Criminal justice experts are cautioning MPs that toughening Canada’s bail laws may have unintended, negative consequences, and that recent characterizations of the country’s bail system as lenient are not accurate.
Law enforcement leaders, Canada’s 13 premiers and federal Conservatives have been calling for more restrictive bail processes in recent months, after the on-duty killing of 28-year-old Ontario Provincial Police Constable Grzegorz Pierzchala in late December. One of suspects was out on bail.
Accused people in Canada have a Charter right not to be denied bail without just cause, and for bail to be given to them on “reasonable” terms. That does not mean bail is guaranteed. Under existing laws, accused people can be denied bail on several specific grounds – including for reasons of public safety – and held in pretrial detention.
Nicole Myers, an associate professor at Queen’s University who has studied bail and pretrial detention for nearly two decades, told the House committee on justice and human rights on Wednesday that the rate of pretrial detention use in Canada has more than doubled over the past 40 years. These rising figures show that the country’s bail system is not “overly lenient or lax,” she said.
“It is a slippery slope to pursue making the system more restrictive, when our provincial jails are already full of legally innocent people,” she said. “Tightening the bail system and increasing our reliance on pretrial detention will have discriminatory outcomes on the most marginalized.”
Several witnesses warned the House committee against changes that would increase the number of people being held in pretrial detention – or erode Canadians’ constitutional rights. The committee is in the midst of a study of Canada’s bail system, which it began last month after the premiers sent a letter to Prime Minister Justin Trudeau demanding that he take steps to restrict bail.
Danardo S. Jones, an assistant professor at the University of Windsor’s faculty of law, reminded the committee that bail “is not a matter of judicial benevolence or leniency,” and has been a part of the common law tradition for centuries.
Prof. Jones said race influences which suspects are seen as more “risky,” and who receives bail. It is Black and Indigenous people, he said, who end up overpoliced, overcharged and in bail courts.
“We’ve seen that the bail system, unfortunately, has been almost co-opted to be used as some kind of proxy for punishment. And that’s a perversion of the bail system,” he said.
The committee also heard from several victims’ advocates, who called for more stringent bail measures. Markita Kaulius, president of the advocacy group Families For Justice, told the committee that victims of crimes are not always informed when the people accused of committing those crimes receive bail, making it hard for them to make choices about safety planning.
Jennifer Dunn, executive director of the London Abused Women’s Centre, echoed this. She added that victims of violence often say abusers are not supervised sufficiently while out on bail, and that they disobey their release conditions without consequence.
“Most of the time, it’s as if our justice system is working on reaction, instead of prevention,” Ms. Dunn added.
In their letter to Mr. Trudeau, the premiers called for “reverse onus” bail provisions to be expanded to include people charged with possession of prohibited or restricted firearms with ammunition. Reverse onus means that instead of the Crown needing to prove an alleged offender should be denied bail, as usual, the accused must show why they should receive it.
But Prof. Myers cautioned against this approach, calling reverse onus provisions “problematic and unnecessary.” She noted that they fail to acknowledge the differences in power and resources between accused people and the state.
Emilie Coyle, executive director of the Canadian Association of Elizabeth Fry Societies, which works with women and gender-diverse people involved in the criminal justice system, also cautioned the committee that any criminal law reform should be taken very carefully, because it may have unintended consequences.
She emphasized that even a short stint in pretrial detention often means a person loses their employment, their housing, and, in the case of parents, custody of their children. And, Ms. Coyle pointed out, detention can have deadly consequences, with more than 280 people dying in Ontario’s correctional institutions since 2010.
“That hasn’t warranted a study at committee. People aren’t raising the alarm about that. And they should be,” she said.