Bill C-48

An Act to amend the Criminal Code (bail reform)

This enactment amends the Criminal Code to, among other things,
(a) create a reverse onus provision for any person charged with a serious offence involving violence and the use of a weapon who has been convicted, within the last five years, of a serious offence involving violence and the use of a weapon;
(b) add certain firearms offences to the existing reverse onus provisions;
(c) expand the reverse onus provision for offences involving intimate partner violence to ensure that it applies to an accused person who has been previously discharged for such an offence;
(d) require the court to consider if an accused person has any previous convictions involving violence and to include in the record a statement that the safety and security of the community was considered; and
(e) require the court to include in the record a statement setting out how the court determined whether the accused is Aboriginal or belongs to a vulnerable population and, if so, how the particular circumstances of the accused were considered.
This enactment also makes further clarifications and provides for a parliamentary review of the provisions it enacts or amends to commence on the fifth anniversary of the day on which it receives royal assent, or as soon as feasible after that anniversary.

Criminal Code

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, whether it is firearms, knives or bear spray, and the reverse onus as applying to those in certain situations through this legislation, it is not the first time there is a reverse onus with respect to acts that are committed.

If the member has more specifics, as I suggested in my comments to the previous question, nothing prevents us from doing what it is the member's own leader was recommending not that long ago, which is to pass this legislation through. In getting it to committee stage, if the member has an idea that he would like to bring forward with respect to this legislation, I would encourage him to do so.

What I am suggesting is that there seems to be a will to see this legislation pass that goes far beyond even the House of Commons. Ultimately, standing committees can do good work when working with the minister, who I know is committed to working with the different stakeholders who are out there. If there is a way in which it can be improved upon, I am open to it. Let us see it go to committee.

[Chandra Arya, Liberal, Nepean, ON]

Madam Speaker, I would like to ask my colleague if he agrees with me that this piece of legislation is not the only solution. The provinces and territories have also devised their own legislation in this regard and have worked jointly, because our justice system is complex and we need all levels of government to work together.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, the member raises a very good point. Judicial jurisdiction in our courts and our laws is actually shared between Ottawa and provincial and territorial governments, so it is important we all work together at advancing and improving community safety. What is so good about Bill C-48 is that the background work was done. This is good, solid legislation that would make a positive difference in terms of safety in our communities.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Order. It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Stormont—Dundas—South Glengarry, Carbon Pricing; the hon. member for Renfrew—Nipissing—Pembroke, Agriculture and Agri-Food; the hon. member for Leeds—Grenville—Thousand Islands and Rideau Lakes, Ethics.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Madam Speaker, it is a pleasure to rise on this first day of the new parliamentary session.

I would start by saying that the role of debate is to separate the wheat from the chaff, to use our experience, intelligence, discretion and insight to pinpoint what is really going on as opposed to what we think is going on, which can be influenced by the rush to easy assumptions and various biases, personal and societal, and so on.

The point of intelligent and informed debate, that is, of reasoned democratic discourse, is to safeguard against the kind of populism that appeals to simple intuition or, to use the new Conservative code word, simple common sense. Common sense sounds so right, so good. Who could object to it? Common sense is a deceptively appealing slogan, but there is a difference between common sense and good sense.

There is a distinction to be made between good sense and common sense. Good sense that is thoughtful, nuanced and based on facts and rigorous analysis is an excellent thing. On the other hand, what is referred to as “common sense” can be reductionist and simplistic, a populist trope designed to get the public to buy into easy solutions that serve narrow ideologies and well-established political agendas.

“Common sense” is a catchphrase that seeks to oversimplify and to get the buy-in of the public for simple solutions to complex problems, solutions that are not always the best but that serve an ideological agenda like cost cutting or rolling back environmental protections. I believe there is such a thing as collective wisdom that offers up time-tested notions, like the difference between good and evil, the need for caution in the face of too much rapid change or the value of preserving order in society. However, age-old collective wisdom cannot always guide us in dealing with technically and legally complex matters of contemporary public policy. So-called common sense can be off the mark.

So-called common sense can lead us down the wrong path. It can actually lead us right off the road.

With respect to bail reform, this seems to be the Conservative common-sense approach or belief: Those apprehended and accused of a crime are guilty and therefore should remain in jail while awaiting trial. However, in our justice system, the product of centuries of accumulated wisdom and reason, in law one is, thankfully, innocent until proven guilty.

Traditional small c conservatives are supposed to put faith in accumulated wisdom and the organic evolution of thought, laws and institutions, as opposed to promoting reactive solutions. Canada's bail system is the product of English common law dating back hundreds of years.

