Bail reform requires less pandering, more thought

The conversation surrounding bail reform has grown more earnest over the course of the last few years. And while we think this is an important discussion to have, Canadians should be concerned that the debate has been increasingly co-opted by populist political pressures that have little regard for the implementation of good public policy.

Canada’s justice minister, Sean Fraser, announced major bail reforms during a Tuesday-morning news conference that would include better protection for first responders and make it tougher for repeat violent offenders to get out of custody while awaiting their day in court.

“We need a set of rules with public safety in mind, designed to keep people safe,” Fraser told media.

Fraser, who made the announcement at a fire paramedic service station in Winnipeg, was joined by Manitoba Justice Minister Matt Wiebe, Advanced Education and Training Minister Renée Cable, and Winnipeg Mayor Scott Gillingham.

The proposed legislation, according to the news release, includes more than 80 clauses that would make “significant changes” to Canada’s bail and sentencing framework. Key measures include:

• A new aggravating factor at sentencing for offenders who commit violent acts and other crimes against police, firefighters and paramedics while on duty.

• Tougher bail provisions for violent and repeat offenders, including new “reverse onus” provisions that make detention the starting point for certain serious offences.

• Crackdowns on organized crime to keep communities safe.

It was the latest salvo in an ongoing debate among Canada’s political classes over how to best balance public safety with the rights of the accused. While we agree with the need to keep our first responders safe, we’re not sure that this announcement will help achieve the required balance in our justice system — though it hits all the right populist buttons.

Interestingly, the joint federal-provincial announcement took place one day after our sister paper, the Winnipeg Free Press, published a story that quoted provincial court Judge Dale Harvey, who called the ongoing debate over bail reform as “insulting” to judges shortly before denying bail to a man accused of trafficking drugs while in custody.

Harvey also stated that increasingly onerous bail restrictions on the justice system were chipping away at the presumption of innocence of the accused — a cornerstone of the Canadian justice system.

“(The accused) is presumed innocent at this stage of proceedings and remains so until proven guilty beyond a reasonable doubt,” Harvey said. “That’s always been a fundamental principle of Canadian law, and yet there seems to be a significant movement these days, supported by some leaders, or so-called leaders, of our institutions to restrict that presumption by calling for significant bail reform, which would no longer (give) primary consideration to release of the accused at the earliest reasonable opportunity and on the least-onerous restrictions.”

His overarching concern seems to be that what constitutes bail reform in the current context seeks to turn the justice system on its head, presuming the guilt of a suspect so that people would lose the right to be released on the presumption of innocence.

Harvey is hardly the only one concerned about the ever louder drumbeat of bail reform in political circles.

Peter Kingsley, the executive director of Legal Aid Manitoba, told CBC this week that any conversation on bail reform should be careful not to infringe upon an accused person’s charter right to the presumption of innocence.

“Every time we make it that much more difficult for people to get bail, we take away the discretion of judges to make sentencing decisions,” Kingsley said. “It makes the system that much less flexible and unable to deal with the different individuals that appear before the courts.”

It’s also noteworthy that Shakir Rahim with the Canadian Civil Liberties Association argued in the Canadian Bar Association’s National Magazine this month that Canadians are being misled into believing that allowing accused persons out on bail has caused crime to increase. The problem, he says, is that too few voices are standing up for those who are unable to do so for themselves.

“There is a vacuum of political leadership, of people stepping up and saying this is what it would really mean to address public safety, here’s how we have to address the problem in an even-handed way… I think there is a fear to actually speak the truth to Canadians.”

Truths like the fact that enforcing stricter bail laws would likely keep more accused individuals in pre-trial custody, putting further strain on already overcrowded Manitoba jails.

Last month, the CBC reported that there were 2,582 adult inmates being held in jails across Manitoba, with 1,968 of them — more than three-quarters — on remand. It was also reported that the rated capacity for those institutions totals 1,924, meaning the remand population alone is enough to push jail populations over capacity.

While Wiebe argued in September that there’s “still enough room” in our jails — even as he reiterated a pledge to build a new justice centre in Dauphin — the union that represents provincial corrections officers has warned that the situation is becoming volatile and dangerous for both staff and accused within provincial institutions.

It must be said that the federal government is playing with political fire by moving forward with this legislation, as it stands a good chance of being challenged on constitutional grounds.

What we need from our political leaders is a more thoughtful approach to bail reform — one that both respects and works within the Charter of Rights and Freedoms, and panders less to “tough on crime” sloganeers whose populist messages merely serve to feed public intolerance as a means to gain political power.

Nevertheless, if our leaders intend to move forward on bail reform as outlined by the current Carney government, they’re going to have to spend considerable funds to increase jail capacity in this province too — something they don’t seem to be in any hurry to do just yet.

Talking bail reform is easy. The more difficult — and expensive — part is getting it right.