to us as soon as possible, hopefully to be in a better position before the minister speaks. To get this when we can’t even ask anybody any questions — I know the officials are here and we could ask them, but I don’t think this is the time to ask.

While Justice officials are sitting here, may I ask that next time we not proceed if we don’t get them? This has now become something that we expect all the time. We should just not proceed without the GBA Plus assessments in front of us.

The Chair: I think we may convey through Mr. Taylor a message back to the minister, but before we do, Senator Dupuis on this point.

[Translation]

Senator Dupuis: I move that the comments by Senator Batters and Senator Jaffer be added to this committee’s report as an observation.

I think that in several instances — I’d even say for several years — we have systematically called upon each official from the Department of Justice Canada to provide the Gender-based Analysis Plus for each bill tabled before this committee.

Clearly, we have not been persuasive enough, and I do not think this is frivolous on the part of individual senators. We, as an institution, must state that our committee expects the government representatives who come here, whether the minister or his delegates, to first table this document for our consideration so that we can conduct a fulsome study of each bill.

[English]

The Chair: We could easily take up that suggestion when we come to observations. Perhaps somebody with a gift for prose could craft a couple of sentences that we could consider at the end of our clause-by-clause consideration.

Hon. Senators: Agreed.

The Chair: Thank you. Before we proceed to clause-by-clause consideration, I would invite senators to introduce themselves for our vast viewing audience.

Senator Batters: Senator Denise Batters from Saskatchewan.

[Translation]

Senator Boisvenu: Senator Pierre-Hugues Boisvenu, senatorial division of La Salle, Quebec.

[English]

Senator D. Patterson: Dennis Patterson, Nunavut.

Senator Tannas: Scott Tannas from Alberta.

[Translation]

Senator Dalphond: Senator Pierre Dalphond, senatorial division of De Lorimier, Quebec.

[English]

Senator Klyne: Good evening. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.

[Translation]

Senator Gold: Senator Marc Gold, senatorial division of Stadacona, Quebec.

Senator Clement: Senator Bernadette Clement, Ontario.

[English]

Senator Simons: Paula Simons, Alberta, Treaty 6 territory.

Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.

[Translation]

Senator Dupuis: Renée Dupuis, independent senator from the senatorial division of The Laurentides, Quebec.

[English]

Senator Jaffer: Mobina Jaffer from British Columbia.

The Chair: I’m Brent Cotter, senator from Saskatchewan and chair of the committee. I want to acknowledge that Senator Boisvenu is the deputy chair of the committee, and Senator Gold is the sponsor of this bill in the Senate.

Are we agreed, then, to move to clause by clause? I want to pose the first question. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-48?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1 carry? I think, Senator Clement, you have a proposed amendment here.

Senator Clement: I do.

The Chair: Could you read the amendment to our colleagues?

Senator Clement: Yes. Hello, colleagues.

I move:

That Bill C-48 be amended in clause 1,

(a) on page 2, by replacing lines 28 and 29 with the following:

“(4) Subsection 515(6) is amended by adding the following after paragraph (b.1):”;

(b) on page 3, by deleting lines 1 to 7.

This is about reverse onus. Before I go into detail around why we’re making this amendment — and I say “we” because I have worked closely with stakeholders on these amendments, most notably Shakir Rahim from the Canadian Civil Liberties Association and criminal defence lawyer Theresa Donkor from the Canadian Association of Black Lawyers. Both provided testimony and information to this committee.

There are so many tragedies, and governments and societies want and need to respond. We often respond by making changes to legislation. However, we need to remind ourselves that solutions need to come in different ways and from different places. This isn’t a binary black-and-white kind of world. Nuance and balance need to be sought. Changes to legislation must be grounded in sound evidentiary support, as clearly indicated by witnesses and as written, particularly, in the brief from the Canadian Bar Association.

This is about “discharge” and adding “discharge” to the discussion. The original (b.1) paragraph — that’s how we want it to stay. We don’t want the addition of “discharge.” Many witnesses have appeared before our committee and voiced their concerns over Bill C-48’s introduction of a reverse onus provision for a prior intimate partner violence, or IPV, discharge. There were many witnesses: Emilie Coyle from the Canadian Association of Elizabeth Fry Societies; Michael Spratt; Catherine Latimer from the John Howard Society of Canada; Danardo Jones, professor at the University of Windsor; as well as Shakir Rahim and Theresa Donkor.

This is the first time a reverse onus provision is being applied to someone with only a discharge. Under section 730 of the Criminal Code, a discharge is a type of sentence that can be ordered after an accused person has either pleaded or been found guilty of a crime. A discharge does not equal a conviction. In fact, an absolute discharge will not appear on a criminal record after one year. Similarly, if an offender obeys all its requirements, a conditional discharge will not appear on a criminal record after three years.

Melanie Webb, Counsel and Secretary of the Canadian Bar Association, Criminal Justice Section, said:

Discharges are typically given to first offenders, and there is a lot of upfront work that is done. It is not something that is handed out like candy.

One of Bill C-48’s goals is to promote public safety. However, this provision, like many others in the bill, will have the opposite effect. Kat Owens, Project Director of the Women’s Legal Education and Action Fund, says that “. . . Bill C-48 will not make survivors of intimate partner violence safer.” She says that, instead, due to the overlap between perpetrators and survivors of intimate partner violence, it is likely to increase the criminalization of Black and Indigenous women, who are more likely to have experienced intimate partner violence.

Indeed, Christa Big Canoe of the Indigenous Bar Association highlighted that dual charging is a significant problem for Indigenous women, and both government and police witnesses acknowledged this occurrence.

In a case where someone receives a discharge for a relatively minor offence or pleads guilty to get out of jail, they become a repeat offender now burdened with a reverse onus. However, they clearly do not exhibit the pattern of danger that the bill is trying to address. Such legislative changes to the bail system do not tackle the root causes of gender-based violence. Instead, detention removes individuals from their communities and cuts them off from important support systems. That does not make any one of us safer.

The need for non-legislative changes, such as access to sustainable housing and mental health and addictions supports, among others, was echoed by witness after witness — organizations who work first-hand with survivors, such as the Elizabeth Fry Society and the Barbra Schlifer Commemorative Clinic. This is also echoed in the briefs, in particular in the Canadian Bar Association brief.

Those are my comments in support of the amendment.

The Chair: Thank you, Senator Clement. I’m going to now invite Senator Gold, as the sponsor of the bill, to offer perspectives, if he wishes.

Senator Gold: Thank you, Senator Clement, for the amendment and for your thoughtful rationale.

The government doesn’t support this amendment, as you would know from our hearings. However, it does agree that we have to be really careful whenever we adopt any measure that makes bail harder to access, even in the narrow circumstances — at least as the government reads the Bill C-48. There is always a need to balance the competing concerns and keeping people — and mainly women — safe from intimate partner violence. It’s a critical and valid legislative objective.

Though it’s true that a discharge is a legal term, it is a finding of guilt. I think it’s important that Canadians understand that. I mean, a person who receives a discharge for intimate partner violence did commit intimate partner violence. Courts, as we know and we heard in our testimony, may discharge for a variety of reasons, including, for instance, to give a first-time offender a second chance. No doubt that happens, and properly so, especially if they are at low risk.

However, if that person ends up back in court facing similar charges again, the previous finding of guilt is relevant. It’s a relevant piece of information, and it’s especially true, we are told, with intimate partner violence because — as we heard during our study — the instances of this offence are often only brought to the attention of the legal system after, unfortunately, it has happened more than one time in a relationship. It’s often the tip of the iceberg. So sometimes when the courts are involved, violence may have been going on for a long time. We were also advised that once charges are laid, the risk of violence can often increase just for that reason alone.

Committee members would remember that in the brief that supported Bill C-48, the Native Women’s Association of Canada told us:

. . . it is crucial to strike a balance between reducing Indigenous women’s overincarceration and protecting Indigenous women who experience intimate partner violence . . . .

They further noted that Indigenous women and gender-diverse people do experience disproportionate rates of intimate partner violence and, again, quoting from their brief, “Protecting them from their abusers between when charges are laid and a hearing is an important concern.”

