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Why Canada’s bail system creates more crimes than it prevents

A troubling new report from the John Howard Society


 

Paul Daly / CP

If you ever find yourself arrested for a crime you didn’t commit, hope it happens in Prince Edward Island. At least then you’d have a decent chance of getting out on bail before your trial. Manitoba would be your least-preferred option.

A report earlier this month from the John Howard Society of Ontario reveals a host of problems with bail as it currently operates in that province. Combined with data from other provinces, it’s apparent our country’s bail system requires a major overhaul, in the name of fairness and efficiency, not to mention the concept of innocent until proven guilty.

Bail allows individuals accused of crimes to enjoy their liberty until a court decides their fate. Unlike the American system of an upfront cash bail requirement—familiar to anyone who’s ever read an Elmore Leonard or Janet Evanovich novel, or watched Law & Order—Canadian bail instead relies on sureties. No money is demanded immediately. Rather, the accused may be released into the care of a friend or relative who forfeits a set sum of money if the individual skips town or otherwise fails to abide by the conditions of his release.

But while the right to “reasonable bail” is enshrined in the Canadian Charter of Rights and Freedoms, it has become steadily more difficult to obtain, subjected to an increasing number of unreasonable conditions and transformed into something akin to extrajudicial punishment.

The John Howard Society report found the average bail release in Ontario now carries six separate restrictions, beyond merely staying out of trouble until the trial. The most frequent of these include refraining from using alcohol or drugs, obeying a curfew, staying away from certain locations or people, not using cellphones and attending high school full-time. Many of these strictures, however well-intentioned, have nothing to do with the crime in question. “Courts should not be in the business of mandating self-improvement,” the John Howard Society report complains. At least, not until a sentence has been handed down.

Imposing a host of punitive bail conditions effectively dispenses punishment before the accused has a chance to give his or her defence. Keep in mind that an individual on bail is still legally considered to be innocent. Of course, bail isn’t the only aspect of Canada’s legal system that seems intent on imposing punishment first and holding a trial second: Recall British Columbia’s recent innovations with their drunk-driving law, since modified, that initially revoked licences and impounded cars without any recourse to a defence. It’s a trend that demands strenuous objection.

Further, aggressive enforcement of arbitrary bail conditions, sometimes by special police units, often leads to an unnecessary spiralling of legal problems. Imposing cold-turkey abstinence on an alcoholic or drug addict, for example, seems both unnaturally harsh and doomed to failure. And being caught violating bail conditions can lead to charges far more serious than any original offence. Our bail system often creates more crimes than it prevents.

Such a scenario, it’s worth noting, is indicative of a much bigger problem facing Canada’s justice system. As serious and violent crimes undergo a significant secular decline, more and more effort and resources are put into policing minor criminal acts such as marijuana possession or bail-condition violations. Taxpayers are not benefiting from lower crime rates.

And tougher bail conditions have certainly contributed to Canada’s rising demand for prison space. Since the 1980s, the share of prisoners held in remand (rather than granted bail) across Canada has tripled. Within the provincial prison system, inmates awaiting trial now outnumber prisoners who have been formally convicted and sentenced for a crime. And across the country, the odds an accused will be denied bail vary hugely—in P.E.I., a mere 15 per cent of all prisoners are in remand, compared to 64 per cent in Manitoba. This massive discrepancy largely comes down to variations in provincial legal tradition and the discretion of judges.

The news isn’t all bad when it comes to bail. Prisoners once saw their pre-sentence jail time credited on a two-for-one basis at sentencing. This led some crafty defence lawyers to delay bail hearings in order to maximize their clients’ time in remand and, thus, reduce their overall jail time in the event of a guilty verdict. “Truth in sentencing” legislation introduced by Ottawa in 2010 put an end to such generous crediting; recent data now suggest it’s been modestly successful in reducing the number of prisoners in remand.

With that loophole plugged, Ottawa should turn its attention to other more pressing problems with bail. Our jails ought to house prisoners convicted of crimes, not those awaiting their day in court. Bail should be equally accessible across the country. And any conditions should not be so onerous or arbitrary as to create new crimes on their own. Bail is a constitutionally protected right of all Canadians, not some make-work project for the legal system.


 

Why Canada’s bail system creates more crimes than it prevents

  1. Also note that if you don’t make bail you are going to be held in jail long enough to lose your job and your apartment, no matter what the outcome of the proceedings. Most people accused of crimes don’t have the cash reserves to be able to support themselves after a few months in jail and no job or home to return to on getting out. This is a big factor in the cycle of crime and proverty.

  2. Great piece!

  3. “Truth in Sentencing” was not about reducing remand prisoners, it was a political move like all the other changes to the criminal justice system by the Harper Government. To say that its effect was to reduce remand prisoners, by forcing them into early guilty pleas, because they only get one day credit before they are sentence versus 1.5 after (nearly all sentences are reduced by 1/3, it’s called ‘earned remission’), misses the point. A lot of guilty pleas in provincial court are the result of a denial of bail and the realization that you get out sooner by pleading guilty rather than waiting for your trial, irrespective of guilt.

    • it also, as I am sure you are aware, based on the system’s distaste for imprisoning innocent people and due to the lack of remedial services for persons in jail rather than full prison.

      It was indeed irrepsonsible of the article to present the issue like that and you were right to call them out on the topic.

  4. “This led some crafty defence lawyers to delay bail hearings in order to maximize their clients’ time in remand and, thus, reduce their overall jail time in the event of a guilty verdict.”
    That’s a very, very serious accusation you’ve made there MacLean’s.

    • As someone who is in Court weekly (not as accused lol) ,this practice happens more frequently than one would hope.

  5. “This led some crafty defence lawyers to delay bail hearings in order to
    maximize their clients’ time in remand and, thus, reduce their overall
    jail time in the event of a guilty verdict.” The 2 for 1 “rule” arose out of the deplorable conditions, lack of access to education, rehabilitation or work and the over crowding in remand centres. It was not a rule in fact but discretionary. It was not guaranteed and if you could do the math, you would know that it did not always, and actually often did not result in a benefit of any substance in reducing time. What Harper and others unknowledgeable about the criminal justice system do not realize, is that in sentencing there are a number of factors taken into account. Believe it or not, judges, who until Harper were entrusted to make decisions based on a set of all the circumstances before them, made informed decisions that they knew something about, took into account the impact of two for one on the total sentence. As someone who works daily in the criminal justice system, like all other of Harper’s criminal justice initiatives, there is no “truth” in Truth in Sentencing. Innocent persons who have sat in custody for extended periods of time while awaiting their acquittals, are as much victims as any victim of a criminal. Criminality is determined by government, not by conduct; otherwise Harper and otherswould be doing hard time at K.P. for forcible confinement of innocent persons.

  6. What is a ‘secular decline’ in serious and violent crimes? I have the impression that the rates of serious crimes are in decline in many areas (possibly partly due to the aging of the population), but can’t figure out why this is ‘secular’.

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