Liberals' new bail reforms could run up against Charter, have limited impact: experts

OTTAWA — Experts say a Liberal bail reform bill introduced this week could be subject to a Charter challenge and see limited results. 

The bill aims to make it harder for some repeat violent offenders to seek pretrial release by putting the onus on them to prove why they should be granted bail. 

Danardo Jones, an assistant professor at the University of Windsor's law school, says he isn't sure the bill would hold up under legal scrutiny. The Supreme Court has cautioned governments before on any expansion of what are known as reverse-onus measures.

"It's making a lot of changes that I'm not certain will pass constitutional muster," he said. 

The legislation would introduce reverse-onus bail conditions for people charged with serious violent offences involving a weapon, in cases where the person was convicted of a similar violent offence within the past five years. 

It would also add some firearms offences to existing reverse-onus provisions, and expand their use in cases where the alleged crimes involve intimate partner violence. 

Prosecutors in such cases would no longer have to prove to judges why offenders should stay behind bars.

Justice Minister David Lametti had promised that any new law would abide by the Charter of Rights and Freedoms, which guarantees that anyone who is charged with a crime will not be denied reasonable bail without just cause.

The Supreme Court has affirmed that right several times, including in R v. Morales, a 1992 case in which justices decided that "bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail."

"Bail is denied only for those who pose a 'substantial likelihood' of committing an offence or interfering with the administration of justice, and only where this 'substantial likelihood' endangers 'the protection or safety of the public,'" that decision says. 

"Moreover, detention is justified only when it is 'necessary' for public safety. It is not justified where detention would merely be convenient or advantageous."

Jones said a court won't be swayed by any of the political rhetoric that has driven discussion around the latest bail reforms, which come after months of public pressure on the federal government to act from premiers, police and opposition parties. 

"Their approach is going to be more principled, and more in line with ensuring that our constitutional values are respected and that the integrity of our Constitution is not in any way eroded," he said. 

"From the face of this bill, I'm concerned that we are seeing public safety perhaps outweighing civil liberties."

Since 2019, the federal justice minister has been required to ensure that a Charter Statement is available for every bill tabled by the government to help identify any potential effects a law may have.

No statement is yet available for the bail-reform bill, Lametti's office said. 

But he maintains the law introduced is Charter-compliant. 

"We need to strike a balance," the justice minister said at a news conference Tuesday. "We think we've done that here, working in the range between the Charter rights and public security and public safety."

With statements like that, Jones said, Lametti is "signaling that they know the court is to be concerned about striking an appropriate constitutional balance."

Queen's University sociologist Nicole Myers said the impact of the new law could be "limited" because the measures don't address the root causes of crime.

"Everybody is interested in public safety and improving public safety," said Myers, who has an expertise in bail and pretrial detention.

"To do that, then we have to do the difficult things. We need to invest much more into the root causes of crime and to preventing crime from happening in the first place."

She said there needs to be more investment in education, health care, mental health, substance use, poverty and homelessness.

Myers said she doesn't agree with reverse onus provisions.

"If the state wants to make arguments why somebody should be detained, the state should bear the onus of demonstrating why someone should be detained rather than an accused person demonstrating why they ought to be released," she said.

Jones and Myers both said they are also concerned that the prospective new law could disproportionately affect populations that are already overrepresented in Canadian prisons, such as Black and Indigenous people. 

"There's already disproportion with the constitutional safeguards in place," said Jones. 

"Removing them or eroding them will only stand to increase that disproportionality." 

This report by The Canadian Press was first published May 17, 2023.

David Fraser, The Canadian Press