Hon. Claude Carignan: My question is for the Leader of the Government in the Senate. Leader, here’s another government disaster, the new passport, which cost $284 million — a cost overrun of $123 million. This is yet another example — among dozens, if not hundreds — of this government’s incompetence.

Moreover, the new passport deteriorates in wet weather. After a few weeks, the corners curl up. The old passport easily lasted 10 years; the Trudeau government’s is worn out after only two months. Senator Gold, how do you explain the astronomical cost of designing a new passport of such poor quality?

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question and, again, for reminding us that the work towards eliminating gender inequality and other inequities in our system of law — the Indian Act being only the most prominent example of it in this regard — is ongoing.

This government has done more than any government in history to address it. The Senate has played a critical role in that regard. I will certainly make inquiries and bring the preoccupations to the attention of the minister and encourage all colleagues here, members of the Indigenous Senators Working Group and the committee to continue to use our bully pulpits to make sure this issue stays on the agenda.

Hon. Brian Francis: My question is for the Government Representative in the Senate.

Last July, the United Nations Special Rapporteur on the rights of indigenous peoples issued a report about Indigenous peoples in Canada. Among a number of recommendations, Mr. Cali Tzay specifically called on Canada to implement the recommendations of the Senate Committee on Indigenous Peoples, including repealing section 6(2) of the Indian Act, also known as the “second-generation cut-off.”

Is the Government of Canada finally going to end the discrimination against First Nations women and their descendants in the registration provisions of the Indian Act? Or will it simply continue to take a reactive approach in response to court decisions?

Hon. Leo Housakos: Senator Gold, I was happy yesterday to hear you acknowledge the struggles being faced by Canadians, especially when it comes to the soaring cost of food and housing prices.

Also yesterday, incidentally, I was even happier to see the Honourable Pierre Poilievre introduce a bill called “Building Homes Not Bureaucracy.” While your government says it will drop the GST on construction of rental properties, conversely, you are threatening an extra tax to supposedly somehow combat the soaring food inflation Canadians are dealing with because of your fiscal mismanagement.

How does that work, Senator Gold? How does adding a new tax, which will be passed on to consumers, help to lower the cost of food for Canadians, who will have to choose between eating and heating during these winter months?

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. The government has been working with Canadian Bank Note Company Limited on the design, development and distribution of the next generation of passports. This was necessary to ensure that our passports are secure in a world that is increasingly vulnerable to technological attacks. Thanks to advances in technology, these passports will be secure. That was the objective of the design and decisions surrounding the new passport.

Hon. Leo Housakos: Senator Gold, just a couple of months after this chamber acquiesced to the government on a bill that the opposition warned would have the opposite of the desired effect — we warned that instead of saving media, Bill C-18 would be its death knell, especially for local and smaller outlets — and despite those warnings, the Online News Act was passed, and here we are, Senator Gold.

Facebook wasted no time carrying through on its threat, a threat you and your government scoffed at. As promised, they are out of the news business in this country. Google looks poised to follow very soon.

How is that working out for us, Senator Gold? This week we heard about Torstar Corporation shutting down its Metroland Media Group publications, and they won’t even pay severance to those who lost their jobs. What does your government have to say about how well Bill C-18 is doing with regard to saving media in this country?

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Honourable senators, pursuant to the order adopted December 7, 2021, I would like to inform the Senate that Question Period with the Honourable Mark Holland, P.C., M.P., Minister of Health, will take place on Tuesday, September 26, 2023, at 5 p.m.

Hon. Marc Gold (Government Representative in the Senate) moved second reading of Bill C-48, An Act to amend the Criminal Code (bail reform).

He said: Honourable senators, I rise today to speak to Bill C-48, An Act to amend the Criminal Code (bail reform). This bill would strengthen Canada’s bail laws and address public safety and public confidence concerns in relation to repeat violent offending, intimate partner violence and offences involving firearms and other weapons.

