2. Minister’s Remarks

Bill C-48, An Act to amend the Criminal Code (bail reform)

Study of Bill C-48

Standing Senate Committee on Legal and Constitutional Affairs

Minister of Justice’s Opening Remarks

September 2023

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Thank you very much Mr. / Madam Chair, and thank you to the members of the Committee.

I’m very pleased to be here today to speak to you about Bill C-48, An Act to amend the Criminal Code (bail reform). As you already know, the purpose of this bill is to strengthen our bail laws to ensure that they continue to protect our communities, and that they continue to ensure public confidence in dealing with repeat violent offenders and offences involving weapons.

This Bill comes at a time where we have all been deeply disturbed by a number of tragic incidences of violence that have shaken the public’s sense of safety and their confidence in the criminal justice system.

I want to start by offering my condolences to the victims involved, as well as to their families, and acknowledge the hardship of all of those who have been impacted by these senseless acts of violence. Everyone deserves to feel safe in their communities. Although our bail system is strong, there are ways in which it could be improved, to better support those who administer justice across Canada, and to better respond to the public safety concerns we have heard. Law reform is one way to achieve these objectives and we are doing our part - strengthening public safety is a top priority for any government and is so for ours.

Let me remind you that this bill is the result of extensive discussions with our provincial and territorial counterparts. These discussions have also included our Indigenous partners, and specifically National Indigenous Organizations, as well as law enforcement agencies across Canada.

Under our current bail regime, and in keeping with the Canadian Charter of Rights and Freedoms, the starting point is that everyone has the right to reasonable bail. For most criminal offences, the onus is on the Crown to convince the court that the accused should be detained. The grounds on which a person may be detained are set out in subsection 515(10), and there are three of them:

  1. to ensure his or her presence in court (to prevent the risk that the accused may abscond);
  2. to protect public safety, including any substantial likelihood of the accused reoffending; and
  3. to avoid undermining public confidence in the administration of justice.

These rules have not changed, neither with former Bill C-75, nor with this Bill. Contrary to what some have said, Bill C-75 did not make it easier to get bail. Bill C-75 actually made it more difficult to obtain bail in the context of intimate partner violence.

This Bill builds on this work by proposing further amendments to the reverse onus bail provisions in the Criminal Code, in order to make it more difficult for certain accused persons to get bail. A reverse onus shifts the burden of proof at the bail hearing from the Crown to the accused, meaning that there is a presumption that the accused will be detained unless they can demonstrate to the court that their release would not pose a significant risk to public safety or undermine the public’s confidence.

Bill C-48 would add a reverse onus for repeat violent offending involving weapons. For this reverse onus to apply, the accused must: 1) be charged with a violent offence involving the use of a weapon; 2) have been convicted in the last 5 years of a violent offence involving the use of a weapon; and, 3) both the offence charged and the past offence must have a maximum term of imprisonment of 10 years or more.

This approach would encourage courts to focus their attention on those who present a higher risk of reoffending at the bail stage of criminal proceedings.

Second, the following four firearms offences would be added to the reverse onus provisions: unlawful possession of a loaded (or easily loaded) prohibited or restricted firearm (section 95); breaking and entering to steal a firearm (section 98); robbery to steal a firearm (section 98.1); and making an automatic firearm (section 102). This responds to the concerns we have heard from law enforcement agencies across Canada about gun violence, and would implement the call from all 13 Premiers to add a reverse onus for the offence of possessing a loaded prohibited or restricted firearm.

The third proposed change would strengthen the existing reverse onus that applies to accused persons charged with an offence involving intimate partner violence, where they have previously been convicted of this type of offending.

This provision would be expanded to apply to accused persons who have not only been convicted of such an offence, but discharged as well. This change will signal to the courts that those who have been violent towards an intimate partner in the past – regardless of whether they were convicted or discharged – may pose an elevated risk of re-offending if released.

In addition to the proposed changes to reverse onus, this bill would also clarify prohibition orders at the bail stage.

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. The Bill would make clear 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.

The final two changes relate to considerations that courts must take into account when making bail decisions. This Bill would require bail courts to consider if the accused person’s criminal record includes a history of convictions involving violence, regardless of whether or not the accused is subject to a reverse onus. Second, the Bill would add a further requirement that bail courts expressly consider the safety and security of the community in relation to the alleged offence when making a bail order, in addition to the safety and security of any victim. This would ensure that specific concerns from smaller municipalities, Indigenous communities, and racialized or marginalized communities are taken into consideration at the bail hearing.

It is equally important to ensure that the measures put in place will not exacerbate the overrepresentation of Indigenous, Black and racialized people in our criminal justice system. I’m convinced that our decision to propose measured reforms that target a group of people who pose a heightened risk to public safety is in keeping with our Government’s mission to tackle systemic discrimination in Canada’s criminal justice system.

I would also like to emphasize that bail is a joint responsibility. All levels of government have a part to play in ensuring that our bail system is working as intended. Non-legislative change, such as the need to continue reinforcing community bail supervision programs, access to sustainable housing, mental health and addiction supports, amongst others, are also important prongs in improving our bail system. I applaud the work that has been done in these areas recently, and I will continue collaborating with all levels of government to ensure the objectives of the bail system are being met. I am also committed to ensuring we get accurate and comprehensive data on bail in Canada and will continue to work with our partners to this end.

Mr. / Madam Chair, thank you for the opportunity to speak today on this important bill. I very much look forward to the questions of the honourable members.

Thank you