Senator Simons: Yes.

Senator Simons: I will.

Senator Simons: That’s very true, Senator Batters. And I would put it to you that the judge has every right to deny that person bail. If somebody has received an absolute discharge or — you’re right — a conditional discharge, which suggests that there were more conditions attached and, perhaps, graver fact circumstances, I’m not advocating that those people should automatically get bail. The prosecutor still has the power to argue against bail. The judge still has the power to deny bail.

What I’m saying is that if you flip the tables and demand a reverse onus, you should save that for the most egregious of circumstances. But if we expand the reverse onus provision, we could accidentally capture people for whom this law was never intended. Under no circumstances would I say somebody who had committed a violent offence with a firearm should be automatically granted bail because, perhaps, they had a conditional discharge. What I am saying is that you have to save that reverse onus provision for only the very particular circumstances where it is most needed and where it best fits.

Senator Simons: Could I ask for time to just answer that one question? I think, then, that is probably good.

Senator Simons: Thank you very much, Senator Gold. Let me take the first part of the question first.

Ms. Sharma used the phrase “repeat violent offenders.” A person who has one absolute discharge on their record could surely not be considered a repeat violent offender. My concern is precisely that: This broadens the net of who is captured in the reverse onus provision and expands it beyond repeat violent offenders who — we could all agree — are a far greater risk to society than a person who has one absolute discharge, for an example.

As to your second point, of course I am concerned about the horrific levels of family violence in this country, which is predominantly violence of men against women and which is disproportionately affecting the Indigenous population. That does not mean that we throw the baby out with the bathwater. It is necessary to construct a bail regime that provides security for women whose partners have been alleged to have abused them. That doesn’t mean the reverse onus, which is a brute cookie cutter of an instrument.

It would be far more beneficial, for example, for a man who’s been charged with spousal assault to be provided with a bail bed and some kind of supervised release. The problem comes about if people are released without conditions, if people are released with conditions that cannot possibly be met or if people are released to either the choice of homelessness or returning to the domestic situation where the violence occurred.

By all means, let us find ways to protect women in their homes from violent partners. I fail to see that reversing the onus for somebody who has had one absolute or conditional discharge gets us there.

[Translation]

Senator Simons: As I have said, we have bail laws in this country that allow Crown prosecutors to demand that the judge not grant bail. We have judges and justices of the peace who have the power to deny bail. I’m not opposing that.

What I am saying is that we need to be careful that we use the reverse onus provisions — which are truly extraordinary — in the most extraordinary of cases.

If we want to deal with the issues that you outline, it’s pretty difficult to convict people for crimes that they have never been accused of. If we want to provide more resources for women’s shelters across the country, by all means, let us do so. If we want to provide more legal advice and legal aid, and more funding for family legal aid programs so that women who are seeking separation from partners and who are seeking protection from domestic violence can receive that, then absolutely.

I could sit here and list 20 public policy strategies that would help to reduce domestic violence in ways that would be far more effectual than this.

Senator Simons: That is entirely correct, senator.

[English]

We have seen all over the country, most recently with the Mass Casualty Commission report, that all too often cases of domestic violence spill out into the larger community, whether that’s an assault on police officers or other first responders or assault on the community at large.

When I was a journalist, I long argued that family violence was a crime not just against the members of the family but also against the entire community. Indeed, I’m proud of the fact that, as a journalist, I fought hard to report on cases — murder-suicide cases — where oftentimes the names of both the offender and the victim were kept quiet by police because I argued that these were assaults against the entire community.

I absolutely support your effort, sir, to fight domestic violence. I stand in awe of some of the things you have fought for and accomplished as a senator.

I have worked for years as a journalist on these issues. But I think in the words of our late colleague Elaine McCoy of blessed memory, we are shooting at the wrong duck. If we want to keep families safe, there are far better ways to do it than to impose on people whose only brush with the criminal law is to have received an absolute discharge to treat them in the same way as the worst of perpetrators.

Let’s focus our energies on dealing with the people who are the greatest threat and not criminalize mostly Indigenous women who end up charged in sort of the tidal pool that comes in the wake of these incidents.

Hon. Paula Simons: I rise today to pay tribute to the new justice of the Supreme Court of Canada, Mary Moreau, former chief justice of the Court of King’s Bench of Alberta. She is an outstanding jurist.

I am speaking French in her honour, in recognition of the work she has done all her life to stand up for the rights of Franco‑Albertans.

Ms. Moreau was born into a bilingual family. Her father, Joseph Paul Moreau, was a strong advocate of French-language education. A French school in Edmonton bears his name today. Justice Moreau’s mother was anglophone, but she embraced her husband’s idea that their eight children should be educated in French.