[Translation]

The bail system ensures that people accused of criminal offenses appear in court to face the charges against them. In theory, the most foolproof way to achieve this would be to simply detain a person from the moment of arrest until trial. However, there remains a fundamental principle of our criminal justice system: The presumption of innocence until proven guilty. This principle is enshrined in section 11 of the Canadian Charter of Rights and Freedoms, the same section that protects the right, and I quote:

Thus, any measures that limit access to bail or increase the likelihood of pretrial detention must be taken with caution and restraint, in a targeted manner and for compelling reasons.

The government — with considerable input from the provinces, territories, Indigenous organizations and other partners — developed Bill C-48 with those considerations in mind.

Therefore, the bill is narrowly focused on repeat violent offenders, for the compelling reason of protecting Canadian communities.

[English]

Currently, bail can be denied for three reasons: first, to ensure the accused’s attendance in court; second, to protect the public; and, finally, to maintain public confidence in the administration of justice.

When deciding whether to grant bail or what bail conditions to impose, courts are required to:

. . . give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.

For the most part, justice ministers across Canada agree that these guidelines serve us well and that the bail system functions properly in most cases. However, concerns have been raised that the current system should be recalibrated to better protect public safety. This concern was notably raised last January in a letter to the Prime Minister from all provincial and territorial premiers and has been the subject of many discussions between various levels of government.

This is an area of shared jurisdiction. Laws regarding bail are set out by the federal government in the Criminal Code but are generally implemented by the provinces and territories.

At recent meetings between federal, provincial and territorial justice ministers, everyone took responsibility and agreed to do their part. For the provinces and territories, this means improving the implementation of existing laws, making better use of existing legal tools and collecting better data related to bail. Federally, it means contemplating legislative changes — namely, those contained in Bill C-48.

This legislation would do the following five things: enact a new reverse onus for repeat violent offending involving weapons; add certain firearm offences to the list of provisions that trigger a reverse onus; expand the current intimate partner violence reverse onus; clarify the meaning of “prohibition order” in an existing reverse onus provision; and, finally, add new considerations and requirements for courts.

I’ll start by discussing the concept of reverse onus before delving into each of these in more detail. In most cases, the default presumption is that the accused will be released pending trial, and the onus is on the prosecution to show why bail should be denied. When the onus is reversed, it means the initial presumption is detention pending trial, and it’s up to the accused to show why they should be released.

Currently, a reverse onus exists for murder and attempted murder, as well as certain offences involving drug and weapons trafficking, firearms, terrorism and intimate partner violence. The Supreme Court has upheld the constitutionality of narrowly tailored reverse onus provisions, notably in the case of R. v. Pearson in 1992. Crucially, even with a reverse onus in place, the court retains the full discretion to grant or deny bail, or to impose conditions as it may see fit.

As I outlined a moment ago, the first new reverse onus provision created by Bill C-48 would deal with repeat violent offending involving weapons. It would apply only where the following conditions are met: First, the alleged offence must involve the use, attempted use or threat of violence involving a weapon; second, the offence must be punishable by a maximum penalty of 10 years or more; and third, the accused must have been convicted of another weapons offence with a maximum penalty of 10 years or more in the preceding five years.

These criteria specifically target instances of repeat violent offending that is most concerning from a public safety perspective. And, as specifically requested by the Government of Manitoba and the Government of Saskatchewan, they cover all serious weapons offences, including those involving firearms, knives or bear spray, which I understand has been a particular concern in those provinces recently.

The second change proposed by Bill C-48 would expand the existing list of reverse onus provisions applying to firearm offences to include unlawful possession of a loaded prohibited or restricted firearm, or an unloaded prohibited or restricted firearm where ammunition is readily accessible; breaking and entering to steal a firearm; robbery to steal a firearm; and altering a firearm to make it automatic.

These offences are evidence of conduct that can significantly undermine public safety. We should note that the first of these — the unlawful possession offence — responds directly to the call of all 13 premiers, as expressed in their January letter to the Prime Minister, as well as to the call of law enforcement partners.

[Translation]

Bill C-48 would also strengthen the current provision relating to reverse onus for those accused of intimate partner violence. As many senators will remember, reverse onus was established by Bill C-75, which received Royal Assent in June 2019. It applies to those accused of intimate partner violence who have already been convicted of a similar offence, in recognition of the fact that women who report an abusive partner often expose themselves to greater risk in doing so.