Let me be clear: One murder because someone is out on bail who should not have been is one death too many. It is a tragedy and we should not stand for it. There is not a single person in this House who disagrees. However, to claim, as the opposition does daily, that the streets are being overrun by murderers on automatic bail in a revolving-door justice system is, I believe, demagoguery.

How does the bail system work, versus the opposition's truncated version of it? Namely, it is up to police and prosecutors in provincial jurisdiction to make the case against granting bail to an individual. In other words, the onus is on the state to justify why someone who has not yet been found guilty should have to remain behind bars while awaiting trial. However, something not generally understood is that when it comes to charges of murder and certain other offences, the onus is actually reversed. The accused must convince the court why they should be released while awaiting trial.

In 2019, Parliament adopted Bill C-75, which extended the reverse onus to repeat offenders charged with an offence against an intimate partner, or what we call intimate partner violence. Again, this will be news to many listening today. The burden of proof is also on the accused for certain firearms offences, including weapons trafficking, possession for the purpose of weapons trafficking, illegal importation or exportation of a weapon, discharging a firearm with intent, discharging a firearm with recklessness and the following offences committed with a firearm: attempted murder, sexual assault, aggravated sexual assault, kidnapping, hostage-taking, robbery and extortion. Again, that is a far cry from a revolving door. Furthermore, the law is already clear that detention without bail is justified when deemed necessary by a judge to protect the safety of the public.

When someone is granted bail, they typically are required to have a surety, that is, one or more people who commit to supervising the behaviour of the accused and who will pay a certain sum if the accused breaches their bail conditions. There are many reasons bail can be denied: the accused has a criminal record or failed to comply with past bail conditions; or, as mentioned, the accused is thought to pose a risk to the public; or the accused lacks a surety or place to live, which is a problem that more often afflicts members of disadvantaged groups.

Here is a news flash that will come as a surprise to many people listening today: In 2020, 77% of people in Ontario's jails were in custody awaiting trial. In other words, we are not a lenient country, contrary to the Conservative populist narrative. To quote Queen's University professor Nicole Myers, “We've had more people in pretrial detention than in sentence provincial custody since 2004.”

All that said, we do need bail reform, and Liberals are reformers by nature.

How do we reconcile the need to protect the public while at the same time preserving the central tenet of our criminal justice system, which is “innocent until proven guilty”? The answer is Bill C-48. The bill would add a reverse onus for an accused person charged with a serious offence involving violence that was used, threatened or attempted, and the use of a weapon such as a knife, where the person was previously convicted, namely within the previous five years. This makes sense because a previous offence is an indication of risk. A serious offence would be defined as an offence carrying a maximum sentence of 10 years' imprisonment, such as assault causing bodily harm and assault with a weapon.

The bill also expands the list of firearms offences that would trigger a reverse onus. These offences include unlawful possession of a loaded or easily loaded prohibited or restricted firearm, breaking or entering to steal a firearm, robbery to steal a firearm and making an automatic firearm. Currently, there is a reverse onus when the person is subject to a weapons prohibition order and violates it. The new law would clarify to include prohibition orders made at bail.

Bill C-48 would also broaden the reverse onus for repeat offenders of intimate partner violence to those who have received a discharge under section 730 of the Criminal Code, or, in other words, where the offence no longer appears on a criminal record.

Finally, Bill C-48 would require courts to consider an accused person's history of convictions for violence as well as concern for community safety. As OPP commissioner Thomas Carrique told The Globe and Mail recently, the changes in Bill C-48 “go a long way to help eliminate and prevent harm and senseless tragedies in our communities”.

We need to keep in mind that indigenous people are denied bail more often than others, while Black people in Ontario spend longer in custody while awaiting trial than white people for the same offences. This is because courts use police reports to decide on bail, and police reports can contain racial bias. Another reason is that members of disadvantaged groups often have trouble finding sureties or bail money. It is worth noting that the longer someone is detained without bail, the greater the probability of a plea bargain or that the person will plead guilty despite having a viable defence. Either way, justice is compromised.

