THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, March 25, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:18 p.m. [ET] to study Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening, honourable senators. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot. I’m a senator from Saskatchewan and the chair of this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan. I’m the deputy chair.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec. Welcome.
Senator Moreau: Pierre Moreau from the Laurentian division of Quebec.
Senator Dalphond: Pierre J. Dalphond from the De Lorimier division of Quebec.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe Nation.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Dhillon: Baltej Dhillon, British Columbia.
The Chair: Thank you, senators. Honourable senators, we are meeting to begin our study of Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
For our first panel, we are pleased to have with us the Honourable Sean Fraser, P.C., M.P., Minister of Justice and Attorney General of Canada and Minister responsible for the Atlantic Canada Opportunities Agency. He is joined today by officials from the Department of Justice Canada: Owen Ripley, Senior Assistant Deputy Minister, Policy Sector; Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section; and Myriam Wills, Counsel, Criminal Law Policy Section.
Welcome and thank you to you all for joining us today.
Minister, thank you for coming today. We will begin with your opening remarks, and then we will move to questions from our senators. Sir, the floor is yours for seven minutes or so.
Hon. Sean Fraser, P.C., M.P., Minister of Justice and Attorney General of Canada and Minister responsible for the Atlantic Canada Opportunities Agency: I’ll do what I can to come in under time to save more time for the discussion, if possible.
[Translation]
Thank you, everyone. It is a great pleasure to be here with you to discuss Bill C-14.
[English]
This is the bail and sentencing reform act, which is clearly a major political priority not only for the Government of Canada but also for Canadians and communities in every part of the country. The government is seized with public safety as a top priority. You’ll note that a significant number of pieces of legislation touch not only on criminal law reform but also on public safety ever since the new government has come into office.
Before I get too far into the specifics around Bill C-14, I think it’s important to understand that this bill is part of a broader strategy to address public safety.
[Translation]
We have a strategy to improve public safety that includes three major points. First, we need reforms in place to strengthen the Criminal Code across the country. The second point is to support those who are fighting crime and violence in our communities.
[English]
This is about supporting the front line. Of course, that includes law enforcement, with additional RCMP officers. Of course, that includes border officers. It also includes community organizations that support victims who may be fleeing violence. It also includes making sure that law enforcement has the tools that they need to investigate, to prosecute and, importantly, to prevent crimes. But to me, the third pillar is the most important if we’re going to see long-term progress when it comes to ending violent crime in Canada, which is to make the upstream investments that we know will improve community safety over time. In this regard, I’m talking about investments in affordable housing, investments in mental health and addictions support and investing in young people who may be at risk.
[Translation]
I am confident in our three-pronged approach. We have an opportunity to make a significant difference.
[English]
The process of arriving at this bill was not something that was determined behind closed doors on Parliament Hill. There was significant engagement with law enforcement, with provincial governments, with stakeholders in civil society and with those who have dedicated their lives and careers to understanding public safety, as well as some of the solutions that we can put in place to address them.
The bill includes many dozens of measures — I think there are 84 total distinct changes being proposed to the Criminal Code — and it could be complicated if we want to get lost in the weeds, but to simplify things, there are two main things that this bill does: It strengthens the bail system in Canada and strengthens sentencing regimes in Canada.
When it comes to the bail system, the first change that I want to draw your attention to is important changes to what’s known as the principle of restraint — a principle that was advanced by the Supreme Court of Canada and codified in the Criminal Code. In response to concerns that we heard in community, including from law enforcement, we are making changes to clarify the principle of restraint to make it absolutely clear that the court has a responsibility to protect the public safety imperative, and if they do not have the ability to protect public safety, then they have grounds for detention under this particular legal test.
There are other important changes that are being made in this particular piece of legislation, including the factors that we want courts to consider when it comes to making decisions with respect to someone’s bail hearing.
This includes ensuring that they look not only at the seriousness of a given charge that an accused may face but also that they consider the history. If an individual has been repeatedly charged with such a high volume of charges that it would call into question the public’s faith in the administration of justice, then we want the court to very specifically consider that as well.
We are also asking the courts to look at different conditions they may place on a person’s release that are often tied to the nature of the underlying offence with which a person is being charged. This includes non-communication orders for people who may be tied to extortion rings or organized crime. It can have limitations on possession of a break-in device for somebody who has a history of breaking into homes or stealing vehicles. You’ll see a number of different conditions that are set to attach to a particular charge, given the nature of that charge.
Importantly, in this bill, there are a series of offences that we have determined are appropriate to advance what’s known as a reverse onus. I expect most of you are familiar with the concept, but for those millions of fans tuning into CPAC at home, I would suggest that this is something that we should explain.
Normally, the burden rests with the Crown to determine why a person should be detained. For certain charges, particularly those that we believe are likely to involve repeat offenders or that are going to be tied to criminal organizations, we are making certain changes to say that the accused must demonstrate why they ought to be released and on what credible information.
The kinds of offences that we are going to subject to a reverse onus in the current draft of the bill include violent auto theft or auto theft tied to organized crime; home invasions that meet the same threshold; certain trafficking and smuggling charges; and assault, including sexual assault, particularly where it involves choking or strangulation, which we’ve seen in certain cases. There are also new measures around violent extortion and the changes after a person has been convicted but before they have been sentenced.
[Translation]
In addition to these changes to the bail system, we need stronger penalties for more serious offences. That includes aggravating factors.
I apologize for the quality of my French. I want to try, but I will continue in English to clarify some technical details.
[English]
There are aggravating factors we want courts to consider at sentencing, including the following: a history of repeat violent offences; crimes committed against first responders whom we depend upon for our community safety; and participation in organized retail crime or crimes that may have a low dollar value but, nevertheless, have a significant economic consequence by virtue of targeting our essential infrastructure.
There are certain new offences that we wish to subject to consecutive sentences rather than concurrent sentences, particularly those that involve extortion cases or involve arson, auto theft and home invasion and, again, repeat violent offences.
There are a series of other changes that we’re making, including limiting access to what’s known as conditional sentence orders, which is typically thought of as house arrest, for certain serious crimes, including sexual offences and, in particular, sexual offences committed against children.
There are other changes that we are making of a similar nature when it comes to the orders that a court may issue, including restoring the ability of courts to impose driving prohibitions where there are convictions for manslaughter or negligence causing death.
There are a series of other administrative changes that are being made to the bill, but in the interest of saving time for discussion, I’ll just conclude with my thanks for what I’m sure will be a rigorous study. Although we do want to very quickly advance laws that will help deliver better safety outcomes to communities, I do want your help to get this bill right. To the extent that you learn through your rigorous study that there are improvements that will advance public safety in this country, please know that I want to consider them with an open mind. I am grateful for the work of Parliament. I believe in the value that both chambers offer, and I look forward very much to seeing the feedback that I’ll receive after thoughtful and rigorous consideration of the bill.
[Translation]
Thank you all. It is a pleasure to be here.
[English]
The Chair: Thank you for your remarks, minister. We will now proceed to questions from members.
Colleagues, as chair, I will keep the questions and answers to four minutes per member. We have 14 senators here today, so I will have to rule fairly succinctly on that.
We have Senator Moreau, the government leader in the Senate, and Senator Dalphond, the sponsor of the bill. Hopefully, we will be able to ensure that everyone gets a chance to ask a question. I thank the members in advance for their courtesy and cooperation in observing this time limit to ensure that all members have that opportunity.
Senator Batters: Thanks, minister. I’m the critic of the bill, so I’m glad to hear your openness to potential amendments.
You introduced Bill C-14 in the House of Commons last October. By that time, the serious crime of extortion had already been increasing at an incredible rate in Canada. The scourge of extortion was already well known, and you mentioned it a number of times. In your opening statement, you might have mentioned it as many times as the bill mentions it because the bill only contains minimal measures to deal with this issue.
Minister, extortion has shot up 330% over the last 10 years, so why didn’t your government use the legislative measure of Bill C-14 to combat it in a more serious way?
Mr. Fraser: Thank you for the question. First, let me express my strong agreement that extortion is a very serious problem that needs to be addressed, and we need to use a series of different tools to do so.
There are some tools included in this bill that are meant to deal with extortion, particularly violent extortion, both on the sentencing side and on the bail side of the equation. In addition to strengthening both sentencing and bail rules when it comes to extortion, when we engaged with law enforcement, they ended up telling us that, yes, there are changes you can make to bail and sentencing, but we do have significant sentences up to the maximum life sentences for repeat extortion in particular and for mandatory minimum penalties, particularly when there’s use of a prohibited weapon. But overwhelmingly, what we heard from law enforcement was what they actually need are not just more tools to punish people after conviction but also more tools to prevent extortion from happening and to bust extortion rings.
We’re actually dealing with some of these issues through what’s now Bill C-22. It came initially in Bill C-2, the strong borders act. There were certain changes we wanted to make to accommodate the feedback we heard in the consultation phase, and we heard loud and clear that having a lawful access regime is one of the top tools that law enforcement needs in order to understand when extortion is happening, why it’s happening and who is involved so that they can enhance their investigation and bring down massive rings, which are responsible for a vast majority of instances of extortion. There are significant measures in this bill, both on sentencing and bail, but more specifically, I just want to point out that it’s part of a broader strategy, including getting the tools to law enforcement that they have asked for. It is included in a separate bill which will, I hope, arrive before the Senate.
