Author: Tal Schreier

Meet Mary Birdsell, the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024

Posted on by Tal Schreier

by Kate Shackleton 

From working directly with young clients to arguing cases at the Supreme Court of Canada, Mary Birdsell has advocated on behalf of children and youth for more than 25 years.  This fall, she will share her knowledge of children and youth justice, constitutional law, and appellate litigation with students in the Asper Centre’s clinic course as the Constitutional Litigator-in-Residence. I recently spoke with Birdsell about her career so far, her constitutional law expertise, and what she’s looking forward to her in her new role.  

Originally from Alberta, Birdsell chose to attend law school at Dalhousie University. She opted for Dalhousie because she was curious about living elsewhere and eager to meet classmates from across the country. When she started law school, she recalls being uncertain if she wanted to be a lawyer. However, she was drawn to law because she thought “it would be an interesting and excellent education in how society functions.” She notes that her first-year courses covering constitutional law, human rights, and the Charter affirmed her decision to pursue a law degree, since they were “exactly what [she] was interested in.”  

After graduating law school,  Birdsell articled with a full-service corporate law firm in Toronto where – coincidentally – her first case focused on section 15 of the Charter. She worked on behalf of an intervener in Thibaudeau v Canada – which examined the rule that child support payments were taxable on the receiving parents – under the tutelage of Mary Eberts and Steve Tenai.  

Following her articles, Birdsell joined Justice for Children and Youth (where she now serves as Executive Director). She knew that clinic work appealed to her thanks to the semester she spent working full-time at Dalhousie’s legal clinic and she was particularly interested in Justice for Children and Youth because of her pre-law experiences working with youth.  

During her time at Justice for Children and Youth, the organization has been involved in a number of landmark cases in the youth justice sphere – many of which centre on Charter rights. When I asked her to identify highlight cases, it was difficult for her to choose a select few. In terms of having a meaningful impact, R v D.B. came to mind first. The case, in which Asper Centre Executive Director Cheryl Milne was counsel for Justice for Children and Youth, established that diminished moral blameworthiness for youth is a principle of fundamental justice under section 7. More recently, she pointed to Justice for Children and Youth’s intervention in R. v Le,  where the Supreme Court of Canada affirmed that race relations inform the detention analysis under section 9 of the Charter.  

Although not every case has yielded the outcome she hoped for, she described constitutional litigation as a “powerful tool” in the hands of youth justice advocates. She observed that the Charter offers a “fundamental path” to confront some of the most pressing issues facing Canadian youth, such as the Saskatchewan law requiring parental consent for students under 16 to change their name or pronouns.  

For Birdsell, evidence is the key to success in constitutional litigation. She stressed that evidence is especially important in equality-based litigation, since evidence is how litigants demonstrate that “oppression is happening the way you say it is.” Especially when organizations like police services or family services are being challenged, as often happens in the youth justice context, she explained that evidence is crucial to “switch the vantage point” for courts.  

When asked if she had any advice for law students, she encouraged students to follow what interests them. For those considering public interest work, she emphasized that there are many places where you can do public interest work, including government positions and at big firms. She also highlighted the value of being well-educated in constitutional law, since it empowers you to spot Charter issues “where others might not.”  

As the incoming Asper Centre Litigator-in-Residence, Birdsell is excited to interact with and learn from students. She also welcomes the opportunity to take a pause from front-line work and spend time thinking “a little more broadly and deeply about the law.” On the voting age challenge, which will form an important part of the clinic students’ work this fall, Birdsell described the case as going beyond just the right to vote. At its core, she said, the case is about how youth “ought to be able to participate in decision-making about the present and future.”  

Kate Shackleton is a rising 2L JD Candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant. 

The State Is Not Immune: The Supreme Court Affirms that Crown Can be Held Liable in Damages for Unconstitutional Laws

Posted on by Tal Schreier

by Vlad Mirel, with Neil Abraham and Megan Stephens

In a 5-4 split, the Supreme Court of Canada in Canada (Attorney General) v. Power held that damages may be awarded to those affected by Charter-violating laws. Although the threshold that must be met to be awarded damages remains high, the Supreme Court has confirmed that the Crown does not have complete immunity from damages. Significantly, the Supreme Court’s view achieves a balance between important legislative privileges which weigh in favour of absolute immunity, and the Charter rights of all Canadians that favour no immunity.