Bill C-48 would expand this provision so that it applies not only to those already convicted of intimate partner violence, but also to those who have already been released for such an offence. A discharge is a finding of guilt, not a conviction; it often means that the accused can avoid a criminal record if they comply with certain conditions. This tool can be useful to judges who determine sentencing in some cases, but for risk assessment purposes, the government believes that a prior discharge for intimate partner violence should be treated like a prior conviction. In both cases, there is a finding of guilt and the accused could present a high risk to reoffend if released.

I also want to point out that this aspect of Bill C-48 is comparable to a provision of Bill S-205, sponsored by Senator Boisvenu, which was passed by the Senate in April and is currently being examined by the other place.

[English]

The fourth key proposal of Bill C-48 would clarify the meaning of “prohibition order” at the bail stage of criminal proceedings. Currently, there is a reverse onus for people charged with weapons offences who were subject to a weapons prohibition order at the time of the offence. In other words, if a court had already said you can’t have a firearm, and then you commit a weapons offence, the law takes that more seriously for the purposes of bail.

Bill C-48 would make clear that the same approach should be taken for people who commit a weapons offence while on bail — when one of their bail conditions was that they couldn’t possess a weapon. If this sounds like a technicality, frankly, it’s because it is. It’s essentially a codification of the common law understanding of a prohibition order. It’s unlikely that this will alter the law as it’s currently applied, but when it comes to criminal law — and, indeed, the Criminal Code — it’s better to be clear, so the bill makes this explicit.

The final piece of Bill C-48 relates to the approach that courts must make when deciding whether to grant bail. In 2019, Bill C-75 amended the Criminal Code to provide that before making a bail order, courts must consider any relevant factors, including the criminal record of the accused, or whether the charges involve intimate partner violence.

Bill C-48 would take that a step further by expressly requiring courts to consider whether the accused has a history of violent offending. Plus, the judge would have to state — on the record — that the safety and security of the community were considered in the decision.

At present, while this generally does form part of most judges’ decision making, the law only requires courts to consider the safety and security of an individual victim. This change would address concerns raised by some municipalities and, indeed, some Indigenous communities as well.

Let me provide you with one example: There was a case last year where a man — with a history of violent sexual offences — was supposed to be released on bail to his community of Old Crow in the Yukon, prompting pushback from the Vuntut Gwitchin First Nation. Ultimately, that order was revised, and he was sent to Whitehorse, but the new provision in Bill C-48 would require that these types of community-specific considerations form part of the decision-making process.

And that, honourable senators, is the content of this legislation. As I said at the outset, it’s designed to be narrowly focused, addressing safety concerns, such as those raised by the provinces and territories, while respecting Charter rights. This bill is part of a national effort — in collaboration with other levels of government — to strengthen Canada’s bail system. It’s a bill that reflects significant input from the provinces and territories.

As I mentioned earlier, provincial and territorial governments have been engaged on this file. Recently, Ontario and Manitoba announced commitments to enhance bail compliance measures, amongst other things. British Columbia has made significant investments to strengthen enforcement and improve interventions in relation to repeat violent offending.

Importantly, the provinces and territories have committed to improving data collection, because, to be frank, we need much better data on this subject. Colleagues, as you know, that is an issue we have encountered frequently, especially in the area of criminal justice, where the system is administered by so many different jurisdictions across the country. Recent federal budgets have included investments in better data collection, including disaggregated data, and the government is hopeful that the provinces’ commitments related to bail will herald a significant improvement in this space.

Colleagues, I would also note that Bill C-48 includes a provision for parliamentary review after five years. I expect Parliament will have the benefit of more comprehensive data at that time.

It is also important to note that discussions about bail reform have been held with representatives from national Indigenous organizations and other Indigenous representatives, which include the Assembly of First Nations, AFN; Inuit Tapiriit Kanatami, the ITK; the Métis National Council, the MNC; as well as the Indigenous Bar Association; the Assembly of Manitoba Chiefs; the Federation of Sovereign Indigenous Nations in Saskatchewan and numerous others. Their input has been an important part of developing a legislative approach that will help protect Indigenous communities from violent crime, while recognizing the need to continue combatting the overrepresentation of Indigenous people in the criminal justice system.

