Canada’s justice minister is defending a decision to allow the fast-tracking of the Liberals’ bail-reform bill, as leading civil society groups and criminal lawyers express concerns about a lack of oversight.
The unanimous decision by the House of Commons Monday to send the bill to the Senate without committee study means MPs will not probe the bill’s potential effects, including whether it could have a disproportionate impact on people who are Black, Indigenous or living with mental illness.
The Canadian Civil Liberties Association and the John Howard Society of Canada both said they met last Friday with Justice Minister Arif Virani and expressed concerns with measures proposed by Bill C-48.
They said they left without receiving any indication that it would be rushed through the House.
Statistics show that Black and Indigenous people are overrepresented in pre-trial detention. The two organizations are part of a coalition of civil society groups that argues the bill’s proposal to expand reverse-onus provisions could exacerbate the situation for marginalized populations.
“This bill has some significant problems associated with it,” said Catherine Latimer, executive director of the John Howard Society of Canada.
“It doesn’t have a strong evidentiary base, and there is no indication that it’s actually going to achieve the public safety goals that have been set out for it. … This is really one that needs to go to committee to have opposing views aired in other to improve the quality of that legislation.”
She added: “There were a number of very legitimate concerns raised that should be brought to the attention of Parliamentarians.”
Canada’s justice system requires prosecutors to prove why someone should stay behind bars while awaiting trial, but the legislation would instead put the onus on some offenders to prove why it would be safe for them to be let out of jail.
The bill specifically targets those who are charged with a serious violent offence involving a weapon in cases where the person was convicted of a similar offence within the past five years.
It also adds firearms offences to existing reverse-onus provisions, and expands them to cover alleged crimes involving intimate partner violence.
Former justice minister David Lametti, who was shuffled out of that role in July, said when he introduced the bill in May that it responds “directly” to concerns raised by premiers and police for Ottawa to toughen up its bail measures as a way to tackle violent crime.
That pressure had mounted on Prime Minister Justin Trudeau’s government after a string of high-profile incidents, as the Opposition Conservatives charged that the anxieties Canadians have about rising crime rates is a result of Liberal justice policies.
Shakir Rahim, director of the Canadian Civil Liberties Association’s criminal justice program, said Tuesday the decision by the House of Commons to pass the bail-reform bill in one shot came as a shock.
He said they had received signals from both the current and former justice ministers that civil society groups would have a chance to suggest amendments.
“We’re particularly alarmed because we have been meeting with the government about this bill,” he said.
“Reverse-onus provisions are a serious concern because the conditions in remand facilities, the fact that trials are taking longer and longer to occur … entail that putting more people behind bars, while they are still innocent until proven guilty, raises risks around false guilty pleas.”
Rahim added: “This is a fundamental departure from making evidence-based criminal justice policy in this country and it is one that we strongly oppose and could set, frankly, a dangerous precedent.”
Heading into the Liberal cabinet meeting Tuesday, Virani said the new bail measures do not reverse the presumption of innocence.
He said the bill was crafted with input from provincial premiers as well as their attorney generals. It also complies with the Charter of Rights and Freedoms, he added, referencing an analysis done by the Justice Department.
Virani said the bill is “fundamentally important to Canadians.”
He characterized the decision by MPs to fast-track the bill on their first day back in Parliament after a summer recess as proof that lawmakers can “work in a nonpartisan basis to keep Canadians safe.”
“That is my fundamental job,” he said. “I will not apologize for doing my fundamental job.”
His office later pointed to the fact that MPs on the parliamentary justice committee studied the country’s bail system more broadly in the spring, and the issue has been discussed extensively over the past year.
The bill was introduced in the Senate on Tuesday afternoon, with the government’s representative in the Upper Chamber also signaling his hope that it passes quickly.
“I would like to see the Senate deal with this crucial piece of legislation as swiftly as possible, consistent with the unanimously expressed will of the House of Commons, and the wishes of provincial and territorial governments across Canada,” Sen. Marc Gold said in a statement.
“That said, with respect to Senate process and timelines, discussions with Senate leadership are ongoing.”
Daniel Brown, president of the Criminal Lawyers’ Association, said Tuesday that seeing the government and other MPs send the bill directly to the Senate was disappointing.
He shares concerns about the knock-on effects of making bail more challenging to obtain, including the worry that more people could enter false guilty pleas so as to leave pre-trial detention sooner and await sentencing.
Brown added it is tougher for someone who is already behind bars to mount a proper defence, considering factors such as limited telephone access.
“The suggestion that bail is too hard to obtain is a complete lie,” Brown said, pointing to statistics showing there have never been more people in Ontario’s jails than there are at the current moment. The majority of those behind bars are awaiting trial.
“Black and Indigenous offenders who are already grossly represented in the justice system will suffer the most with these changes.”
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