Background

In 1996, Mr. Power was convicted of two indictable offenses and sentenced to eight months imprisonment. After serving his sentence, he received his x-ray technician diploma and became a medical radiation technician at a New Brunswick hospital. Over a decade later, Mr. Power’s employer received a tip about his criminal record and his employment was terminated. Mr. Power was subsequently unable to find new employment due to his record and decided to apply for a record suspension. Record suspensions enable those who have served their sentences and have demonstrated they are law abiding citizens to remove their criminal record from the Canadian Police Information Centre’s database and thus help them access employment.

While at the time of his conviction, Mr. Power could apply for a record suspension five years after his release, subsequent legislation made Mr. Power permanently ineligible for a record suspension. This legislation was soon declared unconstitutional by the courts. Mr. Power argued that he was owed damages under s. 24(1) of the Charter based on the breach of rights he suffered from the unconstitutional legislation.

Mackin Revisited

Much of this case was based upon revisiting the decision in Mackin v. New Brunswick (Minister of Finance), where the Supreme Court held that the Crown could be liable for damages if legislation was clearly unconstitutional, adopted in bad faith or an abuse of power. Canada sought to overturn Mackin in this appeal by arguing that it was entitled to absolute immunity in order to preserve its legislative privilege and protect the separation of powers. Parliamentary privilege plays an important role within Canadian politics, ensuring the legislature is able to execute its functions without fear of external review. Canada argued that if it were subject to damages, it would represent a loss of this privilege. Furthermore, Canada argued that the judiciary should not be able to demand the Crown pay damages as these two entities must be kept in isolation from each other based on the separation of powers.

Decision

The Asper Centre intervened in this appeal and its submissions can be traced throughout the majority’s decision. The Supreme Court agreed that adopting absolute immunity would ignore important constitutional principles of equal significance to legislative privilege. Instead, the Court approached the question by asking how s. 24(1) could be interpreted in a way that would reconcile these Canadian constitutional principles, including constitutionality and the rule of law, rather than allowing legislative privilege to trump Charter rights.

First, the Supreme Court held that forcing the Crown to pay damages for unconstitutional laws drafted by Parliament would not be a threat to parliamentary privilege. While legislative privilege ensures those creating legislation are free from external review, it does not extend the same protections to the state itself. Thus, as the damages would be levied upon the Crown rather than individuals, limited immunity would present no threat to this parliamentary privilege.

The Court also found that limiting the state’s immunity is consistent with the separation of powers, as each branch does not work in total isolation. Holding the legislature accountable for its misuse of power would not constitute judicial interference.

Having upheld the ruling in Mackin and reiterated the state’s limited immunity, the Court moved to clarify aspects of Mackin. In accordance with the Asper Centre’s own submissions, the majority first clarified that the “clearly wrong” (now termed “clearly unconstitutional”) threshold required for damages to be awarded is based on an objective standard. Thus, a claimant must demonstrate that it was clear at the time of the law’s enactment that the state would be violating Charter rights. By adding this objective standard, the Supreme Court has permitted plaintiffs to seek damages by arguing for the rights-violating effects of the respective law rather than requiring them to explicitly demonstrate any bad faith. However, a demonstration of Parliament’s bad faith would still provide an effective way of receiving damages.

Furthermore, the Supreme Court affirmed the three-part test established in Vancouver (City) v. Ward for determining whether damages ought to be awarded in the case of a Charter breach.  Now, the Power “clearly unconstitutional” threshold will be utilized to inform the third part of the Ward test, which asks whether the state has demonstrated that countervailing factors do not support damages being awarded. Thus, when investigating Charter damages, state immunity is considered within a wider three-part test rather than as a preliminary question.

Dissent in Part

Justices Jamal and Kasirer dissented in part. Although they agreed with the majority that a clearly unconstitutional law should lead to an award of damages, they disagreed that a demonstration of the Crown’s “bad faith” should achieve the same result. In Justice Jamal and Kasirer’s opinion, examining the intention of legislators in creating a law would represent the judiciary “second guessing” the legislature, and thus permit the judiciary to intrude upon legislative privilege. Thus, a Court deciding whether to award damages should only inquire if a law was clearly unconstitutional at the time of its creation and not if it was enacted in bad faith.

