Moved third reading of Bill C-48, An Act to amend the Criminal Code (bail reform), as amended.

He said: Honourable senators, I am pleased to begin our third‑reading debate on Bill C-48 — a bill which responds to public safety concerns about the bail system by introducing targeted measures to address repeat violent offending, with a focus on violence with weapons. The version of the bill adopted by the other place also included a section about intimate partner violence, though that section was removed recently at clause‑by‑clause consideration, and I’ll speak to that in more detail shortly.

First, however, let me begin by thanking the members of the Legal and Constitutional Affairs Committee for their thorough review of the bill.

Senators will recall that Bill C-48 was unanimously passed by the other place at all stages on the very first day of the fall sitting. That was an indication of the importance that members of Parliament attach to the bill, and the urgency with which they had hoped it would be enacted. Accordingly, and appropriately, colleagues, our chamber has treated this legislation as a priority while, at the same time, demonstrating our capacity to work in a manner that is both conscientious and expeditious.

The committee heard from a total of 26 witnesses, including police, victims’ groups, Indigenous organizations, legal aid, criminal lawyers and academics. Several written briefs were also received. I would like to extend my gratitude to everyone who shared their views with us.

Among those witnesses was Niki Sharma, the Attorney General of British Columbia. I’m highlighting her testimony specifically because the bail system depends on cooperation and coordination between federal, provincial and territorial governments. In fact, Bill C-48 is the product of extensive intergovernmental efforts, including several years’ worth of meetings of Justice and Public Safety ministers, as well as ongoing coordination between senior officials across jurisdictions.

That work intensified after the tragic killing of Ontario Provincial Police officer Greg Pierzchala, and a letter sent to the Prime Minister — co-signed by all 13 premiers — asking for this type of legislation.

As you know, honourable senators, the criminal justice system — and, by extension, the bail system — is a shared responsibility. An effective and functional system depends on each level of government’s ability to fulfill its responsibilities while collaborating and cooperating with each other. Bill C-48 is a good example of how governments across Canada are working together to address public concerns.

This bill has tremendous support and reflects a widespread desire to see these measures adopted and implemented without delay. As I mentioned earlier, the bill was passed unanimously in the House on the first day of the fall session, and all provincial and territorial governments have expressed their support. Rarely has a bill enjoyed such democratic legitimacy across the country.

Today, I will focus my remarks on the testimony we heard at committee about some of its key elements, as well as some of the general themes that arose during our study of the bill.

The first key element is a new reverse onus for repeat violent offending involving weapons. Where a reverse onus exists, the usual presumption of release on bail becomes a presumption of detention. It’s up to the accused to show why they should be released, rather than the Crown having to show why they shouldn’t.

Reverse onuses have existed in the Criminal Code for some time. The Supreme Court of Canada has found them constitutional, provided they’re narrowly tailored, which this one is.

For this reverse onus to apply, a person must be charged with a violent offence involving the use of a weapon; they must also have been convicted of a prior violent offence involving the use of a weapon within the preceding five years. Both offences must be eligible for a maximum sentence of 10 years’ imprisonment or more.

The second key change would expand the current list of gun‑related offences that would lead to a reverse onus. This proposal targets crimes that significantly undermine public safety, such as breaking or entering to steal a firearm, robbery to steal a firearm and making an automatic firearm.

Added to this list would be the unlawful possession of a loaded prohibited or restricted firearm, or an unloaded prohibited or restricted firearm together with readily accessible ammunition. This addition directly responds to the concerns of law enforcement agencies, as well as to the call of the 13 provincial and territorial premiers.

As the Minister of Justice said at committee, with these new reverse onuses, Bill C-48 takes a “. . . surgical, targeted approach toward serious, violent offenders . . . .”

As departmental officials explained, while a reverse onus may increase the likelihood of detention in these types of cases, it may also simply enhance the scrutiny that bail courts bring to bear, resulting in more information being laid before the court and, potentially, a more rigorous bail plan with stricter conditions of release, all in the interest of public safety.

Witnesses from the Canadian Association of Chiefs of Police, as well as the Commissioner of the Ontario Provincial Police, expressed a desire for the bill to go further. They wanted it to cover all violent offending, with or without weapons. They advocated removal of the five-year limitation for prior offences.

Other witnesses, including the Canadian Bar Association and the Canadian Civil Liberties Association, were worried that the provisions as drafted were already too broad. Some would prefer the elimination of reverse onuses altogether. In the government’s view, these provisions strike the correct balance. They prioritize public safety while respecting the constitutional right not to be denied reasonable bail without just cause.

Colleagues, when we received this legislation from the other place, it also included an expanded reverse onus related to intimate-partner violence. Since the adoption of Bill C-75 in 2019, a reverse onus has existed for anyone charged with an offence involving intimate-partner violence who was previously convicted of such an offence. Bill C-48 originally proposed to expand that provision to cover people previously discharged for an intimate-partner violence offence. However, that element of the bill was removed at committee.

Now, as I said during our clause-by-clause deliberations, the government believes that provision was important and the government regrets its removal.

Colleagues, to be clear, in our criminal justice system, a discharge is a finding of guilt. It’s essentially the lightest possible penalty a person can receive; it may be used, for example, in the case of a first-time offender to whom a judge wants to give a second chance. Basically, it means that if they behave themselves or abide by certain conditions, their record is wiped clean.

