THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, April 16, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:32 a.m. [ET] to examine 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 morning, honourable senators. My name is David Arnot, a senator from Saskatchewan and the chair of this committee. I now invite my colleagues to introduce themselves.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
Senator Dalphond: Pierre Dalphond from the De Lorimier division in Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Senator 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: Welcome to all. I’m Kim Pate, and 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.
We’re meeting to continue 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). Our first panel has four groups. These include Cassandra Richards, Criminal Lawyer, Criminal Lawyers’ Association; and Melanie J. Webb, Chair, Criminal Justice Section, Canadian Bar Association, by video conference. We have representatives of the Barreau du Québec: Eva Sikora, Lawyer, Secretariat of the Order and Legal Affairs; Nicholas St-Jacques, Member, Criminal Law Expert Group; and Francis Savaria, Member, Criminal Law Expert Group. The fourth panellist is an individual: Mr. Ari Goldkind, Criminal Defence Lawyer, by video conference.
Each of these four groups has five minutes to give an opening statement, and then we will move to questions.
Cassandra Richards, Criminal Lawyer, Criminal Lawyers’ Association: Thank you, Mr. Chair and honourable senators, for inviting the Criminal Lawyers’ Association, or CLA, to speak on this important bill.
I will be making three recommendations today.
First, the CLA recommends removing proposed subsection 515(2.11), which would bar an individual from acting as a surety if they have been convicted of an indictable offence within the past 10 years. This recommendation is shared by the Canadian Civil Liberties Association.
A criminal record is, and should remain, a relevant factor in assessing surety suitability. However, this provision removes judicial discretion and prevents justices of the peace from making individualized, case-specific decisions based upon the evidence in front of them. For example, should a mother who committed a break and enter nearly a decade ago during a period of addiction but who is now rehabilitated, employed and a contributing member of her community be barred from supporting her son’s release?
In Nunavut, where I have the privilege of practising, many communities are small and require fly-in. Sanikiluaq has just over 1,000 community members. The community has been deeply impacted by colonialism and widespread sexual violence at the hands of a local priest. Unfortunately, many community members carry criminal records. Like many Nunavut communities, it has no shelters, no treatment programs and no bail supervision programs.
This amendment will not improve community safety for places like Sanikiluaq. It offers a short-term response to crime, as individuals eventually return to their communities.
Indigenous persons already face significant, well-documented barriers to bail. This provision risks deepening those inequities and making bail unattainable, not because of risk but because of systemic disadvantages.
Proposed subsection 515(2.11) is unnecessary and unfair, and we strongly recommend its removal.
Second, the CLA recommends removing the language of “clearly demonstrating” that is being proposed in proposed subsection 515(6). This provision would require an individual in a reverse onus situation “clearly demonstrating” that their release plan addresses the relevant risks. This language of “clearly demonstrating” is problematic. It risks reviving an intermediate standard of proof, something our Supreme Court has rejected. There are two standards: proof beyond a reasonable doubt and proof on a balance of probabilities.
The phrase “clearly demonstrating” introduces uncertainty and invites inconsistent application. This can be easily remedied. The CLA recommends amending the legislation to explicitly confirm that the applicable standard at bail is proof on a balance of probabilities.
Finally, the CLA recommends removing subclauses 43(1) and (2), which restrict the availability of conditional sentence orders for certain sexual offences. These provisions are unnecessary. Sexual violence offences are grave; however, the Supreme Court of Canada in R. v. Friesen affirmed that these offences warrant increased custodial sentences, and appellate courts have confirmed that conditional sentences will rarely be appropriate in cases of violent sexual assault.
However, in rare cases, judges must retain discretion. Conditional sentences are an important tool for crafting individualized sanctions. There is an over-incarceration of vulnerable people who have been convicted of sexual violence themselves. This includes Indigenous people, individuals with intellectual disabilities and those who have experienced sexual violence themselves.
We are also concerned that the proposed language in proposed paragraph 742.1(c.2), referring broadly to offences “. . . of a sexual nature . . .” or “. . . for a sexual purpose . . .” These are vague and will invite litigation. If Parliament chooses to restrict conditional sentences, the CLA recommends it should do so with precision by clearly identifying specific offences.
I thank you for your time, and I welcome questions the committee may have.
The Chair: Thank you.
Melanie J. Webb, Chair, Criminal Justice Section, Canadian Bar Association: Good morning. Thank you for the opportunity to appear before you today on Bill C-14.
The Canadian Bar Association, or CBA, represents 40,000 lawyers, students, academics and jurists across Canada. Our written submission on Bill C-14 was prepared by both the Criminal Justice Section, comprising both Crown and defence counsel, and the Child and Youth Law Section.
I am Chair of the Criminal Justice Section and a criminal trial and appellate lawyer.
I highlight in my remarks today three main areas that we suggest would benefit from further consideration.
The first regards the amendments to the Youth Criminal Justice Act. A significant point of concern for both Crown and defence lawyers involves the provision that would prohibit access to police investigative records in which no charges were laid or extrajudicial measures used to all persons except those identified in subclause 72(2). That would also mean prohibition of access to such records by criminal defence counsel.
These records may contain important information that could exculpate an accused. This restriction impacts both the accused’s right to make a full answer and defence and the Crown’s duty to disclose all relevant information, whether inculpatory or exculpatory. There are also implications for civil matters. Under this clause, such records would be inaccessible even by court order.
The CBA recommends including a mechanism for judicial review, which would allow courts to order disclosure of these records where appropriate.
We make other observations and recommendations regarding the Youth Criminal Justice Act amendments in our written brief. For the purposes of today, I will leave that to your reading.
Turning to provisions in Bill C-14 affecting sentencing, the CBA has consistently advocated for maintaining judicial discretion on sentencing. Limiting the availability of conditional sentence orders can result in restrictions that are overly broad and risk producing unjust outcomes.
Bill C-14 would effectively remove the possibility of a conditional sentence for certain types of sexual offences. We acknowledge that sexual violence causes profound harm to survivors and can cause serious harm to society at large. We also acknowledge that the prospect of an offender serving a sentence in the community in which the complainant may also reside may be troubling.
That said, we note that sexual assault — even when prosecuted by indictment — covers a broad range of conduct. A brief touch over clothing or kissing could be considered sexual assault, depending on the circumstances. We do not minimize these forms of conduct. However, they are, clearly, lower on the spectrum of conduct as compared to more physically invasive acts.
Consider the following: A complainant alleges various acts of sexual assault by an accused over a period of time that ranges from the lower end of the spectrum, such as kissing, to more physically invasive acts. The Crown elects to proceed by indictment. After trial, the accused is acquitted of nearly all the allegations, except for the kissing. In these circumstances, it is possible that a conditional sentence may be appropriate for that offender.
It also bears remembering that a conditional sentence is a form of imprisonment. It is punitive. It is highly restrictive of a person’s freedom of movement. It is not the same, to be sure, as serving a sentence in jail, but it is also not to be considered an easy sentence. The term of a conditional sentence can be as long as two years less a day.
The CBA recommends reconsideration of the restriction of conditional sentence orders for these types of offences.
Finally, I have only a few brief words on whether the ladder principle applies on a reverse onus bail hearing. Bill C-14 makes clear that it does not.
A reverse onus can arise not only with certain serious offences but also when a person is charged with failing to comply with a prior release or failing to attend court. That can include circumstances where the accused is breached for failing to report to their bail supervisor or attending a liquor store contrary to their release conditions.
We suggest that a more nuanced approach to bail would consider various factors, including the reason the person is in a reverse onus situation and the specific risk to public safety. This would also help ensure that court resources are focused on the most serious cases that raise significant concerns for public safety.
Thank you again, and I would be happy to address any questions you may have.
The Chair: Thank you. Next is the Barreau du Québec.
[Translation]
Eva Sikora, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: Mr. Chair and senators, my name is Eva Sikora, and I am a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec. With me are Nicholas St-Jacques and Francis Savaria, both lawyers and members of our Criminal Law Expert Panel.
Thank you for inviting the Barreau du Québec to comment on Bill C-14, which addresses issues as fundamental as bail, sentencing and the fight against recidivism. The primary objective of the bill is to strengthen public safety by addressing certain problems that are causing significant concern among the public.
In this context, the Barreau du Québec recognizes and supports the objective pursued by the bill and considers that it may help strengthen public confidence in the administration of justice. However, any reform of the criminal justice system must be grounded in the fundamental principles that structure our law. It is from this perspective that we wish to offer some comments. At the forefront of these fundamental principles is the preservation of real and effective judicial discretion. This discretion allows the judge to tailor sentences to the specific circumstances of each case.