Dissent

In dissent, Justice Rowe and Côté argued that Canada should be allotted absolute immunity. Rowe and Côté expressed concerns that enabling courts to hold the Crown liable in damages effectively forces courts to adopt a supervisory role over the legislative process. Broadly speaking, both Justices agreed with Canada’s submissions, deciding that forcing the state to be held liable in damages for an unconstitutional law would stand in direct contradiction to legislative privilege. Furthermore, the separation of powers directly precludes the judiciary from scrutinizing the legislative process.

Looking Forward

The Supreme Court in Power has confirmed that state immunity is not absolute and has clarified the framework that future litigants will utilize when seeking damages for Charter breaches. Those who attack laws based on their unconstitutionality must orient their pleadings in a way that show “clear” rights violations which meet the “clearly unconstitutional” threshold. Proving that an impugned law has achieved this level of unconstitutionality will likely require utilizing precedent, which demonstrates the importance of employing language from existing authorities to prove the adverse effects of legislation.

Megan Stephens and Neil Abraham, the Asper Centre’s counsel in this intervention, commented that although the “clearly unconstitutional” threshold for damages has now been confirmed, it is unknown what form this threshold will truly take in practice. Instead, it is only through the resolution of future cases on this issue that the threshold will become clearly defined. Despite this uncertainty, Stephens and Abraham argue that the open-ended nature of “clearly unconstitutional” signifies that plaintiffs still have more than enough space to bring and argue their claims.

Stephens and Abraham also note that Power will be highly relevant for cases challenging laws passed through the notwithstanding clause. Parties to such cases should consider utilizing the invocation of the clause as proof that the legislature passed the law recklessly or in bad faith. Indeed, there are many cases in the lower courts that are currently challenging laws passed through s. 33, such as gender identity cases in Saskatchewan and New Brunswick, as well as religious symbols and language cases in Quebec.

Lastly, it remains to be seen whether Power will enable claimants to receive individual remedies under s. 24(1) even where the law cannot be struck down due to s. 33. In much of this future litigation, the language utilized in Power that balanced Charter rights with legislative principles will likely be used to evaluate how constitutional supremacy can be balanced with the legislative use of s. 33.

Vlad Mirel, U of T Law JD Candidate and Asper Centre Summer RA, with Neil Abraham and Megan Stephens, pro-bono counsel acting for the Asper Centre in the Power intervention

Mary Birdsell selected as new Constitutional Litigator in Residence

Posted on by Tal Schreier

We are pleased to announce that Mary Birdsell has been selected as the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024.

Mary will be co-teaching the Asper Centre’s Clinic Course in the Fall 2024 term with our Executive Director, Cheryl Milne. This course offers upper year law students at the University of Toronto the unique opportunity to engage in Charter rights advocacy, including Charter and Constitutional litigation. Mary will bring her extensive constitutional litigation and children’s rights experience to the role and will greatly enrich the Asper Centre’s Clinic students next term. Amongst other projects, Mary will work with students on our Voting Age challenge.

Mary Birdsell is a lawyer and the Executive Director at Justice for Children and Youth (JFCY). JFCY is a child and youth rights organization and legal clinic that protects and advances the legal, equity, and human rights of children and youth. It provides representation and legal assistance to young people across a range of legal subjects including criminal justice, education, victim representation, child welfare, health and mental health, homelessness, human rights, immigration, and more. Mary is a child rights expert and a tireless advocate, providing legal services to young people who are facing significant adversity, and have complex personal, social and legal issues. She has appeared as counsel or as intervener at every level of court on a range of child rights matters. Mary has been involved with countless community organizations, engages in law reform activities, provides public legal education, and professional development. She has been significantly involved with OBA and the CBA, including as having been Chair of the Child and Youth Law Section in each organization. She is a former Board Member of the Canadian Coalition for the Rights of Children, and is currently on the Board of A Way Home Canada. Mary is the co-author of “Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner’s Handbook”, 3nd ed. 2024. 

Asper Centre takes part in the Vote16 Summit in Ottawa

Posted on by Tal Schreier

By Vlad Mirel and Kate Shackleton

On May 29, 2024, academics, parliamentarians, and youth activists from across the globe gathered in Ottawa for Canada’s first-ever national Vote16 Summit. The event was organized by Vote16 Canada – a national campaign dedicated to lowering the voting age to 16 – and hosted by Senator Marilou McPhedran. 

