Let’s be honest: Canada’s bail system is broken.
On one hand, you have people charged with violent offences who commit murder and random assaults while out on bail, a recent trend that is making the public lose confidence in the justice system.
On the other, thousands of poor and marginalized people are being held for months or longer in jail for violating the victimless crime of failing to meet a bail condition.
At any given time in Canada, there are more legally innocent people being held in remand than there are convicted criminals behind bars.
But that injustice tends to shock the conscience of the public and their elected representatives far less than the minuscule percentage of people on bail who commit horrible violent crimes against innocent people and police officers.
And so Ottawa is caught between making it easier for some people to get bail, which it did in 2019 legislation in response to a Supreme Court ruling that reasserted the accused person’s right to a presumption of innocence, and harder for others. The situation is tricky, to say the least.
Last week, the Trudeau government – under pressure from the premiers, the Conservative opposition and Canadian police chiefs – tried to square the bail circle when it said it would add to the growing list of accused people who are presumed to require detention for public-safety reasons, and who must convince a court otherwise.
The “reverse-onus” provision already applies to people accused of the most serious crimes, in many cases even if it is their first alleged offence. Those crimes include: murder or attempted murder; serious offences committed with a firearm, such as sexual assault, kidnapping and robbery; terrorism; drug or weapons trafficking; and intimate-partner violence where the accused has a previous conviction for the same crime.
The Liberals say they will now add every violent crime involving a firearm that carries a maximum 10-year sentence to the reverse-onus list – as long as the accused has a conviction for a similar crime in the previous five years. They will also expand the list to include people who received a discharge, rather than a conviction, for intimate-partner violence.
And they will explicitly require courts to consider “an accused person’s history of convictions for violence,” and “to include, on the record, a statement that they have considered the safety and security of the community in relation to the alleged offence when making a bail order, thereby increasing accountability to the public.”
These moves are welcome. But the government should go even further and make it explicit that people charged with a violent crime who commit new violent crimes while out on bail should be considered a risk, just as will be the case for people convicted of such crimes.
The courts could even be asked to look at the entirety of a suspect’s interactions with the police and the justice system, and not just those that resulted in charges and convictions.
Other than that, the Trudeau government is on the right track – even if they risk disappointing some people who think that alleged repeat offenders should automatically lose the right to bail and remain locked up until their trials.
That’s what Conservative Leader Pierre Poilievre is promising to bring in if elected to power. But while he insists that taking away the court’s discretion in cases involving alleged repeat violent offenders would withstand a Charter of Rights challenge, such a claim flies in the face of three recent rulings by the Supreme Court.
In each case, the court said that, given that the presumption of innocence is a Charter right, release on bail with as few conditions as possible and as soon as possible must be the default position.
As such, bail needs to be decided by judges or justices of the peace who are in a position to look at all the facts of a case, and who must not be straitjacketed by legislation.
The sad truth is that the real bail issue in Canada right now, the one not making the headlines, is that too often the courts are in fact not erring on the side of presumption of innocence, and are rubber-stamping onerous bail conditions that criminalize poor and marginalized people.
Parliament needs to address the fact that far too many Canadians accused of non-violent crimes are being held in remand. We’ll look at ways to address that issue in another editorial this week.