An Act to amend the Criminal Code (bail for serious personal injury offence)

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.


Dave Batters  Conservative

Introduced as a private member’s bill. (These don’t often become law.)


Not active, as of March 3, 2008
(This bill did not become law.)


This is from the published bill. The Library of Parliament often publishes better independent summaries.

The purpose of this enactment is to ensure that a person accused of committing a serious personal injury offence is not granted bail as a result of an agreement between the prosecutor and defence counsel without the judge being fully informed of all of the evidence in the possession of the prosecution that is relevant to the release of the accused, including all relevant information respecting the alleged offence and its circumstances.


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal CodePrivate Members' Business

April 9th, 2008 / 7:25 p.m.
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Joe Preston Conservative Elgin—Middlesex—London, ON

Mr. Speaker, I recognize I may not have the full allotment of time, but I will give it my best and you can pull the plug if I go over.

I am happy to speak to Bill C-519, introduced by the member for Palliser. We have already told him what a great member he is, so perhaps we should stop that.

The bill addresses an important aspect of the bill system. More specific, the bill provides that where an accused is charged with a serious personal injury offence, as defined under section 752 of the Criminal Code, the prosecution shall present all the relevant evidence in its possession before a justice makes an order for the release of the accused.

Bail has been described earlier. The type of evidence that would be required is all the evidence that is relevant to the release of the accused, including all relevant evidence respecting the alleged offence and its commission.

As the bill summary notes, the purpose of the proposed reform is to ensure that an accused in such a case is not granted bail as a result of an agreement between the prosecutor and the defence counsel without the judge being fully informed by all of the relevant evidence in the possession of the prosecutor. As the member mentioned in his original comments, he personally knew the people involved in the crime of which he spoke and it is important that these relevant pieces are taken into account.

Bill C-519 is a private member's bill, not a government bill. Regardless, I am of the view that the bill is consistent with the government's overall crime platform. The government's criminal law reforms have sought to ensure the justice system operates in an effective manner in order to protect victims.

For example, in the last session of Parliament, Bill C-9 was passed in order to prevent the use of conditional sentences, which also refer to house arrest for offences proceeded on indictment that carry a maximum sentence of 10 years. Bill C-18, the DNA databank legislation, also received royal assent, thereby strengthening the Criminal Code regime with this powerful crime solving tool. Also street racing laws were passed with the proclamation of Bill C-19.

In this session of Parliament, Bill C-2, the Tackling Violent Crime Act, received royal assent. This important omnibus bill addresses a broad range of concerns. It tackles serious gun crimes by imposing higher minimum sentences for imprisonment and tougher bail rules. It allows stricter conditions and more effective sentencing and the management of dangerous and high risk offenders. It raises the age of consent for sexual activity to protect our youth from sexual predators. It strengthens the laws against impaired drivers to protect Canadians from those who drive under the influence of drugs or alcohol.

Criminal CodePrivate Members' Business

April 9th, 2008 / 7:15 p.m.
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Rick Dykstra Conservative St. Catharines, ON

He is certainly not afraid to bring forward the will of his constituents here in the House of Commons.

My colleague is inviting us to discuss what I believe is a very important and a very serious issue.

This bill asks us to examine how bail decisions are made in certain cases where the prosecutor and defence counsel have agreed to the release of the accused. Ultimately, this reform would not only ensure greater transparency and openness, but it would also ensure that the safety of the victim and the public were fully considered.

Bill C-519 proposes that the prosecutor be required to present evidence that is relevant to the release of the accused before a judge or justice of the peace makes an order for release on bail.

Therefore, it appears that this bill seeks to ensure that a bail court receives all of the relevant information that it needs in order to make an informed decision about the pretrial release of an accused.

This new obligation would not apply in all cases but rather only in cases where the accused has been charged with a serious personal injury offence and where the prosecutor and the defence have agreed that the accused can be granted bail.

Serious personal injury offences are defined in section 752 of the Criminal Code as indictable offences that involve the use or attempted use of violence against a person, or conduct endangering the life or safety of another person, or conduct inflicting severe psychological damage on the person and for which the offender may be sentenced to imprisonment for a minimum of 10 years or more. It also includes sexual assault, sexual assault with a weapon, and aggravated sexual assault. Bill C-519 is correctly limited to addressing these serious offences.

It should also be noted that Bill C-519 does not alter the existing standards with respect to bail. It does not change the grounds for detaining an accused. The presumption of innocence and the constitutional right not to be denied bail without just cause are not affected by this proposal.

