How Bill C-48 Could Reform Bail for Repeat Offenders in Canada–Everything You Need to Know

This article looks at the reasons why Bill C-48 it was suggested by the government, why it is controversial and how it could change Canada’s bail system.

Person on phone talking to prison inmate through glass on phone
Female lawyer wearing black suit and black glasses

Jillian Williamson

September 22, 2023 08:00 AM

On May 16, 2023, Bill C-48 was introduced by the Government of Canada. The purpose of this Bill is to adjust the Criminal Code’s stipulations around bail. More specifically, it has a strong focus on creating stricter bail measures for repeat offenders to promote safer communities and better trust in the justice system.

This article looks at the reasons the Bill was suggested, why it is somewhat controversial, and how it could change Canada’s bail system.

Bill C-48: Hopes and Concerns

Like so many other countries, Canada has experienced an uptick in crimes that involve firearms and other weapons. Family and intimate partner violence (IPV) is also steadily on the rise each year. Considering the shattering effects such acts have on families and communities, not to mention that it heavily bruises the public’s trust in the law’s ability to protect them, the Government of Canada responded and presented Bill C-48.

According to Alberta Legal criminal lawyers, the Bill “aims to enforce stricter bail requirements, especially for offenders with a known history of domestic violence, weapons-related offences, or both.”

Bill C-48 is proposed to curb potential crimes by keeping high-risk offenders off the street and thereby protecting vulnerable domestic violence and IPV victims and the community at large.

However, there are some concerns that the new Bill can harm people. Indeed, not everyone who is taken into custody is guilty of a crime. Even those with a criminal record can end up being arrested due to a misunderstanding or false accusations.

The main pain point among lawmakers and activists is that when stricter bail is imposed on an individual just because they have a criminal history, it can and likely will lead to a gross miscarriage of justice in some cases.

Three Areas of Focus or Changes That Defines Bill C-48

Bill C-48 will bring a new reverse onus into play. Basically, a reverse onus means that the burden of proof no longer lies with the prosecution. The accused must be able to demonstrate why they should be released on bail. Failure to do so means that they will be detained until their trial.

Below are three key fields being targeted by Bill C-48 for improvement:

Firearm and Other Weapons Offences

The new reverse onus is intended to focus mostly on individuals charged with serious weapons-related offences (offences that usually come with at least a maximum of 10 years imprisonment) where violence was used. This includes the actual use, attempted use, or threat to use a weapon. Bill C-48 would specifically target accused offenders who were convicted within the last five years of a similar crime.

More specifically, if passed, the Bill would expand on the existing list of firearm offences that require a reverse onus, including:

  • The unlawful possession of a loaded (or easily loaded) prohibited or restricted firearm (section 95)
  • Breaking and entering to steal a firearm (section 98)
  • Robbery to steal a firearm (section 98.1)
  • Making an automatic firearm (section 102).

Domestic Violence and Intimate Partner Violence (IPV)

Bill C-48 will also broaden the reverse onus to include offenders with a background of repeatedly committing family violence or intimate partner violence. The Bill will even extend to any accused who, in the past, has received a discharge for a domestic violence or IPV-related incident for which they were initially found guilty.

Just to add some clarity, here are a few key points that define what a discharge is and also the different types of discharges.

  • A discharge is not the same as being found innocent. A discharge is still a sentence which, under section 730 of the Criminal Code, can be requested after someone has gone to trial and either pled guilty or were convicted of an offence
  • When the discharge is absolute, it will be expunged from the accused’s criminal record after a period of one year
  • A conditional discharge stipulates that an offender must abide by all the terms of their probation. If the individual complies with each requirement and doesn’t get any more guilty findings, the discharge will be removed from their criminal record after a period of three years.

Clarifying the Meaning of “Prohibition Order” in Existing Cases of Reverse Onus

When someone has allegedly committed a crime involving a weapon and they are currently subject to a weapons prohibition order, the Criminal Code already implements a reverse onus at bail.

However, Bill C-48 is set to clarify the meaning of the prohibition order and give wider use to this term. It states that a court release order for bail is included in the order, meaning that a reverse onus is triggered when the accused is charged with an offence that involved firearms or other prohibited weapons or devices while they are under a release order with a condition that forbids them from keeping firearms or certain other weapons in their possession.

If the Bill is passed, courts would be explicitly required to consider the accused’s criminal history and assess the risk they pose to their victims or the public before making a final bail decision. This is draconian however because the current bail regime already requires courts to consider prior criminal history when assessing whether the accused person should not be released.

Under Bill C-48, subsection 515(13) will also be amended to require the court to go on record with a statement that they have taken into account the safety of the community and victims when making a bail order. This amendment is meant to increase the accountability of the court and also to inspire more public trust. It should be noted that courts are already required to consider the safety of the community. It should also be noted that at a bail hearing, there is no “victim” and that’s because the accused person is presumed innocent. The language being embedded into the bail legislation is chipping away at this very important presumption.

When Will Bill C-48 Become Permanent?

At this stage, Bill C-48 is not set to become a permanent part of Canadian law–just yet. It’s still being discussed, but should it receive Royal Assent, the Bill would also include a clause insisting upon a parliamentary review of Bill C-48 five years later to assess the effectiveness of the Bill’s legislative measures. This means that a poor performance might still end Bill C-48.

If you want to find out more about Bill C-48 or need legal expertise, please contact Alberta Legal criminal lawyers for more information.

Jillian Williamson is a criminal defence lawyer at Alberta Legal, a full service criminal defence law office. She is an experience litigator in criminal, quasi-criminal and regulatory cases. She has successfully argued at all levels of court in Alberta.

Headline Image: iStock/ South_agency

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