As the Supreme Court of Canada has emphasized, this is an essential component of the criminal justice system, one that helps prevent mechanical or automatic application of rules that could lead to unjust or disproportionate sanctions.
We note that the bill limits judicial discretion, notably by proposing provisions that make it mandatory to impose consecutive sentences for certain offences.
While the Criminal Code already provides for some cases of consecutive sentences, their expansion must be approached with caution. Like mandatory minimum sentences, sometimes deemed unconstitutional, these measures can have undue consequences. Although technically distinct, mandatory consecutive sentences have a comparable effect, as they tie the hands of the judge who may impose sentences that are not appropriate in the circumstances.
The Barreau du Québec therefore recommends removing the provisions of the bill that impose mandatory consecutive sentences. We also remind you of the importance of the principle of restraint, according to which the judge must favour the release of the accused as soon as possible, with the least onerous conditions. Codified in 2019 by Bill C-75 to counter preventive overdetention, this principle has been described by the Supreme Court of Canada as a cornerstone of the bail regime. It is also firmly rooted in the Canadian Charter of Rights and Freedoms.
However, the bill substantially weakens the principle of restraint by introducing a new section 493.11 to the Criminal Code. The Barreau du Québec is concerned about reforms to Canadian criminal law, which move forward and then backtrack on principles that are well established in superior court jurisprudence. These reversals, sometimes followed by successful constitutional challenges, contribute to normative instability in the criminal system and legal uncertainty for both professionals and litigants.
In this context, the Barreau du Québec recommends that Parliament fully preserve the principle of restraint by pointing out that the Criminal Code already contains provisions to justify the detention of an accused when necessary.
The bill also provides for a reverse onus in bail hearings in certain cases. We recommend that this reverse onus be limited to offences that pose a clear risk to the safety of persons, particularly those involving direct violence against a present victim, with a view to avoiding disproportionate preventive detentions that would violate fundamental rights.
Let’s end with a more general observation. Certain provisions of the bill risk more severe and disproportionate effects on people experiencing homelessness, given their vulnerability and precarious circumstances. We invite you to consult our brief on this subject. We thank you and remain available to answer your questions.
[English]
The Chair: Thank you, Ms. Sikora. Mr. Goldkind, please proceed.
Ari Goldkind, Criminal Defence Lawyer, as an individual: Good morning. Honourable chair and members of the committee, thank you for the opportunity to appear.
I practise law in this country. I see the system from the inside — not as an abstraction but as it operates in courtrooms, bail courts and correctional facilities across this country.
I want to begin with a very simple observation: Canada does not have a shortage of criminal laws. What we now have is a growing gap between what the law permits and how it is applied.
Bill C-14 does not close that gap. The bill has been framed as a response to rising concern about crime, repeat offenders and community safety, but its impact is modest. Yes, it adjusts certain bail provisions, adds some language around aggravating factors and signals seriousness.
What it does not do is ensure that existing laws are applied in a consistent, rigorous and predictable way. Without that, the bill’s impact will be limited.
Across the country, we are seeing increasing inconsistency: repeat offenders being released where detention is available, breaches of court orders being treated as administrative and sentencing outcomes that vary widely for similar conduct.
This is not primarily a legislative gap. It is a question of how discretion is being exercised. Bill C-14 also does not address that.
The expansion of reverse onus provisions will get a lot of attention and be presented as a significant reform, but in practice, its effect will likely be limited. Judges and justices of the peace already have the authority to detain somebody where there is a risk to the public or the likelihood of them reoffending.
The issue is not whether power exists. It is how that power is used and at what threshold. If the threshold doesn’t change, outcomes will not change. Canadian sentencing law is based on clear principles: proportionality, denunciation, deterrence and rehabilitation where appropriate. But over time, outcomes in our system have become less predictable and harder to explain to an increasingly concerned public that feels that something is amiss. Just in the past week, two very brave judges have expressed a similar concern.
In some cases, the system appears more focused on mitigating factors than the seriousness of the crime itself or the prevention of future violent crime. That perception, fair or not, is widespread — and that perception matters. Public confidence is foundational to the legitimacy of the criminal justice system. Bill C-14 does not restore that balance.
Yes, judicial discretion is essential, but it must operate within clear and consistently applied boundaries. Like cases should produce like outcomes. That principle is becoming weakened. When that happens, not only does the system become less predictable, but public confidence erodes.
Bill C-14 allows Parliament to say, “We’ve acted.” But it will not meaningfully change outcomes in bail courts or sentencing courts across Canada. The issue, therefore, is not the absence of legal tools. It is the inconsistent and at times overly permissive application of these tools. If the objective is to improve public safety and restore confidence, the focus has to shift from legislative signalling to actionable judicial accountability. That is the conversation that has not yet been had.
I look forward to your questions.
The Chair: Thank you.
The witnesses will now have questions from the senators. We have 35 minutes and 11 senators. Therefore, each senator will get three minutes for the question and the answer. This is necessarily truncated, obviously. Therefore, the safety valve is we invite all the witnesses to provide an augment to their verbal answers here this morning in written text. This will be distributed to all the senators and analysts and form an important part of how we study legislation. I want to make sure you understand that. Three minutes is a very short period of time.
Senator Batters: Thank you very much. I appreciate all of you being here. Mr. Goldkind, thank you for illustrating how important it is that public confidence is foundational in all of this because the public has to have confidence in our justice system for people to respect it.
My question is this: During your testimony at the House of Commons as part of the study on bail, you said that the principle of restraint as applied ends up losing its meaning. In your view, does Bill C-14, by clarifying that restraint doesn’t mean automatic release, actually fix the problem or is it only a Band-Aid? If you were to rewrite the principle, if you felt that was necessary, what would a version look like that applies restraint for first-time offenders but puts public safety first with respect to violent repeat offenders?
Mr. Goldkind: There are a number of things there, senator, and I don’t remember what I said because I’m not scripted. However, I think you almost answered your own question. There is a very big difference between someone who is a first-time offender, a young offender or somebody who is caught in a crime of passion — no premeditation — versus someone that everybody inside baseball knows is a ticking time bomb. But the system tap-dances around them, and I appreciate I speak for myself and no other lawyers on this panel or any other defence lawyer. However, if you get people under a lie detector test, they tend to know who is going to cause trouble, who is going to be dangerous, who is going to thumb their nose at the court, who is going to violate bail and who is going to violate probation.
To the second part of your question, the public is now sensing this — despite some associations telling the public they’re wrong or not to dare criticize judges as if they’re on Mount Olympus and not accountable to anyone other than maybe a higher court, which I thought was tone-deaf. That was an interesting scandal a week or two ago. You now have two very brave judges at the Ontario and Superior Court levels just this week talking about a two-tier system.
Restraint is great when it’s somebody who can be rehabilitated, somebody you genuinely believe will not be back before the system and deserves a chance, but we are in a different Canada. We are in a new Canada. We are in a Canada of increased violence and increased trouble on the streets, and the public is quite right to be concerned. I don’t believe the public should have people in ivory towers thumbing their noses at them.
That’s the best way I can answer your question in three minutes.
Senator Batters: Thank you very much. Very good.
[Translation]
Senator Miville-Dechêne: My question also concerns the principle of restraint. My question is for Eva Sikora from the Barreau du Québec.
In your case, I think you are saying the exact opposite of what Mr. Goldkind said. In the face of public concern and the perception that an increase in parole cases is leading to negative outcomes, I would like to better understand why you consider it unacceptable to mention that applying the principle of restraint does not mean disregarding public safety and security. In other words, it now states in black and white that, in interpreting the principle of restraint, it does not mean that an accused person should not be released if detention is justified, particularly for the safety and security of the public. Could you comment on that? This seems difficult to understand, especially since, in the various interventions heard since the beginning of our hearings, everyone has said that this principle already exists in the various texts, so we’re merely reaffirming it.
Francis Savaria, Member, Criminal Law Expert Group, Barreau du Québec: If I may, senator, I will answer the question.
I can tell you that the Barreau doesn’t want to erode the principle of restraint. I think it has been reiterated a number of times by the Supreme Court in recent years, including in the Zora decision, which is the last time it ruled on this principle. It is fundamentally important.
The principle of restraint does not mean that everyone is released, especially those who pose a risk to the safety of the public or witnesses, for example. Criteria are set out in paragraphs 515(10)(a), (b) and (c) of the Criminal Code to provide for the detention of these people.