The law provides that in general, accused persons benefit from a basic presumption in favour of release. As detention results in a complete loss of liberty, the law states that bail shall only be denied when there is just cause to do so.

The current Criminal Code provisions set out specific grounds to justify keeping someone in custody before trial.

Under what is commonly referred to as the “primary ground”, bail can be denied when detention is necessary to ensure that the accused does not flee from justice and appears before the court when he or she is required to do so. Under the “secondary ground”, bail can be denied to protect the public. As an example, if there is a substantial likelihood that the accused will reoffend or interfere with the administration of justice if released, bail can be denied. Last, bail can be denied under the “tertiary ground”, which is when the court considers it necessary in order to maintain confidence in the administration of justice.

The prosecutor normally has the onus of demonstrating why it is justified to detain an accused before trial.

This bill does not change these basic tenets, nor does it require the prosecutor to seek to detain an accused charged with a serious personal injury offence.

The summary of the bill clearly states that it is intended to apply in what are commonly referred to as consent release cases.

I would like to take a moment to describe the process around the arrest, the release or detention of accused persons in order to clarify at which stage Bill C-519 would apply and to put it into context.

When a person is arrested without warrant by the police, officers must release the person from custody unless they believe, on reasonable grounds, it is necessary to have that person detained. The purpose of detaining the individual may be based on the need to protect victims of, or witnesses to, the offence.

Officers must decide when to release the accused with or without conditions, or to detain the accused so that the accused may be brought before a judge or justice of the peace for what is referred to in the Criminal Code as a judicial interim release order, commonly referred to as bail.

When police officers believe that there are reasonable grounds not to release an accused, they are required under the law to bring them before a judge or justice of the peace within 24 hours, or as soon as possible if a justice of the peace is not available within those 24 hours.

Generally speaking, the type of information that will be available at this stage is the police incident report. The police report is a summary of the offence and the accused's criminal record and prior incidents that required police attention or intervention.

The accused's conduct since being detained may also be taken into account if the accused has displayed aggressive or threatening behaviour, or made statements that raised concerns about the safety of victims or witnesses.

In addition, the accused's lawyer or defence counsel on duty in bail court often provide additional information, which is of course relevant to the release of the accused. For example, they will indicate what measures have been sought in order to ensure that the accused will be able to respect the conditions of his or her release.

Depending on the relevant concerns, they will provide information such as the following: whether the accused will have a surety or a person that will help them to comply with their conditions; whether the accused will provide a cash deposit as a bail security; whether the accused will agree to comply with specific conditions such as reporting to police as required or residing at a particular location, just to name a couple.

Therefore, with information coming from both police and defence counsel, there are cases where prosecutors will be satisfied that the accused can be safely released with those conditions. In these instances, the Crown can decide to consent to the release of the accused and not seek to show cause why it is justifiable to detain the accused in pretrial custody.

It should be noted that in certain situations and causes, the law states that the accused shall be detained unless he or she shows cause why detention is not justifiable. These are commonly referred to as reverse onus. We have talked about this at the justice committee on a number of occasions in the last couple of years.

These situations apply in specific cases, such as where the accused is charged with breaching his or her bail, committing another indictable offence, trafficking or smuggling in drugs, and as of May 1 of this year, trafficking or smuggling in weapons as well. Therefore, Bill C-519 would only apply where the prosecutor has decided to consent to the release of an accused charged with a serious personal injury offence.

In conclusion, the bill seeks to ensure that in such cases, all evidence that is relevant to the release of the accused is put on the record before the judge or justice makes the bail release order.

I certainly stand here in the House today to lend my support to this bill and get it to committee. I look forward to having the member present at justice committee, of which I am a member. I know it will be a great day when the member is there and is able to present his thoughts on the bill and any positive changes that may be made to it. I think it is indicative of the House that all parties at least support it at second reading so that Bill C-519 has the opportunity to be presented at committee.

Criminal CodePrivate Members' Business

April 9th, 2008 / 7:15 p.m.
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Rick Dykstra Conservative St. Catharines, ON

Mr. Speaker, I am pleased to speak to Bill C-519, which proposes to amend the bail provision of the Criminal Code to address serious personal injury offences.

The member who sponsored the bill represents the riding of Palliser. He is a fine addition to this side of the House. He does an amazing job here in Ottawa on behalf of his constituents, even though it is a bit of a plane ride back to Pallister, Saskatchewan.