I’m glad, Senator Clement, that you’re focusing on the policy and not on the constitutionality. We heard a reference by Professor Jones. It is the government’s position that whatever else one can say about the policy merits of the bill, there is no clear case of unconstitutionality here. The bill has been narrowly defined — for some it’s too narrow — and it’s the government’s position that it does fall within the framework that the Supreme Court set out when it upheld the constitutionality of reversing the burden of bringing forth evidence.

Finally, as we also heard — and again, this has been both a strength and a weakness, depending on the different witnesses — judicial discretion is maintained. This provision doesn’t tie judges’ hands. They’ll still have the discretion to weigh all relevant factors to grant or deny bail as they see appropriate.

We are only talking about adjusting the starting point, the beginning. It’s about who talks first, as I think one witness told us quite clearly. We’re not dictating how the conversation ends or the decision.

It’s a small recalibration and only where the accused has a history of intimate partner violence, the details of which would come out in the bail hearing. It’s for those reasons the government does not support this amendment.

Thank you, nonetheless, for bringing it forward.

Senator Jaffer: Thank you, Senator Clement, for bringing this amendment forward.

Senator Gold, if I may, I had difficulty — with the greatest respect for what you said — with when judges are aware that there’s repeated violence.

I don’t think there would be a discharge. We’re talking about previous discharges, but I am still thinking that there is judge’s discretion in this. Discharge is something very special and, as we have heard many witnesses say, only after a lot of discretion. Mostly, it’s a bigger hearing than a sentencing hearing, from my experience in the past.

I do not think it happens when there is a history of violence. Definitely, in all my experience — and I think there is nobody here who can say that if there is a history of violence, a person would get a discharge.

My other question about this is that there is double charging. That really concerns me because many times Indigenous people, especially women, end up in jail. We know that the fastest-growing segment of the prison population are Indigenous women. I suggest that this is the right kind of amendment.

Senator Batters: I also don’t support this amendment. As Senator Gold was saying, with a discharge there is still a finding of guilt on the criminal charge. These are often quite serious matters that have indicated quite a history of a pattern. Maybe this is the first time that criminal charges happened, but oftentimes, unfortunately, as we’re aware, women in these types of matters have suffered for many years at the hands of these violent people, often men.

A discharge doesn’t necessarily mean only an absolute discharge. This could also cover conditional discharges. There can be some pretty significant conditions that are imposed in those situations.

I want to point out that sometimes a discharge is given by a court on a matter if they think that — for example, if someone has simply been found guilty of a matter and they have been perhaps quite a well-known person, the fact that they have had significant press attention, media attention or public attention because of their guilty finding has led to oftentimes an absolute or conditional discharge if they feel that that, in itself, has been a significant deterrent to their reoffending or something like that.

Those are often the types of issues that can result in a discharge being either absolute or conditional. I think this has become an epidemic in our country. I know that Canadians want to see a much more significant bail reform system than what Bill C-48 provides. I certainly don’t want to do anything that would make this bill even lesser than it is, because I find it’s already not enough. I don’t want to make it even less than what currently exists.

[Translation]

Senator Boisvenu: I don’t often say this, but I agree with Senator Gold, except on one point. This bill should go further. It should include any assailant who has committed an act of violence against women, not just with a firearm, but with other types of weapons as well.

It’s not entirely true that those who are granted a pardon are people who committed less violent crimes. I’d like to remind you of the case of Christine St-Onge, who was in Mexico in 2018. She was murdered by her partner, Pierre Bergeron, who had been granted a discharge in 2017. There are cases of extreme violence, even for those who have received a pardon.

My final argument is that we mustn’t forget that the Senate passed Bill S-205, which contains the same section that we want to exclude from this bill. We should be consistent with the other decisions already made by the Senate.

[English]

Senator Simons: I want to start with a question for Mr. Taylor.

Should Senator Clement’s amendment be adopted, it would not mean that judges would be unable to consider whether there had been a discharge, would it?

Chelsea Moore, Legal Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, that is absolutely correct. If the discharge is put before the court, a Crown could easily argue in any case that a discharge would be very probative and relevant to determining the decision that the bail clerk has to make.

Senator Simons: There’s nothing in this amendment that stops a judge from considering that; it’s only whether it would create a reverse onus, yes?

Ms. Moore: That is correct.

Senator Simons: And would you consider a reverse onus to be something as simple as who talks first?

Ms. Moore: In a reverse onus situation, yes, who talks first changes, for sure. There is a certain expectation that more information would be put before the court in a reverse onus situation in terms of the specific risks that the accused poses. That information could come from the Crown. The bail court could ask the Crown for more information, for example, the history of the relationship between the victim and the accused, or it could also come from the accused, who might feel obligated to testify before the court about that.

Senator Simons: They might feel much more obligated to testify because the onus would be on them — in a reversal of thousands of years of how our common law works.

It seems to me a bit dismissive to say this is merely a question of who gets to speak first. If it were simply that, people wouldn’t be arguing in favour of this change in the first place, right? Presumably, we think this makes it harder to get bail. That’s the intent of the bill: to make it harder for a certain class of people to get bail.

Ms. Moore: The intent is to make it more onerous for accused persons to obtain bail in certain circumstances.

Senator Simons: That is why we’ll be in support of Senator Clement’s amendment. Nothing in this amendment precludes a court, a justice of the peace or a judge from considering the circumstances behind the discharge. The events that led up to the commission of the crime, the conviction and the discharge would all be there for the judge to consider. But we would not be putting the extraordinary burden of a reverse onus on somebody whose only previous conviction had been discharged. It seems to me a fair compromise, and I will be supporting Senator Clement’s amendment.

Senator Dalphond: First, I’ll have a question for the officials.

Could you remind us of the criteria applicable to a judge who may consider granting a discharge after guilt being found? I think that maybe people don’t understand that first you have to be found guilty before we move to the next step of the discharge.

Ms. Moore: Thank you. One thing I would clarify before I talk about discharges is that the accused would have to have been found guilty for a discharge and receive a new charge for an offence involving violence toward their intimate partner.

In terms of the test to be eligible for a discharge, as I said previously, it’s whether or not it would be contrary to the public interest. Courts have considered factors such as the nature and gravity of the offence and whether the offence committed was a matter of impulse or whether it was calculated, for example.

Some courts have noted that, with the increasing prevalence of specialized courts — such as drug treatment courts, domestic violence and mental health courts — discharges are being made available even in cases where there has been significant violence or prolonged violence, where an accused has, for example, taken treatment or anger management classes in exchange for the granting of the discharge.

There is a range of conduct that could result in an accused obtaining a discharge for intimate partner violence. From a review of some of the more recent cases, a discharge could be granted for shoving or striking a victim, causing the victim to become unconscious and threatening to kill the victim. Discharges have also been granted in cases involving more serious, prolonged assaults, where the victim is beaten or dragged around, or where there was a beating of a pregnant woman or repeated assaults over several years.

Courts have looked at factors such as whether the accused has expressed remorse, whether it appears to be an isolated incident, whether the victim wants to reconcile with the accused — that’s often a factor in granting the discharge — or whether the accused has undergone, as I said, treatment or anger management programs.

But when discharges are granted in cases involving intimate partner violence, courts most commonly impose a conditional discharge with a period of probation ranging from approximately 12 months to 3 years. Absolute discharges, from the review that we have done, are extremely rare with intimate partner violence.

Senator Dalphond: So the way the provision is drafted now in the bill as proposed, it will cover those who are convicted or those who are discharged conditionally or unconditionally.

Ms. Moore: Correct.

Senator Dalphond: If a person is discharged conditionally and, for a period of 18 months, must have a certain type of therapy and so on, but within six months commits another incident of domestic violence, if we remove the word “discharge,” I guess that person will not meet the criteria of being convicted.

Ms. Moore: Of having a discharge, yes, that is correct. But as I said earlier, the information could also be before the court regardless of whether there is a reverse onus.

Senator Dalphond: I understand that the purpose of this bill — it was drafted and adopted in a rather expeditious way — was to send a powerful message to society. The message here is that if you get this discharge, you will get some leniency from the system because you were found guilty first. But instead of sending you to jail, we are going to give you some conditions or an unconditional discharge, to expect the best. If you are charged again, you are showing that the system made a mistake when they assessed the case. The message is if you get a discharge here, you’d better behave well because the next time you come back before the court, you’ll have the onus to show the judge that you should be released on bail or you should remain inside.