Senator Batters: Bill C-14 limits the application of conditional sentence orders, or house arrest, for only certain sexual offences, including for certain sexual offences against children. Minister, why does Bill C-14’s new exclusion of conditional sentence orders for sexual assault, sexual exploitation of a person with a disability and sexual offences involving a victim under 18 years of age apply only when the Crown proceeds by indictment?
This is concerning because a sexual offence conviction and especially a sexual offence against a child or person with a disability is serious, period. Why is your government leaving the door open to house arrest sentences just because the Crown proceeds summarily?
Mr. Fraser: Thank you for this. There’s an interesting interplay between the measures included in this bill in terms of conditional sentence orders and what will be supplemented by the restoration of mandatory minimum penalties that are coming in a subsequent bill that the House of Commons has just commenced its study on. I’ve got a high degree of confidence that as a result of the two bills moving through on parallel tracks, we’re going to see significant changes when it comes to sentencing for sexual crimes more broadly.
We’ve also worked closely with members from different parties, including Mr. Caputo, a Conservative member, on other measures that will strengthen the ability of the legal system to respond to crimes of a sexual nature, and in that instance particularly, it’s in the context of intimate partner violence.
[Translation]
Senator Miville-Dechêne: Good morning, minister. Bill C-14 limits the availability of conditional sentences, including for serious sexual offences. I agree in principle with this measure, but according to the Criminal Lawyers’ Association, conditional sentences have almost never been imposed for serious sexual offences since the Supreme Court’s decision in Friesen. What is the point of this measure if we are already not letting those who receive conditional sentences out on the street?
Mr. Fraser: Thank you. In principle, you’re right. It is rare, in the context of a very serious crime, for a court to offer a less serious conviction, but if you look at certain convictions, after a few cases, there can be surprises. It is possible for a judge to make a decision that is different from the priorities of the House of Commons or the Senate of Canada. It’s possible to change the rule to ensure that, in the future —
[English]
— we have some certainty as to what’s going to happen in the future. There have been other bills that have enjoyed the support of both the House of Commons and the Senate through previous Parliaments, including one that rendered conditional sentence orders inapplicable for advocating genocide or attempted murder, which is not, in fact, playing out in the real world in most cases. Nevertheless, I think it’s important that we have laws that reflect the priorities of Parliament collectively and to demonstrate a strong signal to deter future behaviour so that we can say there are going to be serious penalties, should you commit a serious act.
Senator Miville-Dechêne: Thank you.
Senator Prosper: Welcome, minister. Indigenous Peoples represent approximately 5% of Canada’s general population, yet account for over 30% of the federal inmate population and over 50% of federally incarcerated women. This is from the Department of Justice Canada’s own statistics.
Before Bill C-14 was introduced, what specific analysis did your department conduct to project how the bill’s tightened bail and sentencing provisions would affect existing overrepresentation? And if you have done this analysis, would you table that analysis with this committee?
Mr. Fraser: Thank you. First of all, let me just agree strongly that overrepresentation amongst incarcerated populations in Canada is a very real challenge, and Indigenous Canadians and Black Canadians do face a degree of overrepresentation that needs to be addressed.
When we conduct an analysis of these bills, we include Gender-based Analysis Plus, which looks at some of the different impacts that some of these potential changes could have on different communities of interest, including Indigenous Peoples across Canada.
This is my own point of view and philosophy at work to some extent. When it comes to our criminal laws, the starting point for me is asking ourselves: What is going to promote public safety? When we understand what the rules are that are going to deliver the public safety outcomes that we wish to experience in Canada, we then need to understand, with open eyes, that there are potential downstream impacts of the changes that we make and then make appropriate accommodations.
When it comes to the kind of work that we do in this space, we would look at the use of Gladue reports or the impact of race and culture assessments when you’re seeking to deal with sentencing regimes.
We also want to ensure that we have programs at play in the long term that help build healthy and more equitable communities to deal with challenges that have emerged over decades, which certainly demand our attention.
My sense is that there are many things that we are, in fact, doing and can do and would benefit from your advice on, separate and apart from criminal law reforms, to ensure that we have supports in place to combat overrepresentation.
In the interest of time, I don’t want to talk out the clock on you. I do believe the officials will be here for an additional hour after my testimony, and I would welcome continued questions on that subject.
Senator Prosper: You mentioned Gladue reports. Do you think Bill C-14 creates mechanisms that somehow fetter judicial discretion with respect to judges’ ability to conduct meaningful Gladue analyses at the bail stage?
Mr. Fraser: That’s not my point of view. However, without reservation, I would invite questions to expert witnesses on this, and should you determine that there are recommendations for the government inside or outside of this legislation, I would welcome your expertise and advice in that regard.
Senator Prosper: Thank you, minister.
Senator Dhillon: Thank you, minister, for being here. Thank you for your work on this. I know this is an important bill, certainly for British Columbia. I know the Attorney General of British Columbia and the Attorney General of Ontario have also shared their support for this.
I’m referring to clause 70 of Bill C-14 with respect to youth identity disclosures in urgent situations. I understand the reasoning behind it, but this is quite a departure from the usual protections that we offer youth in the youth justice system.
What safeguards are we putting in place to make sure that when this power is used by law enforcement and police, it’s truly necessary and not in situations where information is incomplete or turns out to be wrong later?
Is there an opportunity to put in place some sort of a review post-event to learn from these measures being put in place and also continue to better them as we go along?
Mr. Fraser: Thank you for the question. Before I answer your specific question in a detailed way, your preamble included letters of support from different provincial governments. Some have written to this committee, I understand.
Every premier in the country has publicly endorsed this bill and asked for its swift adoption, in part because they were involved in the ideas that we have embedded into the bill. For some of them, I can point very directly to which provincial counterpart has recommended them. That is a particular point of pride, given the nature of the federation at work and in collaboration with different provincial governments.
On the issue of identifying information about youth offenders, there are safeguards in place. First and foremost, this is only for urgent situations. At the risk of using certain dramatic examples, coming from Nova Scotia, I know what it’s like to have alerts go out about mass casualties playing out.
Getting information about an offender in a given set of circumstances that might save lives is something that I believe is important, though I think it will be rarely used in the context of a youth offender.
In addition to having the urgent requirement, there are other safeguards in place as well, including the following: only law enforcement having access to publishing this information; potentially having criminal penalties for people sharing the information in an unauthorized way; the requirement that a court order be obtained if the publication remains online for more than 24 hours; and the requirement that the publication be removed. Of course, in the digital world, there are always footprints left.
But these are the kinds of things that we wanted to put in place to offer maximum protection and only allow this unique change in the law in circumstances where there is an urgent risk for serious harm to befall the public as a result of an emergency playing out in real time.
Senator Dhillon: Are there any measures post-event that would require law enforcement to have an independent review of their actions to better address or look at any gaps or errors that may have arisen? I think every event, as you say, is going to be rare. And as we move through these rare events, the rest of the country should learn from them as well.
Mr. Fraser: Just because something is rare doesn’t mean we should say there shouldn’t be accountability. The measures we put in place were protections that I thought adequately protect the individual who, in some circumstances, could potentially be falsely accused of carrying out an act of the nature that I’ve described.
If this is an item that the Senate wishes to pursue, and if there is testimony from those who appear before you as witnesses who would support further changes, then I do expect as a matter of practice for law enforcement — as you would probably know better than I ever could imagine — this typically would happen internally. However, if we want to explicitly adopt requirements to that effect, so long as we have expert testimony that backs up a recommendation or a proposed amendment, please know that I would welcome your feedback in that respect.
Senator Dhillon: I appreciate that, minister.
[Translation]
Senator Saint-Germain: Minister, the bill provides that for certain theft-related offences, the court will have to consider as an aggravating factor the fact that an accused committed this offence for the purpose of fraudulently selling, trading or exchanging these stolen goods. In your opening remarks, you used the expression “organized retail crime.”
The specific concern I have is with the implementation of the act. It could have a disproportionate impact on Canada’s growing homeless and homeless populations. For these individuals, stealing property for food or to sell it and have money, regardless of the consequences, is a common practice.
I’m also concerned about the implementation of the act for the courts, as well as for the law enforcement officers who, before the court, will have to implement the act.
Do you think guidelines should be set, particularly in terms of regulations? Could we go further to ensure that homeless people are not overly arrested in the context of these sections?
Mr. Fraser: Before I answer directly, I would like to go back to the speech I gave earlier today. It is important to address the social factors that contribute to violence in our communities. We have investments in affordable housing, because there is a link. Clearly, when a person is unhoused, the likelihood of their involvement in criminal activity increases. This is a consequence that we can avoid through investments in social programs and affordable housing, among other things.
