Balancing bail rights and combatting elder abuse

The Canadian Bar Association will consider two proposed resolutions on matters involving the Criminal Code at its Annual General Meeting on February 8. 

The first, moved by the Criminal Justice Section, seeks to affirm and protect the right not to be denied reasonable bail without just cause, as enshrined in section 11(e) of the Charter of Rights and Freedoms. The Section draws attention to the Supreme Court of Canada's consistent affirmation of this right in landmark cases such R. v. Antic, R. v. Myers and R. v. Zora.

The resolution challenges a public narrative that has emerged regarding bail in Canada that perpetuates the misconception of a "revolving door" system that is not accurate. 

Amendments to Canada's bail reform system have taken effect after the passage of Bill C-48 last year. The bill broadened the application of reverse-onus provisions, which require the accused, in specific instances, to justify their release on bail rather than placing the burden of proof on prosecutors to show they should be kept in custody.

The proposed resolution, moved by Section chair Kyla Lee of Acumen Law in Vancouver, emphasizes a significant increase in pre-trial detention rates since 1986 that disproportionately affect equity-deserving and marginalized communities, particularly Indigenous, Black, and racialized groups. 

It also highlights the financial burden on individuals in pre-trial detention for basic services like telephone access, invasion of privacy through recorded conversations, and the poor conditions in detention centers.

The resolution concludes by calling upon the CBA to oppose any efforts to restrict access to reasonable bail, urging the federal government and stakeholders to protect and defend the right to reasonable bail as a constitutionally protected right.

Have your say on the discussion board.

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The second resolution stands as a response to the alarming increase in violence against older people over the last decade and the stark realities revealed during the COVID-19 pandemic, particularly in long-term care establishments. 

In 2011, the CBA opposed a new Criminal Code offence of elder abuse, urging all levels of government instead to work with community experts on a framework to address elder abuse and neglect. 

The Elder Section acknowledges existing Criminal Code offences, such as "theft by a person holding power of attorney" and "failure to provide the necessities of life," as addressing some forms of elder abuse. However, they fail to adequately address other matters, such as social isolation and institutional neglect.

Therefore, the proposed resolution, moved by Nithila Murugadas of Nikka Law LLP, seeks support from the CBA for potential amendments to the Criminal Code related to elder abuse generally and asks it to urge the federal government to enact legislation addressing gaps in the Criminal Code. 

Have your say on the discussion board.