Ms. Moore: I think the intent at bail is not to punish accused persons for past incidences or convictions or discharges, but to assess their level of risk of reoffending if released. In the intimate partner violence context, there could an elevated risk of reoffending if the accused has a history of violence. The goal here is to assess whether there is an elevated risk of reoffending and to signal to the court to look more closely in these cases.

Senator Dalphond: Thank you.

The Chair: Thank you, Senator Dalphond. I think you have nearly persuaded Ms. Moore to your point of view.

Senator Pate: Thank you very much. I will support this amendment, but I feel the need to put on the record that part of the reason this is here and part of the reason we’re even having this discussion is that too often intimate partner violence, violence against women, is used as an excuse to ramp up the responses of the criminal legal system. Rarely is it actually Indigenous or Black or other marginalized people who end up before our system who get access to discharges. I’m not certain that it will make a great deal of difference for the very people that many of us are concerned about, but that doesn’t mean I don’t support it. I think in principle we should support this.

However, it’s important to put on the record that part of the reason we keep seeing these ramping up is we actually don’t take seriously these issues in ways that will prevent the violence from happening. We’re happy to keep adding on more aspects to the criminal legal system with longer, more punitive elements, but we’re not necessarily addressing the issues that would allow people to escape that, whether it’s being victimized or criminalized.

We have to recognize that the people who get discharges tend to be those who have a phalanx of lawyers, a team who can help assist to make these arguments. It’s not the folks who are often coming before the court who will be most negatively impacted by this bill.

The Chair: Okay. Thank you, Senator Pate.

[Translation]

Senator Dupuis: I think I had a question for the Department of Justice representatives. Was there no consultation initially on paragraph (b.1), as it appears in Bill C-48, either by officials or by the Minister of Justice? If I recall the minister’s testimony correctly, he insisted that the majority of this bill was the result of very extensive and comprehensive discussions with the provinces and territories. He said, however, that this part had been added, and there was no time for consultation on it, for reasons X, Y or Z. Is that indeed what we were told?

[English]

Ms. Moore: In terms of officials’ consultations with the provinces and territories, extensive consultations were done with the provinces and territories.

[Translation]

Senator Dupuis: But not regarding (b.1)?

[English]

Ms. Moore: Yes. Sorry, (b.1), is that —

[Translation]

Senator Dupuis: Perfect, that is what I wanted to know. Thank you for your time.

Did the department consult organizations that represent victims?

Ms. Moore: We did not consult those groups ourselves, so it’s difficult for us to answer that question, unfortunately. It was the minister’s office that consulted those groups on the bill.

Senator Dupuis: Thank you.

[English]

The Chair: I’m going to invite a brief second round, especially if you have something new to add to the discussion, if that’s acceptable. The process is a bit slow, but you will recall that we’re the only parliamentary committee considering the bill. I would like to give us as much opportunity to reflect on it as we can before we cast our votes. I am going to invite Senator Batters. If there is no other intervention, perhaps we can have a brief closing statement from the perspective of the sponsor of this amendment.

Senator Batters: I have a brief comment on one part, but then I want to ask the officials to explain something that I think would be helpful for people watching who may not be lawyers to better understand — and maybe even some around the table — about reverse onus issues.

I want to give an example of the type of offence that could potentially receive an absolute discharge. This was a case from about 13 years ago, when then Saskatchewan Roughriders’ general manager Eric Tillman received an absolute discharge after pleading guilty to sexually assaulting his children’s teenage babysitter. He pleaded guilty to a single sexual assault charge, and then, because of the public attention and that sort of thing, it was deemed by the judge that he should receive an absolute discharge. Those are the types of cases that can be something as significant as that. It’s not only minor cases.

Could the officials please explain to us — because I know they will do so in a succinct yet full way — exactly what a reverse onus does? We have had some people contend that it’s just simply a matter of who speaks first. From my recollection of being in criminal courts a number of years ago practising law, that is certainly not the only thing. It changes the burden. I would like to have the officials explain exactly what a reverse onus does.

Ms. Moore: Thank you. A reverse onus departs from the general approach to bail in two respects. First, it presumes that bail ought to be denied and that the accused ought to be detained pending trial. Second, it requires the accused to demonstrate to the court — we use the test of balance of probabilities but more likely than not — why he or she should not be detained pending trial, having regard to the three grounds for detention. So, the accused has to convince the court that they are not a flight risk, that they are not a risk to public safety and that releasing them would not undermine public confidence in the administration of justice.

As I mentioned earlier, the reverse onus reflects Parliament’s intent that it ought to be more onerous to get bail in some narrowly defined circumstances.

The Criminal Code already requires an automatic reverse onus for serious offences like murder, treason, but also other offences that target reoffending behaviour, such as when a person is charged with breaching their bail or with a new firearm offence when they are already on a prohibition order for firearms.

Senator Batters: Yes. So this act purports to put the onus on the accused to show why they do meet that burden. Currently, before this act passes, the onus is on the Crown.

Ms. Moore: Yes. For the vast majority of cases, the onus is on the Crown, with the exception of the ones that are already set out in the Criminal Code.

Senator Batters: Thank you.

Senator Dalphond: I have one more question for officials. I have the letter from the premiers dated January 13, 2023. When it refers to reverse onus on bail, it says that it must be created for the offence of possession of a loaded prohibited or restricted firearm.

I don’t see a specific reference to those who were discharged. When did that come out in discussions with the provinces?

Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice Canada: The last time we appeared, what we talked about was that the work we’ve been doing with the provinces and territories preceded the letter that was sent by the 13 premiers. Certainly, following that letter — in particular, following the March 10 meeting of ministers responsible for justice and public safety — the consultations with the provinces and territories significantly increased. We were meeting weekly. Colleagues at the table were meeting weekly with our provincial and territorial partners, so I would say intensely in the first half of this year but consistently for many years before that time.

Senator Dalphond: And were there specific recommendations from the provinces to add this reverse onus in case of domestic violence?

Shannon Davis-Ermuth, Senior Counsel and Manager, Criminal Law Policy Section, Department of Justice Canada: In relation to the specific amendment around the discussions, it became clear that many of the jurisdictions that started the conversations were very concerned. Issues were raised about guns and bear spray and repeat violence. But then some other jurisdictions said we still have a lot of concern with intimate partner violence and we feel like there needs to be better attention paid to this issue. Subsequently, there were discussions around amendments, and this particular one was the one that there was agreement on.

Senator Dalphond: From all the provinces?

Ms. Davis-Ermuth: Yes.

Senator Dalphond: Thank you.

Senator Clement: I’ll start with the provinces. It is compelling that they got together to come before us. We did hear evidence from the Government of B.C., but what’s interesting is that you have a province that is showing some leadership and likely showing some capacity and interest in investment — the investments that also need to be made when you’re making these kinds of reforms. I’m talking about investment in social development. I didn’t hear evidence from other provinces that that is taking place.

I want to come back to a word that Senator Simons used, “compromise,” and some comments that were made by Senator Jaffer.

I don’t agree with this legislation. These amendments are to make it less egregious, in my view. My concern is about the overrepresentation of Black and Indigenous people in prisons.

We have heard of terrible cases, but we didn’t hear evidence that this law would make people feel safer. We did, however, hear evidence that this was going to affect a bail system that is already in crisis. We did hear evidence that Indigenous women represent over 50% of the population in jails.

I visited the Grand Valley Institution this summer. I’ve been hearing witnesses talk about this for two years now on this committee. When you walk into a prison and sit down with the women, and the 50% is sitting in front of you, in all of their reality, that just supports the evidence that has been provided time and time again to this committee.

The idea of discharge and people pleading guilty when they are doing it because they are incarcerated in places that are not humane — so people with no resources will be pushed to do things that they shouldn’t do in terms of pleading guilty just to get out and get back to their communities.

I maintain support for the amendment, but I thank you all for paying attention and being thoughtful about it.

The Chair: Thank you, colleagues, for your rich engagement on this topic.

It has been moved by the Honourable Senator Clement:

That Bill C-48 be amended in clause 1,

(a) on page 2, by replacing lines 28 and 29 with the following:

“(4) Subsection 515(6) is amended by adding the following after paragraph (b.1):”;

(b) on page 3, by deleting lines 1 to 7.

The Chair: After debate, is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: I would say the “nays” have it, but we’ll undertake a roll call.