The codification of the principle in section 493.1 has not resulted in a panacea of releases for those who were covered by the exceptions or justifications for detention set out in subsection 515(10), on the contrary. Quite simply, we reaffirmed the fundamental right to fair and reasonable bail, which is now codified in section 493.1. It was already provided for in paragraph 11(e) of the Canadian Charter of Rights and Freedoms. We believe it is essential not to erode this principle. We must maintain this principle in its entirety, as it currently stands, because the Criminal Code already contains all the tools to detain people who should remain detained.
We must not forget that pretrial detention has significant consequences for individuals, particularly with regard to preparing their defence and even mounting a defence, in addition to the other potential impacts.
[English]
Senator Prosper: Thank you to all our witnesses. This is quite helpful.
Ms. Richards, you made a point in reference to proposed subsection 515(2.11), related to the surety matter and conviction of someone convicted within the past 10 years.
You went on to state that there is a fundamental flaw with this legislation when you start removing judicial discretion, particularly in certain situations where you have, for example, isolated communities. You gave an example of one in Nunavut.
I think you suggested that maybe it would not stand up to constitutional scrutiny. I’m not certain if you said that, but please comment.
In addition to that, you mentioned the barriers that Indigenous Peoples face with respect to bail, not because of risk but because of systemic disadvantage.
Ms. Richards: Sure. Thank you for the question.
The CLA’s position is that this section could be vulnerable to constitutional litigation. On the one hand, it is overbroad. It captures a 10-year period. We see the 10-year period in parole, for example. However, outside that context, the 10 years doesn’t seem to have a link to risk. Where did 10 years come from?
On the other hand, we also have issues with disproportionate impact. That is the example I tried to use in Sanikiluaq. This section will disproportionately impact marginalized communities, like Indigenous communities, that are already overrepresented in the criminal justice system. Our concern is that it is ripe for constitutional litigation.
You also have to consider the fact that the way it is worded, if a person has been convicted of an indictable offence within the past 10 years, whether the Crown proceeds by indictment or summary conviction is at the discretion of the Crown. One Crown can decide to proceed by summary conviction for simple assault; another Crown can decide to proceed by indictment. So we are also creating a distinction based upon a discretionary decision that the Crown made 8 or 10 years ago on someone.
I have thrown out a number of potential issues for constitutional litigation, but our concern is that it is overbroad and does not address the actual risk that this bail proposal is seeking to address.
Senator Prosper: Thank you, Ms. Richards.
Senator Dhillon: Thank you, folks, for being here and for your testimony.
We keep hearing about the fact that we have very little data to guide some of our decision-making processes and some of our thinking. At yesterday’s meeting, we heard from Professor Myers, who shared insights that her research on pretrial detention and conditional release showed bail decisions are influenced by a range of factors, like adjournments, not just offence type. As I shared earlier, data is where we’re struggling a little bit.
From your own experiences — and I invite everyone to share thoughts on this — do you have data or reliable court-based observations that would help this committee understand how often conditional release is denied primarily because of repeat, violent or serious offending, as opposed to other factors, such as housing instability, lack of supervision or administrative delays?
Ms. Richards: Briefly, I don’t have the data at the tip of my fingers. I’m certainly happy to provide data to the committee. I think that the Canadian Civil Liberties Association has undertaken numerous studies. I would support many of the studies they’ve done that have concrete data on these issues.
As criminal lawyers, we speak from daily experience in bail courts. No judge will say, “You do not have housing and therefore I will not release you.” But the fact that someone has unstable housing can impact whether they come to court. Whether they have mental health issues can factor into whether they are released because of secondary ground concerns.
I don’t think our judicial officers are saying that explicitly, but it is unconscious bias and systemic disadvantage that will inherently impact bail decisions.
Senator Dhillon: Thank you, Ms. Richards. Anyone else?
Ms. Webb: I echo the request to collect more data that will be useful to the government in making informed decisions and proposed draft legislation.
My understanding is that the only province that currently has data suitable for analysis is Ontario. Ontario may have some data that is useful, but it would be helpful to have more standardized data, especially from other regions, including remote and Indigenous communities from which there may be specific information lacking.
Senator Simons: My question will be directed to those of you who are practising criminal lawyers who have been in bail court. I think that there are a couple of you to whom that applies.
It has been my understanding that one of the big problems with our bail system is a lack of resources: that Crown prosecutors are often rushed and don’t have time to prep their files; that there is a lack of duty counsel and other legal aid attorneys there to provide representation to the accused; and that justices of the peace can also feel rushed with heavy dockets.
I wonder if those of you who have had experience in bail court could tell me if I’m right about that and if some of the problematic decisions may be because we just don’t have the resources at the front end to ensure that bail hearings happen with all the necessary information.
Ms. Richards: I can answer briefly. In Ontario, there has been an increase in the budget given to provincial Crowns, for example. They have intensive bail supervision teams now. There has been an increased budget to ensure Crowns have the time and resources to put forward very significant bail oppositions. In fact, you come to court and there are hundreds of pages that you received the night before. That being said, everyone is working within a time crunch in the bail system. It is an expedited hearing; we want to prioritize release at the earliest opportunity if that person can be released.
I’m not sure if it is primarily an issue of resources. Certainly, that’s an issue in terms of the whole criminal system, but in terms of getting the decision right, I don’t think it is a lack of resources at this time.
Mr. Goldkind: Depending on if I have a minute or two, you have asked a very good question that involves answering in a very simple and plain way, not dressing it up. If you came with me Monday to Friday to a bail court in Toronto, your head would explode. You would watch justices of the peace, and there are some great ones — so I give the “not that there is anything wrong with that” caveat from “Seinfeld” — but others are reluctant to do any contested bail hearing. They will push any bail hearing until the end of the day and then complain they’ve run out of time. They will spend hours adjourning somebody and arguing over what day that person will come back.
Senator Simons: I have been in court and seen that, yes.
Mr. Goldkind: That is why this answer deserves simplicity, not fancy language. One of the most frequently upsetting and — I know we’re in a committee but I will use the word — stupid things that I have seen every day for 20 years is that a bail court often sits and does anything but bail hearings.
It is an offence to people who should get out, and it is an offence to people who perhaps shouldn’t but who have a right to have their hearing.
If I were to take this committee to an average bail court — just in Newmarket, Brampton or Toronto — and you saw the lack of bail hearings on any given day in a bail court, your heads would explode.
Given that we have three minutes here, I will stop there.
Senator Simons: Thank you very much.
[Translation]
Senator Oudar: I’d like to thank the six witnesses for being here with us this morning.
I have a lot of affection for the Barreau, my professional association. I would also like to thank Ms. Sikora for her clear presentation this morning. My question is for you.
You talked about people experiencing homelessness. Thank you for addressing this important issue.
I would like to ask you for clarification on that. We see in the bill that, in clause 515, the reverse onus and the obligation for the accused to present a credible release plan will have an impact on people experiencing homelessness. They represent one of the most vulnerable populations in the criminal justice system. Often, they will be unable to provide a fixed address, a guarantor and a structured release plan.
I note that women experiencing homelessness are particularly vulnerable to violence and then exploitation. As a result, they are at risk of being charged with offences that are directly related to the precarity of their lives. Are the mechanisms in the bill sufficient to prevent them from ending up in pretrial detention because of a structural inability to meet the requirements of section 515? Should we, in the Senate, plan to make complementary amendments to this section?
Thank you for clarifying this for me.
Mr. Savaria: I will answer on behalf of the Barreau. We had divided up the tasks.
With respect to people experiencing homelessness, section 493.2 of the Criminal Code already provides that, when a court is required to make decisions regarding release, it must take into account the vulnerability of such individuals, including people experiencing homelessness.
The Barreau makes three recommendations in its brief, as you have seen. We would ask that you pay particular attention to three provisions that could have negative repercussions when it comes to the release of these individuals. Notably, the bill introduces an aggravating factor in relation to theft of property that is subsequently bartered or sold for compensation.
We also draw attention to the addition, in paragraph 515(10)(c), of an obligation to consider—when determining whether a person should remain in custody—the number of charges, the number of pending cases and the seriousness of any outstanding charges. People experiencing homelessness frequently accumulate a large number of files for a wide range of reasons. It should be inappropriate to consider only the number of pending cases as a basis for keeping a person in detention. In a way, that’s the perverse effect of this provision. Paragraph 515(10)(c) is amended to give courts the power to detain individuals solely on the basis of the number of cases, rather than considering all the circumstances, all of the charges the person is facing, and the individual’s social context.
