A study completed last June by University of Ottawa criminologist Dr. Cheryl Webster, entitled “Broken Bail in Canada: How We Might Go About Fixing It”, was recently released by the Justice Department, as reported on in the Toronto Star and commented on in a Globe and Mail editorial.

Without question, the problem is serious.  More people are currently in custody awaiting trial than serving sentences, all at a time when they are presumed innocent and awaiting trial.

That the Prime Minister has directed the Justice Minister to reform the bail regime is certainly an admirable initiative.  It’s a welcome change from the Harper Government, which not only made it tougher for people to get bail, it passed legislation to give them less credit than they’d previously been given for time spent in custody prior to trial.

But it’s my view that changes won’t come about solely by amending the Criminal Code of Canada.

By way of a summary, it’s worth keeping in mind:

  1. Someone charged with an offence who doesn’t have any other outstanding charges should be released on an undertaking without conditions (if not otherwise released by the police following arrest) unless the Crown meets the burden or onus of showing that detention is necessary on one or more of three grounds:

A) To ensure the accused attends court  for trial (the primary ground);

B) To protect any individual or the public having regard to any substantial likelihood that the person will commit an offence if released or will interfere with the administration of justice (the secondary ground);

C) The detention is necessary to maintain confidence in the administration of justice having regard to the strength of the Crown’s case, the seriousness of the offence and circumstances surrounding it and the potential for a long jail sentence on conviction (the tertiary ground).

  1. For several offences ( a list that was lengthened by the Harper Government) or where the accused has been charged with an offence alleged to have been committed while at large facing other charges, the burden shifts to the accused to show why he or she should NOT be detained, having regard to the grounds listed above;
  2. A justice may require someone to have a surety provide a financial guarantee and the agreement to supervise the accused who is released on a recognizance.  As well, conditions such as house arrest, a curfew, limitations on who the accused may not be allowed to communicate or associate with, prohibition of alcohol use or possession and other restrictions might be imposed as part of the bail order;
  3. Bail courts can often be busy with backlogs of several days until someone can get his bail hearing heard.  Delays might also occur where there are problems in finding a suitable surety.

As difficult as it may be to consider how a justice could ever decide whether detention is really necessary to maintain confidence in the administration of justice, particularly for someone whom the Crown may not be able to show  wouldn’t appear or reoffend, the potential use of the tertiary ground to detain someone has actually been expanded by the Supreme Court of Canada in its 2015 decision in R. v. St-Cloud.  In finding that detention was necessary for a man charged with aggravated assault in the beating of a bus driver, the Court decided that the tertiary ground ought not to be limited to “exceptional circumstances” as had previously been the rule.

What’s more, the administration of criminal justice is a power constitutionally delegated to the provinces. Accordingly, one or more amendments to the Criminal Code will not deal with the approaches taken by provincial Crowns in deciding whether or not to oppose someone’s release and in decisions made by justices of the peace in denying bail, requiring substantial sureties or imposing long lists of conditions.

Changes to policy and training of Crowns and justices on the importance of the right not to be denied reasonable bail without just cause, a right provided by s.11 (e) of the Charter of Rights and Freedoms, are essential.  The enhanced awareness of the undesirability of denying people  bail, with consequences ranging from loss of employment, separation from families and limiting the effectiveness of preparation for the defence of the charges at trial, would probably be every bit as important as amendments to the Code to address this long-standing, serious problem.

If you have any questions, please email contact@jeffmanishen.com.

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