Keeping a cool head on bail reform

  • November 28, 2023

Everyone in Canada is presumed innocent until proven guilty, including individuals with prior criminal records, writes the Criminal Justice Section of the Canadian Bar Association in a letter to the Standing Senate Committee on Legal and Constitutional Affairs about Bill C-48, An Act to amend the Criminal Code (bail reform). “This presumption applies at every stage of the criminal justice process, including and especially the bail stage.”

In addition to this general principle that was discussed in an earlier letter, the Section outlines three specific issues with the bill. The first is that it expands the existing reverse onus for repeat intimate partner violence to include a prior discharge of an offence against an intimate partner. The CBA Section notes that the amendment is impractical because it conflicts with the Criminal Records Act requirement to remove discharge records from the Canadian Police Information Centre after a certain time. “We anticipate that this conflict will result in confusion and protracted litigation on the admissibility of the records during bail hearings, thus creating further bail delays in an already overburdened and under-resourced system,” the letter reads.

The Section says that discharges, whether absolute or conditional, are not imposed for serious criminal offences. In cases of intimate partner violence, criminal convictions rather than discharges “are indicative of the level of severity of the past offence.” Adding prior discharges for intimate partner violence will have no practical effect at best and will conflict with the Criminal Records Act at worst. This amendment should be removed.

The second issue with Bill C-48 is that it adds a new category of reverse onus offences, which would apply to individuals charged with serious repeat offenses involving firearms and other weapons. The amendment would capture too broad a spectrum of conduct, “including individuals whose prior criminal conduct may not have been especially serious.” This amendment is likely to add a significant burden to the bail system and create more delays, and it should be removed.

And finally, the Section cautions against being too broad in who gets included in a firearms possession offence. When multiple persons are in a location where a firearm is found, it often leads to everyone being charged with possession of the firearm even though the evidence of possession may be tenuous for most of the individuals present. Often the accused has no real connection to the found firearm other than, for instance, being in a house where one of the other persons present had a firearm in their possession. Not all persons present where a firearm is found should find themselves in a reverse onus situation, which is why the CBA Section recommends dropping the proposed amendments to Section 515(6)(a)(vi) of the Criminal Code