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The Bail Reform Act in Canada Explained

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Last month, The Canadian government fast-tracked a bill that would make it harder for some criminal suspects to get out of jail on bail while awaiting trial. In a unanimous September 18 decision, the House of Commons sent Bill C-48 to the Senate without study by the Parliamentary Justice Committee. The bill was introduced in the House of Commons last May mainly in response to recent increases in Canadian rates of violent crime.

The move was decried by a coalition of civil society organizations who argue that the bill’s provisions will lead to more black and indigenous suspects being held in pre-trial detention. The groups point to statistics showing that these marginalized populations are already overrepresented in the pre-trial detention population. The Criminal Lawyers’ Association also objected to the bill, noting that the House of Commons “lacks the evidence” to support the need to make bail harder for some criminal suspects.

Meanwhile, the bill enjoys widespread support in Parliament, though some Conservatives don’t believe the bill’s bail reform efforts go far enough in keeping violent offenders behind bars. Conservative leader Pierre Poilievre claimed that the new bail measures would still allow the release of the suspects accused of killing Ontario Provincial Police Constable Greg Pierzchala. One of the suspects had been granted pre-trial release for assault and weapons charges.

With a robust practice as bail hearing lawyers, the Greater Toronto Area’s Mass Tsang law firm thought it would be a good idea to take a closer look at the bill to see what it might mean for our clients. Here’s what we found:

Principles Behind Bail in Canada

Also known as judicial pre-trial or interim release, Canada’s bail system was developed to conform with Section 11 (e) of the Canadian Charter of Rights and Freedoms. This Charter Right specifically says that “[a]ny person charged with an offence has the right not to be denied reasonable bail without just cause.” The Supreme Court of Canada added context to this language in several decisions. In R v. St-Cloud 2015 SCC 27, the high court noted that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.” In two other recent decisions, the court held that release on bail at the earliest reasonable opportunity and with minimal conditions should be the default position.

Based on the Charter Rights language, Supreme Court precedents, and relevant sections in Canada’s Criminal Code, Ontario and other provinces have developed judicial bail processes designed to provide pre-trial release for most defendants while keeping the most dangerous offenders behind bars until trial. In Ontario, Police are allowed to release people charged with minor crimes on a promise that they will appear at their court date. Suspects not released by police face a bail hearing before Ontario’s Court of Justice or in Ontario’s Superior Court, depending on the severity of the charges. Judicial officials consider three primary factors when deciding whether to allow pre-trial release:

  • Whether the alleged offender will attend court as required.
  • The need to protect public safety.
  • Whether releasing the offender might cause the public to lose “confidence in the administration of justice.”

In most bail hearings, the onus is on the Crown to prove why the accused should be held in custody until trial. However, the Criminal Code mandates that some serious offences require the defendant to justify why the court should allow their pre-trial release. These two types of bail hearings are referred to respectively as “Crown onus cases” and reverse onus cases.”

As you might expect, most defendants have difficulty securing pre-trial release in reverse onus bail hearings. Bill C-48 primarily expands the number of offences in the Criminal Code that would be subject to reverse onus bail hearings. The bill would also require courts to consider additional factors when assessing the risks of releasing defendants on bail.

Bill C-48’s Proposed Changes to Judicial Pre-trial Release

If enacted, Bill C-48 will make targeted changes to bail provisions in the Criminal Code with the government’s goal to “promote community safety and reinforce the public confidence in the administration of justice.” The bill creates a new reverse onus category applicable to defendants charged with offences that involve the following:

  • Actual, threatened, or attempted violence.
  • The use of a weapon.
  • In which the accused was convicted within the past five years of an offence with the same criteria.

The bill expands the list of firearms offences that trigger a reverse onus bail hearing to include:

  • Unlawful possession of a loaded or easily loaded prohibited or restricted firearm.
  • Breaking and entering to steal a firearm.
  • Robbery to steal a firearm.
  • Making an automatic firearm.

It also clarifies Criminal Code language to ensure that “bail release order” is included in the meaning of a prohibition order. While reverse onus currently applies to defendants who allegedly committed a firearms-related offence under a weapons prohibition order, the language will expand to include similar-arrested suspects under a bail release order.

Reverse onus already applies to anyone charged with an intimate partner violence-related offence who has been previously convicted for a similar crime. Bill C-48 expands reverse onus to cover anyone discharged for a previous intimate partner violence offence.

Last, Bill C-48 adds language to the Criminal Code that requires courts to consider specific risks the accused poses when making their bail determination. These risks, which are not explicitly stated in the current Code, are:

  • Whether the accused criminal record includes past convictions for violent offences.
  • Whether the accused poses a risk to the safety and security of the community.

For the latter, the bill would require the courts to put their assessment of this risk on the public record of the proceedings.

Secure Your Pre-trial Release with Toronto’s Mass Tsang

As highlighted in one of our earlier articles, Ontario’s bail hearing process is complex and stressful, with a potential outcome that can play a pivotal role in how you strategize your criminal defence. Mass Tsang’s bail hearing lawyers have a stellar, decades-long record of securing pre-trial release with favourable conditions for their clients. If you or a loved one is facing criminal charges in the Greater Toronto Area, start mounting an effective defence by securing pre-trial release with the help of Mass Tsang. You can schedule your free consultation by contacting us today.

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