I also think that in subsection 515(6), there are a number of offences, including theft and breaking and entering, for which people experiencing homelessness could face a reverse onus. These are people who have very limited means to provide the court with a release plan. At that point, it is practically a reverse onus for these people, who have no resources, who often have no family and no support network. As a result, this provision creates a virtually automatic detention order for these individuals if they are unable to provide the court with a concrete release plan.
Senator Oudar: Thank you.
Senator Dalphond: First, thank you very much to all the participants this morning.
I have a question, to begin with, for the Barreau du Québec.
You talked about consecutive sentences and your concerns about the impact this could have. You don’t refer to it in your brief. However, wouldn’t it be appropriate to take into account section 718.1 of the Criminal Code, the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as well as paragraph 718.2(c), the totality principle, which requires that excessive sentences, in terms of their nature or length, be avoided when consecutive sentences are imposed?
That totality principle will continue to apply. Wouldn’t that address your concerns, at least in part?
Nicholas St-Jacques, Member, Criminal Law Expert Group, Barreau du Québec: I will answer your question, Senator Dalphond, if I may.
Indeed, I believe you’ve put your finger on the issue with these legislative proposals. The fundamental principle is that judges must retain their discretion to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the principle set out in section 718.1 that you pointed out. The judge must also retain the ability to determine whether the sentence is consecutive or concurrent, and eventually, as you mentioned, apply the totality principle, or what is referred to in English as the “last look.”
The problem with the bill is that, in some cases, it removes the judge’s discretion to determine whether, in applying the totality principle, it is appropriate to impose concurrent sentences rather than consecutive ones. Even though sentences would normally be consecutive, when the judge considers the overall sentence, they can still decide to impose concurrent sentences for the various offences in order to minimize or reduce the total sentence. In some cases, the judge may also reduce the sentence on one or more charges to achieve an overall sentence that is proportionate in the circumstances. The problem is that if a mandatory minimum sentence is added that must be served consecutively, as in clause 11 of the bill, additional mandatory minimum sentences will be added.
Senator Dalphond: Mr. St-Jacques, you know that I have a lot of respect for you. I presented you with the King Charles III Coronation Medal. The issue here is one of interpretation. However, it isn’t the legislator’s intention to remove judicial discretion or to exclude the totality principle. I believe the minister stated this in his speech, and I raised it myself in my speech in the Senate on this bill.
My second question is for you, Ms. Richards.
[English]
You mentioned that you were concerned about the fact that “clearly demonstrating” is again introducing this midterm burden of proof. The minister, in his speech, made it clear that it was not the intent of Parliament; I made the same thing very clear in my speech as sponsor of the bill in the Senate.
Isn’t that something that the courts and everybody will take into consideration?
Ms. Richards: Certainly, when looking at statutory interpretation, the speeches of parliamentarians will be considered, as will the intent of Parliament and the legislator, but that is why the CLA recommends making it explicit that “clearly demonstrating” is not a new standard — that bail hearings are heard on a balance of probabilities and that is the proof that is applicable.
We do not see that language elsewhere in the Criminal Code, and our Supreme Court has been very clear that there are two standards of proof. We want a Criminal Code that is accessible, clear and not prone to inconsistent application.
Senator Dalphond: I understand. It is the safety; you want more safety on the interpretation issue. Thank you.
Ms. Richards: Thank you.
[Translation]
Senator Clement: Thank you to all the witnesses. I am always impressed by the lawyers who appear before us. Thank you to all of you.
[English]
My question is for Ms. Richards.
I heard you say in your opening statement that Bill C-14 risks deepening inequities because of systemic disadvantages. I also heard your answer to Senator Prosper’s question, when you were talking about different Crown prosecutors making different decisions. It reminded me of Canada’s Black Justice Strategy; everything reminds me of Canada’s Black Justice Strategy. My colleagues know this.
Senator Dalphond: No problem.
Senator Clement: That strategy talks about the cascading impacts on Black communities. There is poverty, systemic disadvantage and over-policing, and then everything is compounded down the road.
My question to you is this: Does Bill C-14 entrench that cascading impact on Black, Indigenous and other vulnerable communities? If so, how?
Ms. Richards: You may have answered the question better than I will. But, yes. I will turn back to my example in Sanikiluaq, which is a community that does not have a shelter. You may need to go live somewhere else outside of a home that you are living in, homes that are overpopulated, that routinely have 11 or 12 people residing in a two-bedroom home. You don’t have a shelter. Now we’re removing those who can be a surety for these people. We have a growing number of youth in many northern Indigenous communities, which means that a large segment of the population are youthful and cannot necessarily be sureties.
When we look at all of these systemic factors, they compound, as you say. So looking at this section alone in isolation, we may not think that it will have a big impact. But when you think about the fact that we’re already so many steps behind in Sanikiluaq because we don’t have other bail options, this is just going to make that worse. People return to Sanikiluaq — a community that has been devastated by significant harm — so we need to make sure these people are rehabilitated when they come back, and giving them an opportunity at bail can be a way for people to reintegrate into the community once they’ve served their sentence or if they have been found not guilty.
Senator Clement: Thank you.
[Translation]
Senator Saint-Germain: I also join my colleagues in thanking all the members of this panel. You are providing us with expertise and information that is of great interest.
My question is for Mr. Goldkind. I was very interested in your presentation and its pragmatic nature. You have presented an overview, rather than a tunnel vision. One of the things you said — I think I’m quoting you correctly, so please correct me —
[English]
— this bill doesn’t assure that current laws apply with consistency.
[Translation]
Further on, you talked about judicial discretion.
[English]
You stated that judicial discretion must be applied with the clear and relevant criteria that you have mentioned.
So my question to you is this: How could a bill address the first concern that you have, which is the lack of consistency in the application of the current laws?
Mr. Goldkind: If I understand your question correctly, that part of my testimony was subtly referring to the fact that there is an increasingly growing two-tiered system in our criminal justice system. The last question from your colleague spoke about Black and Indigenous people — this is codified in the Criminal Code.
To say that is two-tiered is not contentious. I refer to this subtly again because it is very fresh. It’s now April 16 at 11:23 a.m. There are two judges, from the Ontario courts and the Superior Court, all over the news today talking about the different standards — about immigrants getting certain sentences to keep them in the country versus the ordinary, average Canadian. That is a significant problem in a Canada that’s changing rapidly.
They are brave to speak out about it. Up until those two judges did that last week, you had a bar association telling lawyers not to say a word. You may have seen that scandal all over the news last week, and many lawyers are very concerned about it, where, apparently, people in the system aren’t allowed to criticize the system. That, to me, is the very opposite of what makes a system better. A system only improves because people talk about it — warts and all. You are not supposed to come to the Senate or Parliament and say that everything is hunky-dory.
With regard to the last part to your question, at the end of the day, the public is not wrong. There is a concerted effort to constantly tell the public that they’re wrong. When people have private security and wake up every morning hoping that their car is still in their driveway, “Houston, we have a problem.”
The public is seeing — because certain reporters are paying attention to it — that there are decisions across Canada that don’t match up. Somebody might do a home invasion in Alberta and be treated seriously by a court. Somebody might do a home invasion in the GTA, in Toronto, and, because of a number of factors, they might be getting a sentence that makes the public roll their eyes. For the public to have respect for the system, which I think is key to a functioning democracy because the number one job of government is to keep the public safe, you have to have decisions that make sense to the public.
Just to end my answer, I don’t mean we should lock everybody up and throw away the key. I’m talking about an ordinary average Joe or Jane who just wants to wake up in the morning and know that if somebody commits an act of violence, courts across the country will treat that person appropriately and fairly, and that person won’t be subject to the whims of whom they appear before on their day in court. That is the best way that I can answer that.
Senator Batters: Mr. Goldkind, I would like to return to you. In your House of Commons testimony, you said that the Youth Criminal Justice Act, or YCJA, is not a deterrent and that youth violence has changed, much like what you are saying about the adult criminal justice system. Bill C-14 does make some changes to the YCJA. Does this respond at all to your critique or do you think it is largely insufficient? If you think it is largely insufficient, are there one or two particular reforms that you think would be most urgent to better deal with youth involved in serious violent crime?
