“Broken Bail” in Canada: How We Might Go About Fixing It
2. The Dynamics of the Problem
While the (technical) sources of the problem are seemingly simple to identify (i.e., an increasing number of people detained by police for a bail hearing combined with longer periods of time spent in remand awaiting either the determination of bail or the resolution of one’s criminal case), the dynamics driving these realities are considerably more complex and intertwined. In short, Canada’s ‘broken bail’ system would appear to be largely rooted in a significant change in mentality. Specifically, Canadians have seen the rise of a cultural climate over the last 3-4 decades which can be characterized primarily by risk aversion and risk management. Broadly speaking, the gradual substitution of the welfare state ideology with a neo-liberal mentality has introduced heightened concern with risks or potential dangers in society which cause unease and fear in (law-abiding) citizens. Within the criminal justice sphere, the role of the state has become one of limiting – to the greatest extent possible - the risks to public safety which offenders represent.
Not surprisingly, this risk-averse mentality has permeated the bail process and translates into vigorous attempts to avoid releasing accused persons who might subsequently commit crimes while on bail. Given that we have yet to perfect a means of distinguishing, with complete reliability, those who will, in fact, offend once released on bail, a risk-averse culture in the bail system has created – in practice – a generalized incentive among all criminal justice players to avoid – as long as possible – releasing anyone with more than a non-trivial likelihood of committing a crime. In legislative terms, we have, for all intents and purposes, abandoned the primary grounds for detention – to ensure the attendance of the accused in court (under Criminal Code, 1985, s 515(10)(a))Footnote 1 - as the primordial concern in determining whether an individual should be released on bail and elevated the secondary grounds – to ensure the protection and safety of the public from additional criminal acts that the accused might commit while on bail (under Criminal Code, 1985, s 515(10)(b))Footnote 2 – as the principal focus of the decision-making process.
More importantly, this shift in priorities has meant that criminal justice decision-makers have begun conceptualizing any release decision in terms of being either right (i.e., the accused does not commit a criminal offence while on release) or wrong (i.e., the accused does, in fact, commit a crime while in the community) rather than simply being the best decision made at the time and based on the information that was available. In broader terms, decisions about release/detention are now seen as a product of a particular individual who – in the case of a tragic incident - will be personally held responsible (read: blamed). By extension, individual – as well as institutional – risk reduction has emerged as a primary concern.
In practice, all of the principal players in the decision-making process relative to bail would appear to have chosen to ‘play it safe’ by either opposing bail or passing along the decision to someone else. Indeed, any rational decision-maker in our current risk-averse society will favour detention or, better yet, avoid making any decision regarding detention precisely because the incentives to oppose/delay release are greater than those to grant release. When considering a decision to release, all of the possible costs relative to reoffending by the accused person (e.g., disapproval/critique, bad press, reduced confidence in the criminal justice system) are of a public nature and can easily implicate the decision-maker. In contrast, the benefits of release are hidden (e.g., supporting the presumption of innocence, cost savings, continuation of employment of the accused) and do not accrue to the decision-maker. As such, the decision-maker can only ‘lose’ by releasing or recommending release. When one considers a decision to detain, the potential costs are completely hidden (e.g., the offender loses his/her job; incarceration costs) while the benefits to the decision-maker are direct and can be attributed to him/her.
As the front-line decision-makers, the police (arresting officer and/or officer-in-charge) are increasingly less likely to release an accused person. Although overall crime (and in particular, violent crime) has been falling for decades, the proportion of criminal court cases starting with a bail hearing would appear to be increasing over time. Said differently, police officers seem increasingly prone to sending the case to court for the Crown or a judicial officer to decide whether to release the accused. In fact, accused persons in Ontario were more likely to be detained for a bail hearing than released by police on an appearance notice following the laying of charges in 2007. My suspicion is that one of the reasons that arresting officers do not release many accused is that they believe that to ensure the protection of the public, the accused person should be released with conditions imposed on him/her – an option unavailable to the arresting officer. Similarly, although the officer-in-charge of police stations does, in fact, have the power to release accused persons with certain conditions, he/she may be detaining many individuals for a bail hearing on the belief that a surety is ‘necessary’ for their safe release – an option unavailable to the officer-in-charge.
