An Hon. Senator: Now.

Some Hon. Senators: Agreed.

The Hon. the Speaker: I heard a “no.” Leave is not granted.

Honourable senators, the sitting is therefore suspended, and I will leave the chair until 8:00 p.m.

(The sitting of the Senate was suspended.)

[Translation]

(The sitting of the Senate was resumed.)

The Hon. the Speaker: Honourable senators, it is now six o’clock. Pursuant to rule 3-3(1), I’m obliged to leave the chair until eight o’clock, when we will resume, unless it is your wish, honourable senators, to not see the clock. Is it agreed to not see the clock?

The Hon. the Speaker: Those opposed to the motion will please say “nay.”

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

The Hon. the Speaker: Those in favour of the motion will please say “yea.”

The Hon. the Speaker: Those opposed to the motion will please say “nay.”

The Hon. the Speaker: In my opinion, the “nays” have it.

And two honourable senators having risen:

The Hon. the Speaker: Is leave granted?

The Hon. the Speaker: Honourable senators, it is now six o’clock. Pursuant to rule 3-3(1), I’m obliged to leave the chair until eight o’clock, when we will resume, unless it is your wish, honourable senators, to not see the clock. Is it agreed to not see the clock?

Hon. Renée Dupuis: Honourable senators, I’ve learned that, in the Senate, it’s in vogue to say at this point, “I wasn’t planning to speak to this topic today.”

Here’s what I’d like to say, with reference to the Supreme Court of Canada’s 2016 decision in Daniels v. Canada. The Congress of Aboriginal Peoples asked three questions. First, should they be recognized as Indians? The answer was yes. Second and third, did they have the right to be consulted and should they automatically be part of negotiations? The answer was no.

This is an extremely complex issue both politically and legally. I cannot imagine the Senate, on the basis of an amendment like this one, deciding to take a stance one way or the other. I must therefore vote against the amendment.

Thank you.

[English]

Hon. Dennis Glen Patterson: Honourable senators, I rise today to speak to Bill C-48, An Act to amend the Criminal Code (bail reform).

Colleagues, as I get closer and closer to retirement, I find myself becoming increasingly reflective about our role here as senators. We are a lot of things: We are champions of our regions, as well as the voices of minorities. We are advocates, leaders and mentors, but first and foremost, we are legislators. That places within our purview an incredible power to help or hinder the lives of all Canadians. So, for me, I become incredibly uncomfortable when we pass legislation that many committee witnesses speak out against.

This bill is one of them. I want to say that I agree in principle with being tough on crime. I personally believe in the importance of ensuring that we are not letting dangerous criminals in danger of reoffending out on bail. However, I was disheartened to hear throughout the committee’s study of this bill that many respected legal professionals disagree with this bill. We heard time and time again that this bill is politically motivated and would essentially do nothing.

I don’t say this lightly. After I heard from a number of credible, experienced and acknowledged expert witnesses in committee, I made a note that the committee had heard a litany of warnings that this bill — these are my words — was a knee-jerk reaction to recent events, which raised a chorus of alarms, but that it would not make a difference. Our committee’s observations on this bill state this in more diplomatic language, but in speaking to this bill on third reading, I believe it is important for all my colleagues to hear these clear warnings.

Kat Owens, a lawyer and Project Director at the Women’s Legal Education and Action Fund told us that:

. . . changes to the bail system like this do nothing to address the underlying causes of gender-based violence, and they actually may make things worse in terms of the impact of detention on people, like losing their jobs, homes and mental health supports . . . .

She also recommended to the committee that we begin the review in three years as opposed to five years after Royal Assent, stating that:

We know there’s a significant risk that this bill will negatively impact marginalized communities, and so as soon as we have the data . . . let’s get this review started so that we can make evidence-based policy changes.

On October 4, we had three witnesses on the same panel who all spoke out strongly against the bill. It seemed to me at the time to be a veritable indictment of the bill. Danardo S. Jones, an assistant professor in the Faculty of Law at the University of Windsor, told the committee:

I want to begin by saying that the recent tragic incidents that we’ve seen in Canada cannot be attributed solely to one piece of legislation. I know there have been talks around Bill C-75 and some of the measures that piece of legislation brought in. This is a much more complex issue, which we can’t target with one piece of legislation. It is overly simplistic to suggest otherwise.

