Honourable senators, I rise today at third reading of Bill C-48, whose short title is An Act to amend the Criminal Code (bail reform).

This bill was introduced to address the concerns of Canadians, provincial and territorial premiers, and police organizations. They are all concerned, and rightly so, about the many violent incidents that have taken place recently, many of them committed with weapons by repeat offenders who were released on bail.

For example, Canadians still remember Karolina Huebner-Makurat, whose life was cut short in Toronto in 2023 by a stray bullet. One of the people involved in the shooting had a long criminal record and was on conditional release after committing other offences.

Canadians also remember the tragic death of 21-year-old Osama Ali in Edmonton. The young man was killed in June 2023 by a man who was on interim release while awaiting sentencing for committing manslaughter in 2020. The perpetrator had removed his GPS bracelet, which was a condition of his release, and he was on the run when he killed Mr. Ali.

Unfortunately, throughout our study of Bill C-48, we heard stories of other recent examples of repeat offenders committing violent offences that endangered the public.

Let’s not forget Sûreté du Québec Sergeant Maureen Breau, who was killed in the line of duty in March 2023, stabbed by an individual while she was making an arrest. According to Le Devoir, and I quote:

The man . . . had a criminal record, notably for violent acts committed in the past . . . had also been found not criminally responsible for his actions due to mental disorders on a number of occasions, and had been hospitalized.

While I support this bill, I deplore the fact that it doesn’t go far enough to protect Canadians from people charged with violent or gun-related offences who pose a significant risk of reoffending if released on bail. The commission of serious offences by people on bail not only puts the public at risk, but also has the potential to seriously undermine Canadians’ confidence in the integrity of the bail system.

Let me remind senators that the key measure in Bill C-48 is to place the onus on defendants in a greater number of situations, at the bail hearing, to prove to the judge that their pre-trial release is justified. There’s nothing revolutionary about this measure.

Over 30 year ago, the Supreme Court of Canada upheld the constitutionality of the measure that put the onus on the accused at the bail hearing to show cause for pre-trial release in cases involving repeat offenders or those accused of serious crimes and who present a danger to public safety.

In its 1992 ruling in R. v. Morales, the Supreme Court deemed as constitutional subparagraph 515(6)(a)(i) of the Criminal Code, which applies to any repeat offender accused of committing a crime while out on bail for another indictable offence.

In its ruling in R. v. Pearson, which was handed down on the same day as Morales, the Supreme Court found consistent with the Charter paragraph 515(6)(d) of the Criminal Code, which places the onus on a person accused of drug trafficking.

Bill C-48 does not really propose anything new. It simply adds other types of recidivism and serious offences for which the onus is on the accused to justify their release at the bail hearing.

I support these measures, but I find them to be timid. More specifically, I find it deplorable that this bill fails to include a series of inherently serious offences for which it seems obvious to me that the onus should be on the accused to justify their release. In my speech at second reading, I gave you several examples of the offences that I think should be included in Bill C-48.

Here are two more examples of offences not covered by Bill C-48 that were brought to my attention by police officers following my speech at second reading.

The first is aggravated assault of a peace officer, as set out in section 270.02 of the Criminal Code. Anyone committing this offence is liable to imprisonment for up to 14 years.

The second is the offence set out in section 85 of the Criminal Code, which concerns the use of a firearm in the commission of an offence or when the accused flees after committing an offence. To show how serious this offence is, it is liable to up to 14 years in prison and, a rarity in criminal law, the sentence must be served consecutively to any other punishment.

Moreover, in 2007, the Supreme Court of Canada stated in R. v. Steele that this offence was created to curtail the proliferation of firearm-related crime. The Supreme Court found that Parliament’s objective in passing section 85 was to “. . .prevent the danger of serious injury or death associated with the use of firearms . . . .” The court added that “[t]he use of a firearm in the commission of a crime exacerbates its terrorizing effects . . . .”

I therefore find it illogical that an offence as dangerous as the one set out in section 85 is not covered by Bill C-48. In this context, the press release issued by the Department of Justice on May 16, 2023, said the following:

There are specific challenges facing our bail system posed by . . . firearms, and other dangerous weapons that need to be addressed.

For all serious violent offences not covered by Bill C-48, the current law will remain the same, meaning that people charged with these offences must be released before trial under the least severe conditions of release possible, unless the Crown prosecutor can prove to the judge that detention or more severe conditions are justified.

On another point, I don’t think the current government has done a very good job in recent years of reassuring Canadians when it comes to gun crime. Its approach to this issue has been inconsistent.

On the one hand, the government is proposing in Bill C-48 to add four serious firearms offences that would entail a reverse onus at bail hearings.

