Many in Canada’s legal community are expressing concern about how the overloaded court system could be affected by a Liberal bill that would make bail harder to access for some people facing criminal charges.
Senators on a committee probing the legislation will enter the final phase of their study next week by going over the legislation clause by clause and suggesting amendments.
Federal Justice Minister Arif Virani has encouraged the Senate to pass the bill quickly, saying the fact that all provincial and territorial governments pushed for the measures underlines their urgency.
Police leaders also support the bill, saying these are much-needed reforms after a spate of high-profile killings by repeat violent offenders, who in some cases had been released on bail.
But civil society groups and legal advocates representing people who are Black, Indigenous or otherwise marginalized say its measures could worsen the overrepresentation of such groups behind bars — something Liberals have promised to address — while failing to make communities any safer.
The bill is drafted to target offenders who have a violent criminal past. It seeks to expand what are known as reverse onus provisions, meaning it would be up to an accused individual to argue why they should be released while they await trial, rather than Crown prosecutors having to show why they should remain jailed.
The Liberals want to expand existing reverse onus measures to include more firearm offences, including breaking and entering to steal a firearm.
Reverse onus provisions would also apply in cases of serious violent offences involving a weapon _ which could involve weapons such as bear spray or knives _ when the accused person was convicted of a similar offence within the past five years.
Criminal lawyers, legal aid groups and some senators say they worry about straining legal aid services and provincial court systems, which are already struggling to ensure that cases are heard in a time frame that complies with the Charter of Rights and Freedoms.
“We just need to be more attentive to what are the consequences of the legislation for the actors who will have to deliver the program,” Saskatchewan Sen. Brent Cotter, who chairs the Senate’s legal committee, said in an interview.
“Legal aid systems will likely get burdened more than they are now, and we haven’t been specifically proactive on that.”
Cotter added that the expansion of reverse onus provisions will affect people who are of lower income, and have a disproportionate impact on Indigenous and Black people.
“If you’re in the lower economic range of people, you won’t have as easy a time mounting the case to get yourself released on bail. And so the support that the legal aid system can provide might be the most important professional resource that could be made available.”
British Columbia attorney general Niki Sharma, whose province supports the bill, acknowledged a need to consider its impact on legal aid programs in testimony earlier this week.
She said B.C. is grateful for the increased funding it has received over the past few years, but noted it might not be enough.
“We think we need to work together with the federal government to get further increases for criminal legal aid to make sure people have that ability to get representation if they can’t afford it,” she said.
Virani’s office has not responded to a request for comment.
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