With the tragic shooting death of Ontario Provincial Police Const. Grzegorz (Greg) Pierzchala on Dec. 27, bail reform is back on the “political table.” The accused charged with the murder was on bail at the time and had failed to appear at his court date in August. The broader culprit (quickly identified by the Ontario Provincial Police commissioner) is that bail provisions are too lenient and need to be made more restrictive to ensure public safety.
Few would argue that our bail system and our corresponding use of pre-trial detention are not in need of reform. However, the calls for harsher bail laws and greater use of remand are misguided. Not only are they rooted in false assumptions about leniency and public safety, they miss what is really broken. Canadians absolutely need bail reform. However, we don’t need tougher approaches. We need better ones.
Are we too lenient?
To suggest that the Canadian bail system is too lenient defies our history as well as our place on the international stage. Using the most recent data from the World Prison Brief, Canada’s pre-trial/remand imprisonment rate is higher than that of almost every comparable western European nation as well as our most obvious comparators: England and Wales, Northern Ireland, Ireland and Scotland. Only when Canada is compared to New Zealand and Australia as well as the United States – as the quintessential mass imprisonment nation in the world – do we look more moderate.
Canada’s bail laws have also moved away from the rights-protecting philosophy underlying the bail reform movement of the 1970s that emphasized restraint. Figure 1 provides an apt illustration.
First, the rise in our use of remand is dramatic, having increased by more than 300 per cent over the last four decades.
Second, we have witnessed considerable expansion in the list of circumstances in which the accused – who is legally innocent – has to demonstrate why they should be released (commonly referred to as reverse onus provisions). Included are circumstances in which the accused is charged with an indictable offence alleged to involve organized crime, weapons trafficking, or use of a firearm while under a prohibition order; a serious violent offence allegedly committed with a firearm; or an indictable offence charged while awaiting trial for another indictable offence.
Third, there has been a legislative expansion of the criteria for detention that has made it more difficult to obtain bail. While there continues to be a presumption of release, detention is justified not only when the accused is deemed to be a flight risk or pose a danger to society but also – more recently – in order to maintain the public’s confidence in the justice system.
Fourth, there has been a move to more stringent release orders. Certainly in Ontario, it has become common practice to require that the accused have a surety (that is, a person authorized by the court to ensure the accused complies with the terms and conditions of a bail release plan) in order to be considered for interim release. Similarly, a greater number of conditions have been placed on the accused in the community that dramatically curtail various freedoms (for example, freedom of movement, association, communication). Further, the scope of conditions has been expanded through “catch-all” provisions, which permit justices to include any other reasonable conditions considered desirable. In sum, our bail laws are far from “soft on crime.”
Would more people in remand result in greater safety?
Almost certainly not. First, we have largely been successful at detaining (until trial) accused persons who represent the greatest risk to society. Using 2014-2015 data from the Ontario Ministry of the Attorney General, Anthony Doob, Jane Sprott and I found that the long-stay remand prisoners (almost certainly those formally or informally detained until trial) were predominantly charged with serious offences (like trafficking and importing drugs, child pornography and child luring, and violence and weapons offences), which represent the highest public safety concern. In fact, more than half of the long-stay remand prisoners (six months or more) were facing violence or weapons offences.
Second, we have also been somewhat successful at releasing those accused persons who represent less risk to society. Specifically, the short-stay remand prisoners (those likely released on bail) were disproportionately charged with less serious offences (such as morals, public order and administration of justice offences, Criminal Code traffic violations, and property offences). In brief, those who should be detained are being detained and those who should be released are largely being released.
Third, the bail process will never be perfect. Without a crystal ball, it is impossible to predict those rare cases in which an accused who is legitimately released on bail commits a heinous crime. As an analogy, decades of research on selective incapacitation have failed to identify and incarcerate high-rate offenders sufficiently early in their careers to reap the benefit of crime reduction. Indeed, there is no convincing evidence that this offender pool can be isolated, largely because the base rate of serious offending is so low. The same applies to bail cases.