Vincent Labrosse, Clerk of the Committee: The Honourable Senator Cotter?

Senator Cotter: Yes.

Mr. Labrosse: The Honourable Senator Batters?

Senator Batters: No.

Mr. Labrosse: The Honourable Senator Boisvenu?

Senator Boisvenu: No.

Mr. Labrosse: The Honourable Senator Clement?

Senator Clement: Yes.

Mr. Labrosse: The Honourable Senator Dalphond?

Senator Dalphond: No.

Mr. Labrosse: The Honourable Senator Dupuis?

Senator Dupuis: Yes.

Mr. Labrosse: The Honourable Senator Gold?

Senator Gold: No.

Mr. Labrosse: The Honourable Senator Jaffer?

Senator Jaffer: Yes.

Mr. Labrosse: The Honourable Senator Klyne?

Senator Klyne: Yes.

Mr. Labrosse: The Honourable Senator Pate?

Senator Pate: Yes.

Mr. Labrosse: The Honourable Senator D. Patterson?

Senator D. Patterson: Yes.

Mr. Labrosse: The Honourable Senator Simons?

Senator Simons: Yes.

Mr. Labrosse: The Honourable Senator Tannas?

Senator Tannas: No. 

Mr. Labrosse: Yeas, 8; nays, 5; abstentions, nil.

The Chair: Accordingly, I declare the motion in amendment carried.

Continuing with consideration of clause 1. Shall clause 1 carry?

We have a proposed amendment from Senator Boisvenu.

[Translation]

Senator Boisvenu: I move the following amendment:

That Bill C-48 be amended in clause 1, on page 3, by replacing line 11 with the following:

“cused has been previously convicted, within 10 years”.

Here is my argument. Perhaps the Department of Justice can explain its reasoning for choosing a threshold of five years, when the least dangerous criminals — if they reoffend during those five years — will have the burden of proof in order to be released. Meanwhile, the most dangerous criminals — those who have been sentenced to more than five years behind bars and who reoffend — will not be subject to reverse onus.

For example, on the one hand, an accused with a three-year sentence who, in the third year, is released from prison and reoffends, will have to prove that he is not dangerous if he wants to be released.

On the other hand, an accused with a nine-year prison sentence — who therefore committed a more serious crime than the accused with a two- or three-year sentence — who commits a crime in his ninth year and finds himself back before the judge, will not have to prove that he is dangerous. However, the fact that both sentences exist shows that if an accused is sentenced to two years in prison, the crime committed is less serious than if the prison sentence is nine years.

What I’m proposing is that the five-year period be increased to 10 years instead, to ensure that dangerous criminals also have the same burden as less dangerous criminals. I believe that would ensure public safety.

Those are my arguments.

Perhaps the Department of Justice officials could tell us why they landed on a period of five years. I would also point out that some of the main police forces in Canada and Quebec feel that the five-year period chosen by the department could lead to inconsistencies in the administration of justice.

Ms. Moore: This proposal focuses on those accused who have demonstrated a more recent tendency toward violence, while a longer break in delinquent behaviour would still indicate a certain level of risk. A pattern of offending over a shorter period, such as five years, indicates an increased risk of recidivism, according to the government.

[English]

Further broadening the reverse onus to have it apply to more accused persons who have had a conviction in the past 10 years could in some cases be consistent with the objective of targeting accused persons who might have a higher risk, for example, if they had been serving a longer sentence during that period. However, it could also capture accused persons who have a significant gap on their criminal record and who, for the past 10 years, have been otherwise law-abiding people and who might not pose the same level of risk of recidivism. I think that’s all I’ll say for now.

[Translation]

Senator Boisvenu: What is your source for data on comparative recidivism? If someone receives a three-year sentence versus a six-year sentence, where does the data come from that says the recidivism rate is higher for a three-year sentence than for a longer sentence?

[English]

Ms. Moore: Perhaps I didn’t explain it as well, but the goal is to capture those who are showing a recent pattern of offending, not to capture individuals who might have a longer period on the record where they have been otherwise law-abiding citizens.

[Translation]

Senator Boisvenu: Generally speaking, if someone commits a crime and receives a two-year sentence, we agree that it’s a less serious crime than if he or she had received a nine-year sentence, right? Do you agree with that principle? The shorter the sentence, the less serious the crime. That’s the way our justice system works.

[English]

Ms. Moore: Correct, but the intent is not to capture individuals who are serving sentences. It’s to capture gaps on the criminal record. Those gaps could be as a result of individuals serving sentences, but they could also be as a result of a long period where the accused person has had no new charges and has not been serving a sentence.

[Translation]

Senator Boisvenu: The person with a two-year sentence who commits another crime in the following five years would have to prove that he or she is — the person with a sentence of 10 years less a day who is released and commits a crime in the following five years will not be considered subject to reverse onus. That is the difficulty with this bill: It considers people who present a lower risk to have a greater obligation than those who present a higher risk, who will not have that obligation.

[English]

Ms. Moore: That person could have a reverse onus for another charge. It depends on what they are charged with. Also, the court would be aware if they had just finished a sentence for 10 years and were before the court with a new charge. I think that would certainly be a submission that the Crown would make to the court in favour of detaining the accused.

The concern that came out from the provinces and territories, and from across Canada, was really where the pattern —

[Translation]

Senator Boisvenu: Does the five-year period begin at the time of sentencing or after? Does the countdown start when the sentence is handed down or when the sentence is completed? According to the bill, the five-year period begins when the sentence is handed down, right?

[English]

Ms. Moore: No, the clock starts ticking when the accused is convicted.

[Translation]

Senator Boisvenu: I understand. If the sentence is short, the five-year period will elapse quickly. If the sentence is 10 years, for example, for an individual who was sentenced 10 years ago, the five-year period will run out during their sentence, do you understand? When they get out of prison after 10 years, they won’t be subject to the reverse onus. The accused with the shorter sentence, if they haven’t committed a crime after six years, no longer has the reverse onus. That’s normal; it’s a less serious crime.

Someone who has committed a more serious crime, who has served 10 years and who comes back before a judge will not be subject to reverse onus. That is the contradiction in the bill. It would make more sense to put in a 10-year period that would not affect those who have committed lesser crimes, but would really affect those who have committed more serious crimes.

Ms. Davis-Ermuth: What you say is certainly true.

[English]

However, the bill is taking this approach because the particular concern that they were seeking to address with this bill was the people who are in — some people would use the term “chronic offender” — a small group of people who are repeatedly committing a number of crimes. There was a concern that many people were committing crimes and then were being let out right away. The bill itself targets more of this pattern of people who are committing repeated offences and are not really being detained in any way so that there isn’t a way to take a break from their offending.

There was a feeling that in some cases there weren’t really consequences. Although it’s true in the situations you describe, there may be some offenders —

[Translation]

Senator Boisvenu: The fact remains that this will more significantly impact groups subject to discrimination, such as Indigenous persons. This part of the bill will affect those groups more: Blacks, Indigenous persons. That is dangerous for those groups. You might say they’re the ones who commit the most crimes, but there are seven times more Indigenous inmates than White inmates in federal penitentiaries. So this is going to affect people from those communities much more than White inmates.

[English]

Senator Gold: The government does not support this amendment. This was a policy decision of the government to strike a balance and, more importantly, to strike a bill and amendments to the bail system that are narrow and targeted.

I really appreciate the presence of the officials here and your openness to answer questions. You’re very helpful when it’s technical matters that require clarification. I think the policy choices of government, though, are really matters for us to decide and for the ministers and others to answer. Thank you, nonetheless, for your willingness to do so.

We have to strike a balance between public safety and the rights of the accused. It sounds like a cliché, but it’s necessary for this to be a targeted, appropriate and constitutional measure. That’s why I think the five-year period was triggered where previous convictions for violence occurred during the five-year period.

The government is of the view that this is the right policy decision. It’s true that we heard from the Canadian Association of Chiefs of Police and the OPP Commissioner that they would have liked a longer period of time, but we also heard from other witnesses saying that this bill, as drafted, just goes too far.

This was the choice of the government and a policy choice that is supported by the police, the community and by provincial premiers. For those reasons, I urge the committee to reject this amendment.

The Chair: Thank you, Senator Gold.

Senator Batters: Thank you. I do support this amendment for the reasons I was saying before: I want this bill to go further.

