Senator Gold: Every bill is different, raises different issues and requires different points of view to be properly brought to bear on it. So I don’t know what is typical for a very short bill like this, the principles of which — I hope to your satisfaction — I have certainly outlined accurately. The government has made a policy choice, in consultation, not only with all provincial governments but with other stakeholders, to make some additional changes to the existing bail reform system, which already contains measures and reverse-onus provisions for serious crimes. This simply adds to — and, in some senses, perfects or completes — some of the work that was already done by us in the chamber with the bills, which I mentioned, in 2019.

I am confident that the committee will hear from the necessary witnesses and that all points of view will be properly canvassed. Senators will have the opportunity to question not only the minister and the officials, but also those who have different points of view. I have every confidence that our debate in the chamber will be as robust as we choose for it to be.

Hon. Marc Gold (Government Representative in the Senate) moved second reading of Bill C-48, An Act to amend the Criminal Code (bail reform).

He said: Honourable senators, I rise today to speak to Bill C-48, An Act to amend the Criminal Code (bail reform). This bill would strengthen Canada’s bail laws and address public safety and public confidence concerns in relation to repeat violent offending, intimate partner violence and offences involving firearms and other weapons.

[Translation]

The bail system ensures that people accused of criminal offenses appear in court to face the charges against them. In theory, the most foolproof way to achieve this would be to simply detain a person from the moment of arrest until trial. However, there remains a fundamental principle of our criminal justice system: The presumption of innocence until proven guilty. This principle is enshrined in section 11 of the Canadian Charter of Rights and Freedoms, the same section that protects the right, and I quote:

Thus, any measures that limit access to bail or increase the likelihood of pretrial detention must be taken with caution and restraint, in a targeted manner and for compelling reasons.

The government — with considerable input from the provinces, territories, Indigenous organizations and other partners — developed Bill C-48 with those considerations in mind.

Therefore, the bill is narrowly focused on repeat violent offenders, for the compelling reason of protecting Canadian communities.

[English]

Currently, bail can be denied for three reasons: first, to ensure the accused’s attendance in court; second, to protect the public; and, finally, to maintain public confidence in the administration of justice.

When deciding whether to grant bail or what bail conditions to impose, courts are required to:

. . . give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.

For the most part, justice ministers across Canada agree that these guidelines serve us well and that the bail system functions properly in most cases. However, concerns have been raised that the current system should be recalibrated to better protect public safety. This concern was notably raised last January in a letter to the Prime Minister from all provincial and territorial premiers and has been the subject of many discussions between various levels of government.

This is an area of shared jurisdiction. Laws regarding bail are set out by the federal government in the Criminal Code but are generally implemented by the provinces and territories.

At recent meetings between federal, provincial and territorial justice ministers, everyone took responsibility and agreed to do their part. For the provinces and territories, this means improving the implementation of existing laws, making better use of existing legal tools and collecting better data related to bail. Federally, it means contemplating legislative changes — namely, those contained in Bill C-48.

This legislation would do the following five things: enact a new reverse onus for repeat violent offending involving weapons; add certain firearm offences to the list of provisions that trigger a reverse onus; expand the current intimate partner violence reverse onus; clarify the meaning of “prohibition order” in an existing reverse onus provision; and, finally, add new considerations and requirements for courts.

I’ll start by discussing the concept of reverse onus before delving into each of these in more detail. In most cases, the default presumption is that the accused will be released pending trial, and the onus is on the prosecution to show why bail should be denied. When the onus is reversed, it means the initial presumption is detention pending trial, and it’s up to the accused to show why they should be released.

Currently, a reverse onus exists for murder and attempted murder, as well as certain offences involving drug and weapons trafficking, firearms, terrorism and intimate partner violence. The Supreme Court has upheld the constitutionality of narrowly tailored reverse onus provisions, notably in the case of R. v. Pearson in 1992. Crucially, even with a reverse onus in place, the court retains the full discretion to grant or deny bail, or to impose conditions as it may see fit.

As I outlined a moment ago, the first new reverse onus provision created by Bill C-48 would deal with repeat violent offending involving weapons. It would apply only where the following conditions are met: First, the alleged offence must involve the use, attempted use or threat of violence involving a weapon; second, the offence must be punishable by a maximum penalty of 10 years or more; and third, the accused must have been convicted of another weapons offence with a maximum penalty of 10 years or more in the preceding five years.

