Justice minister proposes new bail law targeting repeat violent offenders

David Lametti says new bail laws won’t affect Gladue factors.

Federal Justice Minister David Lametti is proposing new legislation to reform Canada’s bail system after months of pressure from premiers, police chiefs, and the opposition for more stringent laws.

The proposed law, Bill C-48, aims to strengthen the country’s bail system making it harder for violent offenders where cases involve firearms, knives, bear spray and intimate partner violence (IPV), to be released on bail.

The provinces and territories increased pressure for legislative reform after recent high-profile violent crimes were allegedly committed by individuals out on bail – including the death of Const. Greg Pierzchala of the Ontario Provincial Police in December.

Randall McKenzie of the Six Nations of the Grand River is one of two people charged with first-degree murder in his death.

Court documents show McKenzie was initially denied bail in a separate case involving assault and weapons charges but was released after review.

In his decision to release McKenzie, the judge said he relied on Gladue factors. He also said he had to consider McKenzies “Aboriginal status.”

In the lead-up to the tabling of the new legislation, questions were being asked about how the changes would affect First Nations, Inuit and Métis people accused of crimes under the country’s Gladue principles.

Under Gladue, judges must consider an Indigenous offender’s unique background and circumstances when considering both bail and sentencing options.

Lametti said changes to Canada’s bail system shouldn’t affect how Gladue factors are applied.

“It should not in the sense that Gladue factors are applied at bail hearings but it does not change the fundamental premise of bail which is you have a right to bail unless you are a threat to flee, unless you are a threat to public safety or if the confidence of the justice system will be brought into question,” he said on Tuesday.

Gladue factors don’t necessarily factor into an accused bail conditions or sentencing for certain violent crimes including murder.

Lametti said the federal government will be monitoring the bail reforms closely to ensure they do not increase the highly disproportionate numbers of Indigenous people in Canada’s prison system.

“We hope that we have threaded the needle with respect to not going too far in terms of either clogging up the bail system or having a disproportionate impact on groups that are already overrepresented in the criminal justice system generally,” he said.

“We’ve tried to do that by remaining targeted and focused. Focusing on violent crime with weapons and other specific infractions as well as intimate partner violence.”

Bill C-48 was introduced for first reading in the House of Commons on Tuesday.

Lametti was joined by several cabinet colleagues including Public Safety Minister Marco Mendicino who said the legislation is a direct response to “the concerns raised by provincial and territorial governments regarding Canada’s bail system, and the need to pay particular attention to repeat violent offenders.”

“Our government will continue to work in partnership with provinces and territories to keep Canadians safe” said Mendicino.

Under the Charter of Rights and Freedoms, those charged with an offence have the right to not be denied reasonable bail without just cause. This means certain offenders can be released under the principle of presumed innocent until being found guilty, as long as they agree to appear in court.

The burden of proof typically falls on the prosecution to demonstrate why an accused person should be denied bail.

However, the proposed legislation calls for a “reverse onus,” which shifts the burden of proof onto the accused, meaning they must prove why they should be released, rather than prosecution needing to prove why they should remain detained.

“Canadians deserve to be safe and feel safe in their communities and to have confidence that the criminal justice system will protect them and work as intended,” said a statement from Justice Canada. “The proposed reforms are an important additional step to achieve those goals.”

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