3. Questions & Answers

• Table of Contents

Qs & As – Bill C-48, An Act to amend the Criminal Code (Bail Reform)

Contents

• What is bail?
• What are the grounds for detention?
• What are bail conditions and who can impose them?
• What is the principle of restraint and how is it supposed to apply?
• Does the principle of restraint require those charged with a violent offence to be released?
• Why not amend the principle of restraint?
• How does a reverse onus at bail work?
• What changes are proposed by the Bill?
• What criteria would need to be met for the new reverse onus for repeat violent offending to apply?
• Why are certain firearms offences being added to the reverse onus regime?
• How would the existing reverse onus provision for intimate partner violence (IPV) be expanded?
• Why clarify what is meant by a “prohibition order” in the reverse onus regime?
• Why add that the court must consider community safety and security?
• What is the significance of the amendment that the court consider whether an accused person has been previously convicted of a violent offence? Have courts not been doing this?
• Are the proposed reforms consistent with the Charter?
• Do the provinces and territories support this Bill?
• Are these changes really needed?
• Will the Bill address concerns about repeat violent offenders getting bail?
• What bail data exists?
• Will there be any funding to support the bail system?
• Who was consulted on the Bill?
• What impact will the Bill have on overrepresentation in the criminal justice system?
• What are the Government’s views on Bill C-313?
• Why doesn’t this Bill go further?
• Why isn’t there a definition of “repeat violent offender” proposed in the Bill?
• Why doesn’t this Bill expressly address bear spray and knives/bladed weapons?
• When will the Bill come into force?
• What are the effects of the transitional provision?
• Why did you fast track the bill through the House of Commons without study? Isn’t this undemocratic?

What is bail?

• Bail is when a person charged with a criminal offence is released from custody while awaiting trial. The bail regime in the Criminal Code establishes the rules governing who may grant bail, who can get bail and under what conditions.
• The bail regime has the following three objectives: the protection of the public, the need to ensure the accused’s attendance at court, and to maintain public confidence in the administration of justice
• These objectives operate alongside the Charter rights to reasonable bail and to be presumed innocent until proven guilty.

What are the grounds for detention?

• There are three grounds upon which a justice may decide that someone should be detained at a bail hearing (under subsection 515(10)):
  1. if it is necessary to ensure attendance in court (i.e., that they are not a flight risk);
  2. if it is necessary for the protection or safety of the public, including any witness or victim or any children, taking into account all circumstances including any substantial likelihood that the accused if released will reoffend; and,
  3. to maintain confidence in the administration of justice having regard to circumstances such as the strength of the Crown’s case, the gravity of the offence, the circumstances of the offence including whether a firearm was used; and whether the accused is looking at a lengthy prison sentence if convicted (in the case of a firearm offence at least 3 years).
• These three grounds are known as the primary, secondary and tertiary grounds.

What are bail conditions and who can impose them?

• Bail conditions may be imposed by the police or the courts and must be followed by an accused when released from custody while awaiting their trial. For example, an accused may be required to follow a curfew, to not possess weapons and to not communicate with a victim or witness.
• The bail conditions must be appropriate and reasonable. If an accused person breaches their bail conditions, they can be charged and convicted of a new criminal offence under section 145 of the Criminal Code and could be sentenced to up to two years in prison.

What is the principle of restraint and how is it supposed to apply?

• The “principle of restraint” under section 493.1 is intended to ensure that release at the earliest opportunity is favoured over detention, where appropriate, and that only reasonably necessary bail conditions, tailored to the individual risks posed by the accused are imposed on an accused person. The principle of restraint is a guiding principle and does not dictate a specific outcome.
• This principle does not change the basis upon which someone can be detained at a bail hearing. The grounds for detention are if it is necessary to prevent flight, for the protection of the public or to maintain confidence in the administration of justice.
• The principle of restraint is embedded within the structure of the existing bail provisions, which date back to the Bail Reform Act of 1972. The Supreme Court of Canada has mandated its application on many occasions, including in the decisions of St-Cloud (2015), Antic (2017), Myers (2019), and more recently, Zora (2020).

Does the principle of restraint require those charged with a violent offence to be released?

• No. The principle of restraint guides police and courts in applying the provisions under Part XVI (compelling appearance of an accused and interim release) of the Criminal Code dealing with bail, but does not mandate the release of any person.
• This principle as well as the principle requiring that police and bail courts consider the circumstances of an Indigenous accused or accused from vulnerable populations seeks to ensure that a full range of considerations inform a decision on whether or not someone should be released on bail.