Criminal CodePrivate Members' Business

April 9th, 2008 / 7:05 p.m.
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Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, it is difficult to speak to this bill when I think of the tragedy the member for Palliser described and which, obviously, he experienced on a close personal basis. I could not help but think of identifying with him. Fortunately, I have never had the experience of having a close friend or family member brutally murdered but I have had several clients over the course of my career who have suffered similar types of assaults and ultimate murders.

The inevitable human response is to question our criminal justice system, to question whether we could have done better, whether it is the conduct of our police forces, our prosecutors, our judges or, yes, we here as parliamentarians.

My colleague from Palliser, through this bill, has given a very real sense of the pain that he went through.

However, I have some concerns about the bill. It is appropriate that we, in our role as parliamentarians, look, on a constant basis, at the Criminal Code to see if there are ways to make it better in order to better protect our society as a whole and our citizens individually.

That obviously is the role that the member for Palliser is playing here as he brings forth this private member's bill. I acknowledge that and congratulate him in that regard.

I think the member mentioned having contact with prosecutors in his home province. I think we all recognize the burden we place on the prosecutors and, to some degree in this process, on our police officers, the insistence that they be perfect. However, they are human beings and they are not perfect, nor are judges.

I have a question with regard to the approach in this bill. Are we placing, and we heard this to some degree from the member for Moncton—Riverview—Dieppe, an additional burden on prosecutors when we know they have great difficulty meeting the burden at this period of time in the process that involves whether a person will receive an interim custodial order or whether they will be released on bail? The bill clearly would place additional burdens on them if it were to ultimately become law as an amendment to the code.

It has been my experience, from the time I first started practising a long time ago right up to the present in terms of my discussions with crown prosecutors right across the country, that our expectations of what they can do--and the same is true of our police officers when they are involved in this stage of the criminal justice proceedings--and what they can present in a timely, efficient manner to a justice of the peace or a judge. They simply cannot do it.

We saw it in the tragedy this past weekend in British Columbia when those three young children were killed. We are hearing some recriminations. I do not know what the reality is. It is clear that the police wanted the person held in custody. Fingers were pointed initially at the justice of the peace for having released the person but now we are hearing evidence from Mr. Wally Oppal, the Attorney General of B.C., that not all the facts were in front of the justice of the peace. That is a classic case and it happens all too often in our country.

It is about resources. It is about giving our prosecutors and police sufficient resources and time, which means we need more of them, to present cases so that our judiciary, whether justices of the peace or judges, have the facts before them so that they can make a fully informed decision as to whether the person should be granted bail or kept in custody until trial.

I have to say that I do not see that this is going to help. In fact it will impose additional burdens. The amount of evidence that will have to be presented based on what is proposed in Bill C-519, in my estimation, would double, triple, maybe quadruple the workload of the prosecutors at that stage. It is going to at least double it. That would require more resources if we are going to do this.

I have to say to my colleague from Palliser that as much as I admire him, and I agree with the other parties that we are going to have this come to the justice committee, if we can ever get it functioning again, it behooves the member for Palliser and the government to take a look at the resources that we are providing to our prosecutors in particular, and to a lesser degree, our police around this issue.

As a bit of an aside, but it is relevant, I remember the huge fight that prosecutors had in Ontario in terms of their own personal compensation. They were grossly underpaid for a long period of time and only recently, I would say in the last 10 years, have they finally been able to catch up. As they fought for more appropriate wages reflective of their experience, education and the job load that they carried, they kept saying to various attorneys general in Ontario, “ More important, we need more prosecutors because we can't carry this workload. You can pay me double what I am getting now, but I can only work so many hours a week, at which point I collapse. Whether you pay me $100,000 or $150,000 or $200,000 a year, it doesn't matter because I can only work 60 to 80 hours a week and do a decent job. We need more prosecutors and it is really as simple as that”.

I would say to my friend that is one issue I would point out to him that he may want to try to advocate. I would urge him to advocate with his colleagues in government to look at this area and see that we get more prosecutors, and probably justices of the peace as well, to deal with this particular problem.

I want to raise another issue. He indicated that he will be seeking an amendment to the bill when it gets to committee. I want to caution him that he needs to look at whether the amendment he is proposing is going to be acceptable as an amendment. My preliminary reaction is that it is beyond the scope of the bill. I cannot see any way of correcting it, but he has to look at that. There is some real advantage to taking a look at reversing the onus in some cases.