[English]
On your question directly, which I referred to as organized retail crime, to the extent that a person’s individual circumstances are at play, judges are required to consider all circumstances when they’re going to adopt a sentence that is fit in the given scenario that may arrive before the court.
But the harm that we’re trying to address has nothing to do with having harsher sentences for people who are not posing a continued danger to our communities.
We want to have the court look at this particular issue, primarily because we are hearing about rampant instances, particularly in downtown environments, of repeat criminals who are consistently committing crimes to the point where businesses are being forced to close, customers are leaving downtown areas because they fear for their personal safety, and oftentimes people are being recruited into criminal organizations — whether they know it in the instance or not — to participate in a much broader scheme that is targeting businesses for the economic gain of organizations that continue to perpetuate crimes.
If you think that there are nuances to the drafting of the legislation that will better target people who pose a public safety threat, I’m interested in your feedback. This is a theme to some of my answers.
This study is not meant to be a rubber-stamping process on the government’s draft of the legislation. I want the best public safety outcomes. If it means that the legislation might require a few more weeks as we deal with proposals from the Senate in the House of Commons, yet it yields better public safety outcomes for the next generation, then it would be worth the wait.
To the extent that you think we can better tailor these aggravating factors to target people who pose a public safety threat, please know I would welcome your perspective in that regard.
Senator Saint-Germain: Thank you for that, minister.
Senator K. Wells: Thank you, minister. I appreciate your comments on focusing on the best outcomes for public safety. My questions are focused on the area of first looking at the foundations of the evidence that has informed the government’s assessment of the need for these bail and sentencing reforms exactly in relation to public safety.
How did you build the foundation and the evidentiary foundation to determine that this bill is going to produce the best outcomes?
Mr. Fraser: Yes. I think that the starting point in this question for me is that we have some data in Canada, but it’s not great, to be honest. We have the Crime Severity Index that Statistics Canada generates each year. Leading up to 2024, we had seen a significant increase in crime across Canada. And I think we have to understand that this needs to be addressed. There have been some positive trends over the past two years, although the 2025 numbers are yet to be finalized.
We started to dig in to figure out how we can better break this down. The federal government, not having the conduct of the administration of justice, doesn’t have all of the information that typically comes before provincial courts at bail hearings. And the consistency with which data is collected as between different provinces is unpredictable, if I’m being generous. But there is really a paucity of data, depending on which part of the country you’re operating in.
There is some information sometimes going municipality by municipality that will demonstrate that there are certain challenges we have around high-volume offenders who repeatedly commit crimes, but it’s not as though there is a perfect national data set that we can operate from.
In the absence of perfect data, but knowing that there is a problem, we engaged in a period of consultation that often dealt with the people who were involved in enforcing the law, primarily policing organizations, as well as the levels of government that are charged with the administration of the justice system in their given provinces.
And the consistency with which we were hearing the same story over and over, which was not contrary to the national data that we do have, demonstrated there were certain problems that we needed to address, particularly when it came to repeat violent offenders or those tied to criminal organizations, when it came to bail and certain kinds of sentencing regimes.
I don’t want to presume I have hit all of the elements you were looking for, but if you want to follow up, I’d be happy to engage further.
Senator K. Wells: Sure, I will dig in with your officials. I’m glad you mentioned the data gaps that exist and the challenges and issues of collecting the information. Of course, we want to ensure that legislation is always the best and evidence-informed based on what we have access to.
Can you speak a bit about the government’s understanding of the profile of reoffending while on bail and how that has informed the design of the legislation?
Mr. Fraser: I want to be careful — offenders are not a monolithic group. It is so important that in every case, the individual circumstances and offences be considered and that we protect the ability of the court to do that.
I don’t know that it’s helpful for me to profile “offenders” as a class of people, but we are seeing patterns emerge when we talk to law enforcement in particular about the kinds of problems they see. In different pockets of the country, we see that home invasions and car thefts, in particular, often involve — it is rare that I’ve come across a police force that says that they routinely deal with individuals who do something along those lines once and then they never see them again. Repeatedly, we hear that if there is a neighbourhood that sees several vehicles go missing, they will often point to the fact that there are certain offenders who have been responsible for multiple auto thefts.
The same story plays out when we engage in conversations about home invasions, which can be very complex because it’s often part of a larger organization and not just an individual person.
There is a different set of issues that comes up when you’re dealing with downtown business associations that tell you the problems they’re having are not necessarily violence toward an individual; instead, they will see repeated examples of shoplifting, vandalism or behaviours that may not be violent but may be harassing toward customer bases.
I only use these different examples to point out that depending on where you are in the country, the nature of the community you’re in and the nature of the offences that law enforcement is raising with us, the profile of the offender could vary widely.
Senator Simons: Reverse onus [Technical difficulties], especially for non-violent crimes and young offenders, or even offenders who are young adults. The entire power of the state is ranged against somebody who may not have access to counsel and who may be self-representing and who is, then, put into a position where — instead of the state having to prove they are a risk — they have to prove something very difficult, which is that they are not a risk. That is a much harder thing to prove, especially if you don’t have access to counsel.
Given that our remand centres in Canada are already full to bursting — in my home province of Alberta, 85% of people in provincial custody are remanded — is there a concern that if you make bail this much harder to get, particularly for non-violent and young offenders, then we are going to see a situation where our remand system simply cannot handle the number of people who will be remanded, which will then have the knock-on effect of ending up with people having more Jordan situations or more situations where they get huge amounts of time credited for time in remand, which is generally very unpopular with the public?
Mr. Fraser: Thank you, Senator Simons. You’ve raised two issues: one on the downstream impacts of the changes and one that’s substantive on the changes themselves.
In general terms, I believe that the normal rule should apply, where the Crown bears the onus of demonstrating why a person poses a public safety threat or they may not show up for their hearing or their release would call the administration of justice into disrepute.
There are certain examples where we’ve made a decision — and perhaps it’s obvious, but as the minister, I’m supportive of the reverse onuses included in this bill.
Senator Simons: I assume you’re supportive of your own legislation. I think that’s a given.
Mr. Fraser: Of course.
That is because there are really two categories of crime that are very problematic. The first is where you are dealing with repeat violent offenders and where we believe there is a higher risk to public safety where that violence could continue. The second is particularly one that involves auto theft and home invasions. That’s because some of these offences are tied to criminal organizations and line the pockets of organized crime, which can potentially perpetuate crime with the proceeds of the sale of what’s been stolen from a person’s home or the sale of a stolen vehicle.
The systemic concern you’ve raised is important to address. This is where we need to make sure we are engaged with provincial governments that obviously bear the responsibility downstream to deal with some of these issues. Every province I’ve dealt with is asking for these changes. Every one of them that has made a request that the federal government implement these changes has heard from me personally in our conversations that this is going to put additional responsibilities on a system that is struggling more in some provinces than in others. To a person, my counterparts nevertheless want it to move forward swiftly with the adoption of these changes.
There are potential challenges that we should have, but to go back to my earlier comment, my sense is that if we start from the frame of promoting public safety with the criminal rules, then we need to work to ensure the systems are resourced. This is not the federal government saying, “Don’t worry, provinces; we will step in and deal with this for you,” but there is a message that is well understood that to the extent there are downstream impacts on the system, we expect the provinces will make good on their responsibility to properly fund their systems.
Senator Simons: I expect the bail system would work better in general if the bail system were better funded and if we had more funding for justices of the peace, judges, duty counsel and legal aid.
Presumably, the thing people are worried about is that judges and justices of the peace will make the wrong decisions and let the wrong people out. Would it not be useful to fund that process so that people have confidence that when someone is granted bail, it is done appropriately rather than creating situations?
I understand organized crime is bad, but the individual young foot soldier who boosts a car should not necessarily be made the scapegoat for an organized crime family that is deploying him. It seems to me that if you want to put the very bad people away, it’s not the guy who steals your car who is the problem.
Mr. Fraser: It may depend upon the circumstances. In some instances, I take your point, and I’m a big supporter of opportunities to divert people away from the justice system, particularly concerning young offenders. We have to remember, particularly with young offenders, people who commit offences and receive a criminal sentence will be released one day, even if they are incarcerated. We do need to protect against having a more dangerous person being released into our communities.
However, we also have to respect the jurisdiction of different levels of government. Canadians have an opportunity to hold governments accountable should they not be effectively running the systems for which they are responsible. We obviously need to collaborate and understand the perspectives of different levels of government in one another’s area of jurisdiction, but I don’t think it would be appropriate that simply because the federal government has responsibility for the Criminal Code, any time we make a change, we usurp the jurisdiction of a province that we perceive as making inadequate investments. I think that’s a responsibility for provincial governments, and to the extent they fail to do a good job, their voters should hold them accountable.
Senator Pate: Thank you, minister. It is always heartening to hear ministers talk about the need for upstream and preventive measures like income supports, housing, health and social supports. In this area of criminal law and sentencing, rarely do you see an evidence-based approach and rarely do you see that as a priority, and this is one example, I would suggest.