Why not amend the principle of restraint?

• While I am always open to suggestions on how to improve provisions in the Criminal Code, the principle of restraint has been mandated by the Supreme Court of Canada as being required under the Charter. It has been codified in the Criminal Code to guide police and courts in applying the bail provisions, and does not in and of itself require the release of any person.
• The principle does not change the basis upon someone can be detained at a bail hearing. The principle of restraint specifically makes reference to those grounds, and reaffirms that detention will continue to be necessary for public safety or to maintain confidence in the administration of justice.
• The reverse onus provisions remain in effect despite the principle of restraint and signal to the court that Parliament has intended for bail to be more difficult for an accused to obtain bail in certain circumstances

How does a reverse onus at bail work?

• A reverse onus at bail presumes that the accused should be detained pending trial and requires them to demonstrate why they should be released, having regard to the grounds for detention under subsection 515(10) of the Criminal Code (i.e., flight risk, public safety, and confidence in the administration of justice).
• A reverse onus does not mean that an accused will not be able to obtain bail, or that they need to disprove the commission of the offence with which they are charged. It means that the onus of proof to demonstrate they should be released has shifted to the accused, reflecting Parliament’s intent that it ought to be more difficult to obtain bail in these circumstances.
• A reverse onus at bail exists for specific situations, such as where the accused is charged with breaching a bail condition or with an indictable offence involving a firearm while the accused was under a prohibition order.

What changes are proposed by the Bill?

• The Bill proposes a targeted set of amendments to the Criminal Code’s bail regime. Specifically, it would:
  1. create a reverse onus provision for accused persons charged with a serious offence involving violence and the use of a weapon if they were previously convicted, within the last five years, of an offence with the same criteria;
  2. add certain firearms offences to the reverse onus regime;
  3. expand the existing intimate partner violence reverse onus to apply to an accused person who has been previously discharged for such offences;
  4. clarify what constitutes a “prohibition order” for the purpose of an existing reverse onus at bail for offences involving firearms or other weapons where the accused is already subject to a prohibition order; and,
  5. require the court to consider, for any bail decision, whether an accused has a history of violence, and to include in the record a statement that the safety and security of the community was considered.
• The Bill also includes a preamble affirming core principles of the bail system and a mandatory legislative review by Parliament to commence five years after the Bill receives Royal Assent.

What criteria would need to be met for the new reverse onus for repeat violent offending to apply?

• For the new reverse onus to apply, the following criteria would need to be met:
  1. the accused must be charged with an offence in the commission of which violence was allegedly used, threatened or attempted against a person with the use of a weapon;
  2. the accused has been previously convicted, within the previous 5 years, with an offence in the commission of which violence was used, threatened or attempted against a person with the use of a weapon; and,
  3. both the offence charged and the past offence have a maximum term of imprisonment of 10 years or more.

Why are certain firearms offences being added to the reverse onus regime?

• The Bill would add: possession of a loaded (or easily loaded) prohibited or restricted firearm (section 95); breaking and entering to steal firearm (section 98); robbery to steal firearm (section 98.1); and making an automatic firearm (section 102).
• Adding these offences is consistent with the objective of the existing reverse onus regime, namely to protect the public and ensure confidence in the administration of justice by treating certain firearms offences differently at bail.
• The addition of these firearms offences to the reverse onus regime responds to recent calls for bail reform from law enforcement agencies as well as from the provinces and territories, and reflects recent federal-provincial-territorial collaboration and engagement on these issues.

How would the existing reverse onus provision for intimate partner violence (IPV) be expanded?

• The Bill proposes to expand the current IPV reverse onus provision, enacted by former Bill C-75, that applies to anyone charged with an offence involving IPV and who has a past conviction for such an offence (paragraph 515(6)(b.1)).
• This reverse onus would be expanded to ensure it applies to accused who were previously convicted as well as those who were previously discharged under section 730 of the Criminal Code for an IPV related offence as well.
• The amendment seeks to ensure a wider application of this reverse onus for those found guilty of an IPV related offence as they may pose an elevated risk of reoffending and to public safety.

Why clarify what is meant by a “prohibition order” in the reverse onus regime?