Under the Charter of Rights and Freedoms, accused persons in Canada have the right to bail unless there is a very compelling reason to keep them in custody. This is constitutional law, whether Conservatives like it or not.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Madam Speaker, my colleague mentioned the data, which says that 70% of incarcerated people in provincial jails are in pretrial detention. They have not even been tried or convicted yet. He says that in his opinion, this counters the false narrative that the Canadian judicial system is lenient. However, maybe it is evidence that our courts and Crown prosecutors are under-resourced. Accused people have the right to a speedy trial, and maybe people are just languishing in pretrial because our courts and Crown prosecutors are under-resourced.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Madam Speaker, the percentage I quoted was 77%, which is extremely high. Yes, of course the system is under-resourced and that could affect this figure, no doubt, but it is such an overwhelming figure that I think it is compelling in its own right.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, I note that the member, at the beginning of his speech, talked quite a bit about this new-found slogan that the Conservatives are using, which is the “common sense” talk. As an Ontarian, the first thing I thought of was Mike Harris's “Common Sense Revolution”, which led to widespread cuts, the selling off of government organizations that were actually making money and, of course, the neglect to ensure that we had safe drinking water, which was due to cuts to the various agencies that oversaw healthy drinking water.

The member touched on this a bit, but I am curious if he could comment as to what the idea of this “common sense“ approach really means in terms of the impact it would have on Canadians, as we saw in Ontario in the nineties.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Madam Speaker, what I was trying to bring out was the distinction between common sense and good sense. Easy slogans like “common sense” can hide a lot from the public. They can hide issues that need to be explored in greater detail. I think the distinction between common sense and good sense is important because it underscores the notion that, yes, things have to make sense but solutions have to be well-grounded.

I think a lot can be done in the service of an ideology while hiding behind an easy slogan that appeals to people. Let us face it. We all believe in common sense. A lot can go on behind this slogan that is, in some ways, deceptive.

[Luc Thériault, Bloc, Montcalm, QC]

Madam Speaker, I thank my colleague for his thoughtful speech. He raised several points.

This bill is not nothing. It enacts a reverse onus. The Bloc Québécois said that it will support this bill. However, does the member believe that Bill C-48, as it now stands, passes the constitutional test that he spoke about earlier? If so, why? If not, why?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Madam Speaker, that is a good question.

It is something that may not be obvious to those who are watching us today. When our government took office in 2015, we reversed a previous practice. When the previous government knew that a bill might violate the Canadian Charter of Rights and Freedoms, it had a member introduce it as a private member's bill so that it would not be scrutinized by the legal experts at the Department of Justice.

We abandoned that practice. As the member must know, every bill introduced in the House must withstand the scrutiny of the charter. Nothing is perfect. It is always possible that a judge may find that the bill is not perfect and decide to strike down a certain aspect of it. Generally speaking, these bills are very carefully scrutinized to ensure that they comply with the Charter of Rights and Freedoms.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, it is always a pleasure to rise on behalf of the people of Kamloops—Thompson—Cariboo. I will be splitting my time with the member for Langley—Aldergrove.

Before I begin, I want to recognize one of the people in my community of Kamloops—Thompson—Cariboo. That would be one Ethan Katzberg, whom I met about a year ago. Over the summer, Mr. Katzberg became the world champion in the hammer throw. This is an incredible accomplishment for anybody, but more so for somebody of his young age. He is in his early twenties. We are so proud of him. Under the tutelage of Dylan Armstrong, a medallist in the Beijing Olympics, Ethan has really made Kamloops—Thompson—Cariboo proud. I thank him for his contribution and congratulate him.

I also want to recognize a young man who passed away over the summer. His name is Reid Enzo Ross Davidson. I believe he has a relative who works on the Hill here. He was the grandson of somebody I look up to immensely, Enzo Lizzi, who is a pillar of our community in Kamloops—Thompson—Cariboo and also a pillar of our Italian community. I wish his family, Michael and Lisa, and his partner, Georgia, condolences through what would be a difficult time. Mr. Davidson was only 24 years old when he passed after a motor vehicle accident.

To me, one of the critical elements that we should be focusing on here is the number 246. By my math, and I was never really good in math, it has been about 246 days since the premiers asked the government to act on bail. We are just now debating this bill at second reading. The NFL playoffs came and went; we had a Super Bowl champion crowned and a new season started in that time. Hockey playoffs came and went. The Stanley Cup was awarded. This actually happened even before we found out that the Prime Minister himself admitted to staying in a $6,000-a-night hotel when he went for the Queen's funeral.

That is how much time has passed. In fact, between the time that the Liberal government tabled the legislation and the time that the premiers had written their letter, it was about 112 days by my math. It had really reached a crescendo at the point when the premiers were begging for bail reform.

The Minister of Justice tells us that they are ready to move lightning fast to get this done and that when there is a problem, Liberals act. Members will have to forgive me for asking this: How long does it take for Liberals to act? Is it 246 seconds, 246 months or 246 days? What is it?