I think the Canadian public wants much more significant bail reform than what Bill C-48 offers. It provides only just a very small provision, very strict. As we heard from officials, there are many different conditions that need to be met for the reverse onus to even be put into place.

We’ve also heard that the provinces want significant bail reform, and I don’t think Bill C-48 is significant enough for what they really want. Yes, they want this to be passed, but they also want things to go further and they want a significant review of it.

Senator Boisvenu made a very good point that if we don’t have his amendment in place, we could have people that have been in jail for a lengthy period of time and that’s the only reason they have a gap in their conviction record.

I also want to point out that, according to Bill C-48, for this provision without the amendment to apply, it has to be a conviction. With the significant court delay that we have in place in Canada right now — the court delay crisis — the conviction could take place quite some time after the actual offence occurred. Of course, there could be multiple offences that continue to occur, which is really the problem we’re seeing in so many of these cases that we’ve seen in the news lately of people getting out, and those are not then convictions, but they just continue to pile up charge after charge after charge, and they continue to get out. But Bill C-48 wouldn’t apply unless there are different convictions for each of those things and very strict measures in that this has to apply, and then that has to apply, and then this has to apply.

Therefore, I think it’s necessary to have public confidence in the judicial system and the criminal justice system. The public is very quickly losing confidence in the system — if they haven’t already — and I think that this is just one way, but increasing that threshold from a 5-year period to a 10-year period in that one instance is one way that we can try to make the public have a bit more confidence in the bail system, which is quite broken right now.

The Chair: Senator Boisvenu, would you like to make any closing comments with respect to your proposed amendment?

[Translation]

Senator Boisvenu: No, thank you. I think it’s a perfectly logical amendment to make this bill consistent.

[English]

The Chair: Thank you.

It is moved by the Honourable Senator Boisvenu:

That Bill C-48 be amended in clause 1, on page 3, by replacing line 11 with the following:

“cused has been previously convicted, within 10 years”.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: I think the “nays” have it.

We’ll have a recorded vote, Mr. Clerk.

Mr. Labrosse: The Honourable Senator Cotter?

Senator Cotter: No.

Mr. Labrosse: The Honourable Senator Batters?

Senator Batters: Yes.

Mr. Labrosse: The Honourable Senator Boisvenu?

Senator Boisvenu: Yes.

Mr. Labrosse: The Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: The Honourable Senator Dalphond?

Senator Dalphond: No.

Mr. Labrosse: The Honourable Senator Dupuis?

Senator Dupuis: No.

Mr. Labrosse: The Honourable Senator Gold?

Senator Gold: No.

Mr. Labrosse: The Honourable Senator Jaffer?

Senator Jaffer: No.

Mr. Labrosse: The Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: The Honourable Senator Pate?

Senator Pate: No.

Mr. Labrosse: The Honourable Senator Patterson?

Senator D. Patterson: Yes.

Mr. Labrosse: The Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: The Honourable Senator Tannas?

Senator Tannas: Yes.

Mr. Labrosse: Yeas, 4; nays, 9; abstentions, nil.

The Chair: Colleagues, I declare the motion in amendment defeated. This brings us to continuing with the consideration of clause 1.

Shall clause 1 carry?

Senator Clement and Senator Dalphond have similar amendments, and, in consultation with them, I have suggested — and I think they have agreed — that Senator Clement’s amendment might be considered first.

This is for those of you who have the documents in hand: It’s BC-C48-1-3-24.

Senator Clement: Thank you.

I am moving:

That Bill C-48 be amended in clause 1, on page 3, by adding the following after line 24:

“(13.1) A justice who makes an order under this section shall include in the record of proceedings a statement that sets out both how they determined whether the accused is an accused referred to in section 493.2 and their determination. If the justice determines that the accused is an accused referred to in section 493.2, they shall also include a statement indicating how they considered their particular circumstances, as required under that section.”.

Section 493.2 of the code refers to Aboriginal or people of vulnerable populations. It’s really to try and take this section and make it less of a check-box exercise and more of a substantial cogent reasons piece.

Many witnesses have appeared before our committee and voiced their concerns over the overrepresentation of Black and racialized people in the Canadian criminal justice system. For example, in 2016-17, Indigenous adults accounted for 30% of provincial-territorial custody admissions, 27% of federal custody admissions and 27% of the federal in-custody population, while representing only 4.1% of the Canadian adult population.

In 2020-21, despite representing about 4% of adults in Canada, Black people accounted for 9% of the total offender population in federal corrections. This is clearly a problem of a systemic nature.

Professor Danardo Jones said:

. . . any move to make our bail system more punitive without recognizing how the system that we currently have disproportionately impacts marginalized and racialized people is problematic. That is not striking a balance.

So reverse onus has posed an additional barrier to accessing justice for racialized people in the criminal justice system.

According to Michael Spratt, a criminal defence lawyer who appeared before our committee:

The truth about our bail system is that it doesn’t apply equally. The wealthy and the privileged, in my experience, are much more likely to be released and much more likely to be released more quickly than people who are impoverished and racialized and have faced other challenges in their life. . . .

We heard from many witnesses that the system is under‑resourced and overburdened. Racialized offenders and others belonging to vulnerable and traditionally marginalized populations are the ones who end up suffering the most. This overrepresentation is a systemic problem that, of course, starts with overpolicing.

By requiring a statement in the record of proceedings as to how a justice has considered section 493.2 of the code, our amendment seeks to address the fact that judges sometimes do not properly take this provision into consideration, which can have a devastating effect on racialized people in the criminal justice system.

This amendment breaks down two “hows.”

The first “how” is this: How has the justice considered whether this person is Aboriginal or in a vulnerable population category?

The next “how” is the following: Once the determination has been made that the accused is a member of that category, how has the justice considered the particular circumstances of that person?

That is the difference between this amendment and the one proposed by Senator Dalphond — it is to add that extra “how.”

I want to give you an example because when you read this “the accused, of the accused, of the accused,” it’s a bit hard to follow what that means. I spoke — as I said earlier — to Theresa Donkor, who is a criminal defence attorney with the Canadian Association of Black Lawyers. She gave me an example of representing a light-skinned Black man. When she began to raise the issue of section 493.2, the judge was puzzled. Does this person fit into that category? She hadn’t been prepared to make submissions on how he fits into that category.

If we have a section that actually requires thought, that sends the message that you have to be deliberate in the first step of determining whether a person belongs to that category, then once you’ve determined that, you can ask how you would look at those particular circumstances and how you’ve considered those circumstances.

You have a much more deliberate, substantial process that the justice has to follow in following section 493.2. Those are my arguments in support of that amendment.

Senator Gold: Thank you. The government definitely agrees that bail courts should consider the particular circumstances of persons before them, and particularly those disadvantaged and those from communities overrepresented. That’s why the requirement to do so was included in former Bill C-75, which we passed in 2019.

The question is how our justice system has been dealing with this new requirement over the last few years and whether an additional amendment such as the one Senator Clement is proposing is actually necessary. The government’s position is that it’s not necessary. It’s not that it’s bad, but it’s not necessary.

The Canadian Civil Liberties Association did tell us in their brief there had been “limited jurisprudence” on this point, indicating, at least in their view, or maybe implying — I don’t want to put words in their mouth — or giving the impression that the courts may have been ignoring this requirement.

But it’s the understanding of the government and my understanding that, in fact, there has been a significant body of case law that has been developing over the past few years where courts are taking it seriously and giving guidance to courts and justices of the peace below them. I’ll cite one which I read recently, R v. E.B., a 2020 denial-of-bail case where the denial of bail was challenged in the Ontario Superior Court. In a lengthy judgment, a lot of guidance was given as to how it should be applied, and one expects fully that has trickled down now into the system. In this case, the denial of bail was overturned.

In any event, we don’t support this amendment on the grounds that, in our view, the courts have been taking this seriously. The law is clear, and the amendment isn’t necessary. Thank you, chair.

Senator Tannas: I have a couple of questions for Senator Clement. Number one, is this about forcing a judge to make this description and detail their thoughts as an additional tool for potential appeal?

Two, would you not agree that by having this done, it also gives society a look into — in either case, denial of bail or approval of bail — what the judge was thinking? It has to add to either society’s outrage and further signals they’re still not understanding or society’s satisfaction that the system is working. People are actually thinking this through.

