Under the pretext of a recent string of violent incidents, the federal Liberals have introduced Bill C-48 to tighten bail eligibility for those arrested and charged with a violent crime who have a prior criminal history.
Already, civil liberties groups say it will further increase Canada’s prison population and threaten the right of those charged to the presumption of innocence.
Flipping the presumption of innocence
Under these amendments to the Criminal Code, individuals with a past conviction for a violent crime who are charged will have to convince the court that they should be released pending trial. Normally, it is up to the prosecution to convince the court that they should remain behind bars.
The Liberal government argued that these changes were meant to “improve public safety.” “What we’re doing is signaling to [the] courts, we’re signaling to Crown prosecutors that a person should not be out on bail if they have a history of violence,” Justice Minister David Lametti said.
As many have noted, Bill C-48 violates the Canadian Charter of Rights and Freedoms, which stipulates that anyone charged with an offense cannot be denied access to bail without just cause, as well as the established principle that pre-trial detention is the exception and not the rule.
In fact, Canada’s Criminal Code already allows judges to restrict bail if they consider it necessary to protect public safety. But Bill C-48 goes well beyond that. In practice, this means that even without a shred of evidence as to the danger they present to the public, an individual would be jailed pending trial if they have a past violent conviction—unless they have the means to contest it.
But poverty and criminality are highly correlated. Indeed, those who will have to prove they don’t present a danger to the public will largely be people who don’t have the means to pay for the lawyers to represent them in those cases. For instance, according to Pardons Applications of Canada, in 2018, a whopping “62 percent of federally sentenced men were unemployed at the time of their arrest.” Considering the prohibitive price of lawyers—anywhere from $332 to $1,616 an hour on average in Canada—as well as the inaccessible, dysfunctional and underfunded system of legal aid, this will effectively flip the presumption of innocence to a presumption of guilt.
The real state of Canadian prisons
Already, in 10 of Canada’s 13 provinces and territories, there are more people on remand than have been convicted. That means most of Canada’s prisoners have not been convicted of anything. In Alberta 71 per cent of prisoners are on remand, in Manitoba it’s 68 per cent, Saskatchewan 51 per cent. In fact, according to the Canadian Civil Liberties Association (CCLA) the number of people held in pre-trial detention has more than quadrupled in the last 40 years. This is even more concerning given that from 2014 to 2021 deaths of people in custody more than doubled.
It is also well known that the Canadian prison system disproportionately incarcerates Indigenous people and people of colour. Indigenous people, for example, make up 32 per cent of the prison population despite only making up 4.3 per cent of the total population.
Announcing Bill C-48, Lametti acknowledged that “Indigenous people, Black people and other vulnerable groups,” are “overrepresented in the criminal justice system.” But, in typical Liberal hypocrisy, he offered no indication that he would change course.
As we’ve explained before, the demographics (Indigenous, visible minorities, and the poor) and regions that are most strongly represented in the prison system are those that encounter unemployment, poverty, and lack of opportunity at the highest rates. Study after study has further shown that the police, the courts and prison system work together to ensure that the most oppressed receive the harshest treatment. Bill C-48 will allow for even harsher treatment.
Poilievre pushes for harsher laws
While Bill C-48 will be disastrous, leading up to its introduction Federal Conservative Leader Pierre Poilievre campaigned for even harsher changes to the law.
For months he has been boasting of a plan to automatically deny past offenders bail—even using the slogan “Jail not Bail.”
It is telling, however, that when asked to respond to Poilievre’s push for tougher laws, Lammetti told CBC News: “My honest answer is that I don’t think you can go further.”
The National Police Federation (NPF) and the Canadian Police Association (CPA) have joined Poilievre’s chorus. Both claim that most of Canada’s violent crime is the work of a “small number,” of repeat offenders who are time and time again let out on bail.
Contrary to the talking points of the police however, the actual evidence supporting these claims are either made up or grossly exaggerated. Data from Statistics Canada, for example, does show that in Ontario between 2017 and 2022 there was a 29 per cent increase in criminal charges for those on bail or probation. But these are charges, not confirmed convictions. Similarly in Vancouver, the police association claims that around 50 per cent of “crimes,” are committed by repeat offenders. However, these crimes are, as the Canadian Press notes, property crimes.
But beyond statistics, there is a clear reason for why some prisoners, upon their release, re-offend—and it isn’t because Canada’s prison system is too nice. After spending years outside of society they are left to find their footing, poor, unhoused and unemployed, and often discriminated against by employers. On top of that, the system for receiving pardons is notoriously “punitive,” costing hundreds of dollars and dragging on for years. The system is so infamous that CBC Television even turned it into a game show, Redemption Inc., where desperate ex-convicts compete against each other for the funds they need to win back their lives. It is no wonder that many, forced into these situations by poverty, oppression and the “criminal justice” system itself, end up back in prison.
Socialist solution
Fundamentally, the main driving force behind crime is not a small layer of professional criminals who know how to game the bail system. The causes are poverty, unemployment, oppression, and social breakdown. The courts, the police and the prison system in turn multiply all of these problems. This is why, even as bail has become more restrictive and the inmate population has exploded over the past 40 years, crime has not decreased proportionately.
Harsher treatment of accused individuals will not address the real causes of violent crime. That would require a massive investment into public housing, good paying union jobs for all, expanded social services such as mental health and addiction counseling, and free education. None of these things are proposed by either the Liberals or the Conservatives and none of them are possible on the basis of capitalism. The high-profile, violent outbursts that right-wing politicians seek to amplify are a microcosm of a hopeless system that is on its last legs.
Only a socialist society free from the profit motive, where working class people can decide how to invest the wealth of society, could truly address the root cause of violent crime. A planned economy would not need a system of mass incarceration to keep the poor, the desperate and the oppressed in line. It would end their poverty, their desperation and their oppression.
