Hon. Kim Pate: Honourable senators, I rise today to speak to Bill C-48. This bill will create new reverse onus provisions, as Senator Gold has pointed out, that will increase the burden on accused persons to demonstrate that they can safely be released on bail until their trial instead of leaving in place the presumption that the individual will be released unless the Crown proves detention is necessary.

Bill C-48 was drafted and rushed through the House of Commons in response to acts of violence against police officers with no evidence that any of these would have been prevented by this legislation. Unfortunately, the changes proposed by this bill are heavily influenced by political posturing rather than responding to the challenges of the bail system in a way that would be in the interests of Canadians.

What are our concerns?

The provisions regarding intimate partner violence remain overly broad such that they will likely catch those experiencing abuse in the same net that seeks to detain those who have inflicted abuse.

This bill will likely increase the overrepresentation of marginalized communities in prisons and jails, particularly Black and Indigenous peoples; those living in poverty; and those with past trauma, mental health and addiction-related issues.

Neither the government nor the Senate were provided with data to support the assertion that this bill will accomplish its intended goal of improving public safety.

As a result of the ongoing legacy of colonialism in Canada, Indigenous women disproportionately experience violence. Data shows 6 out of 10 Indigenous women experience family violence in their lifetime, and 4 out of 10 experience physical violence. Yet, Indigenous women often fear calling police for help in these situations because of how, too often, they find the legal tables turned such that they are blamed and held responsible for violence perpetrated against them.

One example of this hyper-responsibilization is the manner in which past attempts to develop policies to assist women’s experiences of violence have resulted in things like mandatory charging practices. Rather than protecting women, they have resulted in dual charging, a practice where police lay criminal charges on both the victim and the abuser in situations of intimate partner violence.

Women who defend themselves are also more likely to use items characterized as weapons — maybe a hairbrush, maybe a plate, maybe a frying pan, maybe a kitchen knife. Those who engage in hand-to-hand combat without grabbing something to help to defend themselves often end up dead. Women who pose no threat to public safety end up charged with assault for defending themselves against abuse. Because of the conditions of pretrial detention and lengthy bail hearing delays — not to mention a justifiable lack of faith in a criminal legal system that has not taken their victimization seriously — too many women plead guilty in exchange for a set sentence rather than face potentially lengthy time in prison pending a bail hearing or pending trial, not to mention the risk of conviction at trial and a longer sentence.

We know this happens. Dual charging has been acknowledged by the government and by police witnesses. We heard from the lead counsel of the National Inquiry into Missing and Murdered Indigenous Women and Girls that women across the country face this barrier.

According to the Barbra Schlifer Commemorative Clinic, which exclusively deals with family violence cases for women in Ontario, five to six new clients every week enter their dual charging program.

Dual charging puts more Indigenous women into the criminal legal system at a time when there is already an ongoing crisis of overrepresentation and mass incarceration. By having a bill that expands the net of reverse onus provisions to anyone convicted of using a weapon for intimate partner violence, we predict seeing victims of intimate partner violence being dragged into the criminal legal system, which will further discourage Indigenous women from calling for help when they are most in danger.

This bill was created through an incredible sense of urgency in our government. Where is that same urgency for supporting the measures that truly allow victims of intimate partner violence to feel safe? Why is our focus on putting more people into pretrial detention after charges have been laid, rather than shoring up the economic, housing, social and health supports that give victims the tools they need to safely leave situations of intimate partner violence?

We heard from witnesses with first-hand experience of the current state of our bail system. We heard from Crown and defence lawyers, as well as human rights experts working with and on behalf of those who have been victimized and criminalized, all of whom told us unequivocally that pretrial detention conditions are abhorrent and disproportionately impact those most marginalized.

Emilie Coyle and others from the Canadian Association of Elizabeth Fry Societies described cells covered in feces and restrictions on access to water so severe that women were drinking out of toilets. Women’s Legal Education & Action Fund shared the heartbreaking story of Sarah Rose Denny, a Mi’kmaw woman, a mother, who died of double pneumonia after being denied health care while in jail.

The number of people held in pretrial detention has more than quadrupled in the last 40 years, despite crime rates decreasing over that same period, causing overcrowding and delay in bail hearings.