Mr. Goldkind: To use an inelegant term, I think that it is lipstick on an animal that — you are not supposed to say it in a committee like this, but I think that people are smart enough to know. I think that is what it is. The YCJA was very nobly intended decades ago when two kids in a schoolyard would be fighting about an iPod. I’m old enough, and a few of you are, to know what an iPod is. The reason I say that is because the kind of violence we’re seeing across this country by young people, often hired and recruited by older gang members, is a whole different type of violence than we saw in 1989 or 1993. You would think that the YCJA would adapt to it.
Instead, it is this little, ticky-tacky, minor adjustment to it without recognizing the significant change in the kind of offending we’re seeing in a certain small subset of young people.
Your question was very specific. Is there anything that I like in there? There is one thing that I think is a conversation starter, and that’s how things start. It is this: When there’s a young person who is wanted by the police — maybe you have all watched “The First 48.” That is not a myth. The first 48 hours or 24 hours are pretty important times to go catch somebody. If you understood the hoops that the police have to go through to put a picture of that young person out to be able to find them or make sure nobody is harbouring them — it is ridiculous.
If somebody is old enough to commit murder, they should be old enough to have the police be able to go through CTV, Corus, Global or the Toronto Star and say, “This is the guy we’re looking for.” So any movement that starts to understand the moral culpability of young people — if it is just two young people having a fist fight, nobody’s life should be ruined over that. That should be hidden; their lives start.
But when you are 17 years old and 11 months, there is a great amount of tiptoeing — and I’m not going to use other words — that almost gives a pass to something that many people in the criminal justice system are concerned about. I’m not saying that anyone has to agree with me. I’m sure that many of your panellists disagree with me, but the conversation is not being had. My bottom line is that the conversation should be had.
Senator Batters: It would not be an iPod that was dealt with then; it would have been a Walkman, and I’m actually old enough to remember that. In 1989, there weren’t any iPods.
Mr. Goldkind: The good old Sony.
The Chair: On that note then, I thank all the witnesses for taking time to be with us here today and answering our questions. Your contributions will play an important role in guiding our discussions and study of this bill.
We have had comprehensive briefs from the panellists, but I would say this: If you wish to consider augmenting any of your briefs with a further brief on issues you think are of importance or you want to amplify, having heard the questions of the senators, please do so. That would be very helpful.
For our second panel, we’re pleased to welcome from the Ontario Crown Attorneys’ Association, Lesley Pasquino, President; and Ian Bulmer, Vice-President, Collective Bargaining.
We also welcome, from the Canadian Association of Black Lawyers, Ms. Sabrina Shillingford, Member, Criminal Justice and Police Reform Committee.
And we welcome, as an individual, David Cole, Retired Judge, Ontario Court of Justice, by video conference.
Thank you very much for the briefs that some of you submitted in advance. We welcome you for our testimony this morning.
I will now ask each of the three organizations to commence with a five-minute overview.
Lesley Pasquino, President, Ontario Crown Attorneys’ Association: Good morning, and thank you for this opportunity.
I am Lesley Pasquino, President of the Ontario Crown Attorneys’ Association. With me is Vice-President of Collective Bargaining Ian Bulmer. Together, we bring more than 50 years of experience as front-line Crown attorneys in the criminal justice system.
Our association represents approximately 1,300 Crown attorneys across Ontario. Crowns appear daily in bail courts, trial courts and appellate courts. As Crown attorneys, our role is independent and quasi-judicial. We are ministers of justice, required to make impartial decisions grounded in the law, the evidence and the public interest. Our submissions today come from that front-line experience.
We support Parliament’s policy objectives. However, we urge the committee to consider the practical and operational impact of the proposed amendments on a criminal justice system under significant strain.
Over the past decade, the number of criminal cases in Canada has increased, with violent crime rising even more sharply. Based on data from Statistics Canada from 2014 to 2024, the number of violent crime cases grew from approximately 369,000 to nearly 592,000. At the same time, cases have become more complex, driven by digital evidence, such as body-worn camera footage, cellphone data and social media records, which must all be reviewed by Crown attorneys.
The Supreme Court’s decision in Jordan imposed strict ceilings on case timelines, but the resources required to meet those timelines have not kept pace. As a result, courts and Crowns are struggling to avoid unconstitutional delays.
It is against this backdrop that Bill C-14 must be assessed.
First, the proposed bail amendments introduce new mandatory factors that courts must consider, expand reverse onus provisions and require closer scrutiny of release plans in reverse onus cases. In practice, many of these factors are already considered. However, making them mandatory will increase the length and complexity of bail hearings and may result in more bail reviews.
Reverse onus hearings often require the cross-examination of proposed sureties. In busy bail courts, with dozens of cases on the docket, these hearings take time. Cases on the docket may not be reached. Without additional Crown, court and staff resources, these changes risk delay, and delay in bail matters carries significant constitutional consequences.
Second, regarding sentencing, Bill C-14 proposes expanded aggravating factors, additional offences where denunciation and deterrence are the primary objectives, new consecutive sentencing provisions and further restrictions on conditional sentences. Collectively, these amendments are likely to result in more contested sentencing hearings, longer proceedings, higher trial rates and more offenders receiving custodial sentences.
The removal of conditional sentence options for serious sexual offences, while reflecting the gravity of those crimes and the harm to victims, especially children, is also likely to reduce guilty pleas and increase the number of lengthy sexual assault trials. These cases, especially those involving children, are among the most emotionally demanding. Crowns already face extraordinarily high levels of vicarious trauma, with over 70% of Ontario criminal law division employees scoring in the severe or very severe range on trauma assessments. An increase without addressing workload and well-being has serious implications for sustainability.
Finally, with respect to the Youth Criminal Justice Act, amending the definition of “violent offence” to include even incidental bodily harm for sentencing purposes will broaden the range of cases where custody is available. This will lead to more contested hearings and mandatory sentence reviews. While public safety is paramount, these proceedings require careful preparation and consideration and, therefore, resources.
In closing, Bill C-14 reflects Parliament’s legitimate concern with serious and repeat offending. Public safety objectives underpin these reforms, but legislation alone cannot deliver public safety.
As the federal government itself has acknowledged, the success of this bill depends on adequate and sustained resourcing across the criminal justice system. A justice system set up for failure cannot deliver public safety. A justice system set up for success can.
Thank you.
The Chair: Thank you.
Sabrina Shillingford, Member, Criminal Justice and Police Reform Committee, Canadian Association of Black Lawyers: Good morning. Thank you for inviting me to speak about Bill C-14 on behalf of the Canadian Association of Black Lawyers, which I will refer to as CABL going forward.
CABL shares the government’s desire to ensure that we live in safe communities. However, while Bill C-14 aims to enhance public safety for all, it risks perpetuating existing disparities for Black Canadians.
I will focus on three aspects of the bill: the expansion of reverse onus bail provisions, the removal of the principle of restraint from reverse onus bails and the requirement that courts consider the number or seriousness of outstanding charges under the tertiary ground of bail.
Expanding reverse onus provisions while simultaneously removing the principle of restraint in these cases undermines the presumption of innocence and will disproportionately impact Black individuals. The presumption of innocence is a principle of fundamental justice, yet Black people are often not afforded the full benefit of that principle. It is beyond dispute that, as a result of anti-Black racism and systemic discrimination, Black people are overrepresented in the criminal justice system, including in pretrial detention. Despite this overrepresentation, Black accused are more likely to encounter a withdrawal, dismissal or discharge and less likely to be found guilty. This means that Black people are disproportionately detained in pretrial custody despite not being convicted of an offence.
Broadening reverse onus provisions will make it more difficult to obtain bail and lead to more contested bail hearings in our already overburdened bail courts. Given this existing overrepresentation and the barriers Black people often already face in obtaining bail, making bail more difficult to obtain will disproportionally burden presumptively innocent Black accused.
Turning to the removal of the principle of restraint in reverse onus cases, removing this principle will also impact Black accused. The principle of restraint is codified in section 493.1 of the Criminal Code and was enacted at the same time as section 493.2. These sections are intended to remedy the problem of overrepresentation of certain populations in the remand population. Removing the principle of restraint and misapplying it in reverse onus situations runs contrary to the purpose of these provisions and risks creating legislative tension. Section 493.2 directs courts to give particular attention to the circumstances of accused persons who belong to a population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release.
Eliminating the principle of restraint in reverse onus cases would strip courts of the application of a key principle designed in part to remedy the problem of overrepresentation of Black accused persons in custody.
