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Criminal Code

Bill to Amend--Third Reading--Debate Adjourned

October 31, 2023

Hon. Marc Gold (Government Representative in the Senate) [ - ]

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.

Honourable senators, I rise today to speak to Bill C-48. This bill will create new reverse onus provisions, as Senator Gold has pointed out, that will increase the burden on accused persons to demonstrate that they can safely be released on bail until their trial instead of leaving in place the presumption that the individual will be released unless the Crown proves detention is necessary.

Bill C-48 was drafted and rushed through the House of Commons in response to acts of violence against police officers with no evidence that any of these would have been prevented by this legislation. Unfortunately, the changes proposed by this bill are heavily influenced by political posturing rather than responding to the challenges of the bail system in a way that would be in the interests of Canadians.

What are our concerns?

The provisions regarding intimate partner violence remain overly broad such that they will likely catch those experiencing abuse in the same net that seeks to detain those who have inflicted abuse.

This bill will likely increase the overrepresentation of marginalized communities in prisons and jails, particularly Black and Indigenous peoples; those living in poverty; and those with past trauma, mental health and addiction-related issues.

Neither the government nor the Senate were provided with data to support the assertion that this bill will accomplish its intended goal of improving public safety.

As a result of the ongoing legacy of colonialism in Canada, Indigenous women disproportionately experience violence. Data shows 6 out of 10 Indigenous women experience family violence in their lifetime, and 4 out of 10 experience physical violence. Yet, Indigenous women often fear calling police for help in these situations because of how, too often, they find the legal tables turned such that they are blamed and held responsible for violence perpetrated against them.

One example of this hyper-responsibilization is the manner in which past attempts to develop policies to assist women’s experiences of violence have resulted in things like mandatory charging practices. Rather than protecting women, they have resulted in dual charging, a practice where police lay criminal charges on both the victim and the abuser in situations of intimate partner violence.

Women who defend themselves are also more likely to use items characterized as weapons — maybe a hairbrush, maybe a plate, maybe a frying pan, maybe a kitchen knife. Those who engage in hand-to-hand combat without grabbing something to help to defend themselves often end up dead. Women who pose no threat to public safety end up charged with assault for defending themselves against abuse. Because of the conditions of pretrial detention and lengthy bail hearing delays — not to mention a justifiable lack of faith in a criminal legal system that has not taken their victimization seriously — too many women plead guilty in exchange for a set sentence rather than face potentially lengthy time in prison pending a bail hearing or pending trial, not to mention the risk of conviction at trial and a longer sentence.

We know this happens. Dual charging has been acknowledged by the government and by police witnesses. We heard from the lead counsel of the National Inquiry into Missing and Murdered Indigenous Women and Girls that women across the country face this barrier.

According to the Barbra Schlifer Commemorative Clinic, which exclusively deals with family violence cases for women in Ontario, five to six new clients every week enter their dual charging program.

Dual charging puts more Indigenous women into the criminal legal system at a time when there is already an ongoing crisis of overrepresentation and mass incarceration. By having a bill that expands the net of reverse onus provisions to anyone convicted of using a weapon for intimate partner violence, we predict seeing victims of intimate partner violence being dragged into the criminal legal system, which will further discourage Indigenous women from calling for help when they are most in danger.

This bill was created through an incredible sense of urgency in our government. Where is that same urgency for supporting the measures that truly allow victims of intimate partner violence to feel safe? Why is our focus on putting more people into pretrial detention after charges have been laid, rather than shoring up the economic, housing, social and health supports that give victims the tools they need to safely leave situations of intimate partner violence?

We heard from witnesses with first-hand experience of the current state of our bail system. We heard from Crown and defence lawyers, as well as human rights experts working with and on behalf of those who have been victimized and criminalized, all of whom told us unequivocally that pretrial detention conditions are abhorrent and disproportionately impact those most marginalized.

Emilie Coyle and others from the Canadian Association of Elizabeth Fry Societies described cells covered in feces and restrictions on access to water so severe that women were drinking out of toilets. Women’s Legal Education & Action Fund shared the heartbreaking story of Sarah Rose Denny, a Mi’kmaw woman, a mother, who died of double pneumonia after being denied health care while in jail.

