Canada’s premiers are urging Ottawa to create a reverse onus on bail for people charged with possession of a loaded prohibited or restricted firearm while also reviewing the possibility of doing so for other firearms offences.
The premiers from all 13 provinces and territories called for the policy change in a letter to Prime Minister Justin Trudeau, dated Friday and made public over the weekend. There have been growing calls for bail reform after revelations that one of two people charged in the death of an Ontario Provincial Police officer last month had been released while awaiting trial on separate assault and weapons charges.
The federal Conservatives and several premiers have objected to Criminal Code changes passed in 2019 that called for restraint when setting bail conditions, which critics have said make it more difficult to keep repeat offenders awaiting trial in custody.
The premiers’ letter says that someone accused of possessing a loaded prohibited or restricted firearm “should have to demonstrate why their detention is not justified when they were alleged to have committed an offence where there was imminent risk to the public.” Such a reverse onus on bail already exists for offences related to terrorism, criminal organizations, and having committed a violent crime with a firearm, for example.
The premiers also said the federal government should review other firearms-related offences to determine if they should also be subject to reverse-onus bail.
The letter notes that the matter was “the subject of an intense discussion” at an October meeting of justice and public safety ministers from across the country, held in Nova Scotia, but underlines that changes to the Criminal Code are within the federal government’s jurisdiction.
Marie Manikis, associate law professor at McGill University in Montreal, said the letter is premised on the “flawed” view that current provisions relating to bail fail to keep those who pose a risk to public safety off the streets.
She wrote in an e-mail that judges already consider risk to public safety when deciding whether to grant bail or detain someone, and people “should not be presumed to be safety risks without any evidence.”
“The Crown should be the one to prove that the individual poses a threat to public safety,” she wrote, adding that the “right to reasonable bail” is protected under the Canadian Charter or Rights and Freedoms.
Prof. Manikis said reverse-onus bail would affect groups such as Indigenous and racialized people, who are already disproportionately held in detention before trial.
She added that the Criminal Code section cited by the premiers also applies to offences with little to no danger to the public, including honest mistakes from licensed gun owners.
“For all these reasons, it would be problematic to have a reverse of onus,” Prof. Manikis wrote.
The letter originated in Ontario Premier Doug Ford’s office, weeks after the death of 28-year-old Constable Grzegorz Pierzchala, a member of the OPP.
Court documents show that one of the two people facing a first-degree murder charge in his death, Randall McKenzie, had been initially denied bail in a separate case involving assault and weapons charges but was released after a review. A warrant had been issued for Mr. McKenzie’s arrest after he didn’t show up for a court date in August.
David Taylor, spokesperson for federal Justice Minister David Lametti, said in a statement that the government is “taking the necessary time to analyze” the premiers’ suggestion.
He noted the federal government agreed at a recent meeting with provincial and territorial justice and public safety ministers to look at Canada’s bail system. “That work is ongoing,” he said.
Roxanne Bourque, spokesperson for Quebec Minister of Public Security François Bonnardel, said in a statement that “any way to deter gun violence in Montreal must be seriously analyzed and considered.”
Other provincial officials did not immediately return e-mails and calls seeking further details.
Canadian Police Association president Tom Stamatakis told The Canadian Press this month that the details of Constable Pierzchala’s death had highlighted a need for reforms.
“There are a small number of prolific and violent offenders who continue to present a danger to society when released, and we need to find common-sense reforms that will address those cases,” he said.
Federal Conservative Party Leader Pierre Poilievre said in late December that the Trudeau government should “reverse its catch and release bail policy,” referring to a law the Liberals passed in 2019 that updated bail provisions in the Criminal Code.
The law codified a “principle of restraint” that had been reaffirmed in a 2017 Supreme Court case, which directs police and courts to prioritize releasing detainees at the “earliest reasonable opportunity” and “on the least onerous conditions,” based on the circumstances of the case.
It also gave police more power to impose conditions on accused people in the community to streamline the bail process and reduce the number of unnecessary hearings, and it required judges to consider at bail the circumstances of people who are Indigenous or come from vulnerable populations.
With a report from The Canadian Press