Successive ministers of justice have admitted that there is inadequate data to assess the impacts of legislative changes restricting bail. Although much has been made of the fluctuating detention rates, we know that as we’ve seen overall uses of more restrictive bail measures since 1998, we’ve actually seen the overall Crime Severity Index and Violent Crime Severity Index fluctuate, but it has been mostly downward since 1998. The figures are that breaking and entering offences have declined 75% and motor vehicle theft has declined 57%, with no connection to or targeting of the bail system during this time.
Given that reality and given that we talked about car theft the last time before this committee, we actually heard from car manufacturers that they have inexpensive means of preventing car theft. It’s also in car manufacturers’ interest to have cars stolen, quite frankly, so that they can replace them just like when people who have their cars stolen are called right after by their car company to see if they would like it replaced.
I would like to know very specifically what data you do have. It’s politically expedient to go on these kinds of measures, but we understand that you and your department have repeatedly sought data. What data have you actually received, and how has this supported this measure that you’re taking forward? I understand politically that the provinces want it. I understand that in these moments, evidence is rarely the basis for these. It’s often what seems to respond to people’s emotive responses, and we don’t like seeing homeless people. We don’t like seeing more kids being recruited.
What will these measures actually do, and what do you predict in six months or a year that we’ll see — besides more people in jail — as a positive result?
Mr. Fraser: There’s a lot to unpack in a short but content-filled question. That was not meant to be in jest.
There are several issues, and I will try to address each that I can in the time that we have. I suspect that we will have to have follow-up conversations to fully address each of your concerns.
First, on the evidence, I would be legitimately curious to compare based on your starting point. If you go back several decades, you’re right: There was a period in Canada’s history where crime rates were higher than we’ve seen more recently. But in the decade starting from 2014 up to 2024, we have seen an increase in the rate of crime in Canada, with a downward trend since 2024. “Trend” may be the wrong word, given that we really only have one year of data to consider.
Based on regionalized data coming in from larger urban centres, I expect you’ll likely see a flattening or downward trend that will continue.
There is some information we have based on the measures that we have put in place, but it’s often very localized. If you look, for example, at the investments that were made in the Peel Region at the intermodal facility, which were fairly inexpensive by public safety standards, we’ve seen a sharp reduction in auto thefts as a result of that and other measures that were put in place. Those kinds of things do work, but they are only part of the story.
When I actually engaged in areas where we may not have perfect data, I believe gathering qualitative data can also be a useful exercise, and a lot of the recommendations that you see come from common themes that were expressed by law enforcement officers who were on the ground telling me about the reality that they’re experiencing.
Sorry, you wanted to interject.
Senator Pate: When the provinces and territories came to you with this request, would not an obvious response have been to say, “Produce the data that backs this up”? Because my understanding is the federal government is having difficulty getting the data. Successive ministers of justice have said that, in fact.
Mr. Fraser: That conversation is happening in parallel and continues today. I think we have issued the request for proposals already, and we have had eight different provinces express interest in having support from the federal government to improve their data collection. That work has not started because we’re early in this process.
As part of my effort to make changes now, I do want to empower different levels of government in a more uniform and comprehensive way to collect data so that we can understand the impact of the measures that we are putting in place now if we monitor the shifting rate of crime in given communities over time.
The fact that we don’t have perfect data now, in my view, doesn’t justify not taking action when we have such consistency in the themes that need to be addressed from law enforcement, from municipalities, from business associations and from provincial governments.
If I heard 100 different things from 100 different stakeholders, I probably couldn’t make any conclusions reliably from that, but if we do have some evidence that, over the course of a decade, the overall rate of crime has increased and if there are consistent themes that come out of the conversations with the different parties I’ve just alluded to, then we do have some information on which I believe we can make policy decisions that we would expect to have a positive impact. But in my view, we also need to measure them, and that’s why we’re engaging with provinces now to have the federal government be a funding partner on data collection.
[Translation]
Senator Oudar: Minister, thank you for being with us this afternoon with your team.
Let me take you back to the end of the bill, to the amendments to the Youth Criminal Justice Act, particularly those concerning the clarification of the notion of violent offence, past treatment while on release, the ability of the police to publish the identity of a young person, but also, no doubt, the tightening of the release regime in the event of a breach of conditions by the young person.
In the analyses you have done, have you identified the risks that these changes could lead to in terms of overcriminalization, increased preventive detention, interference with the rehabilitation of young people and breakdowns in the educational trajectory?
What safeguards need to be considered to reconcile both the protection of the public and the rights, the presumption of innocence and, above all, the need for young people to be reintegrated?
[English]
Mr. Fraser: On the change that you’re referring to, if I understood correctly, there are some limiting factors that give me confidence that the consequences you may be concerned with will rarely arise because of the nature of the circumstances under which the identity of the youth could be published.
Again, we are dealing with urgent situations where it’s necessary to publish the identity of the potential offender in order to protect public safety. The kinds of scenarios that I am envisioning are the horrific scenarios that we’ve seen play out with the mass casualty in my own province and, more recently, with the tragedy that played out at Tumbler Ridge. To the extent that we believe that we can save, in some instances, a significant number of lives, we do want to make that be a top priority.
There are protections that we put in place to very quickly have the information removed to prevent others from needlessly publishing the information under the risk of criminal penalty for inappropriately publishing the information. To the extent that there are concerns that are unaddressed with the protections that we have put in place, I would extend the offer, as I have to one of your colleagues, to thoughtfully advance proposed amendments to address your concern. But in the circumstances where we are dealing with someone who is, in fact, on the verge of carrying out a serious infraction that could endanger the life or limb of an innocent bystander, then that has to be the priority.
And to the extent that there may be consequences for an offender being identified, that’s something that we should perhaps manage but certainly as a subservient priority to the safety of the potential victims in an emergency situation of the nature I’ve described.
Senator Clement: Mr. Minister, it’s good to see you. It’s good to see all of you.
I’m glad you have said a few times now about openness around amendments because I see Mr. Ripley sitting next to you, and every time I see you, I think about Bill C-11. For the newer senators, that was a massive endeavour, but what we did at committee is we hashed out those amendments. We worked with government officials to negotiate things and actually get amendments passed at committee.
I’m just saying, personally, it’s been a little challenging the last few weeks making amendments on the chamber floor, so I am hoping that we can really work well at committee together, and thank you for those comments. Good to see you, Mr. Ripley.
There are a couple of things. On Canada’s Black Justice Strategy, I’ll just read you a quote that went into that strategy from a Black participant. Jaku Konbit is a local organization I have contact with, and this is the quote:
I have very little faith in the system’s responsiveness to the needs of Black victims and its ability to be fair and just to accused Black people.
So you’ve got a lot of challenges there, and I’m trying to understand how the government uses or doesn’t use Canada’s Black Justice Strategy or the Indigenous Justice Strategy to inform the way that you draft legislation. Our communities are having concerns about Bill C-14. Are you taking into consideration all of these many, many reports that many, many smart people provide to the governments of the day to help inform policy and legislation?
Mr. Fraser: Thank you for the important question. Maybe before I address it, I have never seen more inside jokes than someone saying “Bill C-11” and having a room of parliamentarians immediately laugh.
Let me just reflect your gratitude back.
You would be doing me and communities across Canada a favour if you can strengthen the impact that this bill is going to have on public safety, and to the extent that you propose amendments, each and every one of them will be considered in good faith.
That’s an excellent question that you asked about Canada’s Black Justice Strategy and the Indigenous Justice Strategy. There are different measures that have been specifically enumerated that we are advancing, not exclusively in one piece of legislation for another. If the House dispenses with Bill C-16, which will come here, you will see a direct recommendation around embracing restorative justice and the protecting victims act as a recommendation that comes from Canada’s Black Justice Strategy, for example.
The other recommendations that we see coming out of these are not exclusive to Canada’s system of criminal laws but sometimes address some of the broader social issues that we need to address if we want to strengthen justice insofar as it impacts different communities in Canada. Some of them are very directly at issue, though not necessarily the subject of legislation. I think about investments that we make in the impact of race and culture assessments, which are huge with the African Nova Scotian community, who have become pioneers. I should say thank you to the African Nova Scotian Justice Institute for their work in helping to lead this file.
You are right to point out the comment as well that overrepresentation is not just a problem of incarceration. It’s also a problem when you look at the victims of crime. There are certain communities that are over-policed. There are certain communities that are under-policed. The likelihood that a person may be charged for a given set of behaviours changes depending on the community from which they come, as does the length of the sentence. You understand the point.
If we’re going to address these, we do need to look at the recommendations that come from these strategies, not just as they impact our proposed criminal law reforms but also as they impact our criminal law reforms. We do need to look at what upstream investments we can be making, what training we can be providing to actors within the justice system and how we can better collaborate with provincial partners where there is a role for the federal government to fund particular activities.
There is not a simple answer to these very complex social problems, but when we’re advancing different pieces of legislation, we do consider the advice that comes through the steering committees of these strategies and also when we’re advancing programs or policies that may not require legislation.
It’s a bit of a complicated answer, but what it boils down to is that those strategies are extremely useful because they have really taken more of a whole-of-society approach to how we solve inequities that exist within the justice system. If we borrow the lessons from the good work that’s gone into those strategies when it comes to the implementation, I do believe that we can achieve better outcomes for Black Canadians, Indigenous Canadians and others who may be disproportionately impacted one way or the other when it comes to the justice system in Canada.