The principle of restraint acts as a safeguard to ensure individuals are not detained pretrial because of onerous conditions that are not required to keep communities safe. There is no empirical evidence that removing the principle of restraint would make communities safer. Removing this fundamental principle would not withstand constitutional scrutiny, will lead to more complex and costly litigation and is unnecessary given that the principle of restraint still allows courts to impose strict conditions where necessary.
Bill C-14 also proposes that courts consider the number or seriousness of outstanding charges under the tertiary ground of bail. This provision risks ignoring directions from our courts that:
Courts must consider the potential for institutional bias in the arrest and charging of the accused, including the possibility of over-policing and over-charging. . . .
Given research findings that Black people are over-criminalized and overcharged, requiring courts to consider the number or seriousness of outstanding charges risks portraying Black accused as presenting a greater risk on bail than they do.
Finally, the above changes to the bail provisions discussed risk undermining the federal government’s Black Justice Strategy, which seeks to address anti-Black racism and systemic discrimination and rightfully aims to ensure that Black people have access to equal treatment before and under the law in Canada. In considering the proposed reforms, care should be taken to ensure that this objective is not lost in the process.
CABL has also reviewed the Canadian Civil Liberties Association’s submissions and endorses a number of amendments, as indicated in my written brief. Thank you.
The Chair: Thank you, Ms. Shillingford.
David Cole, Retired Judge, Ontario Court of Justice, as an individual: Thank you. I have a very limited proposal for the senators, but I would start by saying that I agree with virtually every word that has been said by previous presenters this morning.
As a judge of 32 years on the bench and 16 years before that as defence counsel, I can assure you that our bail system that started off in the early 1970s as a very progressive gesture by largely getting rid of things like cash bail and the ladder principle about release has come under increased scrutiny, trouble and difficulty. Frankly, a lot of it is amiss.
The specific proposal that I have for you is an amendment to the proposed amendment to subsection 523(2.1) that would require a Crown attorney in a case where an accused has been found guilty either by a judge or by a jury to indicate to the presiding judge whether they intend to move to revoke the accused’s bail. That would be a decision ultimately taken by the presiding judge.
There are many cases in which this would not be necessary. For example, even though a second or third impaired driving charge carries with it a minimum mandatory term of imprisonment, those terms are pretty brief and probably would not require someone to be incarcerated pending sentence.
On the other hand, I cite an Ottawa case that I presided over by Zoom where the accused was found guilty of being in possession of a loaded, unregistered, illegal handgun, which automatically required the imposition of a minimum mandatory term of imprisonment of at least four years. For some reason — I have no idea what it was — the Crown attorney of the day said nothing about the accused’s continued status on bail, so I didn’t think it was appropriate for me to raise the issue.
The accused failed to appear and, as far as I know, may still be at liberty, possibly while armed and possibly still in Ottawa.
To me, that seems wrong. I would propose that a statutory obligation be built in to require the Crown attorney to at least raise the issue. If the Crown attorney considered the person should remain on bail or perhaps some of his bail conditions could be adjusted slightly, that would be one thing. However, for the protection of society in those kinds of rare cases, that statutory requirement should be inserted.
I have seen the Department of Justice’s response to my proposal, which is that it is unnecessary. I don’t agree. With all due respect to those who draft things for the federal Department of Justice, most of them have very little practical experience, and I’m sure that everyone who has testified this morning and Senator Arnot, who used to be a provincial court judge, can tell you that in our very busy provincial courts we tend, unfortunately, to skip over certain procedural requirements, either because we’re too darn busy or because we forget.
That’s why I suggest that the statutory obligation should be inserted.
Thank you.
The Chair: Thank you, sir.
We will now move to questions from the senators, which will be three minutes each, please.
Senator Batters: First, to the Ontario Crown Attorneys’ Association, Bill C-14 requires an accused to “establish clearly” their release plan in reverse onus cases. In practice, do you think that actually changes the threshold, or do you think that revised language is really quite meaningless?
To you, what would “establish clearly” mean concretely at the hearing? Would it mean a written plan, a surety, stable housing, supervision or some combination of those? Could you name the elements that you would require, systematically, in those high-risk cases?
Ms. Pasquino: Thank you for the question.
To some extent, it gets to the nub of the issues we deal with in the criminal courts every day: Every accused and every case is different. When we try to come up with a threshold or wording that is going to be understood and applied, although the principle may end up being established, the way it’s applied has to be tailored to every single accused; it has to be in line with the principle of section 11(e) of the Charter, that being the accused being entitled to a reasonable bail; and it has to address the offence that is alleged to have been committed.
So, what that means to me in a reverse onus is that, at the end of the day, I’m not sure that the wording adds a lot to the way bail hearings are already carried out in a reverse onus situation. The onus is already on the accused to demonstrate, on a balance of probabilities, why they have shown cause that they should be released. There is a great deal of law and case law that interprets that.
Mr. Goldkind urged us to speak in plain language, and I don’t think this wording really adds more, other than more words to argue about and more time taken. At the end of the day, the accused is still entitled to a reasonable release if they meet that onus.
Demonstrating that the bail plan is appropriate and meets that onus can be done a number of ways. Sometimes, people organize an ankle monitor to show that they’re not going to leave the jurisdiction. Sometimes, they are given an alternative place to live that is a distance away from the alleged victim.
Obviously, sureties come into play a lot more when we’re talking about reverse onus situations. We often want to see that there is a stable and responsible surety available who can supervise the bail plan, whatever that is.
Sometimes, if a person has a history of breaching a bail release, the Crown may want to cross-examine the surety to ask how confident they are that they will be able to supervise someone who has been found to breach in the past.
We ask these very difficult questions in the bail courts, and you don’t know whether the answer you get is going to lead to other questions. Much like you and I talking today, it’s a dynamic process where you may have 30 cases waiting to be heard, all for people who are legally innocent — all for people who may be spending time in jail if their case doesn’t get heard.
This leads back to our concerns about resourcing. If you introduce new wording, new phraseology and a new threshold, those are things that lawyers are going to argue about. We are lawyers, after all. The Crown will say one thing; the defence will say it means something else. The justice of the peace or the judge is going to make a decision.
But it all takes time. Whenever you introduce new phraseology and a new threshold, that’s something that the lawyers are going to argue about and the presiding jurist is going to have to decide upon.
I want to emphasize today that every case is different and every accused is different. We already have a lot of case law addressing reverse onus and what the threshold is. How an accused shows that they have met their onus will really depend on the seriousness of the allegations. What has caused it to be reverse onus? Is it the nature of the charge or that they have breached their bail previously? Those are two very different scenarios. Is it a less serious charge but with prior breaches or a very serious charge?
Senator Batters: Thank you.
[Translation]
Senator Miville-Dechêne: This will be a question in French for the Ontario Crown Attorneys’ Association.
So Bill C-14 eliminates conditional sentences for certain offences, including serious sexual offences. You touched on this issue in your presentation. I’d like you to tell us whether you agree or disagree with this change in Bill C-14, which obviously responds to public concern and the increase in violent crime reported by Statistics Canada.
Second, you talked quite a bit about Crown burnout. Are you in a position to deal with this change of direction with respect to conditional sentences?
[English]
Ms. Pasquino: Thank you for the question. I’m going to answer the second part first.
Crown attorneys are resilient. We take on this work knowing the demands. Can we perform our role as ministers of justice, act in the public interest and uphold the rule of law? Yes, we can; there is absolutely no doubt about that.
Our concern is the toll that it takes on our members and being able to recruit and retain the highest level of talent in the future, bearing in mind the difficulties of the job and the toll it takes. Crown attorneys are not recognized as being on the front line, but we really are. We’re on the front line of the justice system. We don’t go into the houses and gather the evidence, but we do see it once the police provide it to us. Then, we work extensively with victims of horrific crimes in order to prepare them for trial.
That’s the second part first. Forgive me for that.
With regard to conditional sentences, the Ontario Crown Attorneys’ Association supports any legislation that is aimed at public safety. Concerns have been raised with regard to conditional sentences, particularly when it occurs where someone who has been convicted of a serious sex assault in relation to a vulnerable victim ends up being in the same community as that vulnerable victim. There are concerns around the impacts on the ability of the victim and the community to recover.
At the end of the day, yes, the Ontario Crown Attorneys’ Association is generally in support of this measure, but, as I set out in my statement to this committee, the concern is the restriction on being able to access a conditional sentence may have a chilling effect on resolutions, discussions and guilty pleas. Sex assault trials are extremely complicated, particularly in these days of text messages and social media, where there are a lot of pretrial motions that have to deal with the admissibility of that evidence and balance the rights of privacy of the victims. They have their own separate lawyer, and these pretrial motions can be lengthy and complicated.
