Lawyers raising concerns new bail laws won’t comply with Charter
Criminal lawyers are raising concerns that proposed changes to Canada’s bail laws won’t be constitutional, as they await a statement explaining why the federal Liberals think the changes comply with the Charter.
Vancouver criminal lawyer Kyla Lee said 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 offences involving a weapon, in cases where the person was convicted of a similar violent offence 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 changes will likely be challenged in court immediately if they become law.
According to the federal government, Charter statements are a transparency measure meant to inform debate on proposed laws and increase “awareness and understanding of the Charter.”
They accompany legislation introduced by the government, but often are not made available until well after a bill is tabled.
Lee said the lack of a Charter statement for the bail changes 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 struck down.”
Ottawa criminal lawyer Lawrence Greenspon said 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 said Ottawa lacks the data to justify its planned changes.
If that continues to be the case, a Charter challenge would be a “slam dunk,” Greenspon said.
Toronto-based lawyer Jessyca Greenwood said she understands the political reasons for the federal government to be responding to calls for change, but 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 law is up for second reading in Parliament, but it is not clear when that will be.
Greenwood said she hopes the government “is open to hearing the input of lawyers and other experts on how to make this constitutional before it passes.”
Greenspon 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.