44th Parl. 1st Sess.
February 2, 2023 10:00AM
- Feb/2/23 11:41:57 a.m.
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Mr. Speaker, to hear my Conservative colleagues tell it, as soon as someone commits a crime, even as minor as simple drug possession, they should automatically be detained so as to prevent any subsequent crimes. However, there are solutions that would be much more appropriate for this kind of problem. For instance, measures could be taken to ensure that conditions are respected and that, when there is a breach, the person is more easily returned to custody.
Many gun crimes are committed in the context of substance abuse problems. We should be looking closer at this aspect and offering the right services to the people who need them.
As I mentioned, Randall McKenzie was wearing a GPS tracking device. That is one of the strictest bail conditions that can be imposed. Obviously, he was able to leave his home without any alarms going off, without the GPS company notifying anyone, and without any police following him. There was obviously some sort of problem there, too.
There are several aspects of the problem that can be addressed without going for a solution that seems a little too good to be true, one that is too singular, one that risks giving the public the impression that the problem has been solved, when it probably would not be solved.
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- Feb/2/23 1:51:15 p.m.
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Madam Speaker, I am pleased to rise today to enter this very important discussion. I appreciate the concerns raised by the member for Fundy Royal about Canada's bail system, and I welcome the opportunity to discuss how bail law operates in Canada, and in particular, how it deals with violent offences and addresses some of the concerns we are hearing from across the aisle.
The bail system in Canada contributes to public safety and confidence in the criminal justice system. It allows accused persons to be remanded in cases where there is just cause to do so, such as when there is a need to protect public safety. I am encouraged to hear that our government is working to strengthen the regime while respecting the rights of Canadians.
Under the Canadian Charter of Rights and Freedoms, all accused are entitled to liberty and presumed innocent until proven guilty. Paragraph 11(e) of the charter provides that any person charged with an offence has the right not to be deprived of release or reasonable bail without just cause. The Supreme Court of Canada has provided us with important guidance on interim release and relevant charter considerations. For example, the court noted in the St-Cloud decision in 2015 that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”. However, such exceptions are important. For example, some offences have what is called the reverse onus for bail, which means the burden is on the offender to make the case for bail. These include firearm offences and some intimate partner violence offences, which were added by our government.
Subsection 515(10) of the Criminal Code sets out the three grounds on which an accused person may be refused interim release.
First, they may be detained when this is necessary to ensure their presence in court. That is known as the main ground.
Second, they may be detained to protect the public, victims and witnesses, particularly when it is likely that the accused will commit another offence or harm the administration of justice if released. This is known as the secondary ground. The protection of the public is certainly central to this ground. Several factors may be taken into account when the court considers this ground, including the defendant's criminal record, whether the defendant was on bail or probation at the time of the charge, the defendant's personal circumstances and any interference with witnesses or evidence. The court may also consider the seriousness of the offence and the strength of the Crown's case, based on the principle that the more serious the offence and the greater the likelihood of conviction, the greater the need for public protection.
Third, the accused may be detained where necessary to maintain confidence in the administration of justice, taking into account particular circumstances, such as the strength of the prosecution's case, the seriousness of the offence, the sentencing range for the offence and whether a firearm was used. This is known as the tertiary ground.
In the St-Cloud decision, the Supreme Court noted that the scope of the tertiary ground has been unduly narrowed by the courts in certain cases. The court affirmed that the tertiary ground is a ground for detention in its own right, independent of the other grounds, and that it should not be interpreted narrowly, applied narrowly or limited to exceptional circumstances. We agree with the court.
The general rule is that, when a Crown prosecutor seeks to detain an accused in custody, they must persuade the court that there are grounds to do so. However, the Criminal Code includes several provisions where the burden of proof shifts to the accused. When these provisions apply, the accused must demonstrate why their detention in custody is not justified based on the primary, secondary or tertiary ground. This is referred to as the reverse onus.
Reverse onus provisions play an important role in the criminal justice system. They balance the right of an accused person to a fair opportunity for bail with the need to protect the safety of all Canadians. To ensure the protection of the public and reduce the rate of recidivism in the criminal justice system, the reverse onus provisions target certain types of reoffending and specific serious offences. For example, where the accused is charged with failing to attend court or failing to comply with a previous bail order, the reverse onus will apply. It also applies when the accused is charged with certain serious offences. One of the best-known reverse onus situations is when someone is charged with murder or attempted murder.
However, other serious offences, such as weapons trafficking, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery, and drug trafficking, importing or exporting all engage the reverse onus provisions. To protect Canadians from gun violence, the reverse onus provisions are applied to offences involving firearms where the accused is subject to a weapons prohibition order, as is called for by the motion today.
I am happy to say that this is already the law, and I again express concern that the opposition is trying to create fear by implying the law is different than it is. That said, I am aware of the call to expand this to more firearms provisions from provincial and territorial premiers, and I am encouraged to hear that this idea is under serious consideration by our government.
The bail provisions also recognize the need to protect victims of intimate partner violence. For an accused charged with an offence involving intimate partner violence who has previously been convicted of such an offence, the reverse onus will apply. This provision directly targets repeat offenders and strives to ensure the safety of victims of intimate partner violence. I am proud to be part of the government that made this change.
A court must cancel an accused person's previous form of release where it finds that the accused has contravened or is about to contravene their bail conditions or where the accused has committed an indictable offence while being bound by a form of release. When cancelling the previous release, the court must order the detention of the accused unless the accused establishes that their detention is not justified.