Senator Tannas: Thanks for being here, minister.
I just noticed that one of the amendments that was made at committee was a five-year review. We’re starting to see a lot of five-year review stuff, and as the Senate, I think we’re starting to realize that we’re probably going to be the ones who are going to have to initiate a number of these five-year reviews that are sprinkled around in legislation.
Your comments and other concerns that have been raised here about data are important. I would love to get your view on if there is any chance that you could assemble some data points at which you are going to start tracking over the next five years, even if you have to use proxy communities rather than every single jurisdiction in every single province. Perhaps you could spend a little bit of brain time with your people on the proxy communities that are giving you data or could give you data, effectively even if you paid them directly to do it or contribute so that we’re not sitting here five years from now with the same story: “Well, we haven’t got the data, and we’re just listening to this guy or that guy” or “This is working” or “This isn’t working.” And then we’re right back to where we were.
It would be great if there were some way to do that. Maybe the answer isn’t asking every single province to sign on for every single community, and you’re going to fund it all, because there are a lot of steps in there.
Any thoughts on what I’m raising?
Mr. Fraser: Thank you. I’m reflecting in real time, only because I’ve not considered the idea of a proxy community. When I look at a data set, I would like to have some confidence that it represents the larger pool of data that is out there.
For example, the Peel Region has raised with me repeatedly the concerns they have around auto theft and home invasions, despite some progress in that regard. That lesson wouldn’t necessarily apply in rural Nova Scotia, as Senator Prosper and I would know well.
To the extent that we use proxies, I would want to be using them deliberately to illustrate a broader national trend to see if we’re really having the impact we want. It may be a very good idea, though, because crime is inherently a very, very local issue, and solving the problem in one community in and of itself would be a very good thing.
The challenge that we have in designing how the data is going to be collected is that we don’t actually have the authority to collect it in most instances, so we do need a willing provincial partner. This is part of the work that’s going on right now with the request for proposals that has been issued. I hope every province will avail themselves of the opportunity. I hope that we can have some standardization in the data collection. It may be practically or logistically difficult to get precisely identical data from each jurisdiction, not because of a philosophical opposition to data collection but because the systems operate slightly differently in different parts of the country.
One thing that I would benefit from, whether it takes place at the Senate or the House, is getting an understanding of what data we really ought to be collecting and measuring over the next number of years in respect of these changes so that the five-year review will be most effective. This, perhaps, is not appropriate for amendments in this bill, but if there were a subsequent study that recommended how best to collect this data, that would be extraordinarily valuable to me, again, with the understanding that we would need to be collecting data that provinces are willing and able to collect and feed into a national data set.
Senator Tannas: Thank you.
The Chair: Minister, I have four senators who would like to ask another question of you. Do you have the time?
Mr. Fraser: I’m on duty in the House. Is it possible that I can maybe take a question or two and beg forgiveness of the whip’s office?
If we could maybe limit it, chair, to two questions because I am required to be in the House.
The Chair: We will go as quickly as possible.
Senator Batters: Thanks, minister. After I had asked for your government’s Gender-based Analysis Plus, or GBA Plus, document on Bill C-14 for quite a while, senators did finally receive some kind of a two-and-a-half page document on this. What I’m wondering is this: Is what was emailed to us by the bill’s sponsor some sort of a summary of the actual GBA Plus document that your government used in considering this bill at cabinet? If so, why don’t we, as parliamentarians, receive the full document that your new government uses when we, here in the Senate, are expected to render sober second thought on legislation?
Of course, we used to receive it when it was your old government. Also, this GBA Plus summary is not even posted online anymore for this bill, so the Canadian public can’t see it. Why not? Again, your government used to do this.
Given that this document is called a Gender-based Analysis Plus document, why does it make almost zero mention of female victims of crime and analysis of Bill C-14’s effect on them?
Mr. Fraser: Thank you. Again, there are a lot of details to unpack. If I miss some of these and you would like to follow up, please know that I would be happy to.
The document is a summary of what was heard and the ideas and items that were discussed when we were analyzing the different impacts that the bill could have insofar as it impacts different genders and intersecting grounds of a person’s identity.
It is a reflection of the conversations that we had when we conducted that analysis, and it is the mid-Gender-based Analysis Plus for this particular bill that you have, in fact, received.
Senator Batters: It’s the full document, not just the summary?
Mr. Fraser: There is not some other document that we are hiding from the Senate. To the extent you want further information about how we have arrived at the final text, if you send a follow-up ask, I’ll provide whatever we can.
Senator Batters: Okay.
Mr. Fraser: One of the things in your question was about how often it referred to the victims of certain crimes and in terms of impact — what’s that?
Senator Batters: [Technical difficulties].
Mr. Fraser: On a parallel track, we have another bill specifically dealing with the impact of criminal law reforms on victims. It’s the protecting victims act, and I think it’s appropriately named. You will see additional discussions within the GBA Plus for Bill C-16 in terms of the impact of the bill on female victims. To the extent that you would like the Department of Justice to further advise on the basis of the expertise we have on the impact of the crimes included in Bill C-14 on victims, I would be happy to share whichever information you’re looking for.
Senator Batters: Whichever bill you’re bringing forward on a criminal justice piece should have something on the victim impact as a part of that. Why isn’t this one online so that the Canadian public can see it?
Mr. Fraser: I don’t know that there is a continued practice of posting every Gender-based Analysis Plus online.
Senator Batters: There used to be.
Mr. Fraser: On request, I’m happy to provide any that come from my own department, but to the extent there’s a broader change across government, of course, there will be other actors in government involved in that decision.
Senator Pate: In terms of data, if possible, it would be particularly useful to obtain from your department what you’ve learned from the adoption and implementation of Bill C-75 and Bill C-48 and the lessons and any data regarding rates of recidivism since those reforms.
I’m also interested in knowing what the actual concrete resources are that are going out to counter this because you’ve already acknowledged that the billions of dollars that will be necessary to pump into the provincial systems to fund this could be used for upstream measures.
I’m curious how you plan to deal with the fact that remand conditions across the country are already being described in court cases and lawsuits as inhumane and are resulting in reduced amounts of time in custody and also how you’re looking at the balance between deplorable jail conditions and shortened times in custody.
If we were to see this proceed the way it has so far, that would just result in another similar reform like this coming down the pike in the future if, in fact, people are getting out because of the deplorable conditions, which is an issue right now.
What kind of balancing of these issues is there? What kind of resourcing are you doing? How do you see that you’ll be moving forward in the future?
Mr. Fraser: There were three categories that I picked up from the question. The first was on data with respect to other bills and the impact on recidivism. To the extent we can gather whatever information we have as a department, I would be happy to share.
On resources, just so I’m clear, are you asking about resources that provincial governments would need to inject into the systems?
Senator Pate: Yes.
Mr. Fraser: I’m unaware of a dollar figure that it would take to address the downstream impacts of any changes in this bill. I expect we will learn by application some of the impacts that will be required in terms of the resources within provincial justice systems. Of course, that will have to come from provincial governments that would have a better sense of what that figure may actually be.
Your final question is an important one, and I reflected on this a lot while coming through the generation of the bill. When I landed on the conclusion that the right approach, from my perspective, was to start with a framework that I believe will best promote public safety, it’s not lost on me that there are challenging conditions, to say the least, in remand facilities across the country. However, on the flip side of the coin, trying to solve the downstream impacts with the public safety framework you set in the code would cause you to say, “Maybe we should eliminate some of the protections that exist now in order to solve that problem.” That felt unnatural and seemed to be the incorrect approach to me.
While being aware of the downstream impacts, the focus that I had was to say that in order to protect public faith in the justice system, we really do need a set of rules that are designed to promote public safety, but then we also need to commit to those long-term investments. The goal is not just to have more people go through the justice system more quickly so that remand is not a problem. The goal over time is to build healthier people and healthier communities so that there is less crime to have the system deal with.
That is a long and complex problem that we need to work with, but I never came to the conclusion that a set of criminal laws that could potentially be weakened to solve a downstream problem would be the appropriate solution.
The Chair: Thank you, minister, for taking that extra time to assist us here in our work. Thank you for your attendance here today.
Mr. Fraser: If you could pass that note along to the whip’s office, I would appreciate it. Thank you.
The Chair: Honourable senators, for our second panel, we have officials, including some who were already introduced: Myriam Wills, Counsel, Criminal Law Policy Section; Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section; Joanna Wells, Acting Senior Counsel and Team Lead, Criminal Law Policy Section; and Claire Farid, Director General and Senior General Counsel, Family Law and Youth Justice Policy Section.
Thank you to the witnesses for appearing here today. We’re now going to move quickly to questions.
Senator Batters: Thank you all for being here today and for helping us understand this bill better and for answering our questions.