As a young lawyer, Mary Moreau won a landmark case arguing that Albertans had the right to be tried in French. She argued that the rights of francophones in what was then the Northwest Territories were not abolished when Alberta joined Confederation.

In another prominent case, she won the right for Franco‑Albertans to be educated in French-language schools, and not just in immersion programs.

In addition to constitutional law, she also practised criminal law, family law and business law, in both French and English, while also raising her four children. Her husband told this revealing story about his wife, during her early days as a judge, when she was only 38 years old:

Mary was conducting her first criminal jury trial, at which time she was approximately nine and a half months pregnant with our daughter. The jury was all male, took nine minutes to acquit her client, and then quickly returned to the courtroom, urging Mary to go directly to the hospital.

Later, she argued a case before the Supreme Court while very pregnant. The judges begged her to sit down while making her arguments, but she declined.

Now, at last, she will take her place alongside her colleagues at the Supreme Court.

Congratulations, Madam Justice. We here in Edmonton are very proud of you. Thank you.

Hon. Paula Simons: Honourable senators, I rise today to speak in support of my colleague Senator Clement, who brought forward this amendment which I was happy to support in committee.

I think to understand why, we need to understand why one would reverse the onus in a bail hearing. It is important to understand that in a criminal justice system that is based on the principle that we are innocent until proven guilty, the state cannot constrain our liberty without just cause.

It is typical in a bail hearing that the prosecution must prove to the justice of the peace or the judge why someone should not be granted bail. That is on the basis, (a) that they are a flight risk; (b) that their release would pose a danger to the community; or (c) that their release would embarrass the justice system, that it would fly in the face of what the public believes the justice system should do.

Those are properly high tests, but the Crown has the full power of the state at its disposal to try to prove that fact.

When we reverse the onus, we require of the accused that they accept the burden that would properly belong to the state. Suddenly, they are the ones who have to prove why they should be released, sometimes with the help of a legal aid duty counsel or another lawyer, sometimes as self-represented citizens. They must take unto themselves the responsibility to argue for their liberty.

The Supreme Court has held that in certain circumstances we are allowed to reverse the onus. Bill C-48 would expand that to increase more categories at which we reverse the onus. But the premise of the bill is that this should be for the people who are the worst of the worst, the people who are the greatest danger to our community and perhaps to their own families.

This is why I bristled when I saw the words “discharge” in the legislation. As we all know, I am not a lawyer on the Legal and Constitutional Affairs Committee and I am filling in there.

I want to read to you what the Legal Aid Ontario page tells us about absolute discharges in the law:

An absolute discharge is the lowest-level adult sentence that an offender can get.

If an offender gets an absolute discharge, then a finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case. The person does not have to go to court again or check in with a probation officer.

An absolute discharge will stay on an offender’s criminal record for a year after the date they received the discharge. . . .

Then I skip ahead:

The discharge will be automatically removed from their record after one year. The person doesn’t have to apply for a pardon.

In other words, to receive an absolute discharge, your record suggests that there is no vestige of the previous sin.

Why would someone be granted an absolute discharge? It happens very rarely in cases where the court believes the person is not a risk to reoffend, is not a danger to society and where the person has come forward with a plan to make amends. As Senator Clement correctly points out, this is often the case for Indigenous women because sometimes when police attend a home, there’s interpartner violence and are unable to tell who started what or who was the instigator, police will often charge both parties to clear the scene and get everything safe again. Then it may be that the one spouse who was primarily a victim finds themselves countercharged. Oftentimes those are records that are expunged, but that’s not the only reason one would receive an absolute or a conditional discharge. A conditional discharge, as the name implies, comes with conditions, and in that case your record is not sealed until three years have passed.

When I looked at this legislation I thought to myself, “All right, if we’re going to reverse the onus, we should be reversing the onus for the worst of the worst.” If somebody has received a discharge, it implies that their previous offence was relatively minor and that their actions were relatively understandable.

Now, look at the amendment that we have before us. It reads:

. . . with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted or discharged under section 730 of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs;

You could have a scenario where an Indigenous woman who has received an absolute discharge is charged with threatening violence against her partner and would now be under the burden of a reverse onus to be granted bail. This is patently unfair. If we’re going to have a reverse onus, let it be for the people for whom they are properly due, for people who are a proven threat to society and who have a track record of criminal behaviour.

To allow a reverse onus to affect somebody whose only previous brush with the law ended in an absolute discharge is a corruption of our bail system and a corruption of the presumption of innocence. Thank you very much.