The Matsqui Institution, a medium-security federal men's prison, is seen in Abbotsford, B.C., on Oct. 26, 2017.DARRYL DYCK/The Canadian Press
Nicole M. Myers is a criminologist and associate professor at Queen’s University.
After a series of tragic incidents wherein the accused was already on bail for other offences, public attention has turned toward Canada’s bail system. It’s understandable that people want answers as to why certain individuals who went on to commit violent crimes were released in the first place. But the politicization of the issue, which has seen some politicians call for broader detention of accused individuals (see the slogan: “jail not bail”), has created a false narrative that the bail system is too lenient. The truth is that it has become more restrictive and risk-averse over time.
Data from Statistics Canada show that since 2004-2005, more people have been held in pretrial detention than in sentenced provincial custody. In 2021 and 2022, 71 per cent of the provincial jail population in Canada was in pretrial detention; in Ontario, it was 79 per cent. The rate with which we use pretrial detention has more than doubled in the last 40 years, and the number of people in pretrial detention has quadrupled. The proportion of the total custodial population awaiting trial in Canada (38.7 per cent across both federal and provincial custody) is nearly double that of the United States (22.5 per cent). Given the numbers, proportions and rates with which people are in remand, Canada does not have a lenient bail system.
Bail has been inaccurately described as a ”catch-and-release system” responsible for an increase in violent crime. In fact, we are experiencing a long-term downward trend in violence, with violent crime remaining lower than it was 15 years ago, despite a slight recent increase. But in response to pressure from premiers and policing organizations, the federal government tabled Bill C-48 in May, which would create additional “reverse onus” provisions whereby the accused must demonstrate why they ought to be released on bail when facing charges for certain violent and firearm offences. If passed, this legislative change will not have a meaningful impact on the bail decision-making process, as the law already provides mechanisms to detain people out of concern for public safety. Ask any Toronto defence lawyer – or Crown prosecutor, for that matter – about the uphill battle faced by an individual seeking bail after receiving a gun charge: the burden to articulate a compelling release plan is already on the accused.
The bail decision involves balancing the perception of risk with the presumption of innocence and the right to reasonable release on bail. The Supreme Court of Canada has emphasized that restraint must be exercised, with the starting position for most accused being unconditional release. Bail is not a demonstration of leniency or benevolence; it is a constitutional right. The central difficulty is there is no reliable way to predict who will go on to commit serious, violent acts. Criminal justice actors make decisions based on the information available; sometimes, these decisions turn out badly. Our system cannot predict the future or identify and eliminate all potential risks.
It is tempting to respond to violent crimes with harsher legal measures, but society is doing itself a disservice by keeping large numbers of accused individuals in pretrial detention. Studies have shown that custody is criminogenic – even short periods of time spent incarcerated make it more likely, not less, that someone will commit future offences. There are many reasons for this: conditions in pretrial detention are overcrowded, harsh and dangerous; rehabilitative programs are virtually non-existent; and removing individuals from the community is intensely destabilizing, disrupting connections to community, family and social supports.
For accused individuals who are eventually convicted, judges must give credit for their time in detention. Given the extraordinary delays plaguing the court system, many people receive shorter sentences, with some receiving a sentence of “time served” who are immediately released, returning to the community with limited to no supervision or access to rehabilitative programs.
To enhance public safety, we should encourage and support the police in using their powers of release, as having fewer minor matters start in bail court will give the courts more time to focus on more serious cases. We should increase support for community supervision programs that may help facilitate release, provide supervision and promote compliance with bail conditions, and improve case processing and access to justice, including increasing funding for legal aid. We must also invest in what we know reduces crime: supporting people experiencing poverty and precarious housing, mental illness and substance use; enhancing social welfare supports; increasing investments in education and health care; keeping people in their communities; and improving reintegration supports for people released from custody.
Incidents of repeat, violent offending are alarming, but creating more reverse onus provisions won’t enhance public safety. Increasing our reliance on pretrial detention will compound disadvantages and make communities less safe, not more.