In that regard, within the last six or eight months we passed a bill through the House and ultimately through the Senate reversing the onus on bail in the situation where guns were involved. That made sense. We have similar provisions in other areas. It may make sense to do it here, but I have to tell him I am not sure it is going to get by the legislative clerk in the justice committee, again if the justice committee starts functioning.

I want to commend my colleague from Palliser on the work that he has done on this. Hopefully we can resolve some of the concerns I have raised when the bill finally gets to committee.

Criminal CodePrivate Members' Business

April 9th, 2008 / 6:45 p.m.
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Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I want to thank the hon. member for his comments. It must be especially gratifying and yet difficult because in his remarks he indicated that he knew the individuals involved in the case which spurred him to bring Bill C-519 before the House tonight. I respect his courage in bringing the matter forward.

However, I feel, as a reviewer of legislation, that we have to look at the legislation before us. We have to look at the reasonable likelihood that what has been presented will become law. I cannot continue talking about Bill C-519 without talking about the big picture of whether this bill, if sent to committee, will ever become law. That is largely due to the state of dysfunction that we find ourselves in at the justice committee which I have served on for two years since my election to Parliament.

It is only recently, I might add in a note of partisan comment. The point being that up until recently legislation has been flowing through that committee. I would say a lot of legislation has been flowing through that committee. I might add, and without a lot of compliments to the other side with respect to the workload of the justice committee, that the committee has been loaded down with many laws that have been promulgated by the ruling party to backlog it with respect to many bills.

In a way, I feel that it would almost be disingenuous for us to promise the member that in sending this bill to committee that it will become law, unless, as I make this plea, we come to a reasonable solution to the simple question of why do we not follow the rules around here.

There are rules of procedure. We have to forget for a moment the merit of a debate. Forget whether he or she is right or wrong. We should follow the rules of procedure in this place. That is my lofty preamble on what committees do.

Should this bill be sent to committee, I think the committee would have a very large task in taking subsection (10) of section 515 of the Criminal Code and morphing it on to subsection 515(6).

I would be very open to hearing the other comments of hon. members and from witnesses with respect to whether such amendments would be in order. I too have grave misgivings, as I think now the mover of this bill has about the efficacy of the bill as presented.

I too have sought the opinion of crown prosecutors who I respect. They too have suggested that Bill C-519, the amendment of subsection (10) to add (10.1) to section 515 of the Criminal Code would impose a positive obligation on the Crown to do something and that is to produce all the evidence it has. This was not there before.

In effect, it is a good case of a well intentioned bill actually doing harm to the process. I think it is important. What I mean by this is that the mover of the bill moved quickly from saying that the bill is meant to do this, but now he has talked to prosecutors and he wants to do something else.

Clearly, at committee we would be open to that and that is fine. It is important to lay down the tracks that Bill C-519, as presented, is fatally flawed if we stay within subsection 515(10) or try to add to it.

I want to explain it as simply as I understand it. We are talking about an application for judicial interim release, which must happen sometime between 24 hours and 3 days after individuals are charged and detained of an offence involving a serious personal injury as the facts present here, that is, if they assault someone, typically a spouse.

If they do this on a Friday night, then they will have a bail hearing, depending on the jurisdiction and the availability of judges, for judicial interim release on the Sunday or the Monday, who knows, and at that hearing now the Crown does not have a positive obligation. It is not required to show the judge all the evidence it has to support why the person should not be released. The Crown must only make the case or show cause as to why the person should be detained.

There are many elements in the Criminal Code that suggest that if a person is a flight risk, will do harm again, is under a certain warrant of arrest now or is under certain obligation from the court by way of charge, then he or she should be detained. That is the show cause part of it.

With respect to certain offences, more grave offences, and this is where the member is going but he did not pigeon hole it in his bill, there is an onus on the accused to show why they should be released. That has been the law for some time. To label it a reverse onus right away and to say that this is something new, I do not think is productive to our criminal law evolution but it is in the Criminal Code. It has been for some time, that on very serious offences the accused must show cause why they should be set free.

If that is where we are going to go in committee, I welcome the discussion. Let us hear the evidence. Let us look at the other offences that are included in subsection 515(6) and see whether the serious personal injury offence fits within the tenure of those offences, if they are adequately serious with respect to the other offences. Let us hear the testimony from crown prosecutors as to how this will affect their everyday work.

Bill C-519, as it exists, burdens prosecutors and may in fact, by having them show evidence that they are not ready to present, damage further investigation or the leads that they have with respect to other crimes.