Finally, increasing remand numbers “just to be safe(r)” is – paradoxically – likely to reduce community safety in the long run. With our current problems of court delay, detained prisoners find themselves incarcerated for increasingly longer periods in harsher remand conditions. Consequently, they risk losing their job and housing as well as experiencing a greater likelihood of inmate violence, mental health issues and addiction. All of these negative consequences of being held in remand are directly associated with the commission of (subsequent) crime. Equally problematic, the onerous nature of pre-trial detention encourages many innocent accused to (wrongfully) plead guilty simply to ensure their immediate release.
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So, what needs to be reformed?
As many observers have concluded, “bail is broken” in Canada. Three examples make the point. First, the determination of bail has always been conceptualized as a process that should be concluded quickly. While one or two court appearances would seem reasonable, over one-third of Ontario cases in 2013-14 required three or more appearances. In fact, 10 per cent took five to seven appearances and over six per cent took eight or more appearances to complete this process.
Even for those ultimately released, 11 per cent required five or more bail appearances. In terms of explanation, research has repeatedly highlighted a systemic culture of frequently unproductive adjournments, unnecessary reliance on sureties as a requirement for release and the often-questionable need for complex release plans – all of which take time and court appearances. Even for those cases formally detained, almost 13 per cent required eight or more appearances to reach this decision. The same number of bail appearances was necessary for 10 per cent of cases that completed the bail process by pleading guilty.
Second, while detention should be the exception to the rule (particularly given that our Charter explicitly recognizes the right not to be denied reasonable bail without just cause), 41 per cent of all Ontario criminal cases started their court lives in bail court in 2013-14. This number rose to 45 per cent in 2019 (pre-COVID). Despite our long-term decline in overall – and especially violent – crime, almost half of all accused entering our criminal courts are being detained for a bail hearing.
Third, the largest offence category of bail cases is not violence but administration of justice charges (most often for failing to comply with a bail condition). This offence type represents almost three in five cases. Despite a 25 per cent drop in the total Ontario criminal court caseload between 1994 and 2013, administration of justice charges steadily increased, significantly outpacing the slight rise in cases with any violence. In fact, the number of bail cases with violence charges declined substantially (with 9,185 fewer cases in 2013).
Clearly, Ontario criminal courts are increasingly in the business of administration of justice offences. Given that this offence category often arises when an accused has been granted bail but subsequently violates a condition of their release, we are – in many respects – creating our own crime. Just as problematic, these breaches typically involve behaviour that is not generally criminalized. As such, our remand facilities are being increasingly filled with accused who have simply missed a court appearance or violated a bail condition requiring them, for instance, to abstain from alcohol, attend counselling, abide by a curfew, or reside at a particular residence.
Calls for reform in the Canadian bail process and pre-trial detention are certainly urgent but not for the reasons being given. First, our bail system is not too lenient. Being known internationally as a nation whose provincial/territorial correctional facilities are filled with a greater proportion of its citizens who are still presumed innocent than found guilty speaks (loudly) to the contrary.
Second, this reality is carried out in the name of risk aversion rather than any demonstrated increase in public safety. If anything, we have set up a vicious cycle. A greater number of accused persons are being held for a bail hearing. Bail decisions are taking an increasing number of days and court appearances. Our remand population has risen dramatically, with its soaring financial as well as personal costs. And we are essentially manufacturing our own crime through the substantial increase in administration of justice offences, which are frequently linked to breaches of increasingly onerous bail conditions that ultimately end in detention.
More broadly, the number of Canadians increasingly being sucked into the bail vortex stands in stark contrast to our reputation as a nation that values – and upholds – the presumption of innocence, restraint in the use of imprisonment and the principles of fairness and equality. Certainly for a nation that is committed to reducing systemic discrimination, the state of our bail regime provides a shocking picture of the work still to be done. In 2017/18, the non-Indigenous remand rate in Canada was 30 per 100,000 non-Indigenous residents. In the same year, the Indigenous remand rate was 264 – almost 900 per cent higher. Clearly, we need to do better.