Feds propose more bail restrictions; reverse onus targets repeat violent offenders who use weapons

By Cristin Schmitz

Last Updated: Wednesday, May 17, 2023 @ 11:17 AM

Law360 Canada (May 16, 2023, 5:33 PM EDT) -- Responding to pressure to tighten bail from the provinces, police and public following recent high-profile killings, the federal Liberal government is proposing to further restrict bail availability, including adding more reverse onuses to the Criminal Code, despite law groups predicting Charter challenges and questioning the utility of the proposed move.

Federal Justice Minister David Lametti told reporters after introducing Bill C-48 in the Commons May 16 that he hopes to obtain unanimous consent to fast-track the proposed amendments, which he said emanate from “refreshingly non-partisan” work amongst officials and politicians, and among the federal government, the provinces and territories, police and community advocates.

Ottawa moved fast to table the proposed amendments after all 13 provincial and territorial premiers requested last January that Ottawa modify the Criminal Code’s bail provisions to impose a “reverse onus” on persons charged with certain gun crimes. The premiers’ letter followed the shooting death last December of an Ontario Provincial Police constable, which happened while the accused was out on bail for other violent charges.

The Department of Justice said Bill C-48 would:
  • create a new reverse onus targeting repeat violent offending involving weapons;
  • expand the list of firearms offences that trigger a reverse onus;
  • broaden the existing reverse onus regime for victims of intimate partner violence;
  • clarify the meaning of the term “prohibition order” in an existing reverse onus for offences involving weapons;
  • require courts to consider an accused person’s history of convictions for violence and the safety of the community when making a bail decision; and
  • provide for parliamentary review of the measures five years after the bill receives royal assent.

Justice Minister David Lametti

Justice Minister David Lametti

Lametti acknowledged the “valid point” made by the criminal defence bar that approximately 70 per cent of provincial jail populations across Canada could not obtain bail while awaiting their trials, yet are presumed innocent (that percentage has skyrocketed from 50 per cent less than two decades ago, the Criminal Lawyers’ Association (CLA) notes).

“And so we need to strike a balance,” Lametti observed. “We think we’ve done that here. Working in the range between the Charter right to bail and public security, public safety, we think we’ve threaded that, and we’ve done it with the help of the provinces and territories by working together.”

CLA director and Brampton, Ont., criminal defence counsel Michelle Johal told Law360 Canada Bill C-48 is, in the association’s view, “of questionable utility, given that there were already reforms that came into place in 2019, whereby it was harder to obtain bail in certain circumstances.”

Johal predicted the constitutionality of the legislation will be attacked in court. Section 11(e) of the Charter entrenches and affirms the right to reasonable bail and the presumption of innocence at the pretrial stage, she emphasized. “The release of accused persons is the rule — detention is supposed to be the exception,” she noted. “People have to be cognizant that it’s impossible to eliminate risk entirely and the CLA is of the view that there are other ways to try to mitigate risk, apart from just the detention order.” Johal cited, for example, electronic monitoring and estreatment of the accused/surety, thereby enabling a court to determine whether money should be forfeit due to the accused’s breach of bail.

Michelle Johal, Criminal Lawyers’ Association

Michelle Johal, Criminal Lawyers’ Association

“As it stands, the courts tend to be risk-averse when it comes to deciding bail,” Johal pointed out. “This is reflected in the number of people who are in pretrial custody, which in 2019 was almost three out of four people in Ontario’s provincial jails. Many of these people will be acquitted at trial, and even for those who are found guilty, less than four in 10 criminal cases in Canada result in a custodial sentence.”

Added Johal, “the government claims they are concerned about the over-representation of Black and Indigenous offenders at a time when they are significantly overrepresented in the justice system. Racialized individuals are detained at higher rates than non-racialized people in Ontario. Any tightening of bail provisions will no doubt have an even further disproportionate impact on marginalized people.”

The chair of the Canadian Bar Association’s national criminal justice section, Kevin Westell of Vancouver’s Pender Litigation, also predicted the bill’s provisions will be challenged in court.

“I haven’t digested it to the extent necessary to really understand what that will look like,” he remarked. “One small thing I can say is that providing and making it such that an accused person who had previously received a discharge for an intimate partner violence offence is now subjected to a reverse onus ... if they find themselves in custody again, it seems strange to me.”

