Justice minister unveils bail bill targeting repeat violent offenders with reverse onus reforms

OTTAWA -

Justice Minister David Lametti tabled new legislation on Tuesday aimed at making it harder for repeat violent offenders to be granted bail, through a handful of targeted Criminal Code reforms.

This small package of legislative reform—spanning just seven pages—comes after months of renewed scrutiny on Canada's bail system and calls for the federal government to implement tougher laws, in the face of a series of high-profile cases of violent crimes allegedly committed by individuals who were out on bail.

While Lametti is touting the proposal as a "targeted" approach that addresses the challenges facing bail system posed by repeat violent offenders and responds to the pressure from politicians across jurisdictions and police leadership, Conservative Leader Pierre Poilievre was quick to say the legislation doesn't go far enough. 

Bill C-48, as it's been titled, seeks to strengthen Canada's bail system’s response to repeat violent offending, including in cases involving firearms, knives, bear spray and other weapons. The government says it is also trying to enhance public confidence in the criminal justice system, and affirm the principles of bail.

Through the bill, five specific Criminal Code changes are proposed:

• Creating a new reverse onus for serious repeat violent offences involving weapons where the accused was previously convicted of an offence of the same criteria within the past five years, with both being punishable by 10 years imprisonment or more.
• Adding certain firearms offences to the provisions that trigger a reverse onus to include other indictable offences such as unlawful possession of a loaded prohibited or restricted firearm, and break and enter or robbery to steal a firearm;
• Expanding the current intimate partner violence (IPV) reverse onus to address the enhanced risk to also apply to accused persons previously discharged of an offence involving IPV;
• Clarifying the meaning of "prohibition order" in an existing reverse onus to state that an order includes a court’s release order for bail that imposed conditions around firearms possession; and
• Requiring courts to consider an accused person's history of convictions for violence and other community safety concerns when making bail decisions. 

The federal Liberals have also included a preamble in the bill meant to outline "core bail principles and to help ensure consistent implementation." The Liberals say this legislative mechanism is used to reinforce the objectives of the proposed law changes, noting bill preambles are used by courts to inform the interpretation of the provisions.

And, the government is proposing a parliamentary review to assess the impacts of this package of bail reforms, five years after Bill C-48 becomes law.

"What we're doing for certain violent offences is changing the default position and making sure that it is only in cases where there isn't a threat to public security, that they will get bail," Lametti said, speaking to reporters about the bill. "We need to strike a balance. We think we've done that here, working in the range between the Charter right to bail, public security, and public safety."

Under Canada's Charter of Rights and Freedoms, a person charged with an offence has the right not to be denied reasonable bail without just cause. This allows certain offenders to be released from custody while awaiting trial, under the principle of being presumed innocent until being found guilty, and with the condition that they appear in court when required. Other conditions such as no-contact orders, GPS ankle monitors and curfews can also be imposed. 

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This is why the burden of proof, or onus, is typically on the prosecution to show why an accused person should be denied bail. A reverse onus is when the burden of proof shifts to the accused and the presumption is the accused would remain in detention while awaiting trial unless they can demonstrate to the court why they should be released.

WHAT'S BEING SAID ABOUT BILL C-48?

The federal government said this bill was developed "in close collaboration with all provinces and territories," noting the shared responsibility when it comes to the administration of justice, conducting bail hearings, and enforcing bail conditions.

"The reforms proposed in Bill C-48 are only one part of a broader solution to ensure the objectives of the bail system are being met," said the federal government in a background briefing note provided to reporters.

Appearing alongside Public Safety Minister Marco Mendicino, Intergovernmental Affairs Minister Dominic LeBlanc, and Minister of Mental Health and Addictions Carolyn Bennett, Lametti said he's aware that many Canadians feel that "crime has worked its way into places we all thought were safe."