To kick off the event, numerous experts presented evidence in favour of lowering the voting age to 16. Panelist Samantha Reusch (Executive Director, Apathy is Boring) stressed that the declining civic engagement Canada is experiencing presents a direct threat to the efficacy of its democracy. She emphasized that although youth feel alienated from the democratic process, they remain interested in politics. Sabreena Delhon illustrated how the pandemic negatively impacted civic engagement by removing students from schools and thus reducing their interaction with civic education. Lastly, Dr. Jan Eichhorn (Senior Lecturer/Research Director, University of Edinburgh) spoke about Scotland’s experience with lowering the voting age to 16, highlighting that Scottish youth became more politically-engaged than their UK peers who were not enfranchised. 

In the subsequent Q&A session, the panelists addressed audience concerns about social media and misinformation along with the partisan dimension of the voting age debate. The panelists expressed that many of the concerns that social media may unduly influence youth voting are already true for older generations. Furthermore, Professor Eichhorn outlined the non-partisan nature of the lowered voting age in Germany. 

Dr. Jan Eichhorn, Samantha Reusch, and Sabreena Delhon answer audience questions

Next up was the “Vote16 in Court” panel, featuring Sage Garrett and Caeden Tipler from Make It 16 New Zealand, Jacob Colatosti and Catherine He, who are two of the youth litigants involved in the ongoing voting age Charter challenge, and the Asper Centre’s Executive Director Cheryl Milne. 

Garrett and Tipler shared how Make It 16 New Zealand challenged the voting age based on the New Zealand Bill of Rights, which prohibits age discrimination against persons 16 years of age and older. They took their case all the way up to the Supreme Court, where the court held that the voting age was indeed inconsistent with the Bill of Rights. Although New Zealand’s parliamentary supremacy means that the government is not bound by the Court’s decision, Garrett and Tipler underscored that the case played a major role in raising awareness about their campaign. 

Next, Milne provided an update on the Canadian Charter challenge (led by the Asper Centre and Justice for Children and Youth). She explained that the government’s evidence has been reviewed and preparations for cross-examinations are underway. Colatosti and He also described how they got involved in the case and why youth voting is important to them. Colatosti was motivated to join the case when he was 16 due to his dissatisfaction with the rate of reform within Canadian politics. Meanwhile, He – who joined the litigation at 15 – voiced her support for enfranchising youth based on their position as “citizens, driving the future of change.”  

All five panelists then answered questions from the audience and noted some of the frequent questions they face. The panelists pointed out that Canada’s political cycle often results in the minimum voting age differing from when people actually get their first voting opportunity, with 19-year-old Colatosti still waiting to cast his first vote. In response to concerns that youth are too extreme or radical to vote, Garrrett stressed that no one should ever be disenfranchised based on their political opinions. Colatosti and He emphasized that parental influence is also not a persuasive counterargument, observing that youth are equally capable of influencing their parents. 

Panelists Caeden Tipler, Sage Garrett, Catherine He, Jacob Colatosti, and Cheryl Milne discuss the court challenges in New Zealand and Canada

The final panel – “Building Our Movement” – was composed of youth activists from across Canada (from various Vote16 chapters, the Fédération de la jeunesse franco-ontarienne, and the Francophone Youth Council) and international advocates like Bethania Lima from Brazil and Dr. Andrew Wilkes, who is the Chief Policy & Advocacy Officer of Generation Citizen in New York. The speakers encouraged those interested in advocating for legislative change to focus on drawing attention to their campaign and to reach out to local politicians. 

Bethania Lima (at far left) discusses how Brazil increased youth voter registration for the 2022 election

The Summit concluded with a symposium of more than 25 speakers who gave concise presentations on why they believed youth should be able to vote. Elder Verna McGregor welcomed the attendees. She analogized her dreamcatcher’s interwoven net to society itself, emphasizing how we are all interconnected and thus every voice must be heard in elections.  Several parliamentarians then expressed their support for lowering the voting age, such as Senators Robert Black, Kim Pate and Bernadette Clement as well as MPs Elizabeth May and Taylor Bachrach. Notably, Bachrach credited the youth litigants in the Charter challenge with inspiring the Private Member’s Bill to lower the voting age that he brought forward in 2021. MP Yves Perron of the Bloc-Quebecois outlined the important habit-forming impact voting at 16 would have. He stressed that youth voting is important not just for young people, but for the overall health of our democracy. Katie Yu and Amelia Penney-Crocker spoke on behalf of the youth litigants, with Yu commenting that lowering the voting age is about “treating young people as people.” 

