First Nations lawyer says new bail legislation unfairly targets Indigenous women

First Nations lawyer Christa Big Canoe says Canada’s new bail reform legislation will result in more Indigenous women behind bars.

“That there is potential harm, particularly to Indigenous women as it relates to prior charges of intimate partner violence,” Big Canoe of the Indigenous Bar Association told a Senate committee on Thursday. “Knowing that Indigenous women and Indigenous individuals will often plead out even when they are not guilty because the consequences are less serious than when they are convicted.”

The Trudeau government introduced Bill C-48 in the spring to strengthen a bail system the Liberals say contained gaps those charged with serious crimes were exploiting.

The legislation is largely in response to pressure from provinces and police associations after Ontario police officer Const. Greg Pierzchala was shot and killed while doing a vehicle check in December 2022.

One of the accused charged in his death, Randall McKenzie of the Mississaugas of the Credit First Nation, was on bail at the time of the incident.

Bill C-48 expands the number of charges where reverse onus applies when a defendant is seeking bail.

These charges include a variety of firearms offences, violent offences involving a weapon and intimate partner violence.

Earlier in the week, federal Justice Minister Arif Virani assured the Senate committee on legal and constitutional affairs the new legislation will not increase the mass over incarceration of Indigenous people in Canadian prisons.

“We’ve taken great lengths as a government to ensure that the over representation piece is being addressed for Indigenous as well as black individuals in Canada who are over represented greatly,” he said. “I can point you to many examples but I will just point you to a couple right now. One is Bill C-5 which dealt with mandatory minimum penalties and the fact that those were resulting in the over incarceration of black and Indigenous persons. I am currently working on an Indigenous justice strategy with Indigenous leaders.”

But Big Canoe said the reforms will ensure fewer Indigenous women are granted bail.

“Dual charging often results in women who find themselves either in poverty or in circumstances potentially of more serious domestic violence facing the criminal justice system in a way the reverse onus will be very difficult for them,” she said. “We already know Indigenous people do not receive bail at the same rate as others.”

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