Colleagues, one of our roles in this chamber is to represent the regions of Canada. Bill C-48 is a piece of legislation that is supported by every province and territory. In fact, it was expressly called for by all premiers. In Bill C-48, the government has answered that call.

Repeat violent offending and offending with firearms or other weapons need to be taken seriously. Bill C-48 takes concrete action at the federal level to strengthen the bail regime and respond to public safety concerns in a manner that respects the Charter, judicial discretion and the fundamental principles of justice that define our system of justice.

The other place adopted this bill as soon as it possibly could, debating and passing it this past Monday — the very first day of its fall sitting. I ask that honourable colleagues recognize the call for quick action from the provinces and territories, and the sense of urgency shown by members of Parliament, and move Bill C-48 forward expeditiously.

With that, I thank you very much.

The Hon. the Speaker: Senator Housakos, do you have a question?

Hon. Yonah Martin (Deputy Leader of the Opposition): My question is for the government leader in the Senate.

This past spring, Senator Gold, you may remember that I asked you a series of questions about the secret outsourcing of the Canada Emergency Business Account, or CEBA, small business loans program to the consulting firm Accenture. I asked you questions on May 30 and June 13 that have yet to be answered, including who made the decision to keep these sole-source contracts hidden from Parliament and taxpayers, and when Minister Freeland and Minister Ng became aware that Accenture was administering the program.

Leader, what are the answers to these questions?

Could you also tell us the current total amount paid out to Accenture?

Hon. Marc Gold (Government Representative in the Senate): One of the impetuses for Bill C-18 was a recognition that traditional media were really struggling in the face of changing circumstances and that the giants — two of whom you mentioned — were benefiting without contributing their fair share.

The government was always aware that the tech giants would use their market force to try to bully Canada and try to impede our ability to have them sit down and negotiate fair deals with both big and small media outlets in Canada. They are doing exactly what their nature seems to be doing, and the Government of Canada remains committed that it’s doing the right thing for Canada and will continue to do so in the face of the bullying tactics of big tech.

Hon. Denise Batters: Senator Gold, if Bill C-48 on bail reform had been in place in Canada for the last five years, how many criminal offenders would have stayed in jail as opposed to being released on bail? Given what you have described, this Trudeau government bill has a very limited scope, so my guess is that the actual number of offenders this would actually apply to is tiny.

Hon. Paula Simons: Senator Gold, as a journalist, I covered some terrible incidents in which terrible crimes were committed by people who had been released on bail, so I understand the emotional and political impetus to speed this bill to passage. However, I am concerned with the speed at which things are moving, because we are dealing with an issue in which people’s fundamental liberties are at stake. As you have so eloquently explained, we have a presumption of innocence in Canada, and we only use reverse-onus provisions in very particular cases, because we have that presumption to be assumed innocent.

Given the state of our remand centres, which are not lovely places to be and are very full, and given the delays in our court system, the Canadian Civil Liberties Association has raised concerns that expanding reverse-onus provisions may lead to people pleading guilty simply to speed along their passage to a less uncomfortable place than remand.

I have two questions. First, what assurances do we have that this will not have knock-on effects to make remand centres even fuller, to cause even more court backlogs and to make people take guilty pleas in order to get out of the limbo of remand? Second, given the pace at which things are moving, will the Legal and Constitutional Affairs Committee be allowed the latitude to conduct a proper and thorough committee study, which was not allowed for in the House?

Hon. Renée Dupuis: Senator Gold, in your speech, you spoke about victims of violence and intimate partners. You spoke about people who have a history of sexual offences and sexual violence.

When you were talking about the organizations that the government consulted when drafting Bill C-48, I heard you say that you consulted the provinces, the territories and a few national Indigenous organizations. Perhaps I misunderstood what you said, but I didn’t hear you mention national associations like the Native Women’s Association of Canada, yet I think we can all agree that, when it comes to intimate partner violence, the victims are often women.

Can you specify which national women’s organizations were consulted on this bill?