• The existing reverse onus under subparagraph 515(6)(a)(viii) applies where an accused is charged with an offence involving firearms or other weapons and is already on a prohibition order.
• This particular amendment would make clear that the definition of a prohibition order under the Criminal Code (as defined in section 84) includes a bail release order made by a court that imposes conditions prohibiting an accused from being in possession of firearms and other weapons.
• This amendment would simply be a codification of the existing case law and would promote clarity in the reverse onus provisions.

Why add that the court must consider community safety and security?

• The Bill proposes to amend subsection 515(13) of the Criminal Code to require a court to include, on the record, a statement that they considered the safety and security of the community in relation to the alleged offence when making a bail order. This would complement the current requirement that the court consider the safety and security of any victim.
• This amendment explicitly acknowledges that offending has impacts on the community where the crime takes place and explicitly requires courts to take this into account.
• This amendment would allow for specific concerns from municipalities, Indigenous communities, and racialized or marginalized communities, to be taken into consideration at the bail hearing.

What is the significance of the amendment that the court consider whether an accused person has been previously convicted of a violent offence? Have courts not been doing this?

• Subsection 515(3) of the Criminal Code, enacted by former Bill C-75, provides that before making a bail order, courts must consider any relevant factor, including the criminal record of the accused or if the charges involve IPV.
• While a court can presently consider any past convictions of an accused person that involve violence, this provision would make doing so an express requirement and ensure that this is a relevant factor in any bail decision.
• The amendment would help strengthen public confidence and public safety because courts would be expressly required to consider any accused’s previous convictions involving violence, and potentially their increased risk of re-offending, even when the proposed or currently existing reverse onuses at bail do not apply.

Are the proposed reforms consistent with the Charter?

• I am confident that the changes in this bill are consistent with the Charter; the potential effects of this Bill on rights and freedoms protected under the Charter are detailed in the Charter statement.
• Under the Charter, all accused persons have the right to liberty and are presumed innocent until they are proven guilty. The Charter also provides that any individual charged with an offence has the right not to be denied reasonable bail without just cause.
• The proposed amendments are consistent with these guaranteed rights.

Do the provinces and territories support this Bill?

• The proposed amendments were developed in close cooperation and collaboration with the provinces and territories and I believe that they reflect our collective agreement on the need for targeted reforms.
• These changes are being advanced within our federal area of responsibility and reflect the Government’s commitment to bring forward law reform in this area.
• A well-functioning bail system, however, requires action from the provinces and territories, who are responsible for the majority of prosecutions in Canada, including the conducting of bail hearings and enforcing bail orders.
• I know, and am pleased, that some provinces and territories are taking steps within their areas of responsibility, such as by enhancing bail compliance measures and interventions directed at repeat violent offending.

Are these changes really needed?

• Tragic and recent events that have taken place across Canada have raised concerns about Canada’s bail system.
• Provincial and territorial partners as well as law enforcement have identified challenges posed by the application of the bail provisions in cases of repeat violent offending as well as offending involving firearms offences and other dangerous weapons.
• The proposed reforms deliver on the Government’s commitment to urgently advance Criminal Code reforms and would help maintain public safety and confidence in the criminal justice system.

Will the Bill address concerns about repeat violent offenders getting bail?

• This Bill signals Parliament’s intent that bail should be more difficult to obtain for accused persons who are alleged to be engaged in repeat acts of violence involving weapons.
• The Bill would also require courts to consider whether an accused has a history of violent offending before making any bail decision, regardless of whether a weapon was used.
• Law reform is only part of the solution. Action by all levels of government is necessary to make sure the bail system ensures public safety and maintains public confidence in the criminal justice system.

What bail data exists?

• The recent concerns raised with Canada’s bail system have highlighted important knowledge and data gaps; there are no national bail statistics in Canada.
• Provinces and territories report varying levels of information on bail to Statistics Canada; with only seven jurisdictions reporting on the outcomes of bail hearings. This provides a limited portrait of what is going on with our current bail system.
• Filling these gaps would put us in a better position to understand who is getting bail, who is not, and how bail decisions affect the efficiency and effectiveness of the justice system.
• Justice Canada is collaborating closely with Statistics Canada and the provinces and territories to prioritize this important work.

Will there be any funding to support the bail system?

