Rushed job

Upon the return of the House of Commons from the summer recess, MPs passed Bill C-48, which seeks to make small changes to the bail system in response to an outcry from provinces and police chiefs, in a single afternoon with no committee study. This has left the heavy lifting of scrutinizing the bill to the Senate and its legal and constitutional affairs committee, as civil society stakeholders are concerned about what is in the bill and its Charter implications.

"It came to us all of a sudden," says Senator Brent Cotter, a former dean of the University of Saskatchewan's law school, who chairs the committee. "We will do our normal, careful but expeditious consideration of the bill."

Justice Minister Arif Virani and his officials have already appeared at the committee, which then turned to various witnesses from communities of interest, including the CBA's Criminal Law Section, which raised concerns around the expansion of the reverse onus, including for situations of repeat intimate partner violence and possession of firearm offences.

"We understand the desire on the part of all elected members of the House of Commons that there is an expectation about urgency, and we'll be attentive to that, but we will do a thoughtful and careful study," Cotter says.

One issue that Cotter had planned to raise with the minister before his testimony was why the legislation contemplates only the justice committee in the House of Commons doing a legislative review in five years when they didn't study the bill in the first place.

Senator Kim Pate, a former executive director of the Canadian Association of Elizabeth Fry Societies, says she was horrified by how this bill was rushed through.

"It was hugely disappointing for me to see the House of Commons not do its job for what seemed to be purely political reasons, that this is something that is seen as an immediate response to some egregious concerns about particular acts, but not necessarily acts that would have prevented by this legislation," Pate says. "It seems performative; it seems to be purely reacting to an understandable emotional response of the public to a system that was already rife with problems that are likely to be exacerbated by this bill."

Pate cites concerns about court delays and inadequate bail supports and supervision within the community. Nothing in the bill provides any funding for those supports or legal aid for those affected.

"How will this impact wrongful convictions?" Pate asks. "If this results in the kinds of delays that it looks like it might, then we could have the opposite effect and see charges stayed because they take too long to get through the courts because of an already overburdened remand system and court system trying to hear these cases."

Pate also notes that nothing in the bill will address the concerns around the over-incarceration of Black and Indigenous people and those with mental health issues, and that those problems are likely to be exacerbated. Pate adds that Indigenous women are particularly susceptible to wrongful convictions and are likely to be negatively impacted by the reverse onus provisions in situations where they may have been trying to protect themselves. 

"Political posturing is not what the public needs right now," Pate says. "We need to have proper scrutiny, we need to have a clear-eyed evaluation of what the real challenges are, and it isn't that the bail system is too lax, it is that we have an overburdened system."

Senator Pierre Dalphond, a former Quebec Court of Appeal judge, says he wants to hear from the bar associations and criminal lawyer associations, but most especially the Black Lawyers Association and the Indigenous Law Association because of the overrepresentation of Black and Indigenous people, especially at the bail stage, waiting for trial.

"Are we doing something that is going to make this troubling situation even more significant? It's a question mark, and I want to hear from them," Dalphond says. "I understand the need for protections, especially around intimate partner violence, and the government has to address that. Does that mean we have to deny bail? In some cases, yes, but in some other cases, we adopted "Keira's Law" last spring, and we added to the Criminal Code some provisions around release in intimate partner violence, and judges can order electronic monitoring, for example."

The CBA's Criminal Law Section has called the reverse onus carve-out for repeat intimate partner violence "ill-conceived" due to an apparent conflict with the Criminal Records Act, which requires that discharge records be removed from the Canadian Police Information Centre

Dalphond notes that there can be alternatives to bail that include electronic monitoring, though there is a cost to it, which can create disparities between those able to afford it and those who can't.

"I want to ensure that we're not exacerbating existing problems, but at the same time, I'm mindful of the letters from the premiers about it, and there is a public perception that when we're dealing with firearms that maybe we're not tough enough," Dalphond says. "We know that you can double the time in jail, but it doesn't necessarily translate into fewer crimes being committed because when people are committing a crime, they are not necessarily considering how much time they will serve—particularly when emotions are high in cases like domestic violence."

Above all, Dalphond wants to ensure that this is not a quick fix for political expediency, noting that he is not a fan of a reverse onus, particularly on a first offence.

Kevin Westell, principal at Pender Litigation and the immediate past president of the CBA's criminal justice section, says it's disappointing to see this kind of treatment of a bill from a government that has held itself out as one prepared to move forward on evidence-based criteria.

"When these bills tend to be shoved through in the way this one has, what we tend to see from a process perspective are constitutional challenges that end up being successful in making redundant some of the changes that the government has made," Westell says.

Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, says important perspectives have been missed in the bill's crafting.

Civil society organizations were given assurances in advance of Bill C-48 being introduced in the House that the bill would be studied in committee, Rahim says, adding it was "a shock" to see the bill rushed through.

Criticism that the bill is performative is valid, says Rahim, considering the lack of evidence to support the legislation.

"In 1981, 21% of provincial and territorial prisons were populated in pre-trial detention," Rahim says. "As of 2021, that number is 71%. It is an extraordinary increase."

Rahim also notes that the Supreme Court of Canada has found that the conditions in pre-trial detention are often dire, which means that the lack of evidence to support this kind of policy is mind-boggling.

Rahim agrees that proper resourcing of courts by provincial governments is a problem, but the federal government is also responsible for ensuring the bail law does not contribute to the problem.

Some accused may not have stable addresses or phone service, making enforcement of bail conditions difficult. Rahim says there are alternative bail verification and supervision programs that governments should be funding, often run by non-governmental organizations that can act as a support anchor. There are also bail bed programs where people get a place to stay, where the organization acts as their supervisor in the community.

"Both of those types of programs, the funding is haphazard and variable across the country, but they're an example of something that we know works and directly gets at the concern that some judges might have around effective supervision for those who might not have a strong support system on the outside," Rahim says.