Senator Clement: Very cogent. I want to first respond to Senator Gold’s comment. There has been limited uptake on this section. That is of concern, so requiring that the justice make a statement and provide reasons and details is helpful for, potentially, a meaningful appellate review, but also, as you’ve just said, in sending a message that we have to be very deliberate. This is a section that applies always, but by requiring a justice to show that he or she or they have been deliberate in breaking out how this person is a member of that category and how they considered their circumstances can only be helpful in terms of creating more momentum around this section and more awareness around the necessity for that kind of deliberation. Thank you for those questions.

[Translation]

Senator Dalphond: I will support this amendment, even though I think it is drafted in terms of common law rather than civil law. It repeats, in a new section, what has already been said in the previous section. I won’t get into a drafting war today. Yet the underlying issue is the one that Senator Tannas raised, and it’s a good one. Why do we need to add this reference? The same issue arises for subclause 13: the requirement to confirm that the community’s safety has been taken into consideration.

Obviously, the judge must always take this into consideration before deciding whether a person will be put behind bars; that is the general principle. It is the exception that a person has to remain behind bars to protect the safety of the community, including the intimate partner, and so on. They felt the need to require judges to explain why they don’t issue an order in the case of a person with a reverse onus. We go further, explaining that the judge must describe how she factored in the special considerations that apply either to Indigenous persons — the Gladue principles — or to groups overrepresented in the penitentiary system or awaiting trial, especially here. Is this necessary? No. Is it useful? Yes.

This is aimed at judges — they are obliged to focus their attention on these issues. The appellate courts, whether it’s the Superior Court dealing with appeals from justices of the peace, or the courts of appeal, the principles whereby the appeal requires the trial judge to give reasons are well known, otherwise it negates the right of appeal. The common law obligation exists when it comes to giving reasons, but the legislator feels the need to be more precise to attract the attention of the judge and the public.

In my opinion, this is more educational than necessary, but I support it. The lack of evidence we have to pass this bill can be corrected in part by the fact that judges will ask themselves the question; they’ll have to write a few lines on this aspect, which will mean that we’ll have a database in case law that will tell us which cases have led to the denial of bail and which have not.

This will help fill some of the missing evidence needed for a comprehensive reform of the bail system.

[English]

Senator Pate: Thank you for moving this amendment. I think of it as along the lines of the sorts of progress we have seen when we have had provisions to require judges to look at and turn their minds to particular matters. We know that many don’t until they are pushed by legislation. I think, in particular, of the provisions of the Youth Criminal Justice Act that we heard about before in terms of not these types of provisions, but provisions requiring judges to turn their mind to other systems and other processes to help them examine the full range of issues that they need to examine, and this being one of them. I support this amendment.

The Chair: Thank you, Senator Pate. Senator Clement, do you wish to make additional comments?

Senator Clement: Just briefly.

[Translation]

I agree with Senator Dalphond that there was a lack of data; this amendment can meet that need. I take his comment about the civil law drafting personally, since my first degree from the University of Ottawa is in civil law, but I’ll let it pass because I’m aware that you support the amendment.

[English]

I just want to thank here Shakir Rahim of the Canadian Civil Liberties Association, who as a stakeholder really worked hard on this amendment, came up with it and talked about the lack of uptake around section 493.2 in a compelling way. He worked very well with the Canadian Association of Black Lawyers. I just want to thank them for being very active stakeholders and using their expertise to inform this process. Thank you.

The Chair: Thank you. It is moved by Honourable Senator Clement:

That Bill C-48 be amended in clause 1, on page 3, by adding the following after line 24:

“(13.1) A justice who makes an order under this section shall include in the record of proceedings a statement that sets out both how they determined whether the accused is an accused referred to in section 493.2 and their determination. If the justice determines that the accused is an accused referred to in section 493.2, they shall also include a statement indicating how they considered their particular circumstances, as required under that section.”.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: No.

The Chair: I think the “yeas” have it. Would you like a recorded vote or on division? On division? Thank you, colleagues.

Senator Dalphond, is it now acceptable that you might want to withdraw your proposed amendment to this section?

Senator Dalphond: It would be redundant.

The Chair: Thank you.

Senator Dalphond: It is redundant, but I’m okay with the principle.

The Chair: Colleagues, shall clause 1 carry, as amended?

An Hon. Senator: On division.

The Chair: On division. Shall clause 2 carry?

Senator Dalphond, you have a proposed amendment here.

I apologize for interrupting. We have a hard stop at approximately 6:15 p.m. because of the interpreters. We have been making thoughtful progress, but we do need to be attentive to the time frame here and, hopefully, be able to conclude our considerations. I will remind you that we have some observations to examine following the consideration of Senator Dalphond’s amendment.

Senator Dalphond: I expect this amendment not to be subject to a long debate. I would not have made it if there were no amendments considering the undertaking of the minister, but since we are making some amendments and may possibly return the bill to the house, I prefer to put in writing the undertaking for the future and to give value to the undertaking.

I am sure, chair, you will agree with this, since you were one of those who raised it first, and that I will find in you some support on that one at least.

Senator Jaffer: I agree with what Senator Dalphond is saying, but may I ask the officials a question?

This is your review amendment, correct, Senator Dalphond? Yes.

Senator Dalphond: Maybe I should have explained that — it’s just to make sure that the Senate committee will conduct a review, as well as the House of Commons committee.

Senator Jaffer: Yes. I was very intrigued when the minister said that some reviews are by the Senate and some reviews are by the House of Commons. I’m not questioning the minister by saying he might be wrong. Just give me one or two examples of a review only by the Senate.

Mr. Taylor: The one example that was provided during the minister’s appearance was the Protection of Communities and Exploited Persons Act. That was a response to the Supreme Court’s decision in Bedford. That had a review clause that was limited to the House only. In the work that we did, looking at other review clauses, I can’t recall another review clause where it was only a review undertaken by the Senate.

Senator Jaffer: I looked it up with all the reviews. I didn’t find any by the Senate.

Mr. Taylor: Yes. I think the other examples that we provided were similar to the effect of the amendment that Senator Dalphond is proposing, where it’s both. Other examples gave the option of one or the other or both, so it left it to each chamber to decide for themselves.

Senator Jaffer: Senator, I am supporting your amendment. I just want you to know that when I was chair, I was told that there hasn’t been a review for years of any legislation here or in the House, but it’s still worth what you are saying that it should be both houses.

Senator Gold: The government supports the idea of the Senate participating in parliamentary review, full stop. In that regard, although it’s not necessary, because we are the masters of our own, and this committee can always and should always — if there are, in fact, reviews that are not taking place that should be taking place, then I would hope that we as senators would use our own good offices and our control over our mandate to so proceed, as we could do in this particular case. So it’s not necessary. There were examples in the past, past governments even, where, in fact, only the House was contemplated.

I’m not in the position to say that I support this amendment, because that is not the position of the government, but we do support the Senate participating in the study of this legislation, as I expect it will.

Senator Batters: Senator Gold, did you just mean that if we don’t have both parliamentary committees, that we as senators should use our own personal Senate offices to conduct such a review? Is that what you meant? I think this is something that is much more — no?

Senator Gold: No. 

Senator Batters: Okay. I’m glad I clarified that.

Senator Gold: I’m saying that I would assume that this committee or any other committee could seek a mandate to review the effectiveness or the operation of any piece of legislation, as the minister discussed. Our committees have that power, and one might even say, in some cases, an obligation to so do.

Senator Batters: Right. The only thing is that, generally, we are quite occupied with much legislation, including government legislation and private member’s legislation and other matters of review. As you will know, there are also a number of current reviews that are waiting to be called and haven’t taken place yet. Those, I guess, would take priority. Thank you.

[Translation]

Senator Dupuis: I just wished to add that I wanted to give credit to the current minister, who disassociated himself from the wording found in this bill and who, following a question I had asked, made a commitment that in the future — at least, during his term as Minister of Justice — he will always ensure that if a section provides for parliamentary review, it will cover both chambers.

[English]

The Chair: Perhaps I could make a closing comment. I feel as though I may have initiated the proverbial cat among the institutional pigeons on this point by a question I posed to Senator Gold on the floor of the Senate.

I, like Senator Dalphond, would have taken the view that if there had been no other amendments to the bill, we would count on our own institutional authority and the goodwill of Parliament to just carry on. But given that we are already developing amendments to the bill, I’m supportive of this one.