The number of people held in pretrial detention has more than quadrupled in the last 40 years, despite crime rates decreasing over that same period, causing overcrowding and delay in bail hearings.

Adding new reverse onus provisions will worsen this problem. Multiple witnesses, including the CEO of Ontario’s legal aid program, stated this bill will increase the number of false guilty pleas due to the pressure to escape pretrial detention facilities as quickly as possible.

Whom will this impact? This bill intends to capture only those who pose an extreme threat to public safety, those deemed at risk of repeating violent actions. We do not have any data to support that it will only catch this subset of people, however, nor that reverse onus provisions attached to these types of charges and convictions have any tie to keeping the public safe. But here’s what we do know, honourable colleagues: Even short periods of time in pretrial detention — a matter of days — put people more, not less, at risk of being criminalized in the future.

Individuals who are most likely to be initially criminalized are those who are already marginalized. As stated by Professor Nicole Myers:

Individuals who are experiencing poverty, homelessness, mental health issues or the criminalization of drug use are among those subjected to the most intensive scrutiny and surveillance by police, making them more likely to be arrested and held in custody for a bail hearing.

Individuals who are unable to obtain bail after an arrest are frequently those who lack resources. The people held in pretrial detention are those whose family members do not have a spare room in their home to house the accused person or who cannot take time off work to attend court dates or who cannot pledge a significant amount of money and therefore cannot act as sureties for their family member. Disproportionately, this goes hand in hand with other systemic inequalities, particularly those experienced by Black and Indigenous peoples.

After being denied bail, Black Canadians spend longer in pretrial custody than the general population and, while incarcerated, they experience harsher conditions of incarceration and imprisonment, experiencing use of force, solitary confinement and maximum security more than others.

Indigenous peoples, particularly Indigenous women, continue to be inexcusably overrepresented in prisons. Indigenous women represent upwards of 75% to 99% of those in provincial custody. Young Indigenous women and girls represent 95% to 100% of the population in jails for young women in Saskatchewan, Manitoba and the North. This bill does nothing to address this crisis.

When these are the facts before us, how can we support a bill that will put more people, especially those most marginalized, into pretrial detention? Where is the evidence that this bill will address the crisis of overrepresentation in the criminal legal system that Black and Indigenous peoples are facing instead of exacerbating the situation?

This bill was rushed through the other place in a single day, without proper scrutiny. Because of this, we started our study in committee with a disadvantage. We were then also expected to study the bill without first receiving the government’s GBA Plus analysis. At committee, the Department of Justice did not have the demographic data to justify the reverse onuses created under Bill C-48. We also have yet to see the impact of Bill C-75, another bill that created reverse onus provisions and that is currently undergoing evaluation.

Why are we rushing legislation through Parliament when we do not have sufficient information to properly assess it? Why are we promoting legislation which may or may not have its intended effect but will almost certainly have a series of unintended consequences for the most marginalized communities?

If we want to improve public safety, we owe it to Canadians to do so in the most effective, evidence-based way possible. We need to focus resources on social supports that address the root causes of criminalization rather than choosing reactive approaches. We should be funding guaranteed livable income, housing, social supports, health care, including mental health and addictions supports. If we are trying to improve our bail system, we must improve funding for legal aid and bail supervision programs that keep people in their communities. That is not what Bill C-48 does.

This bill is more likely to criminalize Indigenous women who call police for help when facing intimate partner violence. It could put more people into pretrial detention, worsen the current overrepresentation of Black and Indigenous peoples in prison and create incentives for more false guilty pleas, especially so that people can escape deplorable conditions of pretrial detention.

With respect, we simply cannot afford to risk taking any more steps in the wrong direction when it comes to the criminalization and mass incarceration of Black and Indigenous people, especially Black and Indigenous women.

It is our responsibility to push back on legislation that has political motivation but is devoid of evidentiary basis. We must continue to advocate for changes to the bail system that protect the public, especially victims of intimate partner violence.

Bill C-48 will not make us safer. In fact, it could make us less safe. Honourable colleagues, it is our duty to expose the truth when the proverbial emperor has no clothes. We have a duty to not waste taxpayers’ dollars on yet more performative legislation. In my humble opinion, we should not even be passing this bill.

Meegwetch. Thank you.

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