On the other hand, by passing its Bill C-5, this same government made it possible for offenders to serve their sentence in the community for three of these four offences. We are talking about offences set out in sections 95, 98 and 98.1 of the Criminal Code, namely the possession of a prohibited or restricted firearm with ammunition, breaking and entering to steal a firearm and robbery to steal a firearm.

With Bill C-48, the government is proposing to make it harder for individuals who have committed these three serious offences to be released before their trial. However, once they have been found guilty beyond a reasonable doubt of these same offences, then Bill C-5 allows them to serve their sentence at home rather than in prison.

I don’t think that I’m the only one who thinks that the government’s inconsistent and contradictory approach here is worrisome and inappropriate.

I would also like to say that I disagree with the Senate committee’s decision to reject the amendment proposed by Senator Boisvenu. That amendment had to do with the measure set out in Bill C-48 that proposed putting the onus of proof on the person accused of committing a repeat offence involving a weapon for the bail hearing.

In its current form, Bill C-48 requires the accused to prove to the judge that their release is justified when they are accused of committing a violent offence involving a weapon, if they were convicted of the same type of offence during the last five years. These two offences have to be punishable by sentences of 10 years or more for the reverse onus to apply, and the person has to be prosecuted on indictment.

Senator Boisvenu’s proposed amendment, which was rejected by the committee, would have replaced the five-year time limit with 10 years. Senator Boisvenu was proposing to correct an inconsistency in Bill C-48 that had actually been pointed out by the Canadian Association of Chiefs of Police.

In fact, a representative from the association, Jason Fraser, explained this problem during his testimony before the Senate committee. He said the following, and I quote:

When we’re talking about serious violent offenders, we’re dealing with a small subset of the population that inflects an incredible amount of harm, and in some circumstances, those individuals are being sentenced to lengthy periods of imprisonment, only to come out and reoffend. The five-year limit would create a situation where someone could spend five years in jail and come out and that offence will not be captured by this provision. . . .

To place that arbitrary five-year limit really runs the risk that we’re not going to capture the very offences that we’re looking to capture.

During the Senate committee’s clause-by-clause study, a lawyer with Justice Canada, Shannon Davis-Ermuth, admitted that the current wording of Bill C-48 could result in an offender who serves a long prison sentence, say, 10 years, not being captured by the reverse onus set out in Bill C-48 even if they commit a weapons offence after being released from prison.

To fix that problem, I would like to put forward an amendment to Bill C-48. I’ll start by pointing out that this bill has to go back to the other place so MPs can study the amendments adopted by the Senate committee and Senator Boisvenu’s amendment, which was adopted by the Senate at third reading.

Rather than increase the limit from 5 to 10 years, as Senator Boisvenu proposed, my amendment would specify a five-year limit when an offender is serving a prison sentence. My amendment does not change the type of weapons offences covered by the reverse onus set out in Bill C-48. It bears repeating that the reverse onus applies when an offender was convicted of an offence against a person with the use of a weapon where the maximum term of imprisonment is 10 years or more, if the offender is accused of committing such an offence again.

The only thing my amendment changes is that the five-year period between the two offences provided for in Bill C-48 does not come into effect until the offender has finished serving their prison sentence for such an offence.

My amendment therefore has the advantage of being targeted. It simply adds offenders serving a prison sentence of more than five years to the reverse onus measure in Bill C-48.

If my amendment does not pass, offenders who reoffend after serving a long prison sentence for a weapons offence will not have the burden of proving to the judge that their conditional release is justified.

When a person serves more than five years in prison, they are currently excluded from the reverse onus provided for in Bill C-48 if they commit a subsequent offence with a weapon, because the five-year limit between the two offences will have expired before their release from prison. This exclusion is illogical, since offenders serving a sentence of more than five years in prison are more likely to pose a greater threat to public safety than offenders serving shorter sentences.

This exclusion is not only inconsistent, but it poses a significant risk to public safety and it is more likely to undermine public confidence in the conditional release system.

In effect, my amendment will only target offenders who have been convicted of very serious weapons offences, as Canadian courts consider a five-year prison sentence to be very severe. In practice, such long prison sentences are not handed down when the circumstances of the offence are not deemed to be very serious or when the offender does not have a lengthy criminal record.

Since my amendment targets the most serious and dangerous gun violence offenders, it responds specifically to the problems that Bill C-48 aims to address, namely, and I quote from the bill’s preamble:

Whereas repeated acts of violence, serious offences committed with firearms or other weapons . . . all have a harmful impact on victims and communities and undermine public safety and confidence in the criminal justice system;