But a person who receives a discharge for intimate-partner violence committed intimate-partner violence. If they subsequently find themselves charged once again for intimate-partner violence, the government does not believe that they should benefit from the leniency they were granted the first time around. As we heard from officials, intimate-partner violence tends to be an offence where a pattern builds, often long before the police or the courts are ever called upon to get involved.

When a person finds themselves charged with such an offence not once but twice, there is a serious cause for concern and a serious risk involved for the victim. In fact, the risk to a victim of intimate-partner violence often increases once charges have been laid.

In the words of the Native Women’s Association of Canada, which supported Bill C-48 in its original form, “protecting [women] from their abusers between when charges are laid and a hearing is an important concern.”

Colleagues, I understand why certain senators were uneasy with this provision. We, indeed, heard from some witnesses that applying a reverse onus to people who received a discharge was simply a step too far.

Undoubtedly, there is a balance to be struck between the rights of the accused and the safety of the victim. Reasonable people can reasonably disagree about where to draw that line. Let me simply repeat the government’s view that the bill’s original version balanced these factors appropriately.

I would also note that the very same provision removed by Bill C-48 at clause-by-clause was included in Bill S-205, which the Senate adopted this past April and which is currently at second reading in the other place.

Finally, the bill adds a few new considerations and requirements for the courts when they are deciding whether to grant bail.

First, the bill would expressly require courts to consider whether the accused has a history of violent offences.

Second, it would require that the judge include in the record of proceedings a statement indicating that they considered the safety of the community as well as the safety of any victims. As noted by the OPP Commissioner, this provision would ensure that the rights of victims and the public to be protected from violent criminal behaviour is given appropriate weight.

Third, the bill, as amended by the committee, would require the judge to explain how they took into account the particular circumstances of an accused person who is Indigenous or an accused who is a member of another vulnerable population that is overrepresented in the criminal justice system. Since the former Bill C-75 passed in 2019, judges have been required to take these circumstances into account, but the committee felt it appropriate to add this requirement in order to ensure that the exercise is done properly.

The committee also made one other amendment to the bill in the section mandating parliamentary review. As initially drafted, the bill required review by a committee of the other place five years after Royal Assent. Now, the bill also mentions a committee of the Senate.

I would note that, colleagues, when the justice minister appeared, he assured us that future parliamentary review provisions in legislation from his department will include both chambers.

That, in essence, is an overview of the bill as it currently stands, having been amended and adopted at committee.

Before I end my remarks, I’d like to touch on some of the points that were raised about challenges facing the bail system more broadly. Many of these challenges exceed our capacity to deal with them in legislation, and involve policy and resourcing decisions by different levels of government. True though that is, it doesn’t make them any less important.

One of the topics that was raised repeatedly — in fact, I believe I raised it myself at second reading — is the need for better data. It’s a big challenge because of all the different jurisdictions involved in the criminal justice system and in the bail process as well, but it’s a challenge that simply must be overcome.

In the observations appended to its report, the committee urged the government to work collaboratively with provinces and territories, “. . . to establish an efficient and effective means of collecting and sharing data relevant to the bail system . . . .” The government intends to heed that call. This issue was acknowledged by the federal and B.C. justice ministers during their testimony.

Data collection related to bail is one of the priority areas identified at recent federal-provincial-territorial meetings. I would note that Budget 2021 included funding for the Department of Justice and Statistics Canada to improve the collection and use of disaggregated data in the justice system. We’re seeing some green shoots of early progress, but more clearly needs to be done and more is being done.

Another theme that arose at committee was the importance of social supports that make communities safer by helping prevent criminal activity and promote compliance with bail conditions.

Several witnesses stressed the need for things like affordable housing, mental health care, addictions treatment, financial supports and resources for victims of intimate partner violence.

Again, this is an area where different levels of government have to collaborate. The federal government has been making investments and working with partners in provincial, territorial, municipal and Indigenous governments to achieve progress. These efforts are an essential part of making our communities safer.

Lastly, several witnesses shared their concerns about the potential impact of Bill C-48 on accused persons from Indigenous and Black communities and other marginalized communities.

In his testimony, the Minister of Justice emphasized how seriously the government is taking overrepresentation and described various measures the government has taken to tackle systemic discrimination in the criminal justice system. Those measures include developing an Indigenous justice strategy, a Black justice strategy and an anti-racism strategy, and enhancing funding for legal aid in criminal matters.

The government will continue to engage on these issues to reduce inequity. As the Native Women’s Association of Canada emphasized, more must be done to simultaneously reduce overrepresentation and prevent crime against members of marginalized communities.

As I’ve said, legislating in this space is about finding the right balance. Accordingly, Bill C-48 proposes targeted adjustments to the Criminal Code. These proposals respond to widespread concerns about repeat violent offending by people on bail while at the same time respecting the right not to be denied reasonable bail without just cause. The government is accompanying this bill with ongoing intergovernmental work on non-legislative ways of making the bail system more effective.

Honourable senators, Bill C-48 is part of a national effort to strengthen Canada’s bail system, protect our communities and reinforce public confidence in the administration of justice. I invite you to join me in supporting the bill and sending it back to the other place, so members of Parliament can consider our amendments in a timely fashion. Thank you.