British Columbia’s updated policy on bail, aimed at keeping dangerous offenders off the street, is raising the concern of legal and civil liberties experts who say it upends the Charter-protected presumption of innocence and can lead to wrongful convictions.
Premier David Eby announced the new directive, from Attorney-General Murray Rankin to prosecutors, as part of a broader public-safety plan on Sunday.
B.C.’s urban mayors have been pleading for help in addressing a small number of repeat offenders who commit an outsized amount of crime. A resulting report commissioned by the province noted the frustration of law-enforcement stakeholders who said Crown counsel are resistant to approving breach of bail conditions without an additional substantive charge, rendering police “essentially powerless to stop repeat crimes.”
The new policy, which went into effect on Tuesday, states that prosecutors considering pretrial detention for people charged with an “offence against the person” – such as assault or robbery – should consider factors such as similar outstanding charges, whether a weapon was involved, and breaches of conditions or weapons prohibitions. If such factors are present, prosecutors must seek detention unless they are satisfied that risk to public safety can be reduced to an acceptable level by bail conditions.
But it is what’s missing that has raised concerns.
“Previous advice advising Crown counsel not to seek detention unless a fit sentence upon conviction would include incarceration has been removed from the policy,” said a media statement from the BC Prosecution Service issued Tuesday.
Mr. Eby attributed the change to the feedback provided in the commissioned report.
Benjamin Perrin, a professor in the Peter A. Allard School of Law at the University of British Columbia, viewed the removal of the language as a major change that infringes on constitutionally protected rights.
“The policy is saying we should lock people up even if they wouldn’t go to jail if they were convicted,” he said. “That is a huge problem.”
Prof. Perrin, who served as public safety and justice adviser to former prime minister Stephen Harper from 2012 to 2013 and is author of the forthcoming book, Indictment: The Criminal Justice System on Trial, said the potential implications of the change are “staggering.”
“We have a massive problem in the disproportionate incarceration of Indigenous peoples in B.C. And, we know from countless public inquiries and research that Indigenous people are less likely to be represented by lawyers, more likely to face charges in relation to similar incidents than non-Indigenous people and already more likely to be denied bail,” he said.
“Premier Eby’s new bail directive will exacerbate the systemic racism in our justice system against Indigenous people without making us safer and cost taxpayers more money without addressing the underlying issues of criminality.”
Section 11 of the Canadian Charter of Rights and Freedoms states that those charged with an offence have the right not to be denied reasonable bail without just cause. A 2017 Supreme Court of Canada judgment has called the provision “an essential element of an enlightened criminal justice system” that safeguards the liberty of accused persons.
Kyla Lee, a lawyer with Acumen Law, said that denying people of reasonable bail can lead to more innocent people pleading guilty.
“If your sentence is going to be 30 days for theft or smashing a window or something, and you spend a week in custody and you’re getting two-to-one credits, you’re already getting 14 days. You may as well just plead guilty to another two weeks and you’re done,” she said. “Otherwise, you’re waiting in custody for six months for your trial.”
However, Ms. Lee does not believe that the removal of the language from the revised bail policy will lead to substantial changes in how Crown counsel will approach their jobs.
“At the end of the day, you’re not behaving lawfully as a prosecutor if you’re seeking detention for people who would not get a custodial sentence anyway, and judges would not be behaving lawfully if they’re detaining somebody if a state sentence would not include a period of detention,” she said.
Dan McLaughlin, communications counsel for the BC Prosecution Service, said the service sought to identify and implement amendments to its bail policy that could, to the fullest extent possible under the law, address the public-safety risks that repeat violent offenders pose, as ordered by the attorney-general.
He noted that denying reasonable bail without just cause disproportionately affects disadvantaged and vulnerable communities.
“Pretrial detention tends to increase an accused’s risk of future criminalization. It also tends to aggravate the over-representation of Indigenous persons in the Canadian justice system, an indisputable feature of which is systemic discrimination against Indigenous people,” Mr. McLaughlin said in an e-mail.
“It is too soon to say whether or to what extent the attorney-general’s directive, and the policy changes we have been compelled to make in response, will further aggravate these regrettable features of the criminal justice system.”
Both the B.C. and Canadian civil liberties associations were troubled by the removal of the language but noted that judges, not Crown counsel, have the final say in whether bail is granted. Vibert Jack, litigation director for the BC Civil Liberties Association, said Canadian courts have already recognized that detaining a person who is presumed innocent beyond the term of a fit sentence would represent a serious injustice.
Abby Deshman, a lawyer and director of the criminal justice program at the Canadian Civil Liberties Association, noted that the change was made amid a politically charged environment and said it is incumbent upon elected representatives to remain focused on evidence-based criminal justice policy.
“When people call for swift, measurable action, [arresting people] is pretty swift,” she said.
“But when you pull a person off the street because they are in crisis – whether that be due to a lack of housing, mental illness, addictions – and you put them in jail, that worsens those crises. ... It is probably the least productive response we could have to really deep-rooted problems that need to be dealt with through the health care system, through social services, through supports.”
On Wednesday, Mr. Eby provided another update in the public-safety plan, promising $230-million for the B.C. RCMP over the next three years. Mr. Eby said this would help fill about 280 vacancies by paying to train new recruits and free up more officers to work on complex, violent and organized crime. He also promised more support for prosecutors and probation officers managing violent high-risk offenders.