Bail and Sentencing Reform Act: Legislation makes bail laws stricter and toughens sentencing laws

The “principle of restraint” is a common law principle and is mandated by the Supreme Court of Canada. The principle is intended to ensure that release at the earliest opportunity is favoured over detention, where appropriate, and that only reasonably necessary bail conditions are imposed on an accused person. The principle of restraint is also outlined in the Criminal Code and it would continue to apply at common law if it were repealed from the legislation.

Directs police and courts on how to apply the “principle of restraint.” This includes clarifying that the principle does not mandate release and that an accused should not be released if their detention is justified, including for the protection and safety of the public.

In the Criminal Code, the “ladder principle” requires courts to consider the least restrictive form of release first (no financial obligations) and only move to a more restrictive form of release (with a surety or financial obligations) if the prosecutor demonstrates that a less restrictive form is inadequate.

Clarifies that the “ladder principle” does not apply to accused persons who are subject to a reverse onus.

In the Criminal Code, a court must consider a number of factors at the bail stage, including whether the allegations involve intimate partner violence or the accused has previously been convicted of a violent offence.

Requires courts to also consider whether the allegations involve random or unprovoked violence when making any bail decision.

The Criminal Code sets our three grounds for the denial of bail:

• First – to ensure the accused person attends court
• Second – to protect the public, including victims and witnesses to the offence
• Third – to maintain confidence in the administration of justice

Modifies the third ground (also known as the “tertiary ground for detention”) for the denial of bail. This change requires courts to consider the number or seriousness of any outstanding charges when determining if releasing the accused would undermine public confidence in the administration of justice.

Requires courts must generally impose a weapons’ prohibition order when granting bail to an accused person charged with specified offences or certain types of offending, unless such a condition is not required for public or victim safety reasons.

Requires courts to impose weapons prohibitions at bail for those accused of extortion and organized crime, unless it is not required for public or victim safety reasons.

When an accused person is released on bail, the court can impose conditions that they must follow. The purpose of imposing conditions is to address risks posed by the accused, including to ensure they do not commit new criminal offences while awaiting trial.

Examples of conditions that may be imposed include:

• Attend court as directed
• Report to a peace officer
• Remain within a particular territorial jurisdiction
• Notify any change of address and employment
• Deposit a passport to prevent travel

The Criminal Code requires the Court consider any aggravating or mitigating factors at sentencing, to help ensure a sentence matches the seriousness of the offence and offender’s degree of responsibility.

Aggravating factors may increase a sentence. These factors can include, for example:

• that the offender has a criminal record
• that the offender targeted children
• if the offence was related to organized crime, or motivated by hate
• if the case involves domestic violence

Adds or expands aggravating factors (something that can increase a sentence) for:

• repeat violent offenders with a previous conviction for a violent offence within five years
• offences committed against victims who are first responders
• offences committed against public transit workers
• organized retail theft (e.g., robbery, break and enter, possession of property obtained by crime)
• offences interfering with essential infrastructures (e.g., copper theft)

While most sentences are concurrent, (served at the same time), the Criminal Code grants courts discretion to impose consecutive sentences. Some offences require consecutive sentences, such as terrorism related offences. Other offences require courts to consider imposing consecutive sentences.

The Criminal Code includes different sentencing objectives:

• Denunciation - To show society’s disapproval of the conduct
• Deterrence - To discourage the offender and other persons from committing offences
• Separation - To separate an offender from society
• Rehabilitation – To support an offender’s rehabilitation
• Reparation - To make amends for the harm done
• Responsibility - To promote responsibility in the offender

Requires courts to give primary consideration to the sentencing objectives of “denunciation and deterrence” for:

• second or subsequent convictions of violent auto theft
• second or subsequent convictions of break and enter
• any organized crime-related offence

All offences in the Criminal Code have maximum penalties. Maximum penalties are the highest punishments a court can impose for a specific offence and can range from fines to life imprisonment.

The current maximum penalty for contempt at section 708 of the Criminal Code is a maximum of $100 and/or imprisonment for up to 90 days.

Increases the penalty for contempt at section 708 of the Criminal Code to a maximum of $5000 and/or maximum imprisonment of 2 years less a day.

Conditional sentences, also known as house arrest, are not available for offences that carry a mandatory minimum penalty of imprisonment, and certain serious offences such as attempted murder or advocating genocide.

Makes conditional sentence orders (also known as house arrest) unavailable for serious sexual offences, including those against children.

The Criminal Code sets out the court’s ability to impose a fine as part of a penalty for committing certain criminal offences.

Currently, provinces and territories can only suspend provincial and territorial licences and permits when an individual does not pay a fine.

Strengthens the ability to enforce federal fines imposed under the Criminal Code or any other federal statute by authorizing provinces and territories to suspend provincial licences or permits when the prosecution is conducted by the federal government.

In general, participants in criminal proceedings must appear in person. The mental disorder regime of the Criminal Code currently allows an accused person to attend a hearing remotely, if they consent.

Amends the law to allow a Court or Review Board to order the remote appearance of the accused, without their consent, in compelling circumstances.

The Criminal Code enables courts to issue a driving prohibition order to prevent a person from driving following certain types of convictions, including impaired or dangerous driving. Prior to 2018, a court could order driving prohibitions in certain cases of criminal negligence and manslaughter. This power was removed in 2018.

Restores the power to order driving prohibitions for manslaughter and criminal negligence causing death or bodily harm.

In the YCJA, the definition of “violent offence” is used in part to determine when a youth may receive a custodial sentence.

A custodial sentence is when the court orders that the youth be placed in a youth custodial facility.

Amends the definition to clarify that it is considered a “violent offence” when:

1. a young person commits a crime that causes bodily harm
2. a young person commits a crime involving the use or trafficking of a firearm

This expands the availability of custodial sentences for a range of crimes.

Publication of identifying information about a youth at large is not allowed without a court order, even in urgent situations.

Allows the police to publish identifying information about a youth without a court order in urgent situations when the youth is at large and there is an immediate grave danger to members of the public.

The YCJA does not say whether a youth’s custodial sentence continues to run during any period that the youth is unlawfully at large.

Clarifies that any time that a youth spends unlawfully at large does not count towards the custodial portion of their sentence.

The YCJA allows certain people to access youth records for specific periods of time. However, the YCJA does not say how long records of certain diversion measures can be accessed.

Clarifies that youth records can be accessed by specific people for two years after the youth has been diverted out of the court system.

These changes will only come into force by order in council.

The YCJA does not say whether records of police investigations that did not result in a charge or diversion can be kept or for how long they can be accessed.

Clarifies that police can keep records of an investigation that did not result in a charge or diversion of the youth. Further, clarify that those records may be accessed by specific people for two years after the investigation is complete.

These changes will only come into force by order in council.