First, I want to ask about the reverse onus issue. Can you confirm that even for the new offences in Bill C-14 added to the reverse onus category — for example, violent extortion, strangulation or breaking and entering of a dwelling-house — an accused offender could still be released if they “establish clearly” a plan that addresses the section 515(10) grounds? If so, isn’t it correct that the ultimate outcome would remain discretionary and depend on a judge’s assessment?
Myriam Wills, Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes. As you know, a reverse onus doesn’t require the denial of bail in any case. Rather, it shifts the onus from the Crown, who has to justify it to the court or convince the court that the accused should be detained on bail, and it shifts it to the accused, who now has to demonstrate to the court that their detention and custody are not justified. So the answer to the first part of your question is, yes, a reverse onus will not necessarily mean that an accused will be detained.
All of the changes in Bill C-14 maintain judicial discretion so that the courts can ultimately decide, based on the circumstances before them, whether or not there are grounds to justify the denial of bail in any case.
Senator Batters: Thank you. In some cases, as you were just saying, at the bail stage, the matter is in the reverse onus regime for those where the accused must persuade the court that they can be released. Why did Bill C-14 add the requirement that the accused must “establish clearly” their release plan? What precise legal effect is intended for those bail hearings, and does that raise the standard of proof, or would it still be the balance of probabilities, which is more likely than not with the burden of proof on the accused when the reverse onus applies, or is that just a drafting clarification? If it is only a clarification, what are the concrete changes in how judges would apply that?
Ms. Wills: Thank you for the question. The change to the reverse onus regime would require the accused to clearly demonstrate that their release plan or their bail plan adequately addresses the risks that they may pose if released on bail. The intent of this change is not to change the standard of proof. The standard of proof at bail hearings would remain on a balance of probabilities. Rather, the intent of this change is to clarify the quality of the information that needs to be put before the courts to ensure that the accused meaningfully meets their burden when they are in a reverse onus situation and to ensure that courts more carefully scrutinize these types of bail applications.
Senator Batters: Has the department compiled a list of serious violent offences that would remain outside the reverse onus requirements of Bill C-14? If you have, what criteria did you use to include certain offences and exclude others?
Ms. Wills: Reverse onuses don’t necessarily apply just based on the seriousness of the offence. Rather, they apply to offences or types of offending that indicate that an accused charged with that type of offence could pose increased bail risks if released on bail. For example, the new reverse onus for assault and sexual assault involving choking is based on the increased risks that accused persons who are charged with this type of offending might pose to their victims if released on bail, given that there is clear evidence that choking is a clear risk factor toward escalating fatal violence, particularly for women in the intimate partner violence context.
Senator Batters: I spoke about that exact case in my second reading speech.
One of the other things I’m wondering about is because this could lead to considerable expenses for additional offenders who will remain in custody pending trials and that sort of thing, have you provided any types of projection analysis to provincial governments regarding what your projections are as to how many? I know that you don’t know, but I’m sure you’ve probably done projections about that. If you have, then have you provided those to the provinces?
Ms. Wills: I would say two things to this. These reforms were developed in close consultation with the provinces and territories, and they have asked for many of these reforms, and they reflect areas where there was broad agreement between the provinces and territories.
Second, the intent of these bail reforms is not to increase pretrial detention rates. Rather, it’s to provide improved guidance for police and bail courts to ensure the right decisions are being made, meaning that if an accused poses less risk of reoffending, they will be granted bail. If an accused poses a higher risk of reoffending that can’t be managed through the imposition of conditions of release while they are in the community, then they are not granted bail.
Senator Batters: I certainly understand the provinces want these types of things, but it sounds as if the answer is “no” to projections.
One further thing I would like to know about is: This bill deals with “commercial” theft. I would like you to give a bit more of an explanation about what would be included under that type of offence. I think there has actually been some misunderstanding spread on this issue in media articles and that sort of thing. It’s not just a mere shoplifting kind of thing. Could you provide more of an explanation about what would be included under those categories?
Joanna Wells, Acting Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: I’ll speak to that question, Senator Batters.
The reform I believe you’re referring to is the proposed aggravating factor if certain theft offences that exist already are committed in a certain context, and the context is if the Crown proves through that theft that there is also an intent to sell or barter or fraudulently return that item for profit. If the Crown proves that beyond a reasonable doubt, it is considered an aggravating factor at sentencing.
The purpose of an aggravating factor is to influence the moral blameworthiness, essentially, of the offender or goes to the seriousness of the conduct. It can provide a legislative signal for judges that a sentence imposed should be more serious.
Senator Batters: It’s not the type of offence that we’ve seen recently on the news where somebody goes into a liquor store and gets an entire shopping cart full of bottles of liquor and then goes out with them, but the poor employees in the store can’t really go after them because it could be dangerous. It’s not necessarily that sort of thing. It’s more this particular barter for barter.
Ms. Wells: It’s not an enforcement power. It takes place at sentencing once the police have been called, arrests have been made and a court process has occurred. You are correct: It is not in that vein. It is a sentencing provision.
Senator Batters: Thank you.
[Translation]
Senator Miville-Dechêne: Bill C-14 proposes adding the imposition of mandatory consecutive sentences in three new situations: theft of a vehicle with violence or for a criminal organization and breaking and entering, recidivism for these or any other vehicle theft offences, as well as extortion and arson.
Do you have any data indicating that these consecutive sentences have a deterrent effect?
[English]
Ms. Wells: Thank you for the question. It’s an interesting one and one that I think the criminal justice system struggles with often in terms of linking sentencing provisions with the deterrent impact. We don’t have specific data linking consecutive sentences to deterrents.
In this situation, the consecutive sentences, similar to the aggravating factors, are meant to send a signal to courts because in a consecutive sentence situation, when mandatory, the courts must order that the sentences be served one after the other. In this situation, they are still able to curb the ultimate sentence using the principle of totality to make sure it doesn’t result in a disproportionate sentence, but the sentences are intended to be longer or more serious. Whether or not there is a link to deterrence, I think, is a subject that many experts spend a lot of time discussing.
[Translation]
Senator Miville-Dechêne: Why choose these offences in particular? What is the reasoning behind these particular amendments? It’s very specific. We are also not talking about crimes against the person, where consecutive sentences could have an effect.
[English]
Ms. Wells: These particular offences were chosen because they represent an area of interest for the provinces and territories specifically. They were part of the government’s platform commitment. The Criminal Code allows for consecutive sentences to also be considered in other situations, but in this situation, the view was that these ones ought to be mandatory.
Senator Prosper: Thank you all for being here. Ms. Wills, in response to a question earlier from Senator Batters, I believe one of the things you mentioned was that all provisions in Bill C-14 maintain judicial discretion.
Section 718.2(e) of the Criminal Code, as interpreted by the Supreme Court of Canada in R. v. Gladue and affirmed in R. v. Ipeelee, requires courts to give particular attention to the circumstances of Indigenous offenders and to consider all available sanctions other than imprisonment. Bill C-14 creates new presumptions and reverse onus conditions within the bail regime. In your view, as the policy leaders, do any of those provisions fetter judicial discretion in a way that undermines a judge’s ability to conduct a meaningful Gladue analysis at the bail stage?
Ms. Wills: That’s a great question. Section 718.2, which contains the Gladue principles that you just referred to, applies at sentencing. It doesn’t apply at the bail stage. However, there is section 493.2, which provides a similar requirement at the bail stage, and it requires bail courts to consider the particular circumstances of Indigenous accused persons and accused persons who are members of vulnerable groups who are overrepresented in the criminal justice system and disadvantaged in obtaining bail.
Additionally, as a result of an amendment made by the Senate to former Bill C-48, there is a requirement in section 515(13.1) of the Criminal Code that requires courts to state on the record whether they had to consider their obligation under section 493.2 and how that was considered. Nothing in Bill C-14 changes any of these requirements.
Senator Prosper: Thank you. My next question relates to the consultations that were undertaken for this bill. Were any formal consultations conducted with Indigenous governing bodies, First Nations, Métis or Inuit organizations during the development of this bill? If so, can you identify which organizations were engaged and at what stage in the process? In what manner were their concerns incorporated or weighed against the final bill that we are now studying?
Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice Canada: Thank you, Senator Prosper. We have been careful as officials in our conversations with Indigenous partners that have occurred — I know that Minister Fraser and his office have had opportunities to engage with Indigenous partners — not to use the term “consultation” because of the importance that Indigenous partners place on the section 5 obligations in the United Nations Declaration on the Rights of Indigenous Peoples Act around consultation and cooperation.
We have had the opportunity to have limited engagement with Indigenous partners, like the Assembly of First Nations. I have other organizations that I can provide to the committee if that would be helpful.
Within our space in the Policy Sector, we have initiated a process where we are trying to share information regularly with national Indigenous organizations, First Nations and Indigenous partners more broadly on criminal justice priorities for the government and inviting dialogue with those partners in that respect. We did that prior to this bill being introduced.
As Ms. Wells said, the government had already signalled its intention to proceed in this area. We had limited uptake on that, to be clear. On the day the bill was introduced, we did have an opportunity to meet with a number of Indigenous partners and receive their feedback on the bill. It was varied, as you can imagine. Those are some examples of the ways we did engage with Indigenous partners.
