- Creating a new reverse onus to target serious repeat violent offending involving weapons
- Expanding the list of firearms offences that trigger a reverse onus
- Broadening the reverse onus targeting repeat offenders of intimate partner violence
- Clarifying the meaning of the terms “prohibition order” in an existing reverse onus for offences involving weapons
- Requirement for courts to consider an accused person’s history of convictions for violence when making a bail decision
- Requirement for courts to state on the record for any bail decision that they have considered the safety and security of the community in relation to the alleged offence, thereby increasing accountability to the public
- Requirement for courts to state on the record for any bail decision how they have considered the particular circumstances of Indigenous accused and accused from vulnerable overrepresented populations, as required by section 493.2 of the Criminal Code
Reforms to the bail system
The amendments help address the challenges posed at the bail stage by repeat violent offending with weapons, including for offences involving firearms, knives, and bear spray.
These changes amend the bail provisions of the Criminal Code to:
- create a new reverse onus to target serious repeat violent offending involving weapons
- expand the list of firearms offences that trigger a reverse onus
- broaden the reverse onus targeting repeat offenders of IPV
- clarify the meaning of the terms “prohibition order” in an existing reverse onus for offences involving weapons
- require courts to consider an accused person’s history of convictions for violence when making a bail decision
- require courts to state on the record for any bail decision that they have considered the safety and security of the community in relation to the alleged offence, thereby increasing accountability to the public
- require courts to state on the record for any bail decision how they have considered the particular circumstances of Indigenous accused and accused from vulnerable overrepresented populations, as required by section 493.2 of the Criminal Code .
Under the Charter, a person charged with an offence has the right not to be denied reasonable bail without just cause.
Bail is when a person charged with a criminal offence is released from custody while awaiting their trial. Accused persons are presumed innocent until they have been found guilty of the offence charged. This is why the burden of proof (“onus”) is typically on the prosecution to show why an accused person should be denied bail and held in custody while awaiting trial.
A reverse onus is when the burden of proof shifts from the prosecution to the accused. In a reverse onus situation, the presumption is that the accused will be detained while awaiting their trial unless they can demonstrate to the court that they should be released.
Just cause requires consideration of whether detention is required to make sure the accused comes to court, to keep the public, including victims, safe or to maintain the public’s confidence in the administration of justice.
Creating a new reverse onus to target serious repeat violent offending involving weapons
This amendment adds a reverse onus for an accused person charged with a serious offence (an offence with a maximum penalty of at least 10 years imprisonment) involving violence (used, threatened or attempted) and the use of a weapon, where that accused was previously convicted (within the previous five years) of an offence with the same criteria.
Expanding the list of firearms offences that trigger a reverse onus
This amendment adds a number of firearms offences to an existing reverse onus for bail, specifically:
- Unlawful possession of a loaded (or easily loaded) prohibited or restricted firearm (section 95)
- breaking and entering to steal a firearm (section 98)
- robbery to steal a firearm (section 98.1); and,
- making an automatic firearm (section 102)
Broadening the reverse onus targeting repeat offenders of intimate partner violence
This amendment expands the current reverse onus provision, added by former Bill C-75, which applies to anyone charged with an offence involving IPV under the Criminal Code , and who has a past conviction for such an offence, to apply to accused persons who were previously convicted as well as those who previously received a discharge for an IPV related offence for which they had been found guilty.
A discharge is a sentence that can be ordered under section 730 of the Criminal Code after an accused person has either pled guilty or been found guilty of a crime after a trial. Someone who is discharged of a crime is not considered to have been convicted. An absolute discharge will no longer appear on a criminal record after one year. A conditional discharge is conditional on the offender successfully abiding by all the terms on a probation order and not accruing further findings of guilt. If the offender complies with all of these requirements, their discharge will no longer appear on their criminal record after three years.
Clarifying the meaning of the terms “prohibition order” in an existing reverse onus for offences involving weapons
The Criminal Code already imposes a reverse onus at bail for those who have allegedly committed an offence involving a firearm or other specified weapons while subject to a weapons prohibition order.
This amendment clarifies that the meaning of prohibition order includes a court’s release order for bail. This means that a reverse onus at bail will apply when a person is charged with having committed an offence involving a firearms or certain other weapons, such as a prohibited weapon or prohibited device, while they were bound by a condition in a release order to not have a firearm or certain weapons in their possession.
Requirement for courts to consider, for any bail decision, an accused person’s history of convictions for violence when making a bail decision
This amendment explicitly requires courts to consider additional factors in assessing the risk posed by an accused person when making any bail decision.
The Criminal Code currently requires that before making a bail order, courts must consider any relevant factor, including the criminal record of the accused person or if the charges involve intimate partner violence (subsection 515(3)).
This provision of the Criminal Code has been amended to further require courts to consider if the accused’s criminal record includes any past convictions for violent offending.
Requirement for courts to state on the record for any bail decision that they have considered the safety and security of the community in relation to the alleged offence, thereby increasing accountability to the public
The Bill also amends subsection 515(13) to require a court to include, on the record, a statement that they have considered the safety and security of the community in relation to the alleged offence when making a bail order, thereby increasing accountability to the public . This measure responds to the unique needs of remote and northern communities who have expressed concerns about accused persons being released into isolated communities that are not large enough to keep accused persons away from their alleged victims.
Requirement for courts to state on the record for any bail decision how they have considered the particular circumstances of Indigenous accused and accused from vulnerable overrepresented populations as required by section 493.2 of the Criminal Code
This amendment adopted by the Senate adds a new provision to the Criminal Code requiring all justices to state on the record how they applied section 493.2 of the Criminal Code . Section 493.2 requires bail courts to consider the particular circumstances of Indigenous accused and accused persons who come from vulnerable populations, who are overrepresented in the criminal justice system and face barriers to obtaining bail.
The effect of the amendment will be to codify existing common law requirements that have been developed by courts in applying section 493.2. It also supports a more consistent approach to how the provision is being applied across Canada.
Requirement to begin a parliamentary review of the Bill after 5 years to assess the effectiveness of the measures
This amendment requires a parliamentary review of the Bill to start five years after the legislation receives royal assent. This will help to assess the effectiveness of the legislative measures.
Preamble affirming core principles of the bail system
The legislation includes a preamble that outlines certain core principles that underpin the law of bail in Canada. The preamble reinforces, amongst other things, the shared responsibility of federal, provincial and territorial governments for the criminal justice system and that a denial of bail is justified where it is necessary for the protection of public safety, to maintain public confidence in the administration of justice or to ensure an accused person attends court. Further, a proper functioning bail system respects and upholds the rights guaranteed by the Canadian Charter of Rights and Freedoms , including the presumption of innocence, the right to liberty and the right not to be denied reasonable bail without just cause.
A preamble helps to provide information on the general objective and purpose of a law and can be used by courts to inform the interpretation of the provisions enacted.
