The federal government has proposed legislation, Bill C-48, to increase bail restrictions for individuals accused of particular crimes, essentially making good on Justice Minister David Lametti’s recent promise that his government would “move forward quickly on targeted reforms” to the bail system.

The bill proposes “reverse onus” provisions for some serious offences. Reverse onus means that the accused must prove to the court that they are safe to be released on bail, whereas normally the prosecutor must prove why the accused should be detained rather than released.

In January, the Canadian Association of Elizabeth Fry Societies (CAEFS) and the Canadian Civil Liberties Association (CCLA) expressed concern about reverse onus restrictions because such measures “invert the foundational principle of the presumption of innocence.”

The bill proposes requiring reverse onus for charges that involve violence with a weapon if the accused has already been convicted of a similar crime, specific firearms offences, and anyone accused of crimes “involving intimate partner violence” if they have already been convicted of similar crimes.

The bill also requires the court to consider in further detail whether someone charged with a violent crime should be released. In such cases, the judge must explain on the record why they believe the accused would be safe in the community if they decide to release them on bail.

The push to restrict bail is not due to data that demonstrates a connection between bail and violent crime. In fact, Lametti recently admitted that such data is largely nonexistent.

Instead, the federal government is responding to pressure from provincial and federal politicians who in recent months pushed for the changes. In January, premiers and territorial leaders wrote to the prime minister asking that the federal government “take immediate action to strengthen Canada’s bail system to better protect the public and Canada’s heroic first responders.”

The premiers said they wanted to make it harder for “repeat violent offenders” to be released on bail, and asked for an increase in “reverse onus” requirements for certain offences. The federal government has largely given the premiers what they asked for.

Conservative Party Leader Pierre Poilievre has also repeatedly claimed that a too-lenient bail system, which he traced to Liberal government initiatives like Bill C-75 (which sought, among other things, to update, modernize and clarify existing bail provisions), is to blame for a rise in violent crime across the country. Alberta Minister of Public Safety and Emergency Services Mike Ellis even stated that Bill C-75 should be “repealed” in the absence of reforms that his government considers satisfactory.

The mounting political pressure to make the Canadian bail system more restrictive came in response to public anxiety about violent crime, including several high-profile unprovoked attacks across the country over the past seven months. Among these were the shocking murders of two youth on public transit.

Recent crime trends don’t suggest that “crime is everywhere” or that violent crime is “skyrocketing,” as some commentators have claimed. All crime, including violent crime, has hovered at historic lows in recent years.

However, violent crime did increase by five per cent in 2021, according to the latest Statistics Canada data. There is considerable debate about how to interpret these statistics, especially since a drop in violent crime during the pandemic means that the recent rise is much less significant. Nonetheless, violent crime has generally been increasing since 2014.

But will making bail more restrictive curb violent crime in this country?

Experts say restricting bail will not affect the rate of violent crime. The Criminal Code already includes language for refusing bail to risky people, meaning that a bail court judge can refuse bail if the accused might not appear in court, if the accused is in any way a danger to the public, or if the accused must remain in detention “to maintain confidence in the administration of justice.”

There are, however, more significant problems with Canada’s bail system. According to Nicole Myers, a criminologist at Queen's University who specializes in bail and pretrial release, these are having a “systemic impact” on the criminal justice system.

In particular, these problems are disproportionately harming Black and Indigenous peoples.

Presumption Of Innocence

Seventy per cent of those in provincial jails are legally innocent and/or in pretrial detention. This group comprises people who have been formally denied bail, or are in detention awaiting a bail decision or the resolution of their charges.

Catherine Latimer, executive director of the John Howard Society of Canada, explained that the failure of the bail system in this country is especially evident when compared with other jurisdictions.

Latimer said, “Canada’s proportion of pretrial detention prisoners to total prisoners is shockingly high: England and Wales is 11.7%; the United States is 22% while Canada’s pretrial prisoners amount to 38.7% of the total prison population according to 2017-18 data. Compared to other developed countries, that proportion jeopardizes Canada’s reputation as a country that takes the presumption of innocence and rights to reasonable bail seriously.”

This kind of detainment carries significant risks. A recent “Tracking (In)Justice” report noted that deaths in Ontario jails and prisons have increased by 173 per cent from 2010 to 2021. The report explained that the dramatic increase in the provincial remand population — those who are in jail and are yet to be convicted — plays a significant role in the rise of people dying in custody in the province. People in remand “face heightened suicide and drug overdose risk compared to those serving sentences.”

If someone is in pretrial detention, even briefly, they are at high risk of losing their job, their housing or their children.

Emilie Coyle, executive director of CAEFS, told The Maple that pretrial detention is particularly difficult for women since they are often in caretaking positions and many are single parents or sole providers for their families.

“We’ve seen families broken apart by even a short amount of time in jail,” Coyle explained. Reforms to the bail system need to be careful since they risk exacerbating broader social problems like poverty and homelessness, she said.

‘Numerous and Onerous Conditions’

Myers told The Maple that bail can effectively criminalize people and bring them further into the criminal justice system, even if they’re ultimately never convicted of their initial charge.

If someone is released on bail with “numerous and onerous conditions,” Myers explained, they’re at high risk of breaching their conditions, being charged with “administration of justice offences” and having to appear in court to have those charges adjudicated.

Some administration of justice offences are serious – like an accused abuser breaching a no-contact order and contacting a victim, for example. But most are not serious – like being late for curfew – or they unfairly penalize vulnerable people who struggle to meet their conditions (for example, someone struggling with addiction who cannot meet the court’s condition that they abstain from using drugs).

