C-48 – An Act to amend the Criminal Code (bail reform) – makes it more difficult for people previously convicted of violent offences to get bail.
Bail and the Charter
So first up a little note on the bail system, because I didn’t know about this and I’m willing to bet a lot of other people don’t either. It turns out “reasonable bail” is protected by the Canadian Charter of Rights and Freedoms. This is why it’s usually on the courts to justify not giving you bail instead of you justifying why you should get it. The bar for this is pretty high and mostly based on the history of someone’s actions, so it’s pretty hard to deny bail to someone for a first offence. (Repeat offenders are easier as there’s more evidence that they would continue to be a threat to the public.)
Criminal Code
The big change C-48 makes is expanding what falls under a “reverse onus” when deciding if someone should be granted bail. “Reverse onus” just means that the accused needs to justify why they should be granted bail instead of the courts justifying why they shouldn’t, so it’s a fair bit more difficult to get.
Currently a reverse onus is used with:
- An indictable offence is committed while on bail
- Drug trafficking, importing, or exporting
- Organized crime
- Violence against an intimate partner when an accused has a previous conviction of it
- Some specific firearms offences (The list here is a little all over the place, but mostly using a firearm in committing certain other crimes while being prohibited from possessing a firearm)
- Terrorism
- Murder
C-48 adds a few new situations where a reverse onus is used. First up it adds a few new firearm-related offences to the list of when a reverse onus is used.
- Possession of a prohibited or restricted firearm with ammunition
- Breaking and entering to steal a firearm
- Robbery to steal a firearm
- Making an automatic firearm
C-48 also makes it so “being prohibited from possessing a firearm” mentioned in the current reverse onus list includes any bail conditions that say you can’t have a firearm. (“Prohibition Order” carries a very specific meaning, so being told you can’t have a firearm as a bail term doesn’t meet the same level of severity of not being allowed to have a firearm at all)
Next up C-48 adds violence (actual, attempted, or threatened) against an intimate partner after being given an absolute or conditional discharge to the reverse onus list. A discharge is when the court finds you guilty but you’re immediately released, no conviction is recorded, and nothing is added to your criminal record. (Conditional discharge pretty much applies bail conditions on you for a while, then you move to an absolute discharge) Currently a reverse onus is only required on a previous conviction. A discharge falls off your record after one year.
Finally C-48 requires a reverse onus when charged with an offence that includes violence (actual, attempted, or threatened) with a weapon if the accused was convicted of a weapon-based violent offence in the last five years.
The last bit that C-48 adds to the Criminal Code emphasises that a judge needs to consider past violent offences when deciding on bail. They’re already expected to consider past convictions, C-48 is just drawing extra attention to violent ones. It also requires judges to state, on the record, that they’ve considered the safety of the community when they make their decision on bail conditions.
Progress
On Sept 18 C-48 skipped its Second Reading, committee consideration, and Third Reading and was sent straight to the Senate by unanimous consent. Remember that unanimous consent can be blocked by just a single MP that opposes it, so it looks like all the parties are happy with C-48.
C-48 then passed through the Senate with a small change.
Now, in addition to the statement that the judge considered the safety of Canadians when deciding if someone is given the reverse onus on applying for bail, the judge needs to include an explanation of how they decided that person ended up requiring the reverse onus.
On Dec. 5, 2023 C-48 was given Royal Assent.