Senator Prosper: Thank you.
Senator Simons: As members of this committee are no doubt tired of hearing, I was a journalist for many years before I joined the Senate. About 15 years ago, I worked on a story about a young woman in Edmonton. She was a minor. Police circulated her name and photograph and announced that she was to be charged with two charges of aggravated sexual assault. It turns out she was a young woman living in the river valley and homeless. She was HIV positive, although she had a low viral load. After being smeared and having her name and photograph shown everywhere, she eventually pled to being a common nuisance and got a six-month conditional sentence. Nonetheless, her name and face were everywhere. The police arrested her on a Saturday but left her name and photograph up until Monday because it was the weekend and nobody came to take it down. By that point, even though this was 15 years ago, her name and face had gone everywhere on social media. I worked for the Edmonton Journal. We took her name and photograph down from our website, but it didn’t stop the fact that it was everywhere.
And 15 years later, it is even less possible to stop that kind of information from spreading. I am concerned about the parts of this legislation that make it even easier for police to release a name and photograph. In the case I’m talking about, they had to get a court order, but now that won’t even be necessary.
Given what the minister said earlier about the constraints around that, perhaps you could tell me something that would make me feel less itchy about this idea in regard to young offenders, whom we purposefully protect in the name of hoping that they will turn their lives around and in the understanding that they are not of an age where they can be held criminally responsible for what they do in the same way that adults are. Tell me about what provisions there are to make sure that a situation like the one I described from 15 years ago isn’t made even more dreadful by this legislation.
Claire Farid, Director General and Senior General Counsel, Family Law and Youth Justice Policy Section, Department of Justice Canada: I will speak to that question. Thank you very much. I think the general principle of the act recognizes that publishing the identity of youth is problematic, and it is generally protected at all stages of the criminal justice process. That is in order to promote rehabilitation and reintegration of youth within society and to prevent reoffending.
The situation you mentioned raises the possibility that youth may be stigmatized, and it may affect their view of themselves. What I would say about the amendment in Bill C-14, which is intended to apply in very exceptional cases, is that a number of conditions have been set out to ensure that it is very, very few and specific cases where it could be applied.
The youth had to have already committed or is thought to be about to commit an indictable offence, and the situation has to be urgent. Urgency is demonstrated by the following: There is imminent danger that the youth is going to either commit serious bodily harm or cause death; there is a need to publish in order to apprehend the youth; and it is not possible with reasonable diligence to obtain a court order. Those are very circumscribed circumstances.
The other limitation is that it only applies for 24 hours. I would also note that —
Senator Simons: Once the image is out there, there is no clawing it back. It’s not like it appears once on your nightly television news and then they don’t broadcast it again.
Ms. Farid: The only people who are permitted under this provision to publish are the police, and there is a general prohibition in section 138 of the act that creates an offence for publication contrary to the act. It should be noted that it is possible for a youth’s identity to be published with a court order currently, so this does happen. We understand that once the publication period is completed, police must work to remove all of the references on their websites. Even if somebody has shared the link to their website, you will no longer be able to obtain that information. If they do become aware that someone else has published that information, they will work to ensure that they take it down.
Senator Simons: I don’t understand. The purpose of this generally is to alert the public. Imagine the circumstance where you have a young offender with a gun and they’re on their way to the school, and we have reasonable grounds to assume they’re going to shoot up the school. You put up the picture. If you’re saying nobody can publish the picture, then what is the purpose of the entire exercise?
Ms. Farid: The point is that the police are able to share the information and it may be —
Senator Simons: But the media can’t share the information?
Ms. Farid: Well, it may be that people may share the information that has been provided by the police, but once that information has —
Senator Simons: Back up. I am confused. You said it is a criminal offence to share the information. So more newspaper editors in jail. Who is allowed to share the information?
Ms. Farid: It is the police who are allowed to share the information, and they will publish it on their websites —
Senator Simons: But then what happens if somebody —
The Chair: We’re at seven minutes here.
Senator Simons: Perhaps you could tell me in writing because I am completely baffled by this answer.
[Translation]
Senator Oudar: I’d like to move on to something else, namely, the ability of front-line players to implement such legislation.
As we know, the real impact of the reform will depend a lot on the ability of front-line players to apply these new rules in a coherent and informed manner. On the ground, several jurisdictions are already facing significant constraints, including overburdened roles, lack of resources, extended delays, unequal access to specialized services and the marked difference between urban and regional settings. In such a context, this ambitious legislative reform may have variable, if not unexpected, effects depending on local implementation capacities.
Having made legislation a large part of my life, I’m sure you’ve looked at the whole issue of enforceability and the subsequent application of the bill. What are the minimum conditions for training, resources and inter-institutional coordination that should be in place for Bill C-14 to be implemented safely and, above all, fairly?
Thank you.
[English]
Ms. Wells: Thank you for the question. I’ll do my best to answer this one.
You’ll know that in Canada, the federal government drafts criminal law, and it’s the provinces that are responsible for the implementation of it. In Bill C-14 and, in fact, in the federal government’s general crime agenda, there have been significant consultations with the provinces and territories and other key stakeholders, including police agencies. In general, the response has been very favourable. They have been asking for these reforms, and we expect that when and if Parliament passes the reforms, they will be ready to go. We will remain available to them to offer support, as we have done already through existing relationships and fora. It’s a good question and it’s something to be alive to, and it is something that we are prepared to support the provinces and territories and police agencies to do.
[Translation]
Senator Oudar: During those consultations, did the provinces confirm that they had the necessary resources? Were there any concerns expressed by the provinces at the time of the consultations?
Mr. Taylor: I can add to that.
[English]
One of the concerns that had been identified, for example, which has been discussed at this table is the incarceration rates. If you’re toughening the bail system, that is leading to more individuals in pretrial detention. There are costs associated with that.
Minister Fraser was very clear in the conversations that he had with his provincial and territorial counterparts that in their asking for these legislative changes, there would be a corresponding impact on their ability as administrators of criminal justice, whether that be in the pretrial stage, detention stage or otherwise. As Ms. Wells and Ms. Wills have talked about, a lot of the changes are really about recalibrating the law in the sense that they’re not fundamentally changing the way the bail system operates or the way sentencing laws operate, but they are trying to give greater emphasis to decision makers in the criminal justice system on the kinds of considerations that are important in particular types of serious offending.
The last thing I might say is on the question of data and bail data. To your question, Senator Tannas, the federal government is making some money available to jurisdictions to support their efforts to improve the collection of data in relation to the changes that are being proposed in this bill: $250,000 per jurisdiction as a starting point for this year and next year. That is not a lot of money, I appreciate, but it is an effort on the part of the federal government to encourage our provincial partners to be able to collect that information to support the understanding of how these changes are working.
[Translation]
Senator Oudar: Thank you for your answers.
Thank you, Ms. Wells.
I understood that the federal government would be open to potential requests from the provinces to ensure the successful implementation of Bill C-14.
Thank you.
[English]
Senator Pate: Thank you all for your work and for any further light you can shed on some of these issues.
I want to follow up on a couple of things that have been raised. I’m curious as to what kind of analysis was done around the comparison of community-based options, like bail supervision programs and some of those things, in terms of other ways to deal with these areas. It’s particularly because, as my colleagues have raised and as I’m concerned, we are likely to see the easiest to catch scooped up here. The more we increase penalties, the more likely it is the people who are really controlling the levers of power in organized crime will be specifically recruiting young people, particularly racialized young people and homeless young people.
I’m curious as to what kind of analysis was done on the cost effectiveness of these relative approaches because your own data shows that, in fact, it’s anything from $400 or $500 a day to keep someone incarcerated versus $7.65 to deal with bail supervision types of programs that have been shown to be more effective.
I’m also curious as to the recommendation that was made by the National Police Federation in 2023 for the collection of standardized national data and sentencing data and whether this is something that has also been looked at. I understand many stakeholders have raised it with the department, so what’s happening there?
Finally, I just wanted to clarify. Ms. Wills, I think I heard you say that section 718.2(e) factors don’t apply to bail. In fact, some courts have said they do, particularly in this province. I just wanted to clarify for the record. You don’t need to answer that, but I think you may have left people listening with the impression that they don’t apply at bail, but they do, actually, in a number of jurisdictions and, by extension, could be applied throughout the system.
Over to you folks.
Mr. Taylor: Sure. I will just pick up on that last point. We are aware that the courts have routinely looked at Gladue factors at a variety of different steps in the criminal justice system process, so thank you for the opportunity to clarify.
On your first question, Senator Pate, I would start by picking up on something Minister Fraser said, which is it’s a combination of a number of different things. For the government’s part, they are advancing legislative reforms in response to pretty widespread calls from all jurisdictions to strengthen the bail system. I know you’ve shared your perspective on that, but beyond that, in terms of working with our provincial partners, going back to Bill C-75, then Bill C-48 and now today, we do have information about how our provincial partners are taking steps within their areas of competence to strengthen the administration of bail and the enforcement of the bail system, whether that be through bail supervision programs, like you mentioned, as well as electronic monitoring in some jurisdictions and the development of policies or practices. We can provide that information to the committee. It speaks to a recognition that you can’t legislate your way out of the challenges that are being discussed in respect of the bail system.
