The pitfalls or bail reform as crime reduction

Opinion

For the last several months, a conversation about modifying our bail system in unspecified ways, with the express goal of increasing public safety, has taken hold. Usually, a specific case of an accused person allegedly committing a new offence while on bail is at the centre of the argument.

Canadians have enjoyed the rights guaranteed to them by the Charter of Rights and Freedoms since 1982. Included in the charter are rights related to freedom of expression, freedom of movement and several legal rights. The legal rights that are engaged in the conversation about bail reform are the right to be presumed innocent and the right to reasonable bail.

These rights are intertwined.

Typically, we do not punish individuals who have not been found guilty of a crime. Accused people should have their day in court prior to having their freedom taken away. Release pending trial is the rule, detention is the exception.

Detention is warranted when detention is necessary on one or more of three grounds: to ensure the accused attends court, where the detention is necessary for the safety of the public, and/or where the detention is necessary to maintain confidence in the administration of justice.

The law of bail, as codified in the Criminal Code, has evolved since 1982 with numerous amendments to the various provisions of the Act that govern judicial interim release. Most recently, Parliament modified the sections dealing with reverse onus provisions, making additional offences and circumstances where there exists a reverse onus. Most commonly. anyone who comes back into custody allegedly breaching a condition, will have a reverse onus applied to their release hearing requiring them to show cause that they should be released.

Even with a charter-guaranteed right to reasonable bail, well over half of the population inside provincial jails are detained awaiting their day in court.

Crown prosecutors, defence counsel, and judges are all intimately familiar with bail provisions and they apply them in courts across our country daily. Crown attorneys may release individuals on release orders where they’re satisfied the accused does not pose an unreasonable risk to society, and should they remain opposed to release the matter is determined by a judge or justice. In making their assessment, judges will review the charges, specifically their nature and the strength of the case, the record of the accused, the bail plan on offer by the defence.

Advocates for making some modification to bail generally seem to suggest that more accused persons should be bail denied because they pose a public safety risk.

How we shift the goal posts to achieve that end is never made clear.

The reasons they suggest this should be done are clear: they often cite one or two high-profile cases where an accused person has allegedly reoffended while on release. With the greatest of respect, a single case, no matter how high profile, is not a basis to modify our system.

Prosecutors and judges do the best they can with the information that they have. Ultimately, they’re trying to determine someone’s future behaviour and there is no way to do this with perfect reliability. Instances where the person has allegedly become re-involved in crime do not make a decision to release wrong in law or unreasonable. It is a decision made on the facts available to the decision makers at the time.

While it’s true that locking up everyone who stands accused of a crime would make things safer for the public, that is not a reasonable way to approach the issue in a free and democratic society. Pretrial detention can be devastating to an individual awaiting trial.

Accused people awaiting trial are not yet convicted. We do not yet hold them to account for that which they have only been accused of. That happens after trial or a guilty plea.

Put that fundamental consideration aside for a moment and imagine the chaos that the detention of someone close to you could cause.

Maybe they’re a parent or spouse relied upon by dependent children. Maybe they’re an important employee, essential to your business and possessing skills and experience that cannot easily be replaced. Fundamentally, it’s why we cannot have a blanket rule.

Practically speaking, denying more people bail will overcrowd our already overcrowded jail system. It would also be prohibitively expensive. All of this is suggested at a time when our prosecution service is chronically understaffed.

There are better ways to improve public safety, but they require that the governments of the day invest in programs, housing, child welfare and education.

All of this is far more difficult and none of that allows politicians to ride along with the outrage train that comes with high-profile criminal cases where someone has allegedly offended while on release. It’s a difficult road that requires consistent investment, time and trust that what we’re doing is working. There is a saying — societies grow great when old men plant trees, even knowing they themselves will never enjoy the shade.

That probably applies to this problem and it’s going to take real leadership to make a positive impact.

» Chris Gamby is a practising lawyer and director of communications for the Criminal Defense Lawyers Association of Manitoba. This column was previously published in the Winnipeg Free Press.