It may in fact lead to the anomalous situation where in order to get the order for detention, crown prosecutors would have to give a file to a judge which is virtually empty and if a fact scenario of a crime was committed on a Friday and on Sunday morning one expected a file replete with witness statements, medical information and other information, one is dreaming to think that would happen. That is not efficacious.

The spectre of having the victim be the evidence by giving viva voce evidence, a hearing to remand the person who beat her up three days earlier, is completely out of the norm of what we would expect with respect to respect for victims rights.

The law, as drafted, and I commend my hon. friend for his intention, is fatally flawed. If at committee we hear evidence that serious personal injury is in the realm of the other offences identified in subsection 515(6), then the committee, if it gets to work, if the backlog, the log jam or legalistic haranguing is gone, if we can get down to business as we did for two years previous, then we can look at this bill and maybe we can fix it.

With that, in conclusion I would like to say that the book called the Criminal Code is an organic thing. It has been with us a long time and it is probably one of the best things that has come out of our marriage between a common law jurisdiction and our vicinity or neighbourhood with the civil law of France and the civil code, and our proximity to the United States frankly. It is somewhere in the middle of the U.S. criminal codes and the common law in Europe as we took it in around 1867, and it is ours.

If we look at it, and the public should know, there is hardly anything really new that can be added to the Criminal Code. It grows like a plant and what we are trying to do here is see if the horrible crime that my friend describes can be put into this organic document, and it can be made sense of. It has to apply, with all respect, to every fact situation involving a serious personal offence and not just a heinous and egregious crime that he described, and to which he was so close personally.

I will do my part, this is a private member's bill, to ensure to the hon. member that the committee gets working, that his bill gets sent to committee, and that we try to save it and to do justice to the memory of Michelle. We want to ensure other victims, who will be hopefully helped by the fact that we did our work here on this night in Parliament, that the committee tomorrow or the next day will do its work.

The House resumed consideration of the motion that Bill C-519, An Act to amend the Criminal Code (bail for serious personal injury offence), be read the second time and referred to a committee.

Criminal CodePrivate Members' Business

April 9th, 2008 / 6:30 p.m.
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Dave Batters Conservative Palliser, SK

moved that Bill C-519, An Act to amend the Criminal Code (bail for serious personal injury offence), be read the second time and referred to a committee.

Mr. Speaker, before I begin I will take a moment to explain the medal I am wearing on my right lapel. To explain to the many people across the Canada who would have watched at home, riveted to their television sets, throughout the vote that just took place, the medals we are all wearing commemorate the 91st anniversary of the Battle of Vimy Ridge. We commemorate the courage of those soldiers, who did what many people thought was impossible and took that hill. It was a day when Canada truly came into its own.

As a member of Parliament, one feels a great sense of responsibility when choosing the subject for one's first private member's bill. I have focused my private member's bill, Bill C-519, on a matter very close to my heart. It is rooted in a tragic criminal case, which became one of the main reasons that I entered federal politics.

On November 4, 2003, Michelle Lenius, a 32 year old woman with three children, was murdered by her estranged husband, Kevin Lenius. Michelle was my friend and the friend and co-worker of my wife Denise. Kevin was out on bail at the time of this terrible incident.

Two weeks before Kevin strangled Michelle to death, he waited for her inside her darkened Regina home until she arrived later that night. Then he raped her and assaulted her and threatened to kill her if she went to the police. Despite this threat, Michelle made the brave--

Criminal CodeRoutine Proceedings

March 3rd, 2008 / 3:20 p.m.
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Dave Batters Conservative Palliser, SK

moved for leave to introduce Bill C-519, An Act to amend the Criminal Code (bail for serious personal injury offence).

Mr. Speaker, I am honoured to present my private member's bill entitled, An Act to amend the Criminal Code (bail for serious personal injury offence). I will refer to this bill as Michelle's law.

The bill was inspired by the terrible circumstances surrounding the murder of Michelle Lenius in 2003. Michelle was my friend and my wife's friend and co-worker. Michelle's ex-husband was convicted of her murder. Unfortunately, this man should not have been out on bail when he killed Michelle. This tragic case was one of the main reasons I entered federal politics.

The passage of this bill would give our hard-working Crown prosecutors another tool to help them in their difficult jobs. This bill would provide that for those accused of a serious personal injury offence in the Criminal Code, before a judge rules on that person's release, the Crown prosecutor shall present the judge with the prosecution's evidence relevant to the release of the accused.

I ask all members to support Michelle's law.

(Motions deemed adopted, bill read the first time and printed)