On the data collection piece, I did talk a bit already about how the federal government is trying to support a more robust collection of bail data. When we appeared before this committee on Bill C-48, we talked about the bail data that we had at that time. It has since been determined, as we’ve continued our work as a department, that most of that data is not — as Statistics Canada says — fit for purpose. Ontario is a great example of a jurisdiction where the data they provide does meet that threshold of fit for purpose, and we are getting bits and pieces from other jurisdictions, not just at the provincial level. For example, the Toronto Police Service is collecting information on bail as well. So there are efforts afoot to try to improve the national picture on bail.
The last thing I would say about that — and I know I’m probably taking more time than is necessary — is you’ll be aware that the House did pass an amendment to Bill C-14 to include a requirement for the Minister of Justice to table in Parliament every year a report on bail and bail data. That speaks a bit to the National Police Federation’s recommendation in terms of promoting a more comprehensive understanding of this issue.
Senator Tannas: I wanted to get a noodling around trying to figure out: If I were going to try to manage this, what data would I be looking for?
I have a couple of questions. Do we have any idea what percentage of people charged have been charged before? They are multiple offenders. Is there a percentage floating around that says —
Mr. Taylor: We understood that was a question of interest to this committee. We didn’t have time to get really comprehensive information in advance of appearing, but we do have some data.
Senator Tannas: Could I ask because I think there are five interesting numbers: How many people charged have been charged before? How many charges are laid right now? How many people are charged and in custody? How many people are charged but are out or waiting for trial but are out? What is the number of reported crimes?
If you take those numbers, they are all sensitive to each other. If there’s a high degree of repeat offenders who get charged, then the more people you don’t let wander around out of custody, your reported crimes have to go down just by the math, right? If they don’t, then it shows that there is this replacement theory of a pool that just fills itself up again, right? Now we’re into big social questions and how we can trim the pool.
However, if that’s not the case, then I would say this is working to some degree. If the pool keeps filling up and all we’re doing is filling up the jail with unfortunate souls who are easily replaced, then it isn’t working. Those are just a few numbers that I think could be collected. Why can’t we collect them? Why can’t we start with that? I tell you, the clock starts ticking and these numbers are sensitive enough that the numbers will start being affected a couple of days after this bill becomes law, so we should have a baseline.
Do we have any hope that five years from now you’ll be able to come or that a year from now somebody will come and report that this is the kind of data that you would have? I can’t imagine how the provinces could get in the way of collecting that data. Am I crazy?
Senator Clement: No, you’re not.
Mr. Taylor: No, those are all very good questions. We do have the ability to collect some of that information, so I was provided with a publication from our department on recidivism. It’s a bit dated. I will ensure that you have it, and it provides some of the information that you’re seeking.
I’ll give you an example of something that I don’t think we are collecting presently: How many people who are subject to a reverse onus are released on that reverse onus? Of those who are released on a reverse onus, how many are then committing an offence while on bail from that release?
Senator Tannas: I would be happy to start here, and then you could nuance the numbers with further detail, but this shouldn’t take anybody much time to put together, honestly. Especially if the police are involved, they know who they have charged. They know if they had a previous conviction, and they probably follow the whole bail process.
Couldn’t we just get five simple categories and start there? It seems like we want to make everything more complicated, which equals doing nothing or being able to manage nothing.
Mr. Taylor: We will ensure — I wasn’t able to write down all your questions, but we will look at the record and provide to the committee whatever we can that is responsive to those questions.
Senator Tannas: Thank you very much, sir.
Senator Batters: I wanted to make a point about this because it sounds very easy, but let’s also remember all of the types of crimes that are committed, including things where people would potentially receive a criminal charge, yet they would very rarely be kept in jail pending their trial, such as things like impaired driving, shoplifting, mischief charges and all of these kinds of things. Perhaps the witnesses could tell us if there is a way to make the numbers you’re seeking more meaningful. If we just get these big, massive amounts of numbers, maybe it doesn’t really tell us anything.
Senator Tannas: If you measure something exactly the same way and you don’t change your measurement, you’ll get the trend. You are right that then you have to drill down, but when you stop measuring and take this out, now all of your numbers from the past no longer apply because you’ve changed the numbers.
If you start with the dumbest, biggest number and then look for trends and drill down, you’ll get there. That’s my own view.
The Chair: I think we have a commitment from the Department of Justice. You know what the issue is. You’ve heard it very clearly. You’ve heard Senator Batters’ comments on that. You need to give us the best information you can to help us. This is a very important issue.
Senator Pate: I would suggest we look at car theft. That’s the perfect example, particularly because we have some other measures that could have been taken and could be taken in the future.
Senator K. Wells: The minister asked us to dig into this a little bit and try to maybe develop where some data is needed or data points, as was mentioned by Senator Tannas, which could be tracked over five years. Because of the serious Charter implications of denying people their freedoms, we want to ensure that we’re doing that with good accurate data to justify those kinds of infringements — the ultimate infringements.
I also think about this notion of bail and reoffending on bail, and this is where we have to be more nuanced because we would want to know what proportion involves violent offences versus breaches of conditions or administration of justice, as those are all very different.
If somebody is in poverty, they may not be able to show up, or if they come from a marginalized community that doesn’t have support, as opposed to actually recommitting a violent offence while on bail, which is really what I think we’re trying to target here with this legislation.
If we just keep all the numbers together, then, of course, we’re not disaggregating when we talk about who is most impacted in this. We see this over-incarceration of particular populations that the minister acknowledged. You can’t deny the evidence before you.
It allows us to drill right down and ensure that this legislation is not further marginalizing already marginalized communities in an unintentional way. I think that’s why we’re really pressing the need for the data, the disaggregated data and the kinds of questions that will allow us to disaggregate the data.
If we just ask generic questions, of course, a lot of it depends on how cooperative the partners and the territories will be in sharing the data, which is really the crux of the issue.
Senator Clement: Thank you for the data piece. It’s important. And I feel like a bit of a data point because my car was stolen on January 4 of this year, and I watched the video of that happen. It was three skinny young guys in hoodies. It took them longer to brush the snow off my car than to break in using a laptop.
I wonder to myself: When I look at this legislation, if they were doing that all night and are charged with maybe half a dozen or more, will they now be in that violent category? Will we be talking about three young guys who are certainly not the masterminds?
I’m concerned with the types of crimes covered by this, so it would be interesting to focus on car theft. I feel angry about that, by the way, but at the same time, I watched that video as a legislator while thinking: What will happen to those guys? How does this work exactly? Will they be caught up in something that won’t provide deterrence or added safety for Canadians?
Mr. Taylor: It’s a real challenge. It is a real challenge to enact legislation that can potentially apply to a broad range of cases where the objectives are really directed at perhaps a subset of those cases.
The reverse onuses that have been proposed in Bill C-14, insofar as car theft is concerned, are — to your point, Senator Clement — offences involving violence and offences involving organized crime.
It may not be a satisfying answer, but there is also an element of police and prosecutorial discretion in how they approach the laying of charges in a particular set of circumstances. Notwithstanding that a more serious charge might be potentially made out, they may choose to proceed with a less serious charge based on the facts before them. That’s an important piece.
Picking up on what Ms. Wills said earlier, it’s about really trying to ensure that the proposed amendments continue to nudge the system in a particular way while providing discretion for decision makers.
In Bill C-16, which is not the purpose of this study, in relation to youth recruitment to engage in criminal conduct, there is a proposed offence there to address the kinds of circumstances that I think you’ve raised.
There’s also a proposed regime governing alternative measures: diversion, restorative justice, warnings and referrals. Through those reforms I’ve highlighted, the government is trying to thread that needle as best as they are able.
Senator Clement: You’re adding the number here, right? The number of charges is being added.
Mr. Taylor: In terms of the considerations at bail?
Senator Clement: Yes.
Mr. Taylor: Yes.
Senator Clement: If they steal six cars in one night, that will certainly affect the end result.
Mr. Taylor: Yes.
Senator Clement: I’m concerned about that particular addition and the impact that will have.
Ms. Wills: That’s a change being made to the tertiary ground, which is confidence in the administration of justice, and it’s just one other factor that courts have to consider, and that includes the number or severity of the outstanding charges. If a person continues to be re-released and continues to reoffend while on bail, this change tries to ensure that the courts turn their minds to whether someone who has accumulated numerous serious charges while out on bail or just numerous charges while out on bail would undermine public confidence in the administration of justice if they continue to be re-released.
However, that’s not the only determinative factor. The courts have to look at all the other factors that are listed under the tertiary ground, which include the strength of the Crown’s case, the gravity of the offence and other factors like that.
The Chair: I do believe there are a number of questions that were asked by Senator Simons, Senator Pate and others, which the witnesses offered to provide written answers to. That would be very helpful to the committee, and we appreciate your being able to do that to assist us in our work.
Thank you for coming today, witnesses. You were very helpful to us.
(The committee adjourned.)