Premiers are calling on Ottawa to make it harder for some accused people to get bail, but some experts say the provinces could also do more to hold people accountable for violating their bail conditions.
Prime Minister Justin Trudeau said this week that his government is looking at a letter from the premiers asking Ottawa to do more to reform the system, which has come under heightened scrutiny following the late December shooting of Ontario Provincial Police Constable Greg Pierzchala.
Randall McKenzie, one of the two people charged with first-degree murder in Pierzchala’s death, was wanted for arrest at the time of the shooting for failing to appear in court in August.
Court documents show he was originally denied bail in a separate case involving assault and weapons charges, then later released.
In their letter, the premiers argued for a “reverse onus” for offences involving possession of a loaded prohibited or restricted firearm, meaning someone accused of that crime “should have to demonstrate why their detention is not justified when they were alleged to have committed an offence where there was imminent risk to the public.”
Conservative Leader Pierre Poilievre echoed that call on Monday, telling reporters he did not think that change in policy would lead to more people being held in jail, as experts have suggested.
Daniel Brown, a criminal defence lawyer, said provinces can do a better job of ensuring bail conditions imposed by the courts are being followed and ensure people who are wanted on outstanding warrants are brought into custody.
“There are bail enforcement units of most police forces, and maybe they ought to be doing more to ensure that people are complying with the terms of their bail,” said Brown, who is also president of the Criminal Lawyers’ Association.
In British Columbia, members of the Opposition Liberals have long been calling on the governing NDP to change the approach to bail.
Elenore Sturko, the Liberal member of the legislative assembly for Surrey-South, said she thinks too many repeat offenders are being released.
The former RCMP officer said it is crucial the B.C. government “step up to its obligation to keep community members safe” and ensure there is enforcement of bail conditions.
“Unless we have a prosecution service that follows through and ensures that people are held to account for not abiding by court-ordered conditions, what we saw was an emboldening of people,” she said.
“Even though there is some federal legislation that’s involved, I think it’s important to recognize that each province’s attorney general will be laying out directions to its Crown prosecution service.”
The question of how to handle repeat offenders in the criminal justice system goes well beyond bail reform.
The way that provinces deal with such offenders came under scrutiny after a killing spree in northern Saskatchewan in September. Myles Sanderson killed 11 people on James Smith Cree Nation and in Weldon before he died in police custody.
Court documents show the 32-year-old had been convicted of 59 offences as an adult, including 28 for failing to comply with release conditions or failing to appear in court. His criminal record included violent assaults, including against people who were victims in the killings.
Police had issued a warrant for his arrest months before the attacks, and while Saskatchewan has a provincially funded RCMP unit dedicated to tracking down “high-profile” fugitives, it was not looking for Sanderson at the time of the murders.
When it comes to the bail system more specifically, Abby Deshman, a lawyer with the Canadian Civil Liberties Association, warned against knee-jerk reactions to high-profile tragedies.
“When I hear calls, like the premiers’ call, [for] tightening the bail system for greater use of pre-trial detention, I understand where it’s coming from,” Deshman said.
“But it’s also not responsive to the many, many studies that we have about how our bail system actually works.”
Despite a long-term decline in crime, including violent crime in Canada, there has been an increase in the reliance on pre-trial detention.
According to data from Statistics Canada, only a quarter of the adults in provincial jails in 2018-19 were serving a sentence for which they had been convicted. The remainder were on remand, either because they were awaiting a trial and were therefore still presumed innocent, or because they were awaiting sentencing.
Fewer than four in 10 convictions result in jail time.
“So much of community safety is not about the Criminal Code. It’s about health and safety and social services and support, which are within the provincial jurisdiction,” Deshman said.
The Supreme Court of Canada has reaffirmed the constitutional right to bail in recent decisions and cautioned against allowing the population of pre-trial detainees to grow.
– With files from Stephanie Taylor