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OP ED: Canada has flipped the burden of proof for bail in cases of repeated intimate partner violence

CBC by Souhila Baba 17 August 2019

Back in June, Bill C-75 become law. The legislation included various amendments to the Criminal Code, including the return of the victim surcharge and the removal of preliminary inquiries in certain cases. But one amendment received less attention: the introduction of a reverse onus at bail for an accused person charged with an offence against an intimate partner, if that person has a prior conviction for a similar offence.

Here’s what this means. Prior to Bill C-75, the Crown had to show why an accused should be detained or released on certain conditions. Generally, the Crown bears the onus of proof during a bail proceeding. Now, section 515(6)(b.1) of the Criminal Code will push the onus onto the accused, who will need to show why they should be released. Failing that, the accused may be detained until trial. 

Addressing violence against women

It goes without saying that intimate partner violence is a serious, largely gendered and racialized reality that needs to be urgently addressed. This was reaffirmed a few months ago in the report released by the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), which outlined the disproportionate impact of intimate partner violence on Indigenous women and girls. 

Prime Minister Justin Trudeau and his Liberal government have long trumpeted itself as a “feminist government,” and one focused on reconciliation with Indigenous peoples. Hence, addressing violence against women is a necessary and laudable step. 

However, the introduction of the reverse onus at bail is not going to address intimate partner violence and empower women, at least not meaningfully. 

Underlying a reverse onus is the presumption of detention, which is why there are very few instances in the Criminal Code that impose a reverse onus. Many experts see them as contrary to the presumption of innocence, and it is quite likely that the reverse onus change will increase pre-trial detention.

Further, pre-trial detention has profound impacts on an accused’s psychological and emotional well-being, personal relationships, employment, and family. It also increases the likelihood of the accused pleading guilty, even in situations where the individual is innocent.

In 2014, the Canadian Civil Liberties Association found that an accused, even if innocent of the alleged charges, will often plead guilty to “escape the overcrowded ‘dead time’ of provincial jails” and to avoid going through a delayed legal system. This reality is amplified when the accused in question is Indigenous, racialized, or indigent, and when the crime in question is minor. 

A temporary fix

The reverse onus at bail attempts to address intimate partner violence through punitive detention methods offered by the criminal justice system. It assumes that separating and isolating the accused will keep complainants safer – a stepping stone in the plight to end violence. 

However, in most cases, detention is at best a temporary fix. Individuals experiencing violence may lack the resources to properly leave the violent situation, or lack the desire to do so. Increasing the use of detention in these cases only perpetuates the root causes of intimate partner violence, rather than addressing them. For instance, institutionalization  exacerbates socio-economic factors that lead to intimate partner violence, including mental health issues, substance abuse, poverty, and trauma. 

It is telling that the MMIWG report did not call for the increased use of detention as a means to end violence against Indigenous women and girls. In fact, experts have emphasized the opposite: that detention and tough-on-crime mentalities are not solutions to this crisis. While some believe that restricting bail for individuals who represent an ongoing threat to their partner will end violence, in reality this legal amendment simply delays the next assault, rather than preventing it. 

Those experiencing intimate partner violence are in terrible situations, but it is often they themselves who are best placed to determine how to stay relatively safe. Yet this amendment assumes that the criminal justice system knows best.

Back when she was justice minister, Jody Wilson-Raybould stated that Bill C-75 was the product of three years’ worth of substantial consultations: round tables took place across the country, online surveys were conducted, and the Standing Committee on Justice and Human Rights was established, which included testimony from 95 witnesses and 27 hours of debate and discussion.

Indeed, numerous interested parties spoke publicly and provided written submissions on various aspects of the bill. And during these consultations, some parties called on the government to remove the new reverse onus provision. 

Unfortunately, these calls were not heard. Nor were the voices and needs of many complainants (and accused) during the drafting of this amendment, despite the fact that this will directly and intimately impact them.

It is disheartening to see the incoherence between the introduction of the reverse onus in cases of repeated intimate partner violence, and the calls for action in the MMIWG report. A feminist government that truly wants to end intimate partner violence must centre the voices and experiences of those most affected by this phenomenon.

Souhila Baba is a law student and research assistant at the Faculty of Law at McGill University.