These criteria specifically target instances of repeat violent offending that is most concerning from a public safety perspective. And, as specifically requested by the Government of Manitoba and the Government of Saskatchewan, they cover all serious weapons offences, including those involving firearms, knives or bear spray, which I understand has been a particular concern in those provinces recently.

The second change proposed by Bill C-48 would expand the existing list of reverse onus provisions applying to firearm offences to include unlawful possession of a loaded prohibited or restricted firearm, or an unloaded prohibited or restricted firearm where ammunition is readily accessible; breaking and entering to steal a firearm; robbery to steal a firearm; and altering a firearm to make it automatic.

These offences are evidence of conduct that can significantly undermine public safety. We should note that the first of these — the unlawful possession offence — responds directly to the call of all 13 premiers, as expressed in their January letter to the Prime Minister, as well as to the call of law enforcement partners.

[Translation]

Bill C-48 would also strengthen the current provision relating to reverse onus for those accused of intimate partner violence. As many senators will remember, reverse onus was established by Bill C-75, which received Royal Assent in June 2019. It applies to those accused of intimate partner violence who have already been convicted of a similar offence, in recognition of the fact that women who report an abusive partner often expose themselves to greater risk in doing so.

Bill C-48 would expand this provision so that it applies not only to those already convicted of intimate partner violence, but also to those who have already been released for such an offence. A discharge is a finding of guilt, not a conviction; it often means that the accused can avoid a criminal record if they comply with certain conditions. This tool can be useful to judges who determine sentencing in some cases, but for risk assessment purposes, the government believes that a prior discharge for intimate partner violence should be treated like a prior conviction. In both cases, there is a finding of guilt and the accused could present a high risk to reoffend if released.

I also want to point out that this aspect of Bill C-48 is comparable to a provision of Bill S-205, sponsored by Senator Boisvenu, which was passed by the Senate in April and is currently being examined by the other place.

[English]

The fourth key proposal of Bill C-48 would clarify the meaning of “prohibition order” at the bail stage of criminal proceedings. Currently, there is a reverse onus for people charged with weapons offences who were subject to a weapons prohibition order at the time of the offence. In other words, if a court had already said you can’t have a firearm, and then you commit a weapons offence, the law takes that more seriously for the purposes of bail.

Bill C-48 would make clear that the same approach should be taken for people who commit a weapons offence while on bail — when one of their bail conditions was that they couldn’t possess a weapon. If this sounds like a technicality, frankly, it’s because it is. It’s essentially a codification of the common law understanding of a prohibition order. It’s unlikely that this will alter the law as it’s currently applied, but when it comes to criminal law — and, indeed, the Criminal Code — it’s better to be clear, so the bill makes this explicit.

The final piece of Bill C-48 relates to the approach that courts must make when deciding whether to grant bail. In 2019, Bill C-75 amended the Criminal Code to provide that before making a bail order, courts must consider any relevant factors, including the criminal record of the accused, or whether the charges involve intimate partner violence.

Bill C-48 would take that a step further by expressly requiring courts to consider whether the accused has a history of violent offending. Plus, the judge would have to state — on the record — that the safety and security of the community were considered in the decision.

At present, while this generally does form part of most judges’ decision making, the law only requires courts to consider the safety and security of an individual victim. This change would address concerns raised by some municipalities and, indeed, some Indigenous communities as well.

Let me provide you with one example: There was a case last year where a man — with a history of violent sexual offences — was supposed to be released on bail to his community of Old Crow in the Yukon, prompting pushback from the Vuntut Gwitchin First Nation. Ultimately, that order was revised, and he was sent to Whitehorse, but the new provision in Bill C-48 would require that these types of community-specific considerations form part of the decision-making process.

And that, honourable senators, is the content of this legislation. As I said at the outset, it’s designed to be narrowly focused, addressing safety concerns, such as those raised by the provinces and territories, while respecting Charter rights. This bill is part of a national effort — in collaboration with other levels of government — to strengthen Canada’s bail system. It’s a bill that reflects significant input from the provinces and territories.

