Bail and Bill C-75
Ryan Dorsman, 3L, Volume 78 Senior Editor
Bill C-75’s amendments to Canada’s bail regime come into force on December 18, 2019. As we approach that date, it is worth pausing to outline the scope of the amendments and the reception they have had with interested stakeholders.
The Canadian Bail Regime
When somebody is charged and arrested for committing a criminal offence, they can be released from custody pending trial by being put on ‘bail’—formally called ‘judicial interim release’ in the Criminal Code.
Section 515(15) of the Code outlines the three purposes of Canada’s bail regime: 1) to ensure the accused’s attendance in court; 2) to protect the public (including witnesses and victims) from the accused prior to trial; and 3) to “maintain confidence in the administration of justice.”
In bail hearings, there is generally a default presumption for unconditional release pending trial. However, justices may order more restrictive measures to be imposed in individual cases if the justice believes they are warranted. In these cases, the Crown must justify each restrictive measure imposed with reference to one of the three purposes set out in s. 515(15). The ‘ladder of bail’ that a justice may choose from is laid out in s. 515(1) and (2) of the Code, which generally summarizes the five increasingly restrictive forms of release from custody on bail:
Unconditional release on an ‘undertaking’ (a promise to appear in court);
Release with conditions and an undertaking;
Release with conditions and a ‘recognizance’ (an acknowledgement of monetary indebtedness to the Crown if the accused fails to satisfy certain conditions);
Release with conditions, a recognizance, and sureties (individual(s) who supervise the accused and ensure the accused honours their promise to appear in court); and
Release with conditions, a recognizance, and a cash deposit.
The mechanics of Canada’s bail regime are underpinned by the accused’s right “not to be denied reasonable bail without just cause” under s. 11(e) of the Charter, as well as the accused’s right “to be presumed innocent until proven guilty” under 11(d) of the Charter. In R v Antic, 2017 SCC 27, the Supreme Court clarified the operation of these underlying principles and confirmed that the Code’s statutory framework “prohibits a justice or a judge from imposing a more onerous form of release unless the Crown shows why a less onerous form is inappropriate.” [1]
Bill C-75
Bill C-75 introduces substantial changes to a number of pre-existing pieces of federal legislation, from the Youth Criminal Justice Act to the Supreme Court Act. The Bill’s amendments to the Criminal Code involve reclassifying a large number of strict indictable offences as hybrid offences; extending the limitation period on summary offences from six months to twelve months; allowing ‘routine police evidence’ to be given at trial by affidavit; and – perhaps most (in)famously – restricting the availability of preliminary hearings and removing peremptory challenge.
While the majority of the Bill’s legislative amendments came into force September 19, 2019 (90 days after the Bill’s Royal Assent), the Bill’s changes to bail were pushed to December 18, 2019 to provide “additional time for implementation and for advanced training for police and Crown prosecutors.” [2]
Bill C-75 introduces three primary changes to Canada’s bail regime:
The Bill codifies the Supreme Court’s clarification of the ‘principle of restraint’ in Antic; [3]
The Bill requires justices conducting bail hearings to consider the circumstances of Indigenous accused and other accused belonging to overrepresented populations in the criminal justice system; [4] and
The Bill creates a reverse-onus provision for individuals charged with offences related to intimate-partner violence if they have a prior conviction for violence against intimate partners.[5]
Affirming the Principle of Restraint
Bill C-75 codifies the clarification of the principle of restraint that was adopted by the Supreme Court in Antic.Previously, the principle was set out by s. 515(3) of the Code, which read:
(3) The justice shall not make an order under any of the paragraphs 2(b) to (e) [the ladder of bail set out above] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
Bill C-75 introduces s. 515(2.01), which expands on some of the language within the provision:
(2.01) The justice shall not make an order containing the conditions referred to in one of the paragraphs (2)(b) to (e) unless the prosecution shows cause why an order containing the conditions referred to in the preceding paragraphs for any less onerous form of release would be inadequate [Emphasis added].
While the added clarity has been a welcome addition to the existing regime, Parliament has been criticized for maintaining the status quo rather than implementing progressive reform. On October 1, 2018, the Canadian Civil Liberties Association (CCLA), Legal Aid Ontario, the British Civil Liberties Association (BCCLA), the John Howard Society, the Criminal Lawyers Association, and several other stakeholders signed an open letter to the Minister of Justice. The letter voiced their concerns that “[g]iven the significant rule of law challenges and ingrained cultural risk aversion in Canada’s bail system, the current legislative proposals are unlikely to result in significant change in the operation of bail and pre-trial release” and that “the best course of action would be to write a new Bail Act that more clearly structures the discretion to detain or release on restrictive conditions.” [6]
Although only time will tell what the real impact of s. 515(2.01) will be, the preliminary data gives some credence to the concern that simply adopting the language of Antic will not have a substantial impact in lowering the number of people kept in custody after being denied bail. [7] In FY 2015/2016, 59% of all adults in provincial and territorial facilities across Canada were remanded in custody after being denied bail. In FY 2016/2017, that same number increased slightly to 61% of all adults in provincial or territorial custody. Although the Supreme Court released Antic on June 1, 2017, the proportion of adults in provincial and territorial facilities that are on remand remained at 60% for FY 2017/2018.
