The recent increase in violent crime has sparked calls for bail reforms, but changes in laws should be based on evidence, not mere perception.
Federal opposition parties, as well as provincial and territorial leaders, have all pointed their fingers towards bail laws, saying they were too lenient.
Federal Conservative Leader Pierre Poilievre is using the phrase “catch and release” to attack existing bail policies, which he said put dangerous re-offenders back on the streets.
In a letter sent to Justin Trudeau in January, leaders from all 13 provinces and territories made it clear they feel now is the time for bail reforms.
In the letter, they said the reverse onus principle, which requires the accused and not the prosecution to show why bail should be granted, should extend to those charged with possessing loaded firearms.
Jon Reid, president of the Toronto Police Association, also said in January that existing laws attach too much weight to the rights of an accused.
Part of the law attracting criticism is the principle of restraint, which urges judges to release the accused as early as possible with the least stringent bail conditions.
Liberals introduced the principle to the Criminal Code in 2019 during the Bill C-75 justice reform.
But these attacks overlook the fact that the current bail regime reflects long-standing legal principles.
The principle of restraint had been reaffirmed by the Supreme Court in R. v. Antic before the Bill C-75 reform, the Canadian Bar Association said in September 2018.
Chief Justice Richard Wagner said in Antic that the right to bail flows from the presumption of innocence, a fundamental principle enshrined in the Canadian Charter of Rights and Freedoms, in particular Sec. 11 (e), which states an accused cannot “be denied reasonable bail without just cause.”
The Supreme Court did not neglect the need to balance individual rights and public safety.
One example is the R. v. Morales ruling in 1992, which affirmed that the reverse onus principle was constitutional.
But Chief Justice Antonio Lamer said part of the task for the bail system was to stop criminal behaviour.
Lamer said it was necessary to place more burden on an accused with a substantial likelihood of endangering public safety upon interim release.
But he also said this burden should only occur in a narrow set of circumstances.
While recent violence deserves public attention, the big picture is that the bail system is already quite risk-averse.
According to Statistics Canada, between 2020 and 2021, approximately 77 per cent of people staying behind bars in Ontario had yet to be found guilty.
That is why some experts say calls for bail reform are misplaced.
Stricter bail laws would only put a halt to more people’s lives, even if these suspects may have done nothing wrong.
Laura MacDiarmid, an assistant professor of justice studies at the University of Guelph-Humber, said the negative impact of bail denials on the accused should not be understated.
MacDiarmid said lengthy detention before trial could force the accused to plead guilty and disrupt their work and family lives.
And in any event, existing laws already have a response to violent criminals that critics are targeting.
Those who allegedly attacked others using firearms will be caught by the reverse onus regime under the Criminal Code.
The same regime covers those accused of committing another offence while on bail.
The Criminal Code also requires judges to consider previous criminal convictions of an accused before making a bail decision.
And in the case of Randall McKenzie, the accused in the killing of OPP Const. Grzegorz Pierzchala in December while on bail. McKenzie is also alleged to have been in breach of bail conditions for failing to appear before court in August.
McKenzie was not re-arrested before the murder occurred. One could ask whether it is the court’s or the police’s problem for not making an arrest.
MacDiarmid said putting more funding into bail supervision programs could help ensure those with higher risks comply with bail conditions.
She also said there should be a more systematic collection of bail statistics so reforms can be more evidence-based.
Calling for more people to be put behind bars in the name of public safety is easy. But, as legal experts rightly point out, there are better solutions.