I think we're somewhere in between, Mr. Chair. We targeted seven. If I talk quickly, it's five. If I talk slowly, it will be 10.
Thanks very much for the opportunity to be here today to support you and to participate in your study on Canada's bail regime.
Canada's laws on bail provisions are clear and define the framework within which the accused must be released or detained before trial for the offences they have been charged with committing.
As set out in subsection 515(1) of the Criminal Code, an accused must be released unless the prosecutor shows cause why detention is necessary. This starting point reflects our Common Law tradition, and the Canadian Charter of Rights and Freedoms guarantees the presumption of innocence and the right not to be denied reasonable bail without just cause.
Although the starting point is release, it is important to note that it is not automatically guaranteed and is not authorized if there is just cause for detention.
Subsection 515(10) of the Criminal Code sets out justification for detention in custody of the accused: to ensure his or her attendance in court; for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will reoffend; to maintain confidence in the administration of justice.
Each ground constitutes an independent basis upon which bail can be denied, and the decision on whether to detain under these grounds will be informed by the evidence available to the court, including the criminal record of the accused. For example, that the accused used a firearm or other weapon or that they have a history of violent offending may militate against their release on public safety grounds.
These same factors may also support a decision to detain someone on public confidence grounds, but public safety is not the only frame by which the public confidence ground applies. Other factors that matter in this context include the strength of the case against the accused, the seriousness of the alleged offence, and the circumstances surrounding its commission.
This public confidence ground is about balancing all relevant factors and recognizes that public confidence in the bail system is essential to its proper functioning and to the proper functioning of the justice system as a whole.
The grounds for detention anchor the bail system, and they do not change depending on who must show whether detention is warranted. They are not altered by the fact that a court must also take into consideration other factors, including the principle of restraint, which is found in section 493.1, or that the accused is indigenous or from a vulnerable population that is overrepresented in the criminal justice system.
In other words, a court is still required to detain someone if there is just cause to do so and there are no appropriate means of addressing the risk if the accused is released. Those appropriate means could include impositions of conditions as part of a bail plan—reasonable and relevant conditions.
Canada's bail laws provide clear guidance on who is responsible for demonstrating when detention is warranted. The default, as is the case for most aspects of criminal law, is that the state bears the responsibility to show why detention is warranted.
However, there are a number of cases where it falls to the accused to show why they should not be detained. These reverse onuses reflect Parliament's intention to make it more difficult for an accused to obtain release in certain situations that align with the grounds of detention—the grounds that I talked about earlier. As such, these reverse onuses may operate like a shortcut. Examples of reverse onuses include cases where an accused is charged with organized crime or terrorism offences, certain offences committed with firearms, or cases of intimate partner violence where the accused has been previously convicted for the same.
In the end, however, these reverse onuses don't guarantee detention. Detention must still be justified on the three grounds.
I think you're all aware, and I think I've heard you speak to this already, that the Prime Minister has committed to working closely with the provinces and territories to ensure that our bail system—meaning our bail laws in the Criminal Code and their implementation by the provinces and territories—is working effectively. This commitment followed a January letter that was sent to him by all premiers, advocating for a new reverse onus, amongst other things.
You may wish to note that FPT collaboration on bail is long-standing. Significant collaboration led to the development of the bail reforms in former Bill C-75. Since last fall—preceding the letter from the premiers—we have been working closely with the provinces and territories on bail issues, including how the bail system responds to repeat violent offending. This work continues.
Minister Lametti has recently called for a special meeting of justice and public safety ministers on bail. We expect that will occur in the next few weeks. The meeting will provide an opportunity for all jurisdictions to identify concrete ways to address current challenges to ensure that any solutions proposed do not negatively affect the achievement of other important objectives, and to affirm core principles.
That concludes our remarks.
We appreciate your attention and look forward to answering any questions you have.