Notably, it would appear - at least in some jurisdictions – that part of the increase in accused persons being sent to bail court by police is driven by a large number of relatively minor cases. While these minor offences – minor assaults, for instance – would have likely been dealt with informally by the police in the past, they are now increasingly being sent to court as yet another way of ensuring greater public safety. Particularly for cases involving accused who might have a criminal record or have committed a minor offence while on some form of criminal justice warrant, the likelihood of release by police on an appearance notice or a recognisance decreases dramatically. Similarly, it would appear that the police are also laying a greater number of charges generally per case, as well as a greater number of ‘administration of justice’ charges than in the past. In both cases, release on bail becomes significantly less likely. More importantly, these two phenomena are interrelated. Specifically, the rising number of charges being brought to court – at least in Ontario - is driven, to a large extent, by ‘administration of justice’ charges.
Risk avoidance has also permeated our criminal courts. Most obviously, bail cases are being processed more than in the past. At least in Ontario, bail hearings to determine whether an accused should be released on bail or, alternatively, held until trial are taking an increasing amount of time and a larger number of appearances to be completed. While one might be tempted to assume that the problem is one of court backlog, the immediate cause of these delays seemingly resides predominantly with defence counsel in the form of repeated requests for adjournments. Specifically, adjournments appear to be the norm – rather than the exception – in the bail process. In fact, it is precisely the creation and perpetuation of this ‘culture of adjournments’ which facilitates (if not encourages) a risk- averse approach on the part of the other key players in the bail process. In particular, a generalized expectation that a substantial number of cases will be adjourned on any given day in bail court renders it easy for the Judge/JusticeFootnote 3 or the Crown to simply accept these requests as inevitable or even acceptable. By rarely opposing them, any decisions regarding the determination of an accused person’s bail is simply ‘avoided’ for another day (and likely becoming the problem of another Crown or Judge/Justice). The result is longer stays in remand. For those ultimately released, several additional court appearances awaiting the determination of bail translate into additional days in remand. For those ultimately detained until trial, the wait can be months. Although cases in which the accused has been detained in custody are – in practice – given priority in terms of more expedited court processing, lengthy case processing times (read: court inefficiency) have been a growing problem across Canada, further increasing remand stays for those denied bail.
However, this ‘culture of adjournments’ is only a part of the risk-averse mentality related to the process of determining bail. First, Canadians have also witnessed a number of legislative amendments which have acted as additional impediments or hurdles to obtaining bail. Most obviously, Canada’s law of bail has experienced a shift in the onus of proof (from the Crown Attorney to the accused person to demonstrate why his/her release is justified) with respect to release in an increasing number of situations. Certainly for the substantial number of unrepresented accused appearing in bail court, this onus is particularly heavy. However, it is equally important for our current purposes to note that a reverse onus has also been added to an accused who - while at large, having been released relative to another offence - is charged with an administration of justice offence.
Second, Canadians have also seen legislative expansion of the criteria for release that has also made it more difficult to obtain bail. Specifically, an explicit public interest ground – to maintain confidence in the administration of justice - has been added. While this tertiary ground for detention has the potential – particularly in our current ‘tough-on-crime’ mentality - to significantly increase the number of accused detained given that the justification for imprisoning a person without a finding of guilt is not related to the accused but rather to what uninvolved members of the community think about the case, the most recent Supreme Court of Canada decision underlines that the test is that of a reasonable person who understands the principles behind the law, the Canadian Charter of RightsFootnote 4, and the actual case. Perhaps more restrictive are the changes in the primary and secondary grounds from their original text in the Bail Reform Act of 1971.Footnote 5 On the one hand, although these two grounds were originally to be considered separately, the judicial official can presently decide that it is a ‘combination’ of criteria or, perhaps, a little of each. On the other hand, although the test for future offending has remained a ‘substantial likelihood’ that the accused would commit a criminal offence, the offence in question has moved from one involving serious harm or an interference with the administration of justice to any criminal offence.
Third, bail has also been rendered more difficult to obtain through an increasing use of more stringent release orders. Although the legislation is clear that the accused should be released on bail without conditions, a monetary component or a surety unless the Crown can prove that a more onerous type of release is warranted, the underlying ‘ladder approach’ has – in many cases – been set aside in favour of increasingly stricter forms of release. Within this context, the use of sureties in bail cases appears to have become the norm rather than the exception in many courts. In fact, recent research has shown that the use of sureties is not only the most common form of release order for adults but also for youth in several jurisdictions. Particularly for the most vulnerable populations (e.g., poor, Aboriginal), this requirement for release often constitutes a permanent impediment to release. Even for those with surety possibilities, the time needed to identify, contact, and convince an individual to act as a surety as well as the frequent practice of having the surety attend court and submit to an interview by the Crown (despite there being no formal requirement that the potential surety appear and/or be examined in court) translates into additional time in remand until the bail process is complete.
