5 ways to reform Canada’s bail system to benefit both the public and the accused

In the wake of recent high-profile crimes allegedly committed by accused people out on bail, including the slaying of a police officer in Ontario, police leaders and politicians are calling for a tougher bail system.

Fuelling calls for reform is the accusation that bail is a “catch-and-release” system that quickly returns people accused of crimes to the community only to see them regularly and wilfully disregarding their release conditions.

Critics believe the rights of the accused are being prioritized over the rights of victims and public safety.

Scholars and legal advocates have likewise denounced the bail system, but for very different reasons. Canadian scholars have demonstrated how bail sets up accused people to fail by imposing unreasonable conditions that entrap individuals in a revolving door of justice.

But is the bail system really broken? If so, how do we fix it? We argue that while the law on bail is sound, its implementation needs improvement.

Many Canadians don’t understand bail

Bail legislation reflects fundamental principles outlined in Canada’s Charter of Rights and Freedoms that attempt to balance the rights of accused people — by upholding the presumption of innocence — with public safety and confidence in the criminal justice system.

The law allows for people who are deemed risky to be detained, particularly for certain indictable offences or when confidence in the administration of justice would be undermined by releasing an accused person into the community.

For those who are released on bail, most must abide by conditions that restrict who they can associate with, where they can go, what they can do and where they can live.

Legally, however, judges must impose the fewest and least onerous conditions necessary, in adherence with provisions of the country’s Criminal Code and precedent-setting Supreme Court decisions.

Bail is a rigorous process

Our ongoing studies on the experience of living with bail conditions present a stark contrast to perceptions of a lenient bail system.

A vast majority of the accused people we have spoken to report taking their conditions seriously and accepting responsibility for their actions while on bail. They believe that the path out of the criminal justice system involves making meaningful changes in their lives.

Bail supervisors similarly attest that bail is a rigorous process. In interviews, they emphasized that bail supervision programs have clear criteria about who they accept into their program. They report that most accused people are committed to, and successfully complete, their bail.

When accused do breach bail, 98 per cent of charges are related to release conditions rather than new offences.

Recent Statistics Canada data also shows that nearly 80 per cent of people in provincial custody in Ontario were legally innocent, further demonstrating that bail is not a lenient process.

Inequalities in bail

Bail can also exacerbate social marginalization and criminalization. The imposition of restrictive and onerous conditions that require residency conditions for those experiencing homelessness, for example, makes completing bail without breaching its conditions more difficult.

While awaiting trial, Black people in Ontario spend longer in custody than white people, and Indigenous people are denied bail more frequently than other accused people.

Time spent in pre-trial custody has negative legal and social implications. Not only does it compel accused people to plead guilty and agree to unreasonable release conditions, it also disrupts employment and familial responsibilities.

Broken system: Why is a quarter of Canada’s prison population Indigenous?

5 ways to reform bail

Focusing bail reform narrowly around “tough-on-crime measures” is unlikely to enhance public safety. Here are five proposals to reform bail:

1. Timely bail decisions. Quick decisions on bail will have two benefits. First, they’ll decrease the likelihood the accused will accrue additional charges, often for non-criminal behaviour, if they breach their conditions. And they’ll also reduce the amount of time accused people spend in the community before serving their sentences.

2. Access to community resources. Homelessness, mental health issues, substance use, addiction and/or trauma are realities that make access to bail, and adhering to bail conditions, extraordinarily challenging. Not knowing where you’re sleeping every night or having an active addiction means compliance becomes an afterthought.

3. More funding for enhanced bail supervision programs. Bail supervision programs are a cost-effective way to monitor accused people with higher risks or needs in the community, and act as vital conduits to desperately needed resources.

4. Inter-agency communication. Increased communication among social service agencies, courts and police will improve the efficiency and effectiveness of bail.

5. Systematic collection of bail statistics. Currently, the statistics on bail are inadequate. Collecting data, and disaggregating it in meaningful categories, is essential for informing evidence-based responses.

Probing the causes of crime

Demands to reform the bail system are understandable in the face of the violent victimization of innocent Canadians. Yet calls solely for punitive responses mask our unwillingness to address the structural causes of crime.

Crown attorneys and judges must clearly continue upholding the law on bail, which requires restraint while also protecting the presumption of innocence and balancing public safety.

But to protect communities, we must also improve the likelihood that accused people can comply with their bail conditions by offering greater support and collaboration on several fronts, from social services to law enforcement.