The Hon. the Speaker: I’m sorry, but the time allotted to this debate has expired. Senator Boisvenu, another question?

The Hon. the Speaker: Are senators ready for the question? Continuing debate.

[English]

Hon. Gwen Boniface: I would like to ask a question of Senator Clement, if I may. Thank you.

I’m always caught on this issue because I also know that the reason this bail reform bill is coming before us — as opposed to the tragic circumstances you mentioned — actually involves the deaths of police officers. Domestic disturbances are one of the most serious issues that police officers respond to. I ask then, was any of that introduced at committee?

Second, what about the second victim of someone who is an abuser? What about the third victim? I appreciate the perspective you come from and, as Senator Batters says, that the data was absent, but I’m concerned we may be missing the point with the bill itself. Taking it out of the bill doesn’t resolve the issue of mass incarceration of Indigenous women.

The Hon. the Speaker: I’m sorry, but the time allotted to this debate has expired. Senator Boisvenu, another question?

Hon. Bernadette Clement: Honourable senators, I’d like to raise two points in response to Senator Boisvenu’s amendment.

First, we heard from many witnesses at that committee that there was an absolute lack of data to support that this change was actually going to be helpful and make communities feel safer. In fact, we heard the opposite — that this reverse onus does not work and actually creates inequities that are absolutely unacceptable for racialized, marginalized communities.

Second, the discharge piece affects Indigenous women and women who are caught in a cycle of violence and then charged along with their spouses. We call that dual charging. Often they will then be discharged.

Those are the people who will be affected by this reverse onus. I proposed that amendment, which passed at committee, to remove the discharge piece because this is where we see the overrepresentation of Indigenous women in prison.

In August, I went to visit Grand Valley Institution for Women. I had never been inside a prison before. I know the statistics; I’ve heard the statistics. We heard them when we were having the debates around Bill C-5. But when you sit in that prison in a town hall gathering, you actually see the overrepresentation. You see that more than 50% of the women sitting there in front of you are Indigenous and realize that those statistics have real and true meaning.

My point is that we did not hear any data from the witnesses to support that this reverse onus would be helpful, but it could create more overrepresentation of Indigenous women in particular. Thank you.

The Hon. the Speaker: Are senators ready for the question? Continuing debate.

[English]

The Hon. the Speaker: The time for debate has expired.

[English]

Hon. Renée Dupuis: Would Senator Clement take another question?

Hon. Paula Simons: Honourable senators, I rise today to speak in support of my colleague Senator Clement, who brought forward this amendment which I was happy to support in committee.

I think to understand why, we need to understand why one would reverse the onus in a bail hearing. It is important to understand that in a criminal justice system that is based on the principle that we are innocent until proven guilty, the state cannot constrain our liberty without just cause.

It is typical in a bail hearing that the prosecution must prove to the justice of the peace or the judge why someone should not be granted bail. That is on the basis, (a) that they are a flight risk; (b) that their release would pose a danger to the community; or (c) that their release would embarrass the justice system, that it would fly in the face of what the public believes the justice system should do.

Those are properly high tests, but the Crown has the full power of the state at its disposal to try to prove that fact.

When we reverse the onus, we require of the accused that they accept the burden that would properly belong to the state. Suddenly, they are the ones who have to prove why they should be released, sometimes with the help of a legal aid duty counsel or another lawyer, sometimes as self-represented citizens. They must take unto themselves the responsibility to argue for their liberty.

The Supreme Court has held that in certain circumstances we are allowed to reverse the onus. Bill C-48 would expand that to increase more categories at which we reverse the onus. But the premise of the bill is that this should be for the people who are the worst of the worst, the people who are the greatest danger to our community and perhaps to their own families.

This is why I bristled when I saw the words “discharge” in the legislation. As we all know, I am not a lawyer on the Legal and Constitutional Affairs Committee and I am filling in there.

I want to read to you what the Legal Aid Ontario page tells us about absolute discharges in the law:

An absolute discharge is the lowest-level adult sentence that an offender can get.

If an offender gets an absolute discharge, then a finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case. The person does not have to go to court again or check in with a probation officer.

An absolute discharge will stay on an offender’s criminal record for a year after the date they received the discharge. . . .

Then I skip ahead:

The discharge will be automatically removed from their record after one year. The person doesn’t have to apply for a pardon.

In other words, to receive an absolute discharge, your record suggests that there is no vestige of the previous sin.

Why would someone be granted an absolute discharge? It happens very rarely in cases where the court believes the person is not a risk to reoffend, is not a danger to society and where the person has come forward with a plan to make amends. As Senator Clement correctly points out, this is often the case for Indigenous women because sometimes when police attend a home, there’s interpartner violence and are unable to tell who started what or who was the instigator, police will often charge both parties to clear the scene and get everything safe again. Then it may be that the one spouse who was primarily a victim finds themselves countercharged. Oftentimes those are records that are expunged, but that’s not the only reason one would receive an absolute or a conditional discharge. A conditional discharge, as the name implies, comes with conditions, and in that case your record is not sealed until three years have passed.

When I looked at this legislation I thought to myself, “All right, if we’re going to reverse the onus, we should be reversing the onus for the worst of the worst.” If somebody has received a discharge, it implies that their previous offence was relatively minor and that their actions were relatively understandable.

Now, look at the amendment that we have before us. It reads:

. . . with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted or discharged under section 730 of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs;

You could have a scenario where an Indigenous woman who has received an absolute discharge is charged with threatening violence against her partner and would now be under the burden of a reverse onus to be granted bail. This is patently unfair. If we’re going to have a reverse onus, let it be for the people for whom they are properly due, for people who are a proven threat to society and who have a track record of criminal behaviour.

To allow a reverse onus to affect somebody whose only previous brush with the law ended in an absolute discharge is a corruption of our bail system and a corruption of the presumption of innocence. Thank you very much.

The Hon. the Speaker: I see two senators standing. Do we have agreement on the bell?

Senator Seidman: The vote will be deferred to the next sitting of the Senate.

The Hon. the Speaker: Is leave granted, honourable senators?

The Hon. the Speaker: Are honourable senators ready for the question?

The Hon. the Speaker: The time for debate has expired.

Some Hon. Senators: Yes.

Hon. Salma Ataullahjan: Honourable senators, I rise today to request leave of the Senate:

That the sixth interim report of the Standing Senate Committee on Human Rights entitled Combatting Hate: Islamophobia and its impact on Muslims in Canada, tabled with the Clerk of the Senate on November 2, 2023, be replaced with a corrected version.

The earlier version had inadvertently misattributed one quote, and the corrected version addresses that error.

We apologize to the witness for this regrettable error.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Question.

The Hon. the Speaker: Are honourable senators ready for the question?

The Hon. the Speaker: Pursuant to rule 9-10 of the standing order, the vote will be at 4:15 p.m. during the next sitting of the Senate and the bells will ring at 4 p.m.