“Broken Bail” in Canada: How We Might Go About Fixing It

3. An Overall Assessment of the Current Problem

The panorama certainly lends strong support to the claim that “Bail is Broken” in Canada. In fact, one would be hard pressed to find that any of its various components do not need repair. Indeed, a pervasive risk-averse mentality has been progressively adopted over the past several decades which has set in motion a plethora of changes in the legislative framework, the court culture and ultimately the policies and practices of the day-to-day operations of the Canadian bail court. On the ground, we have effectively enhanced the proverbial revolving door of criminal justice system on multiple levels. With a heightened preoccupation with reducing individual and institutional risk, the police are laying a greater number of charges generally and, in particular, a greater number of administration of justice charges. Not surprisingly, we are seeing a greater number of cases beginning their criminal court lives in bail court as both the number of charges and the presence of administration of justice charges are associated with a greater likelihood of being held for a bail hearing. Once in court, the bail process is taking longer, with a greater number of adjournments, a greater degree of case processing and, ultimately, requiring a greater number of days spent in remand awaiting a determination of bail. It is no secret that any time in prison increases the likelihood of future criminal behaviour.

Of those granted bail, more onerous forms of release are being preferred and a greater number of conditions are being imposed. Not surprisingly, a greater number of accused persons are violating bail conditions (predominantly committing acts that would ordinarily constitute non-criminal behaviour rather than new substantive offences) and the police are laying a greater number of administrative of justice charges in response. With reverse onus provisions for accused persons who have violated a court order while on bail, the likelihood of being granted bail a second time is significantly reduced. Even in those (rarer) cases in which the accused person is re-released on bail, additional – and even more onerous – conditions are often imposed, further enhancing the likelihood of another return to bail court on an additional bail violation. With the accumulation of an even lengthier criminal record, the likelihood of being granted bail for a future offence is further reduced. Of those (formally or informally) detained until trial, increasing case processing inefficiencies in the court system generally translate into even longer stays in remand. Without access to educational, treatment or recreational programming, time spent in remand is – for all intents and purposes - real ‘dead time’, with little ability to maintain (or acquire) pro-social values but multiple opportunities and reasons to become (further) integrated into a criminal lifestyle. Again, it is no secret that time in prison is associated with recidivism. And the revolving cycle goes on.

The bottom line is that in the last 44 years, we have seemingly moved increasingly away from the rights-protecting philosophy underlying the original Bail Reform Act of 1971.Footnote 7 While Canadians may still arguably enjoy a liberal and enlightened system of bail – at least in comparison with its closest neighbour (USA) – broader comparisons with other Western democratic countries do not shed favourable light on us as a nation which genuinely values – and vigorously upholds – the presumption of innocence, restraint in the use of imprisonment and such fundamental principles as fairness and equality. Indeed, both legislative amendments and actual policy/practices over the last 4 decades would seem to suggest that we are returning – in a number of important ways – to a past in which pre-trial detention could be characterized, at least to some degree, as excessive, unfair and inequitable.