Bail Reform: Unexpected Consequences
By Grace Condello and Nick Whitfield
On January 13, 2023, in a letter to the Prime Minister, Premiers issued a “call to action” to strengthen Canada’s bail system which led to Bill C-48. Bill C-48 received Royal Assent and the amendments to the Criminal Code of Canada came into effect on January 4, 2024.
Bill C-48 was fast tracked with the intention to “keep all people in Canada safe”. In addressing Bill C-48 on September 18, 2023, the Attorney General of Canada, Hon. Arif Virani, summarized the amendments stating:
“Justice ministers across Canada agree that the bail system functions properly in most cases. However, at the same time, we heard there are challenges with the bail system when it comes to repeat violent offenders.”
“Let me start, first of all, with the newly proposed reverse onus. A reverse onus at bail starts with a presumption that an accused person will be detained pending trial unless they can show why they should be released. The onus is on the accused.”
“This new reverse onus would apply in the following situations: when violence was used, threatened or attempted with the use of a weapon in the commission of the offence; when the offence is punishable by a sentence of 10 or more years in prison; and when the accused has been charged with another offence that meets these criteria in the past five years.”
Right to bail under the Charter
Section 11(e) of the Charter guarantees that a person charged with an offence has the right not to be denied reasonable bail without just cause. This right goes hand and hand with the right to the presumption of innocence guaranteed under section 11(d) of the Charter.
Prior to Bill C-48, the Criminal Code contained provisions that provided the Courts with the power to detain a person for valid reasons such as ensuring their appearance in court, preventing the commission of an offence and for very serious offences, including offences involving violence that was used, threatened or attempted against another person.
Burden of Proof
The right not to be denied reasonable bail without just cause requires that the Prosecution prove that the detention of an accused person is justified. Generally, the Crown bears the burden to establish why an accused person ought to be detained to the standard on a balance of probabilities (meaning more likely than not).
The reverse burden of proof
There are statutory provisions that reverse the burden of proof. These are called rebuttable presumptions of law but more commonly referred to as a reverse burden.
A rebuttable presumption of law compels the trier of fact to assume the existence of presumed facts in the absence of evidence to the contrary. The principle operates to “reverse” the allocation of the burden of proof and acts as a “legal shortcut”, meaning that Prosecution does not need to prove that the accused must be detained.
Where an accused has the revere onus at bail, they will be detained unless they can overcome the high hurdle of showing that they ought to be released. This was the objective of Bill C-48.
Reverse burden for domestic charges
The discussions in Parliament were not only about repeat offenders who commit violent offences with weapons but also included the “rate of violent victimization among women”. Accused persons now charged with an intimate partner violence offence (ie. domestic assault) in which that person was previously discharged for a domestic offence, will now be subject to a reverse onus for bail.
While the issue of domestic violence has been a serious and longstanding problem, criminal and family lawyers regularly see cases in which family law proceedings are weaponized by the laying of criminal charges.
While there are cases in which parties are victims of domestic violence, there are numerous cases in which accused persons are falsely charged with domestic violence offences. Statistics show that there is an “extremely high” number of cases in which complainants recant allegations. There are also numerous cases in which an accused may accept a ‘deal’ in order to reconcile the relationship.
It is common for Criminal and Family law lawyers to see cases in which once Family Court proceedings are filed, including Applications for custody and access to children, one party will turn to police to make allegations of domestic violence to gain an advantage in the Family Court proceeding. This weaponizing of the family proceeding through criminal charges operates so that the other party will have conditions barring them from access to the family home and to the children through a Recognizance of Bail or Undertaking.
With the implementation of Bill C-48, this party will now also have burden of a reverse onus to prove that they should be released on Bail.
Catherine Latimer, the director of the John Howard Society of Canada said “[The bill] doesn’t have a strong evidentiary base, and there’s no indication that it’s actually going to achieve the public safety goals.”
Will the new amendments keep Canadians safe?
A 2019 study by Statistics Canada on recidivism found that of 53,003 individuals who were accused of a crime, 46% had at least one re-contact with police. The study also found that the proportion of offenders who re-offend has been consistently lower for individuals in community supervision than those who served a jail sentence of six months or more.
On January 9, 2024, a man killed his estranged wife outside a Calgary Elementary school. The two were in the process of divorce proceedings and the man had been charged twice with violating the terms of a no-contact order. In this case, the Court had the statutory power to detail male, even without the new reverse onus that came into effect just a few days prior.
The concern by criminal lawyers is that the overreach of Bill C-48 will have the unintended consequences of encompassing individuals who are victims of false allegations and will languish in jail, thus vanqishing the most important principle in criminal law: the presumption of innocence.
1Government of Canada, “Letter to Prime Minister from Premiers” (January 13, 2023), online: https://www.justice.gc.ca/eng/trans/bm-mb/other-autre/cbs-scmlc/letter-lettre.html
2 Ibid, https://www.ourcommons.ca/DocumentViewer/en/44-1/house/sitting-219/hansard#12318507
3 Parliament of Canada, House of Commons, House Publications, Debates (Hanard), (September 18, 2023), online: https://www.ourcommons.ca/DocumentViewer/en/44-1/house/sitting-219/hansard#12318507
4 Sidney Lederman, Alan Bryant, Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (Toronto: LexisNexis Canada, 2018) at p.157
5 Ibid, at p.156
6 Ibid, https://www.ourcommons.ca/DocumentViewer/en/44-1/house/sitting-219/hansard#12318507
7 Government of Canada, “Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Criminal, Family, Child Protection) December 28, 2022, online: https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/enhan-renfo/p7.html
8 Stephanie Taylor, “Civil Liberties, justice reform groups troubled by House’s fast tracking of bail bill”, CTV News (September 19, 2023) online: https://www.ctvnews.ca/politics/civil-liberties-justice-reform-groups-troubled-by-house-s-fast-tracking-of-bail-bill-1.6568252
9 Government of Canada, Just Facts, Recidivism in the Justice System (August 2020), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2020/aug01.html
10 Meghan Grant, “Man who killed his estranged wife outside Calgary school was facing domestic violence charges”, CBC News (January 16, 2024) online: https://www.cbc.ca/news/canada/calgary/police-investigating-incident-calgary-school-southwest-1.7085323