Tuesday, October 24, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

SEVENTEENTH REPORT

Your committee, to which was referred Bill C-48, An Act to amend the Criminal Code (bail reform), has, in obedience to the order of reference of September 21, 2023, examined the said bill and now reports the same with the following amendments:

1. Clause 1, pages 2 and 3:

(a) On page 2, replace lines 28 and 29 with the following:

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

(b) on page 3,

(i) delete lines 1 to 7, and

(ii) add 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.”.

2.Clause 2, page 3: Replace 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-”.

Respectfully submitted,

Observations to the Seventeenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-48)

Bill C-48 was introduced in the House of Commons on 16 May 2023. The bill bypassed referral to the House of Commons Standing Committee on Justice and Human Rights for study, and instead completed second reading, consideration by the Committee of the Whole, and third reading in the House of Commons on 18 September 2023.

Your committee held four meetings, and heard from 26 witnesses, including the Minister of Justice and Attorney General of Canada and officials from the Department of Justice; the Attorney General of British-Colombia; police associations; legal organizations; advocacy groups; academics, and experts; Indigenous representatives; and other stakeholders. The committee also received nine written submissions.

Several witnesses who testified before the committee raised concerns about the amendments being considered in the bill.

The following is a summary of selected key issues raised by witnesses during the committee’s hearings.

Data Collection

Many witnesses underlined the importance of collecting comprehensive and accurate data on bail in Canada to better understand and address the problems plaguing the bail system and to analyse the impact of legislation like Bill C-48, particularly on groups already overrepresented in the justice system.

While data collection related to the bail system is the responsibility of the provinces and territories, many witnesses underscored that federal legislation like this bill must be evidence-based and grounded in comprehensive empirical data.

Public safety concerns

Witnesses expressed divergent views on the necessity, usefulness and impacts of the measures proposed by this bill with regard to public safety.

In the wake of recent tragic incidents of violence involving individuals on pre-trial release, several witnesses noted the importance of preserving public safety and confidence in the Canadian criminal justice system by ensuring that accused individuals are detained when that detention is justified to ensure public safety.

The committee heard testimony explaining that the bill includes targeted measures intended to respond to concerns raised by law enforcement across the country, and specific requests to expand reverse onus provisions to include selected additional offences, received from the 13 provincial and territorial Premiers, including in a co-signed letter of January 13, 2023.

In contrast, some witnesses questioned the potential effectiveness of the proposed amendments, arguing that prosecutors can already argue for the detention of an accused when it is justified, including for reasons of public safety.

Some witnesses stated that the bill would not lead to a reduction in violent crime as it does not address the root causes of violent crime. Investment in mental health supports, addiction treatment, affordable housing, and social services may be a more effective means of reducing crime.

Some witnesses recommended removing the bill’s proposed amendment to section 515(6)(b.1) of the Criminal Code, which would expand the bail reverse onus provision to apply to an accused who has previously received an absolute or conditional discharge for a previous conviction involving intimate partner violence. They argued that it would inappropriately target and criminalize survivors of intimate partner violence, as there is often significant overlap between perpetrators and survivors of intimate partner violence, or survivors who are inappropriately charged with intimate partner violence. Others, including all provincial and territorial governments, supported the amendment as a means to protect survivors of intimate partner violence. The committee adopted an amendment, on division, removing one reverse onus in such a case.

Impact on Indigenous, racialized, and marginalized individuals

Several witnesses warned of the disproportionate effect this bill could have on Indigenous, racialized, or marginalized groups who are already overrepresented in the justice system, and already disadvantaged in obtaining release on bail.

Some witnesses recommended that justices be required to state how they have considered section 493.2 of the Criminal Code, which requires the consideration of the overrepresentation of vulnerable populations in the criminal justice system, in reaching their bail decision. A justice is already required to consider the safety and security of a victim of the offence, and the bill adds a requirement to consider the safety and security of the community.

Some witnesses expressed concerns that the proposed amendments would lead to prolonged litigation in bail court, increased demands on the legal aid system, longer bail delays and increased periods of detention, exacerbating the existing delays problem in the bail system. Mindful that even a brief period of detention could have significant negative consequences for an individual, such as loss of employment or housing, additional delays in accessing bail could encourage an individual to enter a guilty plea to avoid further detention.

Review by Committee

The committee noted that clause 2 of Bill C-48 contemplates a five-year review of the impact of the bill by the Standing Committee on Justice and Human Rights of the House of Commons. While it is within the authority of the Senate to initiate such a study without a legislative mandate, members of the committee expressed concern that a coordinated oversight role by the Senate appears to have been overlooked in the bill. The committee expressed its view, through an amendment to Bill C-48, that this statement of Senate committee review be included in clause 2.

The committee makes the following observations:

Comprehensive data-based reform of Canada’s bail system

After studying Bill C-48, the committee concludes that the time has come for substantial reform of Canada’s bail system. Such a comprehensive effort must be informed by detailed data, to ensure that changes are evidence-based.

The committee urges the federal government to work in collaboration with the provinces and territories to establish an efficient and effective means of collecting and sharing data relevant to the bail system, in a timely way. Such data should include disaggregated data regarding Indigenous accused and other accused persons that face disadvantages at the bail stage and are overrepresented in the criminal justice system, as well as data relating to the bail system and public safety, including data related to victims.

Gender-based violence and violence against women

The committee heard from witnesses that much more needs to be done to address the causes of violence and to support survivors. The committee also recognizes the importance of education and pro-active responses to address gender-based violence and coercive control. This committee urges the government to also invest greater resources in initiatives that enhance financial, social and health supports that help ensure: capacity and resources for emancipatory anti-violence supports, centres, including women’s shelters, financial supports, more responsive and respectful treatment of victims by police and prosecutorial authorities, and effective interventions to interrupt and address misogynist and racist violence, including with aggressors.

To this end, we encourage the Government of Canada to take greater, urgent action to address violence against women, coercive control and to support victims/survivors of intimate partner and domestic violence by responding to, with a view to implementing, the outstanding:

•Calls for Justice of the Missing and Murdered Indigenous Women and Girls Inquiry;

•recommendations of the National Action Plan to End Gender-Based Violence.

Law Commission of Canada review of the Criminal Code

The committee has reported in the past about how the Criminal Code has been amended in a piecemeal manner for many decades and has become cumbersome, sometimes repetitive or inconsistent, and is in need of comprehensive reform (see, for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pages 41 to 43).

The newly revived Law Commission of Canada could undertake a comprehensive review, which should include a study of all provisions in the Code that pertain to violence against women, particularly intimate partner violence. The committee requests that it be mandated by the Senate to undertake a review of applicable sanctions in cases involving violence against women, including the underlying values of such sanctions.

We encourage the Government of Canada to work with provinces and territories to collectively take greater urgent action to address violence against women and to support victims/survivors of intimate partner violence.

Gendered-based Analysis Plus (GBA Plus)

The committee received a copy of the federal government’s Gender-Based Analysis Plus (GBA Plus) of Bill C-48 only a few days before the committee began its clause-by-clause study of the bill.

In order to study a government bill in a serious, comprehensive and inclusive manner, the committee requires timely access to this analysis.

Consequently, the committee urges the federal government to provide the committee with the GBA Plus of a government bill when that bill is referred to the committee for study. The GBA Plus should be received prior to the commencement of the study or, at the latest, prior to the appearance of the Minister or government representatives as witnesses before the committee. Failing which, the committee may delay consideration of a bill until the committee receives the government’s GBA Plus.