Attention to the Circumstances of Overrepresented Populations
Bill C-75 also adds an amendment to s. 493 of the Code requiring justices to take into account the circumstances of Aboriginal accused and other accused from populations that are overrepresented in the criminal justice system:
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
In FY 2014/2015, Aboriginal persons represented one in four adults admitted to remand across the country – more than 8 times greater than the overall representation of Aboriginal persons in Canada’s population (3%). [8] This amendment reflects a welcomed effort from Parliament to combat this overrepresentation.
Although Parliament has not specified how justices are meant to take into account the circumstances of Aboriginal and other overrepresented populations, this introduction of Gladue principles into Canada’s bail regime has received almost universal praise from invested stakeholders. As one Toronto defence lawyer commented in a conversation with the author,
[t]he recent jurisprudential trend has been to acknowledge that too many people spend too much time in pre-trial custody and that should change, and this provision expresses a fairly direct legislative intent to the same effect… We’ll have to see how much consideration bail justices actually give to it, but it’s an extra submission for the defence that gives the justice an extra reason to release [the accused].
Legal Aid Ontario’s submissions on Bill C-75 to the Standing Committee of Justice and Human Rights in October 2018 were similarly hopeful, commenting that the amendments represented a “welcomed and proper culmination” of efforts from the judiciary, public interest groups, and provincial initiatives to address the ongoing “crisis in bail” in Canada. [9]
Reverse-Onus for Intimate Partner Violence
Bill C-75 also adds a reverse-onus for bail when an individual (1) is charged with an offence related to intimate-partner violence and (2) has previously been convicted of an offence related to intimate-partner violence. Reverse-onuses flip the ‘ladder of bail’ and require the accused to prove that their continued detention is not justified with regards to the purposes of bail set out in s. 515(10). This amendment represents part of Parliament’s attempt in Bill C-75 to fulfill a 2015 Liberal campaign promise to combat the issue of intimate-partner violence in Canada. [10] The new provision, s. 515(6)(b.1), states that a reverse-onus will apply when an accused it charged:
515(6)(b.1) with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs.
Section 515(6)(b.1) joins the Code’s pre-existing reverse-onuses for individuals who are charged with committing an offence while on bail for a previous offence, [11] who are charged with offences related to gangs, firearms, and drug trafficking, [12] and who are charged with murder and a short list of other ‘most serious’ crimes. [13] Although s. 515(6)(b.1) represents a restrained version of the Code’s other reverse-onuses – in that the new provision only applies to individual with a previous conviction related to intimate-partner violence – Parliament’s use of reverse-onuses for bail in any circumstance remains controversial.
Reverse-onuses for bail cut against the presumption of innocence and the right not to be denied reasonable bail without just cause. Despite this, the Supreme Court has held that reverse-onuses can survive Charter scrutiny. In R. v. Pearson, [1992] 3 SCR 665, the Court upheld the reverse-onus provision for individuals charged with drug trafficking offences, finding that the provision ensured “an effective bail system for specific offences for which the normal bail system would allow continuing criminal behavior and an intolerable risk of absconding”. [14] It is likely that any Charter scrutiny of the new s. 515(6)(b.1) will be defended with similar reference to the purposes of public safety and the ongoing maintenance of confidence in the administration of justice set out in s. 515(10).
Organizations like the CCLA have raised concerns for the potential overbreadth of the new provision. In their submissions to the Standing Committee on Justice and Human Rights, the CCLA warned that the provision, “while effective in increasing the number of abusive partners brought before the criminal justice system, can also have the effect of criminalizing victims who are caught in an abusive relationship.” [15] In their submissions, the CCLA pointed to research that indicated a recent increase in the number of women who have themselves been arrested for intimate-partner violence while living with abusive partners.
Takeaway
Bill C-75’s codification of the Antic principle of restraint and introduction of pseudo-Gladue principles both have promise to have a long-term positive impact on Canada’s bail regime. Although the vast majority of accused individuals (with the noted exception of individuals accused of intimate-partner violence) ought to benefit from Bill C-75’s bail reforms, it remains to be seen what (if any) tangible impacts the provisions will have on the day-to-day operations of bail hearings. For that, we must wait for the amendments come into force on December 18, 2019.
Notes
[1] at para 47.
[3] DOJ Report at 17.
[4] DOJ Report at 17.
[5] DOJ Report at 18.
[6] Letter to the Honourable Jody Wilson-Raybould, (Ottawa, 2018).
[10] New Plan for a Strong Middle Class, (Liberal Party of Canada, 2015) at 52.
[11] Criminal Code, RSC 1985, c C-46, ss. 515(6)(a) and (c).
[12] Criminal Code, RSC 1985, c C-46, ss. 515(6)(a) and (d).
[13] Criminal Code, RSC 1985, c C-46, s. 522(2).
[14] R v Pearson, [1992] 3 SCR 665, Lamer CJC at 699.