As I mentioned earlier, provincial and territorial governments have been engaged on this file. Recently, Ontario and Manitoba announced commitments to enhance bail compliance measures, amongst other things. British Columbia has made significant investments to strengthen enforcement and improve interventions in relation to repeat violent offending.

Importantly, the provinces and territories have committed to improving data collection, because, to be frank, we need much better data on this subject. Colleagues, as you know, that is an issue we have encountered frequently, especially in the area of criminal justice, where the system is administered by so many different jurisdictions across the country. Recent federal budgets have included investments in better data collection, including disaggregated data, and the government is hopeful that the provinces’ commitments related to bail will herald a significant improvement in this space.

Colleagues, I would also note that Bill C-48 includes a provision for parliamentary review after five years. I expect Parliament will have the benefit of more comprehensive data at that time.

It is also important to note that discussions about bail reform have been held with representatives from national Indigenous organizations and other Indigenous representatives, which include the Assembly of First Nations, AFN; Inuit Tapiriit Kanatami, the ITK; the Métis National Council, the MNC; as well as the Indigenous Bar Association; the Assembly of Manitoba Chiefs; the Federation of Sovereign Indigenous Nations in Saskatchewan and numerous others. Their input has been an important part of developing a legislative approach that will help protect Indigenous communities from violent crime, while recognizing the need to continue combatting the overrepresentation of Indigenous people in the criminal justice system.

Colleagues, one of our roles in this chamber is to represent the regions of Canada. Bill C-48 is a piece of legislation that is supported by every province and territory. In fact, it was expressly called for by all premiers. In Bill C-48, the government has answered that call.

Repeat violent offending and offending with firearms or other weapons need to be taken seriously. Bill C-48 takes concrete action at the federal level to strengthen the bail regime and respond to public safety concerns in a manner that respects the Charter, judicial discretion and the fundamental principles of justice that define our system of justice.

The other place adopted this bill as soon as it possibly could, debating and passing it this past Monday — the very first day of its fall sitting. I ask that honourable colleagues recognize the call for quick action from the provinces and territories, and the sense of urgency shown by members of Parliament, and move Bill C-48 forward expeditiously.

With that, I thank you very much.

Hon. Claude Carignan: Honourable senators, I rise today to speak at second reading of Bill C-48, An Act to amend the Criminal Code (bail reform).

This bill has followed a somewhat unusual trajectory.

The federal government introduced it with great fanfare at first reading in the House of Commons on May 16, 2023, then stalled on bringing it back for second reading speeches and moving it forward in the House.

However, on September 18, 2023, the bill went through all stages in the House of Commons and the members passed it. The government therefore can’t accuse the opposition of delaying the study of this bill.

Yes, the bill was passed in the House of Commons, and it may pass at second reading today in the Senate, but that doesn’t mean it goes far enough and contains all the necessary measures to fix the problem it seeks to fix. That problem is the need for tougher bail provisions to better protect Canadians against those who commit serious crimes when they are out on bail.

This bill applies to individuals the police haven’t released after their arrest. In these cases, these individuals have to appear before a judge quickly to get a bail hearing.

Bill C-48 proposes adding offences for which an accused must demonstrate to the judge, during this bail hearing, that their release before trial is justified. One of these offences is currently set out in section 95 of the Criminal Code: possession of a loaded prohibited firearm. The 13 provincial and territorial premiers unanimously asked Prime Minister Trudeau, in a letter dated January 13, 2023, to place the burden on the accused for this offence.

Their letter reads, and I quote:

A reverse onus on bail must be created for the offence of possession of a loaded prohibited or restricted firearm in s. 95 of the Code. A person accused of a s. 95 offence should have to demonstrate why their detention is not justified when they were alleged to have committed an offence where there was imminent risk to the public, as is already the case with several offences involving firearms. A review of other firearms-related offences is also warranted to determine whether they should also attract a reverse onus on bail.

This is one example of why the bill doesn’t really go far enough. There are a number of serious violent and gun-related offences that aren’t included in Bill C-48.