"You expect us to tackle crime, and you expect us to tackle the causes of crime. You want our laws to be effective in maintaining public safety, while staying true to the values enshrined in the Charter of Rights. You want us to work with all levels of government to ensure that your communities are safe and our justice system is working the way it should. It makes perfect sense," Lametti said.

Reacting to the bill before the ministers spoke, Poilievre said Bill C-48 won't be enough to address the "massive crime wave" across Canada, as it would still allow repeat violent offenders to get out on bail.

"This bill does not… raise the bar. It simply puts in a bunch of lower bars… underneath the bar that is already there," Poilievre said, flanked by his public safety and justice critics. He vowed that if the Conservatives form the next government, he'd bring in laws that require repeat violent offenders to stay behind bars "with jail not bail… until their trial is done and their sentence is complete."

In a statement, NDP MP and justice critic Randall Garrison said his party helped fight for some of the changes proposed in Bill C-48 that he said will make it more difficult for certain offenders to get back onto Canadian streets, while pushing for community-based bail supports for non-violent offenders.

"Canadians know that our justice system has perpetuated racial inequalities which New Democrats have fought to fix. We are supportive of bail reforms that address the high numbers of Indigenous people, racialized and low-income Canadians kept in pretrial detention in cases where there is little risk to public safety," Garrison said. 

British Columbia Premier David Eby called Bill C-48 "an important step to improve safety in our communities," in a tweet on Tuesday, while Winnipeg Police Chief Danny Smyth said on CTV News Channel that targeted reform focusing in on the offenders who are "doing the most harm in the community" is key.

Ottawa criminal defence lawyer Michael Spratt told CTV News in an interview that despite the high-profile events that sparked concerns around Canada's bail system, Bill C-48 "wouldn't have prevented any of those tragedies, and it's unlikely to prevent any future tragic tragedies," as it is likely to impact a small group of offenders.

"I think the changes that we really need are more difficult. They require a nuanced conversation with members of the public, it requires looking downstream from the tragedy and looking at sort of larger societal issues. And, you know, those are conversations that unfortunately, our politicians… both the Conservative opposition and in the government in response to that, seem incapable of having," Spratt said.

WHAT LED UP TO THIS BAIL BILL?

Calls for gaps in Canada's bail system to be addressed ramped up in the fall, after former B.C. attorney general Murray Rankin pointed to reforms in Bill C-75 – a federal bill passed in 2019 that was designed in part to "modernize and streamline" bail procedures – saying in October that the Liberal law changes were inadvertently causing more repeat offenders to end up on the streets.

That legislation, advanced by his predecessor Jody Wilson-Raybould, was aimed in part at realigning the Criminal Code with Supreme Court decisions. This included seeing a "principle of restraint" codified in law, after a 2017 decision emphasized that detainees should be released "at the earliest reasonable opportunity and on the least onerous grounds." 

Then, in Dec. 27, following the shooting death of Ontario Provincial Police (OPP) Const. Grzegorz Pierzchala, it was revealed that the 25-year-old suspect was wanted by police for missing an August court date while out on bail for charges that included assaulting a police officer and illegally possessing a handgun.

Critics argued these cases were proof that Canada's bail system needed to be reformed, to keep repeat violent offenders off Canadian streets, while others sought to assert that the issue was far more complex and involved the need to better enforce breaches of bail conditions.

This led to Lametti fielding calls from the federal Conservatives, as well as provincial politicians and police leadership to act and replace what they considered "catch and release" bail policies with a reverse onus system.

After committing to targeted changes to the Criminal Code to address these concerns, while accusing Conservative lawmakers of "using tragedies to try to score political points" on a complicated issue, Lametti met with his provincial counterparts in March and came away with "a broad consensus on a path forward." 

Asked Tuesday if Bill C-48 is an admission that his government's previous Bill C-75's bail provisons fell short, Lametti said no. He's now calling on all parties in the House of Commons and Senate to back this bill to see it pass in short order.

With files from CTV News' Spencer Van Dyk and Daniel Otis