In one small respect, for the institutional legitimacy of the Senate, despite the responses to the questions, I have interpreted this as more likely an oversight rather than an intentional selection of the other place as the reviewing agency. I think it helps us to make a statement that on these kinds of questions, we are a coordinate house of Parliament. As I said to Senator Gold at the time ironically with respect to this bill, we are the only house of Parliament that has actually studied the bill, so we would like to have another shot at it five years from now.

I’m going to assume, if I may, Senator Dalphond, that I don’t need concluding remarks from you on this. This feels like one that has at least a good chance of passing.

Hearing no other interventions, it is moved by the Honourable Senator Dalphond:

That Bill C-48 be amended in clause 2, on page 3, by replacing lines 29 and 30 with the following:

“standing committee of the Senate and the standing committee of the House of Commons that normally consider matters relating to jus-”.

Is it your pleasure honourable senators to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Senator Gold, would you like this to be on division?

Senator Gold: No.

The Chair: Shall clause 2, as amended, carry?

Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: On division. Thank you.

Shall clause 3 carry?

Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Agreed, on division. Shall clause 4 carry?

Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Carried, on division. Shall clause 5 carry?

Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Again, carried, on division.

Shall the preamble carry?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill, as amended, carry?

Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Agreed, on division.

Is it agreed, colleagues, that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating cross-references and renumbering provisions?

Hon. Senators: Agreed.

The Chair: Carried.

Does the committee wish to consider appending observations to the report? I think the answer is yes. There are three sets of observations on the floor. There is one from Senator Pate, one from Senator Dalphond and one thanks to Senator Dupuis, who has captured her earlier interventions in language that has been already reproduced and is now being circulated.

With a bit of time left, what we are now looking at as the goal here of the magic of incorporating these observations together, let me say at the outset that my reading of them is that it is manageable. Senator Pate speaks to a range of concerns particularly focused on violence, survivors, violence against women and a strategy to encourage that kind of a review of the Criminal Code and, in particular, potentially the Law Commission of Canada’s work.

I don’t want to interfere with you speaking to your amendments, but I want to shape the context here. Senator Dalphond primarily focuses on the need for study and reform of the bail system specifically. And you heard from Senator Dupuis the concerns about not getting gender-based analysis in a timely way, urging that it be made available to us in a more timely way — prior to our study of the bill and, in particular, prior to hearing from the minister and officials.

I think I have captured the general tenor of it. I have a feeling we might hear from Senator Batters that they are too long, but I would like to invite Senator Pate to speak briefly to hers, then Senator Dalphond and Senator Dupuis, to see if we have captured it and whether we can stitch them together in that sequence.

Senator Pate: Thank you very much. These observations are similar to either amendments or observations we have made in the past, particularly with respect to Bills S-205 and C-233. Given that they are largely trying to accomplish similar tasks with the same issues, namely, intimate partner violence, we would argue that these submissions be here.

The testimony of Christa Big Canoe from the Indigenous Bar Association, Kat Owens from Women’s Legal Education and Action Fund, Emilie Coyle from the Canadian Association of Elizabeth Fry Societies, Sarah Niman from the Native Women’s Association of Canada, Deepa Mattoo from the Barbra Schlifer Commemorative Clinic and others talked about the importance of these issues, so I would suggest that we append them.

These are abbreviated versions of some of the previous ones, so they are shorter than others. That may be happily received by all of you.

In our zeal to get these translated, there were some errors that I thank the analysts and the clerks for pointing out. We accept those corrections. We’ll be happy to have them made. I’m happy to accept anything to stitch them together.

The Chair: I’m going to invite the proponents of the three observations to speak and then invite commentary, beginning with Senator Batters when we get there.

Senator Dalphond: My observations are not very long, so I guess the complaint that they are too long won’t apply to my observations.

That being said, I read the observations proposed by Senator Pate. I agree with them. I think that the steering committee could make a document that will include the three documents.

The committee repeats the fourth paragraph of Senator Pate’s observations about the need for a kind of extensive review of the Criminal Code. My first paragraph is about the bail provisions, so it will fit nicely there.

In the meantime, I also urge the federal government to get more information. I will suggest to change my text regarding “Aboriginal accused” to say “Indigenous accused.” “Aboriginal” is the word used in the Criminal Code, but I know that we prefer to use the word ”Indigenous” in reports, so I propose to change that. Then the new law commission could do the work. We encourage the government to work with provinces and territories to address violence against women.

I also read the last observation about GBA Plus and I fully agree with it. Yes, it’s part of the scheme of things. We say that it is being used to draft legislation and to approve in cabinet, so why shouldn’t we have it in due course to make our own decision?

The Chair: Do you want to speak briefly to yours, Senator Dupuis?

[Translation]

Senator Dupuis: I agree with everything I’ve heard about the first two comments. However, with regard to the French version of the text that has just been distributed, in the last paragraph, I would add a comma after “témoins devant le comité.”

In other words, we’re asking the government to send us the analysis prior to the beginning of the study, or at the latest when the minister or government officials come to testify before the committee, failing which, consideration of a bill will be delayed until that analysis is submitted to the committee. I think that was the idea expressed earlier, and it’s an important one.

So I’ll repeat it more slowly:

. . . failing which consideration of a bill will be delayed until that analysis is submitted to the committee.

[English]

The Chair: Would this be supplementary language to the observation you presented?

[Translation]

Senator Dupuis: You will have understood that I wanted to respond to Senator Gold’s invitation to bring forward a number of initiatives ourselves.

Senator Gold: I’ll pass on your concerns to the minister as soon as possible.

[English]

Senator Batters: First, on Senator Pate’s, yes, since Senator Pate just told us that much if not all of the material she has in this lengthy observation is similar to previous observations that have been appended to bills in the recent past, I don’t really see the need to continue to put the same observations in over and over again, particularly when, over the last number of years, we haven’t seen any action from the government in response to observations. We just keep telling them over and over again, but they are not even responding to it or definitely not taking action in different ways. I’m not sure what the benefit is of continuing to put it in over and over again.

With respect to Senator Dalphond’s, obviously, this is something I raised significantly in the study of this bill. I was quite shocked to see that it seems like the Justice Department drafted this bill without having any real data to tell us — they couldn’t answer questions about who might be impacted by this and about how many offenders could potentially remain in jail as compared to be out on bail under this type of legislative framework.

Another part that perhaps needs to be put in this part about the data is that there hasn’t been any study on data about the experience of victims at the bail stage and how that could have an impact.

Dealing with the GBA Plus, yes, as I started out this meeting saying, this is an important matter that continues to happen over and over again. I do think it’s something the government’s attention needs to be drawn to because I don’t think it’s something we’ve specifically drawn their attention to in the form of an observation previously.

[Translation]

Senator Boisvenu: I have a question for Senator Dalphond. You don’t specify in detail the type of information you want to obtain. I would have preferred your comment to list the minimum data to be obtained. Does this include those who reoffend after being released on bail? Will we be looking for this type of data?

As Senator Batters mentioned, are we also going to look for the kind of data on the experiences of victims with releases on bail? Are they informed? Are they involved in the process? Does your amendment include this type of data?

These could be clarified after the amendment is accepted. The steering committee could specify elements related to victims, for example.

Senator Dalphond: The last sentence, as well as data related to the bail system and public safety, is meant to be a very broad principle. In my opinion, it would include that and other data. If our subcommittee wants to add them, I have no problem with that.

Senator Boisvenu: We could add: [Technical difficulties]. Exactly.

Senator Dalphond: Including [Technical difficulties]. That’s it.

Senator Boisvenu: Thank you.

Senator Dalphond: With regard to the last sentence that is added, “failing which consideration of a bill will be delayed by the committee,” would it not be more prudent to say “could be delayed by the committee”? There can be emergencies. I remember that, during the pandemic, we studied bills that were passed quickly without delay.

Senator Dupuis: Not “could be delayed,” but “may be delayed.”

Senator Dalphond: Yes, we could say “may be delayed.” In fact, instead of “will,” it would be “may.” Thank you.

[English]

The Chair: I think the suggestion was to amend the provision to read, “The consideration of bills may be delayed if we don’t have the GBA Plus.” I think the committee would always have the ability to decide one way or the other, in any event, but . . .

