OTTAWA — Criminal lawyers are raising concerns that proposed changes to Canada’s bail laws won’t be constitutional, as they eagerly await a statement explaining why the federal Liberals think the reforms comply with the Charter.
Vancouver criminal lawyer Kyla Lee says the federal government’s proposed changes making it harder for some repeat violent offenders to get bail might not be Charter compliant, given that bail is a constitutional right.
“It’s hard to write a Charter statement about something that is very close to crossing constitutional boundaries, and something that is generally unprecedented,” she said.
The legislation currently before Parliament would introduce reverse-onus bail conditions for people charged with serious violent offenses involving a weapon, in cases where the person was convicted of a similar violent offense within the last five years.
Prosecutors in such cases would no longer have to show judges why an accused person should stay behind bars. Rather, the accused would have to demonstrate why bail is justified.
“In our legal system, imposing this many reverse onuses is a new thing,” said Lee, adding the proposed reforms would likely be challenged in court immediately if they became law.
According to the federal government, Charter statements are a transparency measure intended to inform debate on proposed laws and increase “awareness and understanding of the Charter.”
They accompany legislation introduced by the government, but are often not made available until well after a bill is tabled.
Lee says the lack of a Charter statement for the bail reforms is “probably a sign that they’re struggling a little bit with how to strike the right balance.”
“They’re trying to be very careful that they write something that is going to form a good part of the record, that’s going to support the legislation being upheld, because it will look like a loss if they write something that has been very quickly knocked down.”
Ottawa criminal lawyer Lawrence Greenspon says it’s concerning that the government has yet to issue a Charter statement explaining why the proposed law is compliant.
He worries the federal government is being too reactive to a vocal minority alarmed over a recent spate of violent crime, and says Ottawa lacks the data to justify its planned changes.
If that continued to be the case, a Charter challenge would be a “slam dunk,” Greenspon said.
Toronto-based lawyer Jessyca Greenwood says she understands the political reasons for the federal government to be responding to calls for change, but adds there is no evidence the changes will reduce crime.
“What we don’t have accompanying these proposed changes is data to show us that by making these changes to bail reforms, targeting repeat violent offenders, that we are some point, somehow going to stop violent crime,” she said.
The government has admitted to “data gaps” it intends to fill with the help of provinces and has not pointed to statistics showing more violent crime being committed by people on bail.
Justice Minister David Lametti’s office says a Charter statement will be tabled when the bail reform law is up for second reading in Parliament, but it is not clear when that will be.
Greenwood said he hopes the government “is open to hearing the input of lawyers and other experts on how to make this constitutional before it passes.”
Greensponse fears it would take years of court challenges, and thousands of affected people, before the pending changes might be struck down by the Supreme Court of Canada.
He points to the long list of criminal laws enacted during Stephen Harper’s government as an example: despite being passed during his tenure as prime minister between 2006 and 2015, many of those laws weren’t found to run afoul of the Charter until the Conservatives were out of office.
The Supreme Court struck down several Harper-era “tough on crime” laws, finding many of the mandatory minimum sentences introduced by the government of the day to be unconstitutional.
This report by The Canadian Press was first published May 29, 2023.
David Fraser, The Canadian Press