Proposed bail reforms will imprison innocent people

Legal observers say the federal government’s proposed bail and sentencing reforms risk being self-defeating by diverting judicial attention and scarce resources away from serious matters. They’re also going to imprison innocent people. 

Tabled today by Justice Minister Sean Fraser, Bill C-14 expands the use of reverse onus provisions with bail applications for violent and organized crime-related offences. That includes violent auto-theft, break and enter, human trafficking and smuggling, assault and sexual assault, and extortion involving violence.

It provides directions on applying the principle of restraint in the law of bail, modifying the third ground for denying bail to require courts to consider the number or seriousness of any outstanding charges when determining whether releasing the accused would undermine confidence in the administration of justice.

“Today is about stronger laws and safer communities,” Fraser said when introducing the bill. 

“This new law follows extensive consultation with law enforcement, provinces and territories, municipalities and community partners.”

He stated that the justice system has failed to keep up with what Canadians are witnessing and experiencing in their communities. As a result, the proposed changes have a strong focus on public safety.

The bill contains more than 80 measures that increase sentences for repeat offenders of auto theft, organized crime and home invasion, and allows for consecutive sentences for violent and repeat offenders. There are also provisions for harsher sentencing for organized retail theft, and to repeal the eligibility for conditional sentences for sexual assault.

Reforms risk being self-defeating

Melanie Webb, chair of the Canadian Bar Association’s criminal justice section and a criminal defence lawyer in Toronto, says some of the proposed amendments address areas which are already routinely taken into consideration during bail and sentencing hearings.

“Practically speaking, when it is a serious offence such as one involving serious violence, or gun offences, whether a Crown onus or reverse onus applies has little practical effect: it will always be an uphill battle for the defence,” she says.

In anticipation of the legislation, the CBA’s criminal justice section wrote an open letter to Fraser, warning that increasing reverse onuses or ladder provisions would not achieve the intended deterrent effect, and are unlikely to be Charter compliant, especially given the disproportionate impact on Indigenous and other racialized accused. 

The letter also warned that these reforms risk being self-defeating as they divert judicial attention and scarce resources away from serious matters.

“Further, since no bail system can eliminate all risk, such reforms would undoubtedly face renewed criticism after the next high-profile incident in which someone on bail commits a serious offence, leading to renewed calls for another round of bail reform,” the letter states.

Webb says the letter was first drafted by past chair David Parry, an assistant Crown prosecutor in Toronto, and received feedback from both the Crown and defence bar members in the section, which shows consensus about what needs to be addressed.

The letter called for increased resources for community supervision and for streamlining the bail system to improve the efficiency of bail courts, which includes a greater role for provincial judges. 

To that end, the section proposed legislative amendments to clarify that all bail hearings can be conducted in a bifurcated manner. It also saw value in enacting an explicit provision requiring the court's leave for any cross-examination. The goal is to reduce the need to cross-examine every surety that appears before the court.

However, Webb says that the most significant part of fixing the bail system is ensuring that the provinces properly resource their courts.

“It would be constructive for anyone who has a genuine concern about the bail system to sit in and watch a full day of bail court in a busy urban centre, or frankly any bail court, and really get an understanding of what the unique challenges of day-to-day bail court are.”

Nationally, 71 per cent of people in provincial and territorial prisons are awaiting trial and have not been convicted. In Ontario, that figure hovers around 80 per cent. Facilities are also overcrowded, with frequent reports of triple-bunking in tiny cells. Earlier this year, Ontario Ombudsman Paul Dubé said in his annual report that provincial jails are in a “state of crisis” with severe overcrowding and frequent lockdowns. He found that pre-trial jail conditions often lead to sentencing discounts.

Webb says internationally, the situation is often reversed. In England and Wales, for example, 80 per cent of people in jails have been convicted, while only 20 per cent are awaiting trial.

“That should tell you something about how far the pendulum has swung in Canada about the strictness of our bail conditions.”

No data to support claims that bail causes crime

Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, has denounced the proposed changes, insisting that there is no evidence to suggest that bail causes crime.

He points to the lack of data showing that these changes are necessary, particularly given that the number of accused being denied bail has climbed to 76 per cent, from the low 20s in the 1980s. There is no data to back up claims about the number of people on bail who are allegedly reoffending.

“There is no way to say that … x-number of people are released on bail in Canada and y-number of people allegedly reoffend. And of those alleged re-offences, this many are a new substantive violent offence and this many are a breach of condition,” Rahim says.

The CCLA and others made this point in the C-48 debate three years ago, and former justice minister Arif Virani and David Lametti before him admitted there was a gap. The Senate Legal and Constitutional Affairs Committee inquired about evidence to show that reverse onuses would do something, and recommended more data collection. Three years later, no data has been collected, and no province or territory has announced any projects to do so.

“We know that StatsCan continues to have these meetings with their provincial and territorial stakeholders, but nothing has been announced about any data they are going to collect,” Rahim says. 

“It’s very perplexing that this issue is something we’re being told is the be-all and end-all of public safety in Canada, but no single government has made any commitment to actually evaluate or measure the problem. So how on earth are we going to evaluate this new legislation?”

He points to StatCan data, which show that charges for motor vehicle thefts are down 10 per cent since 2020 and a full third since 2010. In Montreal, gun violence is down 47 per cent since 2021, shootings are down 40 per cent this year in Toronto, and Vancouver has seen a 23-year low in violent crime. 

“Obviously, there are concerning cases in the headlines, and we should study those cases, but it’s almost like we’ve been told there’s this marked increase in crime and that bail is the problem,” Rahim says.

“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.”

He adds: “I think there is a fear to actually speak the truth to Canadians.”

Bail shouldn’t be a political issue

Webb says there’s a prevailing sense that some people will not be satisfied unless everyone who has been charged is in jail while awaiting trial. But trotting out slogans like “jail, not bail” and dismissing the law of bail as “Liberal bail” are completely unhelpful.

“It’s disheartening,” she says. 

“I appreciate that when there are tragic incidents in the news, it hits an emotional touchpoint. People will immediately ask if the person was on bail—it’s not productive to single out stories like that. This should not be a political issue.”

At its core, this isn’t a law reform issue, but one about the functioning of the courts.

“When I talk about bail court delays, I speak from experience,” Webb says. 

“If you were to go into the bail court at 10 Armoury Street (courthouse in Toronto), they cannot get to every single person on the list. They cannot hold contested bail hearings for all individuals who are granted (them). There is no such thing as the so-called catch-and-release. It’s nonsense.”

She says there needs to be more resources through groups like the John Howard Society or Elizabeth Fry Society for people who are struggling with mental health and addiction issues who aren’t getting proper treatment.

Rahim takes issue with the silence in the political discussion around the presumption of innocence. He points to the case of Umar Zameer, whose release on bail after being charged in the death of a cop was denounced by everyone, including the Ontario Premier Doug Ford. Meanwhile, nearly three years later, he was acquitted.

“Without pre-trial release, innocent people would lose their jobs, their ability to see their loved ones, and their liberty despite having committed no crime at all,” Rahim says. 

“That’s a real problem. Everyone is presumed innocent, but in addition to that, half of criminal cases will never lead to a finding of guilt. That has very much been lost in this debate.”

As for where this proposed legislation will lead if enacted?

“These changes will imprison innocent people,” he says.