The reverse onus provisions give the courts the tools necessary to protect the public from accused persons who fail to attend court or follow bail conditions. They also give the courts the ability to protect victims of intimate partner violence by compelling the accused to demonstrate why they should be released from custody. These provisions reinforce public confidence in the administration of justice with the knowledge that persons accused of serious crimes must convince a judge that their release is justified before they can be released on bail.
The bail system is integral to the proper functioning of our criminal justice system and contributes to a fair and safe society. As the minister said earlier in the House, we are quickly and carefully reviewing concerns and solutions that have been raised recently by provinces, territories and others. I was also encouraged to hear of the ongoing work and the upcoming federal, provincial and territorial meeting to further explore how we can strengthen our bail system at all levels of government.
In exploring solutions to the concerns raised, I know our government will take the safety of Canadians into account. I look forward to hearing more from both the Minister of Justice and his provincial and territorial counterparts.
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- Feb/2/23 4:03:18 p.m.
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Mr. Speaker, I would like to say that I will be splitting my time with the hon. member for Winnipeg North, and I know that everyone will want to stay tuned for the hon. member's comments after mine.
With regard to the discussion today and Canada's criminal justice system, I wish to note that a sibling has been a police officer in Canada for over two decades. I am very proud of my brother, who has served with much pride the citizens of Vancouver as a police officer in many different capacities. To him and his colleagues, obviously, may there be blessings by the one up in the sky, and may they please stay safe in everything they do to keep us safe.
I appreciate the concerns raised by the member for Fundy Royal about Canada's bail system. I welcome the opportunity to discuss how Canada's bail legislation works, particularly how it deals with violent crime and repeat offenders.
The bail regime in Canada contributes to public safety and builds trust in the criminal justice system by allowing accused persons to be held in pre-trial custody where there is just cause to do so. Under the Canadian Charter of Rights and Freedoms, all accused individuals have a right to their freedom and are presumed innocent until proven guilty. Section 11(e) of the Charter provides that everyone charged with an offence has the right “not to be denied reasonable bail without just cause”. Section 6 of the Criminal Code further affirms the presumption of innocence.
The Supreme Court of Canada has shared important decisions on bail and relevant Charter considerations. The Court noted the following, for example, in the 2015 St. Cloud decision: “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”.
In the 2017 Antic decision and the 2020 Zora decision, the court ruled that, for the vast majority of offences, interim release is favoured at the earliest reasonable opportunity and on the least onerous grounds, although there are plenty of circumstances under which the Crown can persuade the court that certain conditions are required or that the accused should remain in custody pending a decision in their case.
Subsection 515(10) of the Criminal Code sets out the three reasons an accused may be denied interim release. First, where the detention is necessary “to ensure his or her attendance in court”, which is known as the primary ground. Second, for the protection of the public, including victims and witnesses, and when it is likely that the accused will “commit a criminal offence or interfere with the administration of justice” if released. This is called the secondary ground. Protection of the public is very important and is central to this ground.
Many factors may be taken into account when the court considers this ground, including the accused's criminal record, whether the accused was on interim release or on probation at the time of the charge, the accused's personal situation and any interference with witnesses or evidence. The court may also consider the gravity of the offence and the strength of the Crown's case based on the principle that the more serious the offence and the more likely a conviction, the greater the need to protect the public.
The third reason why an accused can be refused bail is if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the offence, the range of sentences for the offence and whether a firearm was used. That is called the tertiary ground.
In St-Cloud, the Supreme Court noted that the scope of the tertiary ground “has been unduly restricted by the courts in some cases”. The court stated that the tertiary ground is separate and independent from the other grounds and that it should not be interpreted narrowly or applied sparingly. It should also not be limited to exceptional circumstances.
The general rule is that a Crown prosecutor who seeks to have an accused temporarily detained must persuade the court that there are grounds for detaining them. However, the Criminal Code includes a number of provisions under which the onus is transferred to the accused.
When those provisions apply, the accused must demonstrate that there are no primary, secondary or tertiary grounds for their detention in custody. That is what is called a reverse onus.
Although the reverse onus represents an exception to the fundamental right to bail, it does not mean that the accused cannot obtain bail. It simply means that the accused must establish, on a balance of probabilities, that their detention is not justifiable.
The provisions for reverse onus play an important role in the criminal system because they make it possible to strike a balance between the right of the accused to have a reasonable opportunity to secure bail and the need to protect the safety of all Canadians.
To ensure the protection of the public and reduce recidivism in the criminal system, provisions for reverse onus focus on certain types of recidivism and certain serious offences. For example, when an accused does not appear in court or breaches a previous pre-trial release order, reverse onus will apply.
The reverse onus of proof also applies when the accused is charged with certain serious offences. The reverse onus of proof generally occurs when a person is charged with murder or attempted murder. However, other serious offences such as gun trafficking, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery or exporting drugs also fall under reverse onus of proof provisions.
The reverse onus of proof also applies to offences involving the activities of a criminal or terrorist organization, as well as the Security of Information Act, which includes economic espionage and communication with a terrorist group.
In order to protect Canadians against gun violence, reverse onus of proof provisions apply to offences involving firearms when the accused is subject to a firearms prohibition order.
I thank my colleagues for listening to me deliver my speech in French today. I am very pleased to have had this opportunity.
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- Feb/2/23 5:19:57 p.m.
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Mr. Speaker, preventive detention exists. A person can be detained longer if a judge has sufficient grounds to do so. That exists.
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