In other words, these offences, though intrinsically serious, place no burden on the accused to show why they should be released. Some of these offences are: aggravated sexual assault without the use of a firearm; aggravated assault; hostage-taking without the use of a firearm; attempted murder without the use of a firearm; arson with disregard for human life.

I’m also thinking about offences such as manslaughter with a firearm and criminal negligence with a firearm causing death. Both of those offences are punishable by a minimum sentence of four years in prison, and that minimum sentence was deemed constitutional by the Supreme Court of Canada in R. v. Morrisey and R. v. Ferguson.

I’m sure that if we asked Canadians, they would say that people who commit such dangerous crimes must remain behind bars while awaiting trial or, at the very least, have the burden of proving that their release is justified.

Bill C-48 doesn’t remedy that, and I hope that the witnesses who appear before the Senate committee, including those in law enforcement, will speak out about this problem. Right now, there’s a statutory presumption set out in sections 493.1 and 515 of the Criminal Code that ensures that these accused must be released at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, unless the Crown prosecutor can prove to the judge that it is necessary to detain them while awaiting trial or to impose on them onerous conditions of release.

Here’s another example of why Bill C-48 doesn’t go far enough. Bill C-48 proposes placing the onus on a person to justify why they should be released on bail when charged with an offence involving violence and the use of a weapon against a person and convicted of another offence involving violence and the use of a weapon against a person in the five years preceding the date of their indictment for that offence.

In other words, Bill C-48 is for repeat violent offenders. The problem is the five-year maximum between the commission of the two offences. Hypothetically speaking, a person who commits a violent offence with a weapon and would be sentenced to 10 years in prison for having committed the same type of offence isn’t affected by Bill C-48, since more than five years would’ve already gone by between the two offences.

In other words, if that person commits a violent offence with a weapon the day after being released from prison, there’s no legal presumption that they should remain behind bars while awaiting trial for this new offence. Could the federal government have set in Bill C-48 a 10-year limit between the two offences instead of five, or better yet, could it have simply eliminated this five-year threshold between the two offences? The federal government should have thought of that before introducing Bill C-48. That’s why I maintain that Bill C-48 could have gone much further to protect Canadians from repeat offenders.

Basically, this doesn’t necessarily surprise me from this government. This is the same government that proposed Bill C-75 in 2018, with the support of the Bloc. The Conservatives and police forces continue to denounce the bill as lax, because C-75 unduly favoured the release of violent repeat offenders or those who commit serious crimes with handguns.

I would like to quote from a letter dated January 12, 2023, that the Association des directeurs de police du Québec sent to the federal Minister of Public Safety in response to the tragic and preventable death of a fellow police officer, Grzegorz Pierzchala:

We cannot . . . tolerate violent criminals who repeatedly use firearms to endanger the lives of our police officers and Canadian families. These repeat offenders must not be allowed to move freely in our communities. We therefore ask you to reverse your government’s recent decision regarding the release process for violent and repeat offenders charged with firearms-related crimes. . . . Police officers have the right, as does the public, to be protected from the criminal behaviour of violent and repeat offenders, particularly those charged with firearms-related crimes. This right must take precedence when decisions related to release and sentencing are being made.

That being said, despite these serious reservations, I urge you to vote in favour of Bill C-48 at second reading in the Senate so we can continue our study at the Standing Senate Committee on Legal and Constitutional Affairs. I support the bill’s objective. Given the increasing incidence of crimes committed with illegal handguns in major Canadian cities, we must take urgent action to tighten bail rules. We all, including the Quebec Court of Appeal, recognize the dangers associated with this uptick in crime.

In fact, in its 2022 decision in Dallaire v. R., the court stated the following:

Canadian society strongly condemns the use of illegally owned firearms by criminals who use them illegally, dangerously and often fatally. Recent events in Quebec, such as in the Montreal, Montreal North, Longueuil, Laval and Rivière-des-Prairies areas, confirm this very real danger to peoples’ safety and to social peace.

Given the urgency of this problem and the bill’s objective, which is universally supported, I agree that an exception should be made for this bill, that is, that it should pass second reading immediately so it can be referred to the Senate committee immediately for a thorough and in-depth study as soon as possible.

Unfortunately, I’m still disappointed by the lack of strong measures in this bill to protect our fellow Canadians. Thank you, colleagues.

[English]