Hon. Percy E. Downe: Senator Gold, I share the concern about the rush through the House of Commons and how the legislation will land here after no review at all there. As we all know, the Senate is often criticized, but we’re now put in a position in which what we call “the other place” — the House of Commons — simply did not do its job. They sent the legislation over here without reviewing it. Now it lands in our chamber. Given that, we may need much more time than we normally would because normally, as you know, we check the transcript and the hearings of the other place. We’re really starting from ground zero here. You would agree that we need more time than normal, I assume.

Hon. Pierre J. Dalphond: My question is along the same lines as the previous questions, Senator Gold.

The Senate has a duty to carefully consider all of these bills, especially those that reverse the burden of proof. Wouldn’t you agree that that burden is even greater today? The House of Commons passed this bill without convening a real committee of the whole. There were no submissions or witnesses, and the bill passed in one day.

In that context, shouldn’t we be a little more thorough and take a bit longer than usual to get written submissions from the Canadian Bar Association, the Barreau du Québec, the Association des avocats de la défense and the Canadian Civil Liberties Association, which is quoted in The Globe and Mail today criticizing the fact that it wasn’t consulted and that it didn’t even have time to prepare?

Shouldn’t we take our time on this? If the House of Commons thought this bill was so urgent, it could have passed it before June 22. They passed it the first day they were back in the House. We could have worked on it over the summer.

Hon. Mary Jane McCallum: Senator Gold, I was invited to attend a brunch with the police association and the premiers on bail reform this summer, and I raised a concern at that time. One of the panellists gave an example of an offender who had stolen a bottle of liquor and, 10 years later, he is a hardened criminal is what she said. Because of the way the system is set up, at that time, we were told that 70% of the people in the provincial jails were Indigenous and the majority had not even been to court.

Indigenous relationship with police administration, police officers and the justice system is already precarious. How will racial profiling and racism be addressed? If they are not, there will be a continuous flow of new criminals, and no law will be able to handle the load, even if additional resources are given. An example I’ll use is 80% of the Indigenous prisoners who are in the pen were children who were apprehended. So we need to look at reducing the flow of child apprehension so we don’t have that flow going in, because we’re not going to change the penitentiary system. How will this be addressed?

One comment that came up was people were so upset in there that they said, “Throw them in jail and throw away the key,” which caused me great concern. Thank you.

Hon. Brent Cotter: Senator Gold, thank you for your remarks and for your leadership on an important bill that is being considered by this chamber.

I’m a member of the Legal and Constitutional Affairs Committee, where it seems likely this bill will go, so I’ll have a decent number of opportunities to explore the bill, but I did want to ask one, what I would call, institutional question, in your capacity both as sponsor of the bill and as Leader of the Government in the Senate. You made reference to the five-year review and you used, I thought very carefully, the words “reviewed by Parliament.” But I think as you know, the bill calls for a review by the House of Commons.

I have in front of me here the clause, which is clause 2 of the bill, a review on the fifth anniversary to be carried out by a standing committee of the House of Commons.

This strikes me as not entirely respectful of this portion of Parliament, and in light of your endorsement of the confidence you have in the Senate, which I believe was part of your speech, I wonder if you could speak to what I would call an oversight. I would be interested in your view on that, especially since, as I seem to understand, the House of Commons didn’t study it at all in the first go-round.

Hon. Mary Coyle: Honourable senators, I wasn’t going to ask a question, but because of the question raised by Senator McCallum I’m happy, frankly, to have this discussion we’re having here right now, both about the process and the need for a robust debate on this important bill and a really thorough study.

Senator McCallum raised an issue that sparked in my mind this question and so much of this is based on reverse onus. This is a deviation from how we normally operate in our justice system in Canada. I am concerned about different groups being disproportionately disadvantaged, as they always have been, but even more so — possibly — under this legislation if the onus is on the person to prove that they deserve bail. That can sometimes be an advantage to someone who has the money and resources to hire good legal talent to help them. Because we haven’t had a thorough study yet — hopefully we will — I’m just curious whether the government has looked at this issue of advantage to those with resources in a situation of reverse onus and what the implications of that would be.