The Canadian government has introduced significant amendments to the country’s criminal justice system, aimed at reforming bail procedures and specific sentencing provisions. If the Bill passes, it is important to know how the legal landscape surrounding bail and sentencing will shift.
One major area of focus is the process of judicial interim release, commonly known as bail. The new legislation introduces mandatory considerations and expands the use of the “reverse onus” provision.
When determining whether to grant a release or detention order, a justice or judge must now consider if the accused is charged with an offence involving the use or attempted use of random and unprovoked violence. Further, when assessing whether an accused should be held in custody to maintain public confidence in the administration of justice, decision-makers are now required to consider the number and gravity of any other outstanding charges.
So what is a reverse onus and how does it work in bail?
Traditionally, the Crown carries the burden of proving why an accused should be detained. Under a reverse onus provision, this burden flips, requiring the accused to demonstrate why their detention is not justified. The accused must clearly show that their proposed release plan addresses public safety risks.
This will apply to several new offences should the bill pass. These include motor vehicle theft involving violence, motor vehicle theft committed for a criminal organization, extortion involving violence, and break and enter. It will also apply to serious human trafficking or smelling cases and for offences where the accused is alleged to have choking, suffocating, or strangling someone.
In addition, the reverse onus will apply to those charged with an offence involving violence and the use of a weapon, if they have been previously convicted of a similar offence within the past 10 years.
There are mandatory conditions on bail for certain offences.
A justice must impose a condition prohibiting the possession of a firearm or other weapon when releasing an accused charged with extortion or any offence involving a criminal organization.
For motor vehicle theft or break and enter, a justice is required to consider whether to impose conditions such no-gos to certain areas, not to possess break and enter tools, and whether to impose a curfew.
The legislation also expands the circumstances under which a peace officer may make an arrest without a warrant, specifically if they believe the accused has violated their bail or committed an offence while on bail. There is also a new reverse onus provision allowing Crown to apply to cancel a person’s bail after the accused has been found guilty of certain offences prior to sentencing.
Beyond bail, the enactment also introduces important sentencing changes. For example, the new law creates several new aggravating factors that courts must consider during sentencing. These are aimed at addressing repeat violent offenders. Specifically, the Court will look at convictions within the previous 5 years, offences committed against first responders or healthcare workers, organized retail theft, and property offences that interfere with essential infrastructure.
For repeat motor vehicle theft, repeat break and enter convictions, and organized crime offences, courts are now required to give primary consideration to the objectives of denunciation and deterrence.
Finally, the possibility of imposing house arrest is restricted for sexual assault and offences of a sexual nature involving a person younger than 18.
Will these changes make a difference?
Ultimately, time will tell. But in my opinion, they are a lot of form over substance. Primary consideration is often given to denunciation and deterrence in the cases of repeat violent offenders. Similarly, reverse onuses already exist for numerous provisions along the lines of the additional reverse onus provisions that are being added.
A lot of the changes appear to be cosmetic. They codify the existing rules that have developed through the case law about what judges should consider in determining whether or not to grant bail. This seems to be more aimed at telling the public the government is doing something, while knowing that most members of the public don’t understand the nuanced considerations that already apply when justices determine whether to release somebody on bail or when judges determine what sentence to impose.