MP Bachrach with the youth litigants (from left to right: Amelia Penney-Crocker, Katie Yu, Jacob Colatosti, and Catherine He)

Katie Yu and Amelia Penney-Crocker speak during the symposium portion of the Summit

Overall, the Vote16 Summit was an informative and inspiring event that promises to make important contributions to the movement for extending the vote to young people. By bringing together this diverse group of people with differing lived experiences and expertise, the Vote16 Summit provided its attendees with an incredibly enriching conversation surrounding youth voting. In addition to the ongoing Charter challenge, legislative change may be on the horizon thanks to Bill S-201 (introduced by Senator McPhedran). The bill is expected to go to Second Reading in the Senate in the near future, and to ensure the bill passes, interested individuals and organizations are encouraged to contact their provincial senators to express their support. A list of senators for each province as well as a statement in support of S-201 can be found on the Vote16 website. 

Emily Chan (Lawyer, Justice for Children and Youth), Mary Birdsell (Executive Director, Justice for Children and Youth), Katie Yu, Amelia Penney-Crocker, Jacob Colatosti, Catherine He (Youth Litigants), and Cheryl Milne (Executive Director, Asper Centre) 

Vlad Mirel and Kate Shackleton are rising 2L students at the Faculty of Law and are the current Summer Research Assistants at the Asper Centre.

Bail Reform and the Constitutionality of Reverse Onus Provisions Targeting Repeat Offenders of Intimate Partner Violence

Posted on by Tal Schreier

by Katherine Shackleton and Sarah Zaitlin

On December 5th, 2023, Bill C-48 received royal assent in Parliament. Among other reforms to the Criminal Code, the bill expanded the reverse onus provision for offences involving intimate partner violence (IPV). The new reverse onus measures have sparked criticism from community members, advocacy groups, and academics.

Background

Section 11(e) of the Canadian Charter of Rights and Freedoms provides that “any person charged with an offence has the right not to be denied reasonable bail without just cause.” Generally, that means the onus is on the Crown to demonstrate why an accused person should be denied bail. The presumption is that bail should be granted unless the Crown can dislodge that presumption.

Reverse onus provisions in the Criminal Code flip the presumption for certain offences, making accused persons bear the onus of dislodging the presumption that bail should be denied. Bill C-48 expanded existing reverse onus provisions to include offences in which “violence was allegedly used, threatened, or attempted against their intimate partner, and the accused has been previously convicted or discharged under section 730 of an offence in the commission of which violence was used, threatened or attempted against any intimate partner” (Paragraph 515(6)(b.1)). This means that anyone accused of intimate partner violence with a prior conviction or discharge, meaning they may not have any criminal record, will be presumptively held without bail unless they can justify their release.

Legal Significance

Some scholars and community advocates are concerned that Bill C-48 will violate accused persons’ section 11(e) Charter rights.

The Supreme Court of Canada has interpreted section 11(e) as containing two components. In R v Pearson, Chief Justice Lamer identified these components as, firstly, the right to reasonable bail and, secondly, the right not to be denied bail without just cause.[1] For just cause to be present, Chief Justice Lamer set out two requirements. First, bail must be denied only in a narrow set of circumstances.[2] Secondly, the reason for denying bail must “promote the proper functioning of the bail system.”[3] Examples of objectives connected to the proper functioning of the bail system include public safety,[4] ensuring that the accused does not abscond,[5] and maintaining public confidence in the administration of justice.[6]

The constitutionality of reverse onus provisions has been considered by the SCC on two occasions. In Pearson, the Court upheld a reverse onus provision for accused individuals charged with trafficking and importation offences under the Narcotic Control Act.[7] While the provisions at issue facially denied the right to judicial interim release, the majority held that there was just cause for denying bail given the systematic nature of drug offences[8] and the higher risk that the accused could abscond before trial (based on American and Australian statistics).[9] Additionally, a reverse onus for accused individuals who were charged with another offence while on release for another indictable offence was upheld in Morales because it advanced public safety.[10]

