Tackling crime through bail reform

Prime Minister Stephen Harper today announced that Canada’s New Government is delivering on another of its campaign commitments by introducing amendments to the Criminal Code to provide a “reverse onus” in bail hearings for offenses involving firearms.

“As you know, cracking down on gang, gun and drug crime has been one of the top priorities of Canada’s New Government since we took office nearly ten months ago,” the Prime Minister told his audience at the Sheraton Centre Toronto Hotel. “We made it a priority because Canadians had made it very clear to us that they wanted the scales of justice rebalanced.”

The reforms, to be introduced today in the House of Commons by the Honourable Vic Toews, Q.C., the Minister of Justice and Attorney General of Canada, will require those accused of serious crimes involving firearms to provide sufficient justification to be granted bail while awaiting trial. Currently, it is up to Crown prosecutors to prove that the accused should not be granted bail, either because they represent a threat to society, they may flee to avoid prosecution or to maintain the public’s confidence in the administration of justice.

“In this city, police report that almost 1,000 crimes involving firearms or restricted weapons have been committed so far this year,” Prime Minister Harper said. “Nearly 40 per cent of them were committed by someone who was on bail, parole, temporary absence or probation. Gun crime is a menace to public safety, and protecting Canadians must be the first priority of our bail system.”

Ontario Premier Dalton McGuinty and Toronto Mayor David Miller both attended the announcement. The Prime Minister acknowledged the support he has received from them and many other municipal and provincial politicians from across the country for bail reform and other anti-crime bills introduced by his government since it assumed office.

Meanwhile, at a press conference in Montreal, the Prime Minister’s announcement was echoed by Conservative Senator Michael Fortier. “Unfortunately, Montreal is not immune to violent crime,” Senator Fortier said. “Whether break-ins or crimes linked to street gangs, newscasts are reminding us daily that Montrealers too have to cope with the violence, which is all too often tied to firearms.”

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Backgrounder: Bail Reforms for Firearms Offenders

As part of its Speech from the Throne commitment to tackle crime, the Government of Canada is introducing reforms to the Criminal Code to ensure that bail provisions better protect the public from gun violence. 

In order to limit the opportunity for people charged with serious offences involving firearms to re-offend while out on bail, the bail reform amendments would shift the onus to the accused to demonstrate why they should be granted  bail. 

Protecting Canadians from the threat of firearms offences through reverse onus

Proposed changes to the bail provisions of the Criminal Code will provide a reverse onus if an accused is charged with:

any one of eight serious offences committed with a firearm -- attempted murder, robbery, discharging a firearm with intent, aggravated sexual assault, sexual assault with a weapon, kidnapping, hostage-taking, or extortion;

any indictable offence involving firearms or other regulated weapons if committed while under a weapons prohibition order;

firearm trafficking, possession for the purpose of trafficking or firearm smuggling

More Instances Where the Court May Deny Bail

In addition to the reverse onus provisions, the bail scheme will be further toughened by requiring the court to specifically consider: (a) the fact that a firearm was allegedly used in the commission of the offence or (b) the fact that the accused faces a minimum penalty of three-years or more imprisonment when they are deciding whether the accused should be released or detained until the trial.

The Current Bail Regime

The presumption of innocence and the right not to be denied bail without just cause are rights protected under the Charter of Rights and Freedoms.  While liberty pending trial is the basic presumption, bail can be denied in order to:

ensure that the accused does not flee from justice -- primary ground

protect the public if there is a substantial likelihood that the accused will re-offend --secondary ground

maintain confidence in the administration of justice -- tertiary ground.
 
Although the prosecutor usually bears the onus of demonstrating why an accused should be denied bail, sometimes it falls to the accused to have to demonstrate that detaining him/her is not justified.  The onus shifts to the accused:

if they are charged with an indictable offence committed while already released on another indictable offence;

if they fail to appear in court or allegedly breach a release condition;

for certain organized crime, terrorism or security of information offences;

for drug trafficking, smuggling, or drug-producing offences; or,

if they are not ordinarily a resident of Canada.

Support for Bail Reform

Ontario Premier Dalton McGuinty: “Ontarians want to see action…across party lines. I want to urge all the federal parties to continue working together to ensure this law gets speedy passage. (Speech to Police Association of Ontario, November 15, 2006)

Toronto Mayor David Miller: “There are already crimes that require reverse onus at bail hearings and we need those requirements for crimes involving guns.”
(National Post, March 28, 2006)

Reversing the onus on bail applications related to serious gun crimes was also supported by the Liberal and New Democratic parties during the last federal election campaign.