Really, the question that this committee should be considering is the constitutionality of Bill C-48 and whether or not this bill would withstand constitutional scrutiny.

Now, to uphold the constitutional right to bail under section 11(e) of the Charter is not to be confused with being anti-public safety. To frame the narrative in that way is dangerous. The courts have engaged in this balance since Morales and Pearson. It is an important and delicate balance to strike. Public safety is paramount, but ensuring the rights of Canadians is also paramount.

Similarly, Nicole Myers, an associate professor with the Department of Sociology at Queen’s University, was clear that this bill will not solve the many issues facing our bail system. In her testimony, she said:

Our bail system is not working well. It is a system in need of reform. The reforms in Bill C-48, however, will do nothing to address the multi-faceted and entrenched issues with the bail system.

Incidents of repeat violence are both tragic and alarming. These events, however, are not the result of legislative failure. Creating more reverse onus provisions —

— as this bill does —

— will not improve public safety. Instead, it is likely to cause disproportionate harm to the most marginalized and overrepresented people in our criminal justice system.

Her testimony was followed by Michael Spratt, a partner at AGP LLP, who drew on his more than 20 years of experience in practising criminal law to state:

It is vitally important that criminal justice legislation be fully studied and considered at every step of the legislative process. When it comes to justice issues, the stakes are too high to legislate without careful consideration of all the available evidence.

He went on to say:

We must remember that people denied bail are presumed innocent, and we shouldn’t seek to punish people before they have been found guilty of anything. Pretrial detention is punishment of the worst kind, and we should be incredibly reluctant to throw behind bars people who haven’t been found guilty of anything — but we aren’t. . . .

The truth about our bail system is that it doesn’t apply equally. The wealthy and the privileged, in my experience, are much more likely to be released and much more likely to be released more quickly than people who are impoverished and racialized and have faced other challenges in their life. That’s the built-in inequity in our system, and this bill does absolutely nothing to remedy that.

More importantly, the measures in this bill are performative. The government itself has admitted they don’t have sufficient data to say what impacts, if any, this bill would have had or will have in the criminal justice system. The current discussion about bail and firearms offences has been driven by some very high-profile and tragic cases, but there is not one iota of evidence that this bill would have saved one life.

The reversal of onus for firearms and intimate partner violence offences — and we can have a discussion about this — I don’t think is going to change very much. The system is already bad. It’s already broken. This will make it worse, but worse in a way that when you’re falling 999 feet out of a plane without a parachute and you know you’re going to hit the pavement, the guy with the parachute beside you says, “It could be worse.” You say, “How could it be worse?,” and he says, “Well, you could be falling from 1,000 feet.”

That last line struck a chord with me, and I thought it important that I include it here today.

Honourable senators, I’ve quoted heavily from our transcripts because, while I think it’s important for us to share our opinions in this chamber during debates, it is just as important, if not more important, for us to act on the advice of the experts that we have identified and called on to share their expertise with us during the committee’s consideration of this bill.

None of us can be experts in everything, so I believe it is important, as we undertake our important duty to legislate, to listen to those who are subject-matter experts. All we can do is attempt to make the best possible decision based on all of the information available, and as we are not all members of the committee, I felt it was important to share this testimony, which I found very compelling, to aid senators as they prepare to vote on third reading.

I also feel that it is particularly important to take these observations seriously in light of the other place, in their wisdom, passing this bill at all stages by unanimous consent, meaning that it skipped study at committee there. That makes the Senate the only place where subject-matter experts have had an opportunity to share their views with legislators. Thank you for your attention. Qujannamiik.

The Hon. the Speaker: I heard a “no.” Leave is not granted.

Honourable senators, the sitting is therefore suspended, and I will leave the chair until 8:00 p.m.

(The sitting of the Senate was suspended.)

[Translation]

(The sitting of the Senate was resumed.)

The Hon. the Speaker: Resuming debate on Bill C-48.

