David Lametti, Minister of Justice and Attorney General of Canada, makes an announcement regarding bail reform in Ottawa on May 16.Sean Kilpatrick/The Canadian Press
The federal government introduced legislation on Tuesday to make it harder for repeat violent offenders to be released on bail, in response to concerns raised by premiers after the killing of a police officer in Ontario and a number of violent, often unprovoked, attacks.
The changes come just four years after the governing Liberals made it easier to obtain bail. The question now will be how Canada’s independent judges and justices of the peace will respond to the get-tough message of the proposed new law. Reasonable bail is a constitutional right.
The biggest change in Bill C-48 would put the onus on certain accused people to show why they should be granted bail, rather than require the prosecution to justify why they shouldn’t. Known as a reverse onus, the measure already applies to certain firearms offences.
Its use would be expanded to include serious repeat violent offences involving weapons, and additional offences such as break and enter to steal a firearm, or unlawful possession of a loaded firearm.
The bill also would expand the use of a reverse onus in intimate partner violence; it is currently used for those with a previous conviction but would, under the proposed law, also include those who received a discharge on a previous offence.
Judges would be required to consider an individual’s record of violent offences, and to state on the record that they took into account the safety of victims and the community in making a bail decision. And a review would be done after five years to determine the effects of the changes in the bill, which still needs to be debated and voted on in Parliament.
Conservative Leader Pierre Poilievre denounced the proposed changes as weak and ineffectual. Randall McKenzie, accused of first-degree murder in the shooting death of Ontario Provincial Police officer Greg Pierzchala last December, faced a reverse onus on previous allegations of violent offences and yet obtained bail anyway, Mr. Poilievre told a news conference.
But OPP Commissioner Thomas Carrique told The Globe and Mail the changes would “go a long way to help eliminate and prevent harm and senseless tragedies in our communities” caused by repeat violent offenders.
Federal Justice Minister David Lametti said the legislation responds to concerns expressed in a letter to him this winter from all 13 premiers and territorial leaders, and separately by mayors, police chiefs and victims’ groups.
“We’re just coming out of a pandemic, after three years of anxiety and isolation,” he told reporters. “There’s a feeling that crime has worked its way into places we all thought were safe – on the subway going to work, or walking down the street during the day, or grabbing a coffee.”
But he said that while the goal of the proposed changes is improving public safety, the government “wants to make sure that these reforms do not make things worse for Indigenous people, Black people and other vulnerable groups who we know are overrepresented in the criminal-justice system.”
The problem for the Liberals – or any government that wishes to toughen bail provisions – is that the Charter of Rights and Freedoms protects the right “not to be denied reasonable bail without just cause.” The provision reflects the justice-system principle of innocent until proven guilty.
Bail can be denied to ensure an accused shows up for trial, to protect public safety or to preserve the justice system’s reputation. But the Supreme Court of Canada, in a 2017 decision called Antic, said the system has become too risk averse. Seventy per cent of inmates in provincial custody are simply awaiting trial. The court instructed lower-court judges that granting bail should be their default position.
In 2019, the Liberals passed a law to reflect that Supreme Court ruling. It contained a new element, instructing judges to pay particular attention to the circumstances of Indigenous and other vulnerable accused people, such as the mentally ill. (Similar language is in the preamble to the new bill.)
Mr. Poilievre offered a “guarantee” that repeat violent offenders would not be released on bail for a new offence, under a Conservative government. “A repeat violent offender, newly arrested for another serious violent offence, will have to serve their entire period in jail, not bail, and not early parole. And that’s common sense,” he said.
Mr. McKenzie is Indigenous, and a transcript of his bail review hearing obtained by The Globe showed that a superior court judge freed him on bail because he felt under an obligation, owing to the federal provision on vulnerable accused people.
But Mr. Poilievre said his “jail, not bail” policy would protect Indigenous people from becoming crime victims.
The New Democrats endorsed Bill C-48.
Daniel Brown, president of the Criminal Lawyers’ Association, said the changes would harm the marginalized individuals that the previous law sought to protect. “A tragic event leads to the government essentially undoing all of the important work they achieved” in the 2019 bail changes. The reverse-onus provisions are “a good excuse for certain justices who are deciding bail to deny bail.”
Eric Gottardi, a criminal-defence lawyer in Vancouver, said he was glad the government is not undertaking “any major surgery to the real fundamental underlying principles of bail.”
But the reverse-onus provisions will be borne by the poor and marginalized, he said.
“If someone’s got a good case for release, it doesn’t really matter whether there’s a reverse onus or not. The question at bail is really the suitability of the release plan. And somebody who can afford a lawyer generally is going to come to the court with a more fully developed release plan,” Mr. Gottardi said.
In B.C., where a previous attorney-general had directed the Crown prosecution service to seek detention in cases of violence committed while on bail, preliminary data showed judges releasing these offenders in a majority of cases. “We tried,” B.C. Attorney-General Niki Sharma said in an interview, but changes to bail laws were needed “to address the problem in a more systemic way.”
The issue is particularly acute in Edmonton, where charges have been laid in 26 homicides over the past four years against someone on a form of release. Edmonton Police Chief Dale McFee called the new law “a step forward,” but said the previous law, in “trying to take the vulnerable out of the justice system,” did not put enough emphasis on the risks to the community.