Policy Concerns of Reverse Onuses

Reverse onuses raise a number of pressing policy concerns. First of all, by rendering pretrial detention more likely, expanded reverse onus provisions risk exacerbating the already dire situation in many detention facilities. Descriptions in court decisions of conditions inside Canadian detention facilities paint a grim picture and overcrowding has been identified as an important contributor to the problem.[11]

Additionally, pretrial detention is linked with false guilty pleas. Pretrial detention has a direct and powerful impact on the accused’s cost-benefit analysis.[12] When the onus is on the accused to justify their entitlement to bail, the cost of securing pretrial release is higher, both in terms of the time spent in detention and the cost of hiring a lawyer. Accordingly, reverse onus provisions may incentivize the accused to enter a false guilty plea, not because they are guilty, but to avoid further restriction of their liberty, financial strain, toll on mental and physical health, and the host of other problems which flow from incarceration. Of course, abysmal conditions in detention facilities will only increase the number of such false guilty pleas.

Moreover, the changes are likely to disproportionately impact marginalized community members, especially Black and Indigenous accused persons. In Canada, Black and Indigenous people are already overrepresented in detention.[13] The changes enacted through Bill C-48 are especially concerning because members of Black, Indigenous and other racialized communities are brought into custody for firearm offences at a higher rate than their average incarceration level.[14] Racial profiling and over-policing of Black communities are notable contributors to these elevated numbers.[15]

Reverse Onuses in the IPV Context

The relationship between reverse onuses and IPV is not as straightforward as it may initially seem. On one hand, supporters of reverse onus provisions in the IPV context argue that these provisions can protect victims by preventing continued violence.[16] Plus, other protective measures such as restraining orders are often insufficient to fully shield victims from risk.[17] Bail denial in IPV cases also relieves victims of the burden of escaping the family home by seeking help from shelters or family members.[18]

Yet, pretrial detention may not always serve the best interests of victims and families. For instance, pretrial detention can decrease the flow of income to the family of the accused, as they are no longer able to work while detained.[19] In particular, since it is easier and faster to secure bail when there is no reverse onus on the accused, the use of reverse onus lengthens the period in which the accused is unable to financially contribute to their family. Depending on how important the accused’s income is to the family, the increased likelihood of pretrial detention could risk disincentivizing reporting.[20]

Furthermore, as the Barbra Schlifer Commemorative Clinic Canadian Association of Elizabeth Fry Societies (CAEFS), Luke’s Place, and the Women’s Legal Education and Action Fund (LEAF) pointed out in their brief on Bill C-48 submitted to the Senate, the line between victim and perpetrator is not always clear-cut. This is especially true now that reverse onuses apply to individuals who were previously discharged (meaning found guilty, but with no criminal record). For example, in a sample of twenty-five Black women in Ontario who were victims of IPV, fifteen of them had also been charged with IPV-related offences.[21] Additionally, as a result of pro-charging policies for IPV incidents, victims may be charged along with their partner as dual perpetrators. According to Jonathan Rudin of Aboriginal Legal Services, discharges are often granted to such victims who plead guilty to avoid consequences such as losing their kids.[22]

The Federal Ombudsperson for Victims of Crime made submissions to the Senate Committee on Legal and Constitutional Affairs related to the study of Bill C-48. The submission emphasized that safety of intimate partner violence survivors should be a paramount consideration in bail decisions.[23] The Ombudsperson submitted that Courts should consider coercive and controlling behaviours exhibited by accused persons in the context of IPV, as well as patterns of criminal harassment, when considering the release of accused persons on bail.[24] Bill C-48 partially incorporates this recommendation by responding to patterns of recorded accusations of violent behaviour.

