For more than a decade, the number of people in Canadian jails who are awaiting trial has been larger than the number serving a criminal sentence. These people are presumed innocent of the charges they face, and yet they have lost their liberty.
Even worse, many have been charged with the crime of violating their bail conditions – an offence that carries a maximum two-year sentence, and which a number of rights groups, as well as the Supreme Court of Canada, have for years decried as counterproductive.
Now a new Supreme Court ruling makes it plain that Canada’s bail practices are unfair and harmful, in particular to the poor, people with addictions, and Indigenous Canadians.
The bail system is also partly to blame for overcrowded jails, and it contributes to the slow administration of justice by flooding the courts with unnecessary cases.
The case the Supreme Court ruled on involved a British Columbia man charged with drug offences. He was released on bail with conditions that included an evening curfew at his residence, and having to answer the doorbell within five minutes if police came to check on him.
On two occasions, at around 10:30 p.m., he didn’t come to the door when the police rang. He said it was because he was going through heroin withdrawal, and his bedroom was too far from the front door to be roused by the doorbell.
He was charged with breaking bail conditions – two counts of breaching curfew and two counts of failing to answer the door. He was convicted on the latter charges.
But his conviction in a B.C. provincial court was based on the notion that the Crown didn’t need to prove he’d intentionally violated his terms. The judge likened the breach to a strict liability offence, such as speeding, where a person pulled over for driving above the speed limit is presumed guilty by the mere fact of having been caught in the act.
The Supreme Court ruled that is not what the Criminal Code of Canada intended. Henceforth, crown prosecutors will have to prove that a person who breaches a condition did so knowingly and recklessly – and, more importantly, that the bail conditions were reasonable in the first place.
This ruling should produce a sea change in the way bail is granted. To ensure that happens, the Supreme Court has laid out how the system is supposed to work.
The Court says the default position should be to automatically grant bail with no conditions, other than that the person attend their next court date. Other conditions should only be imposed to the degree they address three questions: “Is this person a flight risk; will their release pose a risk to public protection and safety; or is their release likely to result in a public loss of confidence in the administration of justice?”
Too often, the Court said, bail court judges have agreed to “boilerplate” conditions that are applied to all defendants, regardless of their circumstances. In some cases, the conditions include unwarranted attempts at behaviour modification that are impossible for the accused person to live up to, such as telling an alcoholic they can’t drink, or ordering a homeless person to stay at a fixed address.
Vulnerable people, many without defence counsel, often quickly agree to such impossible conditions in exchange for their liberty. When they predictably fail to meet these bail terms, they are re-arrested, hit with new criminal charges, and end up in extended pre-trial detention.
The court says this creates a “cycle of incarceration.” Accused people can wind up in jail “even if they are never convicted of any of the crimes for which they were initially charged,” and for a crime for which “there is often no victim, no violence, or no direct harm to the public or property.”
This vicious circle also puts pressure on Canada’s justice system. According to Statistics Canada, failure to comply with a bail condition was the most serious offence charged in 9 per cent of all completed adult criminal cases in 2016-17.
In most instances, the Court says, the appropriate punishment for someone who knowingly violates bail – assuming the bail conditions are reasonable – is simply for them to await trial behind bars. That makes far more sense than the current system.
Canadians need to remember that a critical role of bail is to reaffirm at the start of a criminal proceeding that the person charged is presumed innocent – a fundamental principle that has been somewhat lost, but which may now finally be making a comeback.