How many police officers need to get hurt on the job for Liberals to act? How many shopkeepers need to have things stolen from them or to be the victim of a robbery? How many women need to be the victim of intimate partner violence at the hands of somebody who should not be on bail? I once heard someone, a Liberal, say they could look at one's calendar and tell me one's priorities. Let us look at the Liberal calendar.

For 246 days, this issue has languished. I remember that it was over the Christmas break last year when the then minister of justice told us there really was not a problem with bail. Constable Pierzchala was killed, allegedly by somebody who was on bail at the time. I expected that the government would return with bail legislation. If we want to talk about common sense, that would have been the common-sense thing to do.

Sometimes there are inflection points in society, and the expectation is that government will act. However, the Liberals came back and told us there was nothing to see, the system was working as it should and dangerous people would be detained. Unfortunately, the premiers did not agree. More importantly, Canadians do not agree.

The issue with bail, in my view, has really come to a head. I receive letters. I believe many of my colleagues receive letters.

Not too long ago, I was in my colleague's riding of Dauphin—Swan River—Neepawa, and we had a public forum about bail and crime. I was amazed to see that crime was so out of control that, in a small community of about 4,000 people, customers were having to press a buzzer to be allowed into a store because there was such a concern.

My colleague in the NDP, in referencing what the hon. Leader of the Opposition said, said that people are just being arrested for shoplifting, and it is no big deal. Sometimes that shoplifting is very expensive. My colleague should tell that to a person who runs a small store and is losing a couple of thousand dollars a month of their livelihood. That is $24,000 a year. That might be the difference between making a car payment, being able to afford a mortgage or putting food on the table and not doing so.

When people trivialize the import of some crimes, saying that they are not serious offences and are just breaches, with all due respect, I would say that breaches of court orders are serious offences. The court has said something, and somebody is willfully and deliberately saying they think otherwise and are going to choose otherwise.

This is obviously a subject I am passionate about; it is something I dealt with a lot formerly as a Crown prosecutor, as well as something I taught. That is why, when I was first elected, I promised to bring in a private member's bill on bail, which I did almost immediately in Bill C-274. It essentially said that if offenders have three indictable offence allegations with penalties of 10 years or more, the offenders will be presumptively detained, except in exceptional circumstances. The reason for this is that exceptional circumstances are often why legislation is found to be unconstitutional for outlier cases. We build in what is called a “safety valve”; in doing so, we make the legislation constitutional. Bill C-274 talked about three serious allegations at different points in time.

Then there was Bill C-313, which was another private member's bill. That bill was in direct response to the alleged killing of Constable Pierzchala. It proposed to change the reverse onus. This is the way I see it. We are talking about reverse onuses; people have gone into what a reverse onus is, so I am not going to get into that. What we are attempting to do right now is to expand the reverse onus.

There has been widespread discussion about supports, but I believe the next step for Parliament to take is to discuss changing the nature of the reverse onus, and here is why: Let us say that we have a medication that is supposed to be working and has been working to varying degrees, but we want to apply it in a more widespread manner and hope it works better. To me, that is what we are looking at with the reverse onus, which we hope works, as opposed to changing the treatment in itself. Perhaps we have to get to the target of the reverse onus, because right now, from what I have seen, the reverse onus is not necessarily doing what it is supposed to do. That is something I encourage Parliament to consider as we move forward.

I want to acknowledge another constituent of mine. Mr. Glenn Fieber passed away at 84 years of age. I went to school with his children. May eternal light shine on Mr. Fieber. I extend my condolences to his family.

The last person I wish to recognize is Mr. Ron Maguire, another person from Kamloops—Thompson—Cariboo who passed away recently. He was known as Mr. A&W because he started working at A&W and then built up A&W restaurants. He received the key to the city and the Freedom of the City. My condolences go to his wife, Lynne, and his daughters, Kristi and Robyn.

It has been a pleasure to talk about bail and bail reform. I hope we can continue to have reasoned discussion in hopes of making Canada safer.

[James Maloney, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the member opposite for his comments; I look forward to working with you on the justice file going forward. I was very pleased to hear your enthusiasm about moving forward at such a rapid pace today.

My—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I would remind the hon. parliamentary secretary that he is to address his questions or comments through the Chair.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Madam Speaker, since the member is interested in moving so quickly, will he go back to his lobby, speak to his colleagues, rally behind his leader and agree to get this bill passed today, as he promised he would do upon the return of Parliament?