Senator D. Patterson: Do I understand that there’s an agreement to marry Senator Pate and Senator Dalphond’s observations?

The Chair: I think Senator Dalphond articulated a way of weaving his into portions of Senator Pate’s that talk about the Criminal Code, including maybe the provision then that would be specific to study and gathering of data regarding bail reform.

My suggestion was going to be, at the end of the conversation, if you are comfortable with that as an approach, to leave it to the steering committee to incorporate the two in a way that — since Senator Dalphond is on the steering committee — he would be comfortable with.

Senator D. Patterson: Yes, I’m fine with that. But I did want to point out that I notice some ambiguity in the two observations. I thank both senators for having drafted them, but Senator Pate’s observation recommends a comprehensive review of the Criminal Code.

Senator Dalphond suggests that there should be a substantial reform of Canada’s bail system. I think it would be useful for the steering committee to get a view from this committee as to whether we’re in favour of a broader review of the Criminal Code and all its many facets, or if we’re going to focus on the bail system.

In my opinion, a litany of witnesses whom we heard stated generally that the bail system is very much in need of reform, and some might even have said it is broken in many ways.

I would prefer that we focus on recommending substantial reform of the bail system because I think that the reform of the Criminal Code is a much bigger task and less likely to be acted upon by the government, even though, no doubt, it is a worthwhile project, especially for the newly revived, reformed Law Commission of Canada.

I do agree that the discussions we’ve had about the need for data, which the witnesses all emphasized, and the unfortunate absence of data to inform these provisions is a very good addition to the observations.

We’ve had some recent discussions, interventions saying that the data should also include victims, which I don’t think was spelled out in Senator Dalphond’s wording. I hope this is helpful.

The Chair: It is. Could I make this suggestion, Senator Patterson and members of the committee, that we might, in the incorporation of Senator Dalphond’s observation into the one that Senator Pate has written, make a transition with language like, “More specifically, on the basis of concerns about lack of evidence that supports decision making in the bail system, we feel that there’s an urgent need for . . .,” and then we move on to what Senator Dalphond has proposed?

And on your other point, we should make some reference, either following what Senator Dupuis suggested or some language that would say that the data to be collected needs to address all aspects of the bail system.

Senator D. Patterson: Right. Are we then agreed to focus on the reform of the bail system rather than the Criminal Code as a whole?

[Translation]

Senator Dupuis: I’m not sure we want to lump the two documents together. I think it would be simpler to start with Senator Dalphond’s observation, which concludes our study of Bill C-48. We made a number of observations. They are well summarized in these two paragraphs, with the addition of “including victims” at the end of the second paragraph.

We would then follow with Senator Pate’s comment by saying that we would like to reiterate, more broadly, what we have heard from a number of convincing witnesses, and end by saying that if we want to be able to do our job, we need the Gender‑based Analysis Plus.

[English]

The Chair: Are you comfortable with that, Senator Dalphond? It kind of relocates yours at the front. This would, I hope, address your suggestion, Senator Patterson, that the immediate and obvious information we have heard becomes front and centre in the observations we make here. It would retain the reference to reform of the Criminal Code, but it would become a secondary observation. And then we address the challenges to our work that Senator Dupuis and Senator Batters identified.

Senator Batters: Something has just occurred to me that I just wanted to bring up. Because of how we’ve generally been doing reports with bills on this committee lately — that it’s just generally an extremely short bill, not a summary of evidence and things like that which are more detailed — really the only thing that will come out of this committee on Bill C-48 is the amendments that have passed and then these very lengthy observations.

That’s the only thing that our colleagues in the Senate, unless they were to go back and look at the transcripts or watch the video and that sort of thing, will see out of this.

I want to make the point that I don’t think that’s an accurate reflection of what we heard as a committee on this bill. And so when we have to do something more quickly and we don’t have the time to do the type of summary of evidence that we used to do pretty commonly on bill reports, now this is all people really see. I just wanted to make that point.

The Chair: This is a very good point, especially for a bill that didn’t get as much consideration as it may normally get in the other place.

Senator D. Patterson: It didn’t get any.

The Chair: I think that people talk to each other briefly, Senator Patterson. Beyond that, I don’t know.

We might try to aim for a little richer report that captures the amendments and also the observations. We owe that maybe to our colleagues in the Senate and probably to Canadians to explain what we did here, which is a little richer. As you reminded me once before, telling the Senate that we had a bunch of witnesses isn’t quite enough.

Senator Pate: I think it’s resolved, but just because of the issue that Senator Patterson raised, behind the evidence of many of the witnesses was the fact that the bail system is the tip of the proverbial iceberg and that the issues are much broader than that. Trying to fix it through the bail system won’t achieve the end results. That’s why I think repeating the review provisions is really important.

I agree with Senator Batters. It’s frustrating that they don’t get picked up, but these recommendations were being made since long before I was even here, and now that we’re going to have a Law Commission, perhaps it will get picked up, given that we do keep making that recommendation.

Senator D. Patterson: That makes sense. Mr. Chair, is there agreement, then, that we would also include a summary of evidence, as Senator Batters, I believe, suggested, to provide a richer report to the Senate?

The Chair: I think without trying to write the whole story, we’ll write a richer report than normally that will capture the tenor of the evidence. We’ll aim for that. Do I take that to be a suggestion within the committee that they would prefer a report that follows that?

Hon. Senators: Agreed.

Senator Dalphond: My only concern, and maybe it’s not a reason not to try to have a summary, but I think we should think about the time. If we need a summary of all the evidence, it might be a long exercise. I think we should proceed to the chamber with considering our report and the bill and sending it back to the other place. Time is kind of short, and there is a bit of a rush felt at the other place to complete this exercise. I just want to avoid any delays.

The Chair: Without hearing from Senator Gold, I’m channelling him or he’s channelling me on this very point, I think.

We aren’t going to be in a position to report back tomorrow in any event, I don’t think, but if we aim for a day as early as possible next week with a report for the Senate, and knowing that that asks a good deal of our officials at least, I think that would be achievable.

Some Hon. Senators: Agreed.

The Chair: Thank you. Could I invite a final vote here? Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report and a somewhat richer report itself, taking into consideration today’s discussion and without any necessary editorial, grammatical and translation changes, as required?

Hon. Senators: Agreed.

The Chair: Does Senator Batters want to dissent?

Senator Batters: No, I just wanted to ask: Don’t you need to have a vote on the actual observations? I was going to say “on division.” I don’t think we did that.

The Chair: I did have a motion here which was, “Does the committee wish to consider appending observations to the vote?”

Senator Batters: Yes, but that’s different than asking if we agreed with the substance. In general, I know it’s going to be massaged somewhat into one. I don’t agree that we attach all of this as an observation, but I was going to just let it go on division. I think that’s different. It sounds like what you were reading there is basically just a “can we massage the words into a little bit finer way.”

The Chair: That’s a standard one. You may not object to that, but you may want to on the last one, which is on division, that is, “Is it agreed that I report the bill, as amended, with observations to the Senate?”

Senator Batters: Yes, I’m going to do that too, but usually, if we hadn’t done this combination, we would have had a vote or that sort of thing on each of these different observations, and we didn’t really do that on these specific ones, like on Senator Pate’s, Senator Dalphond’s and Senator Dupuis’. Now we’re combining it all into one, so you didn’t really call for a vote on that.

The Chair: I’m happy to call a vote on that so you can express your view. Is it agreed that the observations be adopted by the committee?

Some Hon. Senators: Agreed.

Senator Batters: On division.

The Chair: We’ve got the next one voted on, which is with authority to make necessary adjustments to develop the report and observations.

Is it agreed that I report this bill, as amended, with observations, to the Senate?

Senator Batters: On division.

Some Hon. Senators: Agreed.

The Chair: Approved on division.

That concludes our work for today. Let me just say first, as time is running out, thank you to the officials who have joined us once again and provided their insights and answered our questions as richly as they always do.

I want to also thank senators for their very rich engagement on this. If this were a law school seminar, you would be paid a lot of money for what you teach us on this, and I’m one of the learners in that. I want to thank you for that.

I also want to thank the officials for the good work that they’ve done in supporting the committee once again and the team that makes all of this good work possible.

Thank you, all. At this point, I’m going to bring the meeting to a close.

(The committee adjourned.)