“There’s any number of reasons why someone might be discharged — maybe the case is weak,” Westell explained. “It’s certainly going to be a situation in most cases [that] whatever offending might have occurred was minor in nature. So to the extent we need to be targeting individuals with a prior discharge, [I don’t know] who that helps. I don’t know why we’re seeking to employ measures that are ultimately punitive to people that the Crown and the court have deemed it appropriate to discharge. I see no value in that.”

Kevin Westell, Canadian Bar Association

Kevin Westell, Canadian Bar Association

Expressing the association’s preliminary view, Westell said the CBA is “pleased that the government has not taken a run at ... for the most part, the broad principles of bail” and instead took a more targeted approach at certain types of offending.

However, he noted that in his experience as defence counsel, extending the use of reverse onuses does not “do much of anything at all” on the ground. “It’s certainly signalling to bail judges that there’s a different sort of evidentiary structure to those hearings, but ultimately doesn’t change the principles that apply in terms of when somebody is or isn’t a good candidate, or an appropriate candidate, for pretrial release,” Westell said.

“The concern with this, of course ... from a 30,000-foot level, is that release pending a decision on whether or not you're guilty or innocent of an offence is meant to be ... the norm, and it’s meant to be exceptional that you were held pending a trial — especially in circumstances where we have an overburdened criminal justice system, and it takes a long time to get to trial,” he said. “So it's a really, really onerous, invasive thing to hold someone pending their trial.”

Moreover, “the individuals that meet the criteria for these reverse onuses, it’s not clear to me that they’re getting released with any frequency,” Westell added. “In any case, I don’t know how a reverse onus is really going to assist. So I'm concerned about a lack of statistical data that is meant to be apparently backing these changes.”

It's hard to understand how keeping more people in jail is “much of a solution for anything,” he remarked.

“I am concerned about disproportionate effect on individuals, the mentally ill, on people facing barriers around addiction and people who have been victimized and grown up in abusive households, and the effect on them,” he explained. “This is going to target the disadvantaged in society more than anyone else. This is going to target people that are impoverished more than anyone else. They’re the people that end up in these circumstances, and so this is going to result, ultimately, in more impoverished people being held ... in jail pending their trial, and that’s not a good thing.”

In a statement on behalf of the Canadian Civil Liberties Association, Shakir Rahim, the CCLA’s director of criminal justice, said Bill C-48 “will not make the public safer.”

“The crime rate in Canada has been going down significantly, but the number of people denied bail has gone up 400 per cent,” he said. “Bail is not being handed out like candy.

“Over two-thirds of people held in provincial and territorial jails are not convicted of a crime. We believe that every person in Canada deserves to feel safe in their community, but this bill will not accomplish that.”

Rahim said it is possible to protect the right to reasonable bail and ensure public safety. “The federal government can and must do better than Bill C-48.”

According to the DOJ’s backgrounder, a proposed new reverse onus would apply to accused persons charged with a serious offence involving violence and the use of a weapon, where the accused was previously convicted of an offence with the same criteria within the past five years. Both offences (current charge and past conviction) would have to be punishable by 10 years imprisonment or more.

Bill C-48 would expand the existing reverse onus for firearm offences to include other indictable offences: unlawful possession of a loaded (or easily loaded) prohibited or restricted firearm (s. 95); breaking and entering to steal a firearm (s. 98); robbery to steal a firearm (s. 98.1); and making an automatic firearm (s. 102).

Bill C-48 would also expand the current reverse onus for intimate partner violence to also apply to accused persons previously discharged of an offence involving intimate partner violence.

A reverse onus at bail currently applies for those charged with offences involving firearms or other weapons where they are subject to a weapons prohibition order. However, the bill clarifies that a prohibition order includes a court’s release order for bail that imposed conditions prohibiting an accused from being in possession of firearms and other weapons.

Bill C-48 would add a requirement that courts consider whether an accused person has a history of convictions involving violence when making a bail order and require courts to state on the record that the safety and security of the community was considered when making a bail order.

The bill also contains a preamble outlining core bail principles aimed at helping ensure consistent implementation.

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.