The Hon. the Speaker: Resuming debate on Bill C-48.

Hon. Pierre-Hugues Boisvenu: Honourable senators, I rise today to propose an amendment to Bill C-48, An Act to amend the Criminal Code (bail reform), introduced in the House of Commons on May 16 by the Minister of Justice and Attorney General of Canada.

The amendment I’m proposing today reintroduces the reverse onus for repeat offenders previously discharged for domestic violence offences.

Doing so sends a clear message to victims and to the public, specifically, that our legal system recognizes the seriousness of recidivism in cases of domestic violence and is taking all necessary steps to prevent future tragedies that could result in further victimization.

This amendment deals with cases of individuals who have already been discharged for similar acts of domestic violence. Bill C-48 originally provided for the application of this reverse onus principle, a measure I strongly support. However, this vital component was removed from the bill through an amendment brought forward by Senator Clement at the Standing Senate Committee on Legal and Constitutional Affairs.

As you know, domestic violence is endemic in Canada. If we want to better protect victims, encourage them to report their abusers and reduce recidivism, we need to adopt a tougher, more rigorous approach to abusers.

Bill S-205, which was passed before the end of the last session, is similar to the amendment I’m proposing today. My bill received support from all the provinces consulted, victim support groups, Indigenous communities, police services and therapists who treat these violent men.

Further to that point, I’d like to reiterate my appreciation for your support in passing this important bill. Once again, thank you.

As I mentioned in my speech at second reading of Bill S-205, in 2018, 148 women were murdered in Canada, and in 2022, 184 women were murdered by their spouses or ex-spouses, men who didn’t accept that these women had chosen to free themselves from a prison of violence and silence. The vast majority of these murderers had a violent past and, in several cases, a violent past with several of their partners.

I therefore hope that my bill, Bill S-205, which passed second reading in the other place, will be passed before I leave my seat in this chamber. In combination with Bill C-233, which we passed earlier this year, this bill, if it is passed, will finally provide Canadian women with a secure legislative framework to protect them and their children when they report their abuser.

Senators, it is important to reinstate in Bill C-48 the important measure regarding the reversal of the burden of proof and to remind people of why this measure is essential for victims.

When an individual is accused of a domestic violence-related crime, the fact that he was previously discharged shouldn’t alleviate his responsibility in a later case. In fact, a previous discharge should be seen as a warning to be taken into account in future rulings, particularly if new accusations are made.

In that respect, let’s not forget the tragic death of Christine St-Onge, who was murdered by her partner, Pierre Bergeron, who was previously discharged in a case of intimate partner violence against another woman. This case clearly illustrates the need for more vigilance. Prior discharges can hide repetitive behaviours and leave future partners vulnerable and defenceless.

By excluding this measure from Bill C-48, we are running the risk of sending the wrong message, that despite a history of violence, an individual could be granted a type of clemency if he reoffends. That isn’t the message we want to send to current victims, who are caught in a vicious circle of domestic violence. Justice must above all protect the potential victims and consider recidivism not a mere coincidence, but a potential indicator of a repetitive, aggressive and dangerous behavioural pattern.

To strengthen my argument, I want to note that the decision to grant a discharge is never taken lightly. A judge evaluates several factors, including the seriousness of the offence and the risk of reoffending. If a new offence is committed, that may indicate a poor initial assessment of the risk of reoffending or a change in the accused’s behaviour. In either case, the future partners are at risk and it is vital to review the way these offenders are treated in future.

Bill C-48 will soon be passed, despite the fact that I think it is imperfect. It should have encompassed all forms of domestic violence, not just gun-related violence. A large proportion of women murdered in this country are killed with knives or by strangulation. Bill C-48 represents another step forward in protecting women who are victims of domestic violence. I would also remind senators that in rural areas, one woman in three is murdered with a firearm, while in urban areas, the ratio is only one woman in six. Clearly, many more women are murdered with knives than with guns. The danger for these victims isn’t the presence of a weapon nearby, but the attacker’s background.

