‘This Time We Really Mean It’ Won’t Cut It for Bail Reform

Fixing the broken law of bail cannot happen without some belated action by legislators meeting this week. That’s why, last month, 18 prominent civil society organizations and academics wrote to the Minister of Justice urging the government to adopt a concrete set of Criminal Code reforms.

This may be the last opportunity for Ottawa to fulfill their many promises to do something meaningful in this area, before the 2019 election. The Supreme Court of Canada did their best to clean up bad practices by bail court justices, in the Antic decision just over a year ago. Now it’s Parliament’s turn, but what’s on the table is currently more lip service and restating of the status quo. It’s not too late to do better.

It is now axiomatic that Canada’s bail system is unnecessarily detaining and criminalizing the legally innocent. It is a reality lived every day by those who have been accused of a crime – in particular those with mental health issues, addictions, individuals living in poverty, Indigenous people, and members of racialized communities. These are the people most impacted by the vicious cycle of pre-trial incarceration, overly restrictive release, and re-criminalization.

In Ottawa, a group of parliamentarians is studying one proposed solution. The House of Commons Standing Committee on Justice and Human Rights will sit again this afternoon to continue their clause-by-clause review of Bill C-75, which contains the federal government’s proposed response to the failures of our bail system.

The problem isn’t that their bail reforms are objectionable. Most look fine on paper. They speak to the need to use pre-trial detention with restraint. The reforms also respond to the realities of who is caught up in this system, requiring particular attention to be paid to the situation of Indigenous accused and accused from vulnerable populations. And they clarify that the most restrictive conditions and forms of release should be used sparingly.

But there’s a big problem – that’s already the law of bail in Canada. There is almost nothing new here. On bail, the Bill restates core principles that have already been reiterated by appellate courts time and again. If our bail system has been unable to consistently follow clear, binding precedent, why would reinforcing the standards in the Criminal Code have a greater effect?

The exact nature of the ‘bail problem’ varies across the country. In Alberta, recent changes to the operation of bail has delayed the initial bail hearing for hundreds of accused, a massive violation of Charter rights; a class action lawsuit has been launched. In many Ontario courts, the default assumption is that a surety is required – the most restrictive form of release – turning the law of bail on its head and creating massive delays during which time people will remain in jail. Studies conducted in Quebec and British Columbia repeatedly show that overly-restrictive geographic ‘no go’ zones restrict access to essential social services – health care, food, housing. And there is still a persistent belief that imposing an abstinence condition on an alcoholic makes sense, all but guaranteeing a bail breach for the addict.  In fact, if over a decade of attempted and largely failed bail reform in the provinces provides any lessons, it is that federal legislative reform is precisely what we need.

Legislative reform can reset legal culture – but it will take more than just restating the existing law to get us there. For years experts have urged a complete rewriting of the Criminal Code provisions on pre-trial release to help reset legal culture. The Standing Committee on Justice and Human Rights won’t be the one to undertake this project. We’ll have to look to the federal government for a more ambitious criminal reform agenda to get that done.

But that doesn’t mean that Bill C-75 can’t be improved. Witnesses appearing before Committee have suggested dozens of meaningful changes that could actually impact the conduct of bail proceedings and stem the tide of administration of justice charges. Proposals included requiring that reasons be provided for imposing restrictive conditions and forms of release; narrowing the public safety grounds for pre-trial detention to actually address risks to physical safety; strengthening the diversion of administration of justice charges; and ensuring that no one is faced with pre-trial detention for longer than they would face if they were convicted and sentenced. These proposals were underscored again in the more recent letter to the Minister of Justice.

Making these and other changes to Bill C-75 would not alleviate the need for broader reform in this area. But it would be a first step – and one that goes beyond just saying ‘this time we really mean it.’

LETTER TO THE MINISTER

Letter from CCLA and others re Bill C-75