Government Position

In their Charter statement on Bill C-48, the government maintains that the amendments expanding pretrial detention are “targeted” and cover only “specific and narrow circumstances.”[25] With respect to firearms, the government notes that the changes are directed at ensuring the effectiveness of firearm regulation, increasing public safety, and preserving confidence in the administration of justice.[26] On the expansion of reverse onuses for repeat violent offences (like IPV), the government stresses that these individuals have a higher risk of reoffending and the amendments therefore advance public safety objectives.[27]

Conclusion

Reverse onuses for bail force an accused person who has not been convicted of a crime to demonstrate why they should be released on bail, or else be presumptively held. The government justifies the additional reverse onus provisions introduced by Bill C-48 by contending that they will increase safety for the public, victims of some crimes (including IPV), and confidence in the administration of justice. On the other hand, the SCC has held repeatedly that such a limitation on the Charter rights of the accused must occur in only limited and narrowly tailored circumstances. There is a concern that these new reverse onus provisions do not meet the standards required by the SCC holdings in Pearson and Morales, but as Bill C-48 is new and has not yet been constitutionally challenged, it is yet to be seen whether the Bill will withstand constitutional scrutiny.

Katherine Shackleton and Sarah Zaitlin are rising 2L JD Candidates at the University of Toronto Faculty of Law and were members of the Asper Centre’s Bail Reform Student Working Group in 2023-2024.

[1] 1992 CanLII 52 at para 47 (SCC) [Pearson].

[2] Pearson, supra note 1 at para 60.

[3] Ibid.

[4] R v Morales, 1992 CanLII 53 at para 40 (SCC) [Morales].

[5] Pearson, supra note 1 at para 68.

[6] R v Hall, 2002 SCC 64 at para 27.

[7] Pearson, supra note 1 at para 69.

[8] Pearson, supra note 1 at para 63.

[9] Pearson, supra note 1 at paras 64-5.

[10] Morales, supra note 4 at para 64.

[11] Cheryl Marie Webster, “Remanding Justice for the Innocent: Systemic Pressures in Pretrial Detention to Falsely Plead Guilty in Canada” (2022) 3:2 Wrongful Conviction L Rev 128 at 146.

[12] Ibid at 143.

[13] See e.g. R v Summers, 2014 SCC 26 at para. 67; Statistics Canada, Overrepresentation of Black People in the Canadian Criminal Justice System” (15 December 2022), online: <https://www.justice.gc.ca/eng/rp-pr/jr/obpccjs-spnsjpc/index.html>.

[14] Association of Legal Aid Plans of Canada, “Brief submitted by the Association of Legal Aid Plans of Canada (ALAP) to the Senate Legal and Constitutional Affairs Standing Committee regarding Bill C-48: An Act to amend the Criminal Code (bail reform)” (22 September 2023), online: <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2023-09-22_LCJC_C-48_Brief_ALAP_e.pdf>.

[15] Ibid.

[16] Cassandra Richards, “Learning from Those on the Ice: The Impact of Bill C-75 on Nunavummiut” (2019) 51:1 Ottawa L Rev 157 at 170.

[17] Brynn E. Sheehan et al., “Intimate Partner Homicide: New Insights for Understanding Lethality and Risks” (2015) 21:2 Violence Against Women 269 at 280.

[18] Dawn Beichner et al., “A Legal and Policy Argument for Bail Denial and Preventative Treatment for Batterers in the United States” (2017) 28:4 Crim Just Pol’y Rev 311 at 312.

[19] Richards, supra note 16 at 183.

[20] Emily Ng & Heather Douglas, “Domestic and Family Violence and the Approach to Bail” (2016) 34:2 Law in Context 36 at 55.

[21] Patrina Duhaney, “Criminalized Black Women’s Experiences of Intimate Partner Violence in Canada” (2022) 28:11 Violence Against Women 2765 at 2770.

[22] Jacques Gallant, “Ottawa passes long-awaited bail reform bill under intense pressure from police, the premiers” , Toronto Star (30 November 2023), online: <https://www.thestar.com/politics/federal/ottawa-passes-long-awaited-bail-reform-bill-under-intense-pressure-from-police-the-premiers/article_43913181-d6f5-5c30-942f-b54d9b0f2813.html>.

[23] Office of the Federal Ombudsperson for Victims of Crime, “Submission to the Senate Committee on Legal and Constitutional Affairs: Study of Bill C-48 An Act To Amend the Criminal Code (Bail Reform)” (18 October 2023), online: <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/LCJC_C-48_Brief_Ombudsperson_e.pdf>.

[24] Ibid.

[25] Department of Justice (Canada), “Charter Statement: Bill C-48: An Act to amend the Criminal Code (bail reform)” (27 November 2023), online: <https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c48.html>.

[26] Ibid.

[27] Ibid.