Justice Minister and Attorney-General of Canada Arif Virani holds a press conference at the National Press Theatre in Ottawa on Oct. 5.Sean Kilpatrick/The Canadian Press
Many in Canada’s legal community are expressing concern about how the overloaded court system and those needing legal aid could be affected by a Liberal bill that proposes to make bail harder to access.
Senators on a committee probing Bill C-48 will enter the final phase of their study later this month by going over the legislation clause by clause and suggesting amendments.
Federal Justice Minister Arif Virani has encouraged the Senate to pass the bill quickly, saying the fact that all provincial and territorial governments pushed for the measures underlines their urgency.
Police leaders also support the bill, saying these are much-needed reforms after a spate of high-profile killings by repeat violent offenders, who in some cases had been released on bail.
But civil society groups and legal advocates representing people who are Black, Indigenous or otherwise marginalized say its measures could worsen the overrepresentation of such groups behind bars – something Liberals have promised to address – while failing to make communities any safer.
The bill was drafted to target offenders who have a violent criminal past and came after sustained pressure from premiers and the federal Conservatives for the Liberals to enact changes.
It seeks to expand what are known as reverse onus provisions, meaning it would be up to an accused individual to argue why they should be released while they await trial, rather than Crown prosecutors having to show why they should remain jailed.
The Liberals want to expand existing reverse onus measures to include more firearm offences, including breaking and entering to steal a firearm.
Reverse onus provisions would also apply in cases of serious violent offences involving a weapon – which could involve weapons such as bear spray or knives – when the accused person was convicted of a similar offence within the past five years.
Criminal lawyers, legal aid groups and some senators say they worry about straining legal aid services and provincial court systems, which are already struggling to ensure that cases are heard in a time frame that complies with the Charter of Rights and Freedoms and are not stayed because of delays.
“We just need to be more attentive to what are the consequences of the legislation for the actors who will have to deliver the program,” Saskatchewan Sen. Brent Cotter, who chairs the Senate’s legal committee, said in an interview.
“Legal aid systems will likely get burdened more than they are now, and we haven’t been specifically pro-active on that.”
While legal aid is delivered by provinces to provide those who cannot afford to hire a lawyer a way to access legal advice, the system is cost-shared with the federal government. For years, lawyers have voiced concerns that legal aid in the country is not funded to the level of service that is needed.
Cotter added the expansion of reverse onus provisions will affect people who are of lower income, and have a disproportionate impact on Indigenous and Black people.
“If you’re in the lower economic range of people, you won’t have as easy a time mounting the case to get yourself released on bail. And so the support that the legal aid system can provide might be the most important professional resource that could be made available.”
The Association of Legal Aid Plans of Canada, which represents legal aid groups from across the country, said most people who end up in bail court rely on such services.
It warned that requiring more individuals charged with a crime to show why they should be released will not only “increase the length and complexity of many bail hearings,” but also put more strain on “defence and court resources” and risk worsening court backlogs.
The only way to mitigate such risks, especially for those who cannot afford legal representation, would be to boost funding to legal aid services, the association said.
British Columbia attorney-general Niki Sharma, whose province supports the bill, also acknowledged a need to consider its impact on legal aid programs in testimony earlier this week.
She said B.C. is grateful for the increased funding it has received over the past few years, but noted it might not be enough.
“We think we need to work together with the federal government to get further increases for criminal legal aid to make sure people have that ability to get representation if they can’t afford it,” she said.
Boris Bytensky, a treasurer with the Criminal Lawyers’ Association, which represents nearly 2,000 lawyers, has suggested to senators that if Bill C-48 becomes law it will result in more bail hearings, meaning more courtrooms will be needed as well as more lawyers.
When it comes to legal aid, he said, “somehow additional funds are going to be needed,” whether they come from Ottawa or the provincial governments.
A spokeswoman for Virani said in a statement that provinces are the ones who administer criminal legal aid and noted the Liberals have increased funding, which has “offset significant cuts made by certain provinces.”
“Minister Virani will reiterate to his provincial and territorial counterparts the importance of working together to ensure stable and predictable funding for legal aid so that Canadians can access justice,” Chantalle Aubertin said in an e-mail.