So, the main thrust of our presentation today has been on resourcing. However, at the end of the day, when it comes to conditional sentences and how appropriate they are for these most serious offences with the most vulnerable victims, the Crown supports any legislation that supports public safety while always balancing the rights of the accused.
Senator Prosper: Thank you to all of our witnesses here. I have a question for Ms. Shillingford.
Further to your testimony, I’m quite curious about your mention of the Black community, more specifically, being over-policed and overcharged. You get into certain comments related to anti-Black racism and systemic discrimination and how Bill C-14 disproportionately detains certain people — Black people, for example — who have not been convicted of an offence.
But you also get into — and I want you to expand on this a bit more — how the expanded reverse onus provisions within Bill C-14 undermine the presumption of innocence. Could you just provide further detail on that statement?
Ms. Shillingford: Certainly. With the reverse onus in bail situations, it becomes up to the accused person to convince the court why they should be released.
We have heard a lot of conversations and discussions about repeat offenders and serious crimes, but the expansion of reverse onus bail provisions could also impact a first-time offender, who would then be subjected to these provisions that require them to convince the court of why they should be released, and the presumption of innocence is a fundamental principle.
By expanding the reverse onus bail provisions, what I mean when I say that Black persons are not often afforded the full benefit of that principle, that comes with decades of research. When you take it back to previous inquiries that have been done, that tells us that Black people are detained for longer periods of time and are overrepresented in the system. This can be for various reasons when you consider they may not have a surety, or they may not have as strong a bail plan if they live in an area where it might not meet that threshold that a reverse onus bail would require, where you want to present a very strong bail plan. They may have more difficulties convincing the court of why they should be released.
Senator Simons: Ms. Pasquino, in the first round, we talked about whether the courts had the necessary resources to run bail hearings in an appropriate way, but you have raised a whole other question, which is the knock-on effect, that there will be more prosecutions brought to trial — potentially — under this kind of regime.
I wonder if you could talk about the stresses in our courtrooms now, not just for Crowns, but for judges, for defence attorneys and for duty counsel. There are only so many courtrooms, and there are only so many people to place in those courtrooms.
At what point do we hit a ceiling where we can’t ratchet things up without a significant infusion of resources?
Ms. Pasquino: We’re there, and the clearest example that I can give you of why we’re there is trial stacking in the trial courts.
Where you see trial stacking, that means a lack of resources. What I mean by “trial stacking” is when more trials are scheduled for a day in court than can possibly be reached. There may be six trials scheduled, and the assumption is that a witness won’t turn up, that it has to be adjourned or that there will be a guilty plea or something of that kind.
When that doesn’t happen, what we have, what we see and what my members face is witnesses, victims, police officers and experts on, maybe, five trials all turning up to court. In the case of victims, who have prepared themselves to probably talk about the worst thing that has ever happened to them in their lives, have gone through preparation with the Crown and have turned up to court expecting to receive justice and to be heard, what happens is they find that they are in a lineup, as if they were at a Tim Hortons to buy their coffee.
The Crown has no control over which cases are going to be scheduled. The Crown in that court doesn’t just have to prepare one case for trial; they’ve often had to prepare all of them, and then they have to decide which one they’re going to pick.
If nothing has gone wrong, like a defence counsel being sick, a witness being sick, a piece of evidence going missing or something like that, the Crown — and I have heard this from colleagues — then has to choose between sex assaults and explain to the victim of the case that’s not going to run that this serious case isn’t going to happen because it was stacked with other cases.
Those cases that don’t get reached, they get adjourned, so the witness has it hanging over their head again. Another Crown — or the same Crown — has to get up to speed again, and we may then have a section 11(b) delay application on the next date because we’ve delayed over the Jordan’s Principle timelines.
We are seeing stacked cases across Ontario. It happens all the time. For my members, it is incredibly demoralizing and frustrating. For victims of crime, it has a huge impact. Our concern at the Ontario Crown Attorneys’ Association, or OCAA, is that this is going to undermine public confidence in the administration of justice, because these things are starting to be reported in the media now.
Sorry. That was a long answer to your question.
Senator Simons: My daughter is a young civil litigator in Vancouver, and it has been eye-opening for me, the amount of time she spends sitting in courtrooms, and self-represented litigants are a huge part of that because they suck up so much of the time and energy. The real question is —
The Chair: Sorry, I will have to go on to the next question.
Senator Simons: I think that was a great answer. I think it answers the question I was going to ask.
Senator Tannas: Just quickly following up, Ms. Shillingford, on the conversation you had with Senator Prosper, I think you also said that Black people who are in custody are overrepresented in having their charges dropped and being released. Is that right?
Ms. Shillingford: Yes, it is.
Senator Tannas: That seems counterintuitive. Why would that be the case, in your view?
Ms. Shillingford: What the research tells us is that Black people, specifically with respect to pretrial detention, are held in pretrial detention for longer than other groups and are denied bail more than other groups.
Then, yes, it is also true — according to the research — that Black accused persons are more likely to encounter withdrawal, dismissal or discharge. It does sound counterintuitive, but when you consider the history of over-policing in certain communities, and overcharging, it makes sense why they are more likely to have charges withdrawn or less likely to be found guilty.
I think we have to also think of the implications of anti-Black racism and systemic racism and how Black persons are impacted by that.
Senator Tannas: You would see it as being tied to the overcharging as one —
Ms. Shillingford: Yes.
Senator Tannas: Would there be any evidence showing seriousness as being a part of it as well, or is it just all you can really see in the evidence — or tie it to, logically — would be overcharging and over-policing?
Ms. Shillingford: Confidently, I can say one of the reasons is overcharging of Black accused, as well as over-policing.
With respect to other factors that may be there as well, I would have to get back to you on this, but there is some research to show with respect to offences against the administration of justice, Black people are more likely to be charged with those offences contrasted with other groups.
So there may very well be a variety of reasons, but certainly overcharging and over-policing are two of them.
Senator Tannas: Thank you.
Senator Pate: Thank you to all of our witnesses for appearing.
Ms. Shillingford, you have talked about the pressures that these provisions will provide in terms of people — vulnerable populations in particular — having to prove that they deserve bail. Could you also expand upon the pressure that Ms. Pasquino pointed to, the increased pressure — particularly with trial stacking and the like — to increase the likelihood of guilty pleas and the potential for wrongful convictions?
Ms. Shillingford: Certainly. People are likely to spend more time in custody, either waiting for a bail hearing or if they are denied bail because it is harder to obtain bail. I can’t cite it off the tip of my fingers, but there is research showing that the longer that someone spends in custody, the more likely they may be to plead guilty.
So, of course, there is a concern about individuals pleading guilty just to get out of custody. Another very real concern is that someone may spend more time in custody than they would if they were to plead guilty to an offence or be convicted of an offence.
Mr. Cole: Let me give you a broader answer to your question, Senator Pate.
Since our Criminal Code came into effect in 1892, we have never had any kind of public discussion about why we have a criminal code, what our expectations are, what offences should be in the code and what levels of seriousness we should assign to them.
Yes, we have studied certain parts of our Criminal Code very well; for example, all through the 1980s, as you are well aware, senator, we had a lot of discussion about sentencing reform. Prior to the advent of the bail provisions back in the early 1970s, in the late 1960s, there were extensive public discussions about bail reform.
What we haven’t done is have a broad discussion about the whole of the Criminal Code. That is unfortunate. Because to echo what Ms. Pasquino and others have said, unless I am assigned to one particular trial, if I go to your standard provincial criminal court on a day, I’m going to likely spend a third to a half of the day, frankly, straightening out stuff that probably shouldn’t be in the criminal court. “Why haven’t you paid your restitution? Why did you fail to appear?” “Well, I was in hospital.” “Why did you go back to your girlfriend’s place when you were not supposed to?” “Because my stuff was there and I needed to pick it up.”
Is this stuff that really needs to be in our criminal courts, gumming things up? Shouldn’t we be dealing with much more serious things?
Until we have that broad discussion about what we want in our Criminal Code, I think that we will continue, unfortunately, to spin the wheel as we currently are doing regardless of whatever things you put into Bill C-14. Thank you.
Ian Bulmer, Vice-President, Collective Bargaining, Ontario Crown Attorneys’ Association: Senator, I will answer that other question on behalf of the association. I had a chance, while Justice Cole was talking, to look at some numbers from the Ontario Court of Justice, which you heard about earlier in the session. Ontario keeps some fairly good numbers, particularly in the Ontario Court of Justice, which processes the vast majority of criminal charges.