Adding new reverse onus provisions will worsen this problem. Multiple witnesses, including the CEO of Ontario’s legal aid program, stated this bill will increase the number of false guilty pleas due to the pressure to escape pretrial detention facilities as quickly as possible.

Whom will this impact? This bill intends to capture only those who pose an extreme threat to public safety, those deemed at risk of repeating violent actions. We do not have any data to support that it will only catch this subset of people, however, nor that reverse onus provisions attached to these types of charges and convictions have any tie to keeping the public safe. But here’s what we do know, honourable colleagues: Even short periods of time in pretrial detention — a matter of days — put people more, not less, at risk of being criminalized in the future.

Individuals who are most likely to be initially criminalized are those who are already marginalized. As stated by Professor Nicole Myers:

Individuals who are experiencing poverty, homelessness, mental health issues or the criminalization of drug use are among those subjected to the most intensive scrutiny and surveillance by police, making them more likely to be arrested and held in custody for a bail hearing.

Individuals who are unable to obtain bail after an arrest are frequently those who lack resources. The people held in pretrial detention are those whose family members do not have a spare room in their home to house the accused person or who cannot take time off work to attend court dates or who cannot pledge a significant amount of money and therefore cannot act as sureties for their family member. Disproportionately, this goes hand in hand with other systemic inequalities, particularly those experienced by Black and Indigenous peoples.

After being denied bail, Black Canadians spend longer in pretrial custody than the general population and, while incarcerated, they experience harsher conditions of incarceration and imprisonment, experiencing use of force, solitary confinement and maximum security more than others.

Indigenous peoples, particularly Indigenous women, continue to be inexcusably overrepresented in prisons. Indigenous women represent upwards of 75% to 99% of those in provincial custody. Young Indigenous women and girls represent 95% to 100% of the population in jails for young women in Saskatchewan, Manitoba and the North. This bill does nothing to address this crisis.

When these are the facts before us, how can we support a bill that will put more people, especially those most marginalized, into pretrial detention? Where is the evidence that this bill will address the crisis of overrepresentation in the criminal legal system that Black and Indigenous peoples are facing instead of exacerbating the situation?

This bill was rushed through the other place in a single day, without proper scrutiny. Because of this, we started our study in committee with a disadvantage. We were then also expected to study the bill without first receiving the government’s GBA Plus analysis. At committee, the Department of Justice did not have the demographic data to justify the reverse onuses created under Bill C-48. We also have yet to see the impact of Bill C-75, another bill that created reverse onus provisions and that is currently undergoing evaluation.

Why are we rushing legislation through Parliament when we do not have sufficient information to properly assess it? Why are we promoting legislation which may or may not have its intended effect but will almost certainly have a series of unintended consequences for the most marginalized communities?

If we want to improve public safety, we owe it to Canadians to do so in the most effective, evidence-based way possible. We need to focus resources on social supports that address the root causes of criminalization rather than choosing reactive approaches. We should be funding guaranteed livable income, housing, social supports, health care, including mental health and addictions supports. If we are trying to improve our bail system, we must improve funding for legal aid and bail supervision programs that keep people in their communities. That is not what Bill C-48 does.

This bill is more likely to criminalize Indigenous women who call police for help when facing intimate partner violence. It could put more people into pretrial detention, worsen the current overrepresentation of Black and Indigenous peoples in prison and create incentives for more false guilty pleas, especially so that people can escape deplorable conditions of pretrial detention.

With respect, we simply cannot afford to risk taking any more steps in the wrong direction when it comes to the criminalization and mass incarceration of Black and Indigenous people, especially Black and Indigenous women.

It is our responsibility to push back on legislation that has political motivation but is devoid of evidentiary basis. We must continue to advocate for changes to the bail system that protect the public, especially victims of intimate partner violence.

Bill C-48 will not make us safer. In fact, it could make us less safe. Honourable colleagues, it is our duty to expose the truth when the proverbial emperor has no clothes. We have a duty to not waste taxpayers’ dollars on yet more performative legislation. In my humble opinion, we should not even be passing this bill.

Meegwetch. Thank you.

(On motion of Senator Martin, debate adjourned.)

The Senate proceeded to consideration of the fifteenth report of the Standing Senate Committee on Indigenous Peoples (Bill C-29, An Act to provide for the establishment of a national council for reconciliation, with amendments and observations), presented in the Senate on October 26, 2023.