Fixing our Broken Bail System

There has been growing discontent with our current bail system and the topic is on the radar of the federal government, who just released a study that it commissioned to look at how to reform our bail system in Canada. A news story of the report can be found here.

Bail is a critical part of the court process and can have huge effects on an individual. Being detained prior to trial means that people often lose housing and other supports that they have in the community. (I wrote about one such example here.) Further, it can limit their ability to make a decision as to whether to plead guilty or go to trial. Often, when an individual is facing a short sentence and little prospect of bail, they are tempted to pass over possible defences in order to get out sooner. Unfortunately, such a decision can end up hurting them in the long run should they be charged again, this time with a longer criminal record.

Under section 515(10) of the Criminal Code there are three grounds of bail:

 (a) where detention is necessary to ensure his or her attendance in court;

 (b) where detention is necessary for the protection or safety of the public…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice;

 (c) if the detention is necessary to maintain confidence in the administration of justice.

The primary ground of bail is focused on whether a person poses a flight risk. A justice of the peace looks at whether they have a history of failing to show up to court in the past and if there are supports in place to make sure that the person attends. According to the summary of the report in the news, one possible change would require clear evidence that the accused would not show up for court, not merely a presumption. It’s not clear what this evidence would be, but it would certainly heighten the Crown’s burden to show that the individual is a flight risk.

The secondary ground is often a bigger hurdle for those with criminal records or a pattern of breaching bail conditions. The possible change according to the study would be to include the commission of ‘serious harms’ to society, rather than just ‘commit a criminal offence.’ Under the current test, any offence, including breaching a bail condition by failing to ‘keep the peace’ counts and can then be used against the individual. So, if we consider the individual who plead to a breach instead of fully exploring their ability to fight it or take it to trial, then their odds of getting out at the next bail hearing are even lower. The serious harms test could instead shift the focus away from petty or nuisance type breaches to offences while on bail that cause more significant harms to society, whether that is injury or property damage.

The article from the Canadian Press also states that the legislative framework that does not detain anyone unless the Crown demonstrates a need to do so. Under the current regime, the onus of showing that a person should be released or detained can switch based on the circumstances. The presumption starts with the Crown, but in certain cases, such as where the person has allegedly breached their bail, the responsibility shifts to the accused person to show why they should be released. It is not clear from the brief overview whether the report is calling for these ‘reverse onus’ provisions to be removed.

It will be interesting to see how much of this report is adopted by the federal government in their efforts to reform our bail system. It is certainly in need of change, and hopefully these efforts will result in a reduced remand population that can balance the needs of accused person and the safety of the community.