• The Government recognizes the resource implications of administering justice and enforcement measures, including in relation to the bail system, for which the provinces and territories are responsible.
• The Government has made funding available to support efforts to combat guns and gangs, which has been used to support relevant bail initiatives.
• On May 8^th 2023, the Government announced $390.6 million over five years in funding directly to provinces and territories to help support a variety of initiatives to reduce gun crime and criminal gang activities. This funding builds on the initial $358.8 million invested into the Initiative to Take Action Against Gun and Gang Violence, first announced in 2017.

Who was consulted on the Bill?

• Federal, Provincial and Territorial governments have been actively collaborating on measures to strengthen the bail system for many months at the Ministerial, Deputy Ministerial and officials’ level.
• In addition to this work, we have met with police organizations and police chiefs as well as discussed bail in meetings with representatives from the National Indigenous Organizations.
• This engagement has demonstrated broad agreement for targeted criminal law reform that improves public safety and ensures confidence in the criminal justice system.
• This engagement has further identified the importance of ensuring that any changes do not impact upon criminal justice system efficiencies and take into account potential impacts on groups who are overrepresented in the criminal justice system, such as Indigenous, Black and marginalized persons.

What impact will the Bill have on overrepresentation in the criminal justice system?

• The Government is committed to addressing systemic discrimination in Canada’s criminal justice system.
• Considering any impacts on Indigenous people, Black persons and members of vulnerable groups, who are already overrepresented in our criminal justice system, is a priority in the development of any law reform.
• This Bill, which proposes narrow and targeted bail amendments, has been developed while being mindful of these impacts.
• Once the Bill is in force, the Government will be working closely with the provinces and territories to monitor the changes and ensure that they are being implemented as intended.

What are the Government’s views on Bill C-313?

• Private Member’s Bill C-313, An Act to amend the Criminal Code (justification for detention in custody), proposes amendments that would make bail more difficult to obtain for individuals charged with certain enumerated firearms offences allegedly committed while they are subject to a firearms prohibition order.
• Like with any Private Member’s Bill, the Government will monitor it as it progresses through Parliament.
• I appreciate that it proposes a different approach; however, this Bill proposes amendments that are based on close cooperation and collaboration with the provinces and territories and reflect concerns from key stakeholders.

Why doesn’t this Bill go further?

• The proposals and this Bill are intended to be targeted but significant, by focusing on a narrow group of accused persons who pose a risk to the public or a high risk of reoffending at the bail stage.
• These targeted amendments have been informed by the Charter and are mindful of criminal justice system efficiencies as well as the impacts on overrepresented groups in pre-trial custody.
• The proposed changes in this Bill have also been informed by significant federal, provincial and territorial dialogue, cooperation and collaboration.

Why isn’t there a definition of “repeat violent offender” proposed in the Bill?

• Although the Bill does not include a definition, as some have called for, the proposed amendments allow for identifying the criteria that would constitute repeat violent offending for the purposes of bail and reverse onuses.

Why doesn’t this Bill expressly address bear spray and knives/bladed weapons?

• Although not express, bear spray and knives/bladed weapons used as weapons are addressed in the proposed amendments, notably the proposed new reverse onus for serious repeat violent offending involving weapons.
• The term “weapon” is broadly defined in section 2 of the Criminal Code and covers bear spray and knives/bladed weapons because it includes any thing used, designed to be used, or intended to be used for causing death or injury to any person, or for the purposes of threatening or intimidating any person.

When will the Bill come into force?

• The Bill would come into force 30 days after the day it receives Royal Assent.
• Having the amendments come into force 30 days after the Bill receives Royal Assent would provide the provinces and territories, who are primarily responsible for the administration of justice, with time to prepare for the effective implementation of these changes.

What are the effects of the transitional provision?

• A transitional provision was included in the Bill to provide clarity about how the amendments affect matters before the courts at the time of the enactment (this is also known as “temporal application”).
• The transitional provision clarifies that the changes would apply immediately to matters that are before the court at the time they come into force.

Why did you fast track the bill through the House of Commons without study? Isn’t this undemocratic?

• First and foremost, this was a decision unanimously taken by all parties in the House of Commons in recognition of the importance of these reforms, which have the broad support of the provinces and territories.
• It’s important to remember that the Standing Committee on Justice and Human Rights already undertook a detailed study on Canada’s Bail System this past winter in response to concerns about repeat violent offending. Over a period of six weeks, that Committee heard from 30 witnesses, including law enforcement agencies, law associations, law professors and civil liberty groups. This study was closely monitored by the Department, and helped to inform the development of this legislation.
• This Bill is now before your Committee to examine the important changes it would bring.

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