In Ontario, in 2025, the number of processed cases was in the range of 250,000. I looked back quickly on your question in relation to whether it might change the outcome of how cases are processed; largely, I took generally to answer the probative point of the question.
To give you an example, over the past three years, the trial rate — which is the cases that proceed to trial — ranges from 3.8% down to 3.2%. So as the cases go through the system, even with changes to legislation over time, it appears from those numbers that what I will call the resolution rate — which encapsulates all types of dispositions, like withdrawals, stays and cases gone to trial — tends to be the same.
I’m trying to give you a metric answer, which is sometimes better than just the general view answer.
I would say we probably look at the same sorts of numbers with those changes. There doesn’t appear to be a large fluctuation.
Senator Clement: Thank you to all of the witnesses. I am going to ask a question of Ms. Shillingford.
I’m the only Black lawyer in the Senate chamber. I feel the weight of this, so I’m happy to see you. It feels a little less lonely, because I feel that. I feel the burden of this conversation quite a lot.
You said two things in your opening statement. You said CABL stands with the government and the minister in their concern for community safety. Black folks are quite highly represented in the victim community as well. But you also said Black folks do not benefit in the same way from the presumption of innocence. You repeated it to Senator Prosper. That is a heavy statement.
All of those things can be true.
Can you talk about how the Black Justice Strategy addresses all those things? Because, while it can seem contradictory, all these things can be true.
I didn’t read your brief; I don’t have it. I have to apologize for that. But you did speak about endorsing the amendments being suggested by the CCLA. If you could speak more about that, I would appreciate it.
Ms. Shillingford: Certainly, and thank you. I understand the sentiment of feeling the weight of certain conversations. I appreciate your perspective and your advocacy.
Beginning with the Black Justice Strategy, the strategy is key; it is fundamental. It is important to address anti-Black racism and systemic discrimination and make changes toward reducing the impacts of that in the criminal justice system. That can’t be overstated. The reason I brought it up is because certain aspects of Bill C-14 may conflict with the goal of that strategy.
With respect to the amendments, in the brief that I provided, it is the Canadian Civil Liberties Association’s submission to the Standing Senate Committee on Legal and Constitutional Affairs. So the amendments we endorse are: amendment 2, remove the disapplication of the principle of restraint; amendment 3, remove requirements for consecutive sentencing; amendment 5, retain judicial oversight over the release of information identifying a young person under the Youth Criminal Justice Act; and amendment 6, remove or reduce new criminal restrictions on sureties. Because of time constraints, I did not comment on this, but, of course, this can also have detrimental impacts for Black accused and the history of their being overcharged. They may have longer records, and our case law acknowledges that.
Also, amendment 7, strengthen the new statutory data reporting requirement; and amendment 8, clarify the requirements for judicial reasons under subsection 515(13.1) of the Criminal Code, to address the overrepresentation of Indigenous, Black and vulnerable persons.
Senator Clement: Can you say more on that one? We made some amendments to strengthen that in Bill C-48, but it does not seem that the courts have taken that up. What the CCLA is saying is to require it so that judges are clearly required to consider those factors.
Ms. Shillingford: Exactly. That sums it up. It should be a requirement for it to be very clear. I don’t know that I can phrase it any better.
Judges should be commenting on the overrepresentation of Indigenous, Black and vulnerable persons.
Senator Clement: Thank you.
Senator Dalphond: Thank you for all of the participants this morning. This is very useful.
My question will be addressed to Ms. Pasquino and Mr. Bulmer. It is about the principle of restraint.
There are concerns about the reverse onus. But the reverse onus already exists for some prior convictions, like violence with a weapon or intimate partner violence. We still have the principle of restraint, which is applicable in these cases, section 493.1, as well as section 493.2, which is Aboriginal accused and vulnerable populations.
Can you talk to us about how these principles are playing out in courtrooms in these cases where we already have a reverse onus? Some people fear that it does put aside the principle of restraint. Is that the reality in the courtroom?
Ms. Pasquino: No. It is not the reality in the courtroom.
The challenge in all cases is to balance the right for the people of Canada to live in safe communities and feel safe and the rights of the accused under the criminal justice system and ensure that specific groups are not targeted, do not find it more difficult to get released on bail and are not punished pursuant to sentencing provisions more than other groups.
Particularly in the bail context, it is even more difficult because offence is charged. Even in a reverse onus situation, the accused is still presumed innocent, and jurists are aware of that. The justices of the peace are aware of that. Experienced justices like David Cole, who I think was the first judge I appeared in front of when I first came to this country, are aware of this.
This balancing weighs heavily on all of us who do this work. Even for the Crown attorneys, when we are preparing cases, many cases in bail courts proceed by way of a consent release, where the Crown consents to the release. If they didn’t, the whole system would collapse. There is absolutely no way the courts would be able to accommodate every hearing as a contested hearing. We have up to 30 cases in a courtroom. If all the members of this committee were to go on a field trip and visit some of the courthouses, you would be very surprised. If anyone wants to take me up on the offer, I will take you. At the end of the day, the principle of restraint is on everybody’s mind.
Senator Dalphond: Sorry, time is running out. Section 493.2, on special groups — is this also addressed by the Crown and by the judges?
Ms. Pasquino: Bearing in mind the time, I would say yes. The courts and the Crown are very aware that everybody is entitled to a fair hand of justice and that certain marginalized groups should not face more of an uphill battle to get bail in these circumstances.
Senator Dalphond: Mr. Cole, do you agree?
Mr. Cole: Generally, yes. But, again, what I come back to is the sheer volume of cases, how it numbs us as we go through dealing with hundreds of cases per year and how, unfortunately, there is a dreadful sameness to it that means that we perhaps — and I’m speaking candidly here — don’t pay as much individual attention as we should to individual circumstances, as Ms. Shillingford quite rightly brought out.
Senator Batters: Ms. Shillingford, I wanted to ask you something that you were speaking about in your opening remarks. You were speaking about your impression that the principle of restraint is being removed by Bill C-14. I wanted more clarification on that from you because the reverse onus changes, adding a number of different offences to be reverse onus on bail, do not remove the principle of restraint. It just changes the onus from being on the Crown prosecutor on a balance of probability more likely than not to show why the accused should not be released, shifting to the onus being on the accused on a balance of probabilities more likely than not to show why he or she should be released. I know that, in some ways, this bill clarifies the principle of restraint to show judges and justices of the peace that it is not meant to be an automatic release, but it certainly is not being removed. Is it because of the interplay of those two things that you are contending that it is, in effect, being removed? Because, in actuality, it isn’t.
Ms. Shillingford: What I’m referring to is the amendment of the act following section 493.1, where it states that:
. . . a justice or judge, as the case may be, shall not give primary consideration to the release of the accused at the earliest reasonable opportunity if the accused is one to whom subsection 515(6), 522(2) or 523(2.1) applies . . .
So, 515(6) being the operative provision, it seems that the amendment would indeed disapply restraint to reverse onus cases.
Senator Batters: So are those particular three subsections reverse onus cases?
Ms. Shillingford: Subsection 515(6), yes.
Senator Batters: That was not my understanding. I can have that discussion with Senator Dalphond, the sponsor of the bill, after this hearing is done.
I also had a quick question for the Ontario Crown Attorneys’ Association. They could provide me with the answer now or, if it is something they need to think about, can provide it later to the committee.
Could you identify one category of high-risk cases that, even if Bill C-14 were to pass and become law, would remain outside the reverse onus situation and therefore continue to be handled under the ordinary regime? If so, could you explain why you think that might be a practical problem — if you do?
Ms. Pasquino: I think I’m going to have to get back to you on that one.
The Chair: That is a very good answer, I think.
Ms. Pasquino: Thank you.
The Chair: We’re out of time.
Senator Batters: You can provide that answer to the committee clerk, and he will provide it to the rest of us.
Ms. Pasquino: Thank you. I will get back to you on that question.
The Chair: On behalf of the committee, I thank all the witnesses for taking the time today to share with us your advice and experience. It is very welcome. I do want to say this again to all witnesses, just to be clear. If there is anything that has come up — and Senator Batters has asked a question along this line — you can augment your answers via a written brief. It would be really welcomed, in fact, by the committee. To all of the senators, I say thank you for your participation and engagement today.
(The committee adjourned.)