The federal government’s justification for Bill C-75 noted that provincial and territorial courts are flooded with minor administration of justice offences that clog the criminal justice system and, importantly, leave the courts with less time and fewer resources to address more serious cases, including those involving violent offences.

Devoting significant and disproportionate resources to administration of justice offences also slows the legal process, and many people are waiting longer to have their cases seen by the courts. The longer an individual remains on bail, the more likely they are to breach their conditions, creating a vicious cycle that results in yet more administration of justice offences, more charges and more drags on the court’s resources.

Longer wait times for court mean that people who are in pretrial detention are behind bars for longer, making their connections to their lives more precarious.

Extensive pretrial detention can also have a major impact on the result of a trial. Someone might plead guilty simply to be released, particularly if the time they spent in pretrial detention exceeds the time they would serve for their sentence, which often happens as a result of court delays.

In an interview with The Maple, Danardo Jones, a University of Windsor law professor who recently provided testimony to the House of Commons standing committee on justice and human rights when it was studying the bail system, gave the example of someone being charged with simple assault, denied bail and then incarcerated.

Even with a charge of simple assault, Jones said, they “probably wouldn’t be looking at more than 30 days in jail” if they were convicted. But, if they had “to wait six months for a trial” and “languish away” in jail, they would likely plead guilty to be released and sent home sooner.

“It’s an all-too-common practice,” said Jones. And, if they remain in detention but their charges are dropped or they’re not convicted, they receive no recompense for being unfairly incarcerated. They’re simply released.

Disproportionate Impacts

Black and Indigenous people are disproportionately affected by bail restrictions. This is partly because of broader social conditions like structural racism and colonialism that result in Black and Indigenous people being more closely policed and incarcerated than other groups in Canada. There is a “systemic bias” at work, explained Catherine Latimer.

For example, the vicious cycle that sees individuals accumulate administration of justice charges and be labeled repeat offenders is particularly true for historically marginalized groups in Canada, especially Indigenous people.

A 2014 study conducted by the CCLA described an “administration of justice offence cycle with enhanced effects on Aboriginal communities.” A participant in the study explained: “Clients are scared, so they don’t show up for court. They don’t understand the consequences and then it snowballs into fail to appear, fail to comply. They don’t realize the more they plead guilty to get it over with, the longer their criminal record gets, and now they’re a long-term offender.”

Such issues persist, according to Merv Thomas, CEO of Circle of Eagles Lodge Society.

“It’s like a loop,” he told The Maple. “I’ve seen evidence of people going in for two-year bits and now they’re doing life. What happened? What’s the story there?”

Moreover, said Jones, judges are trying to predict risk in bail hearings, meaning racist stereotypes can come into play. “Risk is read on particular bodies,” he explained. “For a Black body, risk is read in a more acute way ... Social psychologists will tell you that there’s this almost instant connection that’s made in people’s minds when a particular body is put before them.”

If a judge at a bail hearing sees “a tall, dark-skinned man with a beard, certain mental shortcuts rush into play,” resulting in presumptions about that person’s level of risk, said Jones.

Studies have shown a clear racial disparity in Canada’s bail decisions: Black people are more likely than white people to be refused bail when charged with similar crimes. Similarly, according to government data, “Indigenous people are more likely to be denied bail and [are] overrepresented in remand.”

Determining bail needs to be further examined and managed, said Jones. “What kinds of heuristics are happening in bail court? How do we ward against them” and have a “judge or justice of the peace or prosecutor disabuse themselves of them?”

Canada’s Anti-Racism Commitments

Recently, the federal government convened a Black Justice Strategy that seeks to build “a fairer, more effective justice system” by addressing the “systemic inequalities [that] have contributed [to] the overrepresentation of Black people in Canada’s criminal justice system.”

Similarly, the federal government has made a commitment to reducing the rate of incarceration of Indigenous people, particularly since the Truth and Reconciliation Commission’s call to action that, in 2015, “call[ed] upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade.” Making bail more accessible for these communities is one way to address the over-incarceration of Indigenous and Black people in Canada.

Shakir Rahim, the director of the criminal justice program at the Canadian Civil Liberties Union, provided The Maple with several suggestions for making bail more accessible and equitable.

First, he said, legislative changes to the Criminal Code should ensure that judges correctly apply the law in bail court. Second, changes should review the conditions that judges are requiring before they feel comfortable releasing someone on bail. Third, they should also seek to provide adequate funding for proper supervision and monitoring of people on bail and financial support for organizations who can provide people with surety should they need it. Finally, the changes should ensure that accused individuals have their trials completed in a speedy manner.

These fixes will not only help historically marginalized groups, said Rahim, but will also improve bail conditions for all accused Canadians and make the criminal justice system fairer and more in line with the Charter.

Experts interviewed by The Maple suggested that the heavy political attention on bail in recent months has been largely misdirected, and expressed concern about Bill C-48, which they said seems to have been introduced in consideration of optics rather than evidence.

“Generating senses of fear, telling people that they’re not safe, is precisely the kind of narrative you want to put forward if you then want to propose tough-on-crime [legislation] that … generates votes,” said Myers. “[But] making the law more restrictive in many ways will make us less safe by holding more people in custody, making them more likely to reoffend. So you may garner some bits of short-term safety on the front end at the cost of longer term safety.”

Simon Rolston lives in Vancouver and writes about criminal justice issues, particularly the Canadian and U.S. prison systems. His book, Prison Life Writing: Conversion and the Literary Roots of the U.S. Prison System, was recently published by Wilfrid Laurier University Press.

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