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What You Need to Know About Bail Reform in Canada and Bill C-48

Bail reform is on the agenda again before Parliament via Bill C-48. The Federal government has pending legislation that will amend the bail provisions of the Criminal Code of Canada if passed. More people will be in jail. It is important to remember that when someone is accused of a crime the person is presumed innocent. This presumption remains throughout the entire criminal process unless and until a judge or a trier of fact pronounces guilt.

According to our criminal lawyer in Calgary, keeping people in jail will result in miscarriages of justice because the person becomes hopeless and will plead guilty just to get out of jail. It is unfortunate that Parliament is actively trying to keep people in jail rather than devote resources to the problems that underly criminal allegations.

What the Changes Will Mean for People Needing Bail

If the changes are approved, bail will be harder to obtain for anyone accused of repeat offences involving firearms, knives, bear spray or other weapons. Specifically, these changes include:

• Creating a new reverse onus to target serious repeat violent offending involving weapons
• Expanding the list of firearms offences that trigger a reverse onus
• Broadening the reverse onus targeting repeat offenders of intimate partner violence (IPV)
• Clarifying the meaning of the term “prohibition order” in an existing reverse onus for offences involving weapons
• Requiring courts to consider an accused person’s history of convictions for violence, and community safety and security concerns, when making a bail decision

A reverse onus means the accused must establish why release should be granted instead of the normative position of the Crown being required to establish why the accused must be detained.

Although the Charter of Rights and Freedoms allow an accused to launch a challenge when bail was denied without just cause these changes to the legislation will make it more difficult to obtain bail and will likely not rise to the level required to make a successful Charter Challenge.

Firearms Offences

The amendments (if passed by Parliament) expand the list of firearms offences that trigger a reverse onus.

This Bill would add a number of firearms offences to an existing reverse onus for bail, specifically:

• Unlawful possession of a loaded (or easily loaded) prohibited or restricted firearm (section 95)
• Breaking and entering to steal a firearm (section 98)
• Robbery to steal a firearm (section 98.1); and,
• Making an automatic firearm (section 102)

Intimate Partner Violence/Domestic Violence

If this legislation passes the reverse onus targeting repeat offenders of intimate partner violence will be broadened.

This Bill will expand the current reverse onus provision, added by former Bill C-75, which applies to anyone charged with an offence involving IPV under the Criminal Code, and who has a past conviction for such an offence, to apply to accused persons who were previously convicted as well as those who previously received a discharge for an IPV related offence for which they had been found guilty.

Reverse onus for prohibition offences

The Criminal Code already imposes a reverse onus at bail for those who have allegedly committed an offence involving a firearm or other specified weapons while subject to a weapons prohibition order.

Parliament states the intention of Bill C-48 is to clarify the meaning of prohibition orders. This means that a reverse onus at bail would apply when a person is charged with having committed an offence involving firearms or certain other weapons, such as a prohibited weapon or prohibited device, while they were bound by a condition in a release order to not have a firearm or certain weapons in their possession.

Broad “Security Concerns”

This Bill would explicitly require courts to consider additional factors in assessing the risk posed by an accused person when making any bail decision.

The Criminal Code currently requires that before making a bail order, courts must consider any relevant factor, including the criminal record of the accused person or if the charges involve intimate partner violence (subsection 515(3)).

This provision of the Criminal Code would be amended to further require courts to consider if the accused’s criminal record includes any past convictions for violent offending. The Bill would also amend subsection 515(13) to require a court to include, on the record, a statement that they have considered the safety and security of the community in relation to the alleged offence when making a bail order, thereby increasing accountability to the public.

Parliament states that this is an intended measure that will respond to the unique needs of remote and northern communities who have expressed concerns about accused persons being released into isolated communities that are not large enough to keep accused persons away from their alleged victims. What Parliament is not considering with respect to these small communities is the accused person’s privacy interest, their safety concerns and the underlying issues involved. Instead, more people will stay in jail. Jails will become overcrowded (they already are). Taxes will have to increase to pay for the increased costs of having even more people in jail.

Overall, Bill C-48 is unlikely to achieve the desired goals of Parliament and will very likely be responsible for more deaths and miscarriages of justice.

Here is what James M. Lutz, K.C. has to say about the anticipated changes to bail.