Moreover, the onerous nature of current release orders in bail extends well beyond the frequent recourse to sureties. Indeed, many of the forms of release – including ‘surety release’ – typically involve conditions being placed on the accused once in the community. Although the original 1971 legislation on bail was clear that bail conditions should be approached with restraint and made the least burdensome as possible given the coercive elements attached to them, the vast majority of releases currently have conditions. Notably, this reality applies not only to adults but also to youth. Further, recent research has demonstrated that the accused persons are not only being released with a substantial numberof conditions but also with ‘catch-all provisions’ that direct the accused to ‘comply with such other reasonable conditions specified in the order as the justice considers desirable’ (Criminal Code, 1985, s 515(4)(f)))Footnote 6. This broad discretion has seemingly resulted – at least in many courts – in a host of conditions that are routinely imposed but frequently appear to have little relation to the facts of the alleged offence and do not seem to be necessary to give effect to the criteria for release. Rather, it has be suggested that conditions such as ‘attend school’ or ‘attend counselling/treatment’ may serve broader social welfare objectives but are unrelated to the actual offence alleged to have been committed.
Faced with the options of being detained or being released with what, from the accused person’s perspective, may look to be unreasonable or unnecessary conditions, the accused has a difficult choice: accept the conditions and be released or risk remaining in custody until the case is resolved. Few accused choose the latter alternative. However, while this decision may arguably be wise in the short term, it carries the potential for even more onerous effects in the long run. Specifically, the greater the number of conditions on a release order, the greater the likelihood that the accused will breach one of these conditions–a circumstance that can result in an additional criminal charge of ‘failure to comply with a court order’ (an offence widely accepted, in almost all cases, to involve a violation of a bail order). When numerous bail conditions are coupled with the increasingly lengthy period of time on bail awaiting the completion of the case, the opportunity to acquire this administration of justice charge significantly increases.
Table 2 confirms the outcome.
| Year | Adults & Youth | Adults | Youth |
|---|---|---|---|
| 1998 | 6.1 | 6.1 | 6.1 |
| 1999 | 6.4 | 6.4 | 6.2 |
| 2000 | 7.2 | 7.3 | 6.8 |
| 2001 | 8.2 | 8.3 | 7.9 |
| 2002 | 8.7 | 8.8 | 48.2 |
| 2003 | 9.6 | 9.6 | 9.6 |
| 2004 | 10.0 | 9.9 | 10.4 |
| 2005 | 10.1 | 10.0 | 10.6 |
| 2006 | 10.2 | 10.1 | 11.2 |
| 2007 | 11.1 | 11.1 | 11.7 |
| 2008 | 11.8 | 11.8 | 12.1 |
| 2009 | 11.9 | 11.9 | 12.2 |
| 2010 | 12.2 | 12.2 | 12.0 |
| 2011 | 12.7 | 12.6 | 12.9 |
| 2012 | 12.9 | 12.9 | 13.2 |
| 2013 | 13.1 | 13.1 | 12.9 |
In the past 15 years, the proportion of individuals charged with a ‘failure to comply with a court order’ as their most serious charge has more than doubled for both adults and youths. Said differently, approximately 1/8 of all accused going to court in 2013 had this offence as their most serious charge. In effect, a vicious circle is seemingly being created whereby the criminal justice system manufactures, in effect, its own crime. Particularly in cases in which an accused is, in fact, convicted of a charge of failure to comply with a bail order, another entry is added to this offender’s criminal record, rendering it more difficult for the individual to obtain bail in the future. Further, an administration of justice offence committed while on release for another offence now falls under the reverse onus provisions. Even in those cases in which an accused is again released on bail, the court is likely to impose even more onerous conditions, creating even greater opportunities for the accused to breach the new release order. This ‘feedback model’ becomes especially disconcerting when one recalls that many of the original bail conditions may have been unnecessary, unreasonable or clearly setting up the accused for failure (e.g., imposing a condition to abstain from drugs/alcohol on an accused person who has clear substance abuse issues; requiring an accused suffering from Fetal Alcohol Spectrum Disorder to report to a police station on a specific day each week).
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