However, I’m pleased that Bill C-48 has retained one of the elements of Bill S-205, which you all voted in favour of, namely maintaining the reverse onus against an assailant who reoffends despite having obtained a conditional or absolute discharge. These abusers reoffend and will always reoffend if they don’t receive a court order to undergo therapy.

Meanwhile, what we need to hope for now is that the provinces develop programs to support violent men in their therapy and in learning to control their often deadly anger. I also hope that, as a result, the federal government will answer the provinces’ call for funding to support organizations that help violent men, as it does with shelters for victims of domestic violence.

To come back to my argument about the granting of a discharge, historically, it was considered a great privilege if the justice system granted a discharge to an accused who was found guilty of a criminal offence. When the justice system grants a person such a privilege, it must not be taken lightly. When the justice system takes such action, it puts all of its trust in the accused and his future behaviour.

A discharge doesn’t erase the crime that was committed in the eyes of the victims, which is why they are often so frustrated. Abusers have an obligation to ensure that their behaviour toward women is exemplary, particularly in the case of domestic and sexual violence.

When someone commits a crime of the same nature as the one for which he was privileged enough to be granted a discharge, he is betraying not only his commitment but also the promise he made to society and to the justice system, which granted him their trust. In my opinion, a broken promise and lost trust must have consequences.

Colleagues, know that I understand and respect the concerns raised by some witnesses who suggested that this measure might unfairly target the survivors of domestic violence. However, after careful consideration and an analysis of the challenges, I’m convinced that keeping this provision in the bill is not only necessary, but it is also essential for the protection of potential victims of violence for four reasons.

First, it is important to make a clear distinction between the victims and the perpetrators of violence. Our goal is to prevent recidivism in those who, having already benefited from a discharge, end up facing justice again for similar reasons. It is imperative to understand that this provision targets repeat offenders specifically.

Second, prevention and victim protection are at the heart of this measure. By reversing the onus, we are putting in place an essential precautionary mechanism for preventing repeated abuse. This extra barrier requires repeat offenders to actively prove that their release doesn’t represent a risk to the victim. It is a crucial step for other potential victims.

Third, this measure acts as a significant deterrent. It shows that our justice system takes past domestic violence seriously and is prepared to take concrete action to deter future offences. It sends a clear signal that recidivism will not be tolerated and that personal responsibility is a key component of our justice system.

Fourth, maintaining this provision will help strengthen the integrity and credibility of our justice system. It demonstrates that past discharges are not a free pass for future offences. Our system must remain vigilant and respond to the risk of reoffending. Public confidence in our justice system is at stake, as is the victims’ absolute trust in justice — a trust they are too often deprived of.

Honourable senators, this is why it’s so important to be consistent with the decision you made a few months ago when you passed Bill S-205, which included this section, that is, the decision to ensure consequences for a repeat offender who assaults a spouse or a ex-spouse again, even after obtaining a prior discharge. In my view, reoffending must revoke any privilege the accused had received and for which he has breached his obligation not to assault anyone again, otherwise the notion of discharge will also lose all meaning.

We must ensure that offenders meet their obligations in relation to a discharge and that we emphasize the importance of a discharge when it is granted, otherwise the confidence of victims and the public will be lost, both when a discharge is granted and when it’s not respected.

For all of these reasons, I urge you, honourable senators, to think carefully about the impact of removing this provision. Failing to recognize the seriousness of recidivism in the context of domestic violence can undermine both protection for victims and the fundamental responsibility that our justice system has of ensuring that victims are protected. We have a duty to protect the most vulnerable members of our society and to ensure that justice is done fairly, effectively and responsibly.

Honourable senators, as legislators, it is our duty to guarantee the safety and protection of all citizens. Reinstating this measure in Bill C-48 isn’t simply a matter of legal procedure; it is an act of responsibility toward those who are vulnerable and whose voices are often not heard in our justice system.

I therefore urge you with all of the conviction and urgency this cause demands to support my amendment to ensure the safety of our fellow citizens and bring them justice. Thank you.

The Hon. the Speaker: Senator Gold, we have very little time left, so I’m wondering if you would like to ask for a few more minutes.

The Hon. the Speaker: Is leave granted?