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.
