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

5. Recommendations to Improve the ‘Bail Problem’

Certainly in the last 5 years, we have seen a number of recommendations offered by various government and non-governmental agencies to fix the ‘bail problem’. In my mind, they can be loosely characterized as ‘tinkering’ with the current bail system. If adopted and practised, any of them might constitute improvements to the current reality. And, in fact, a number of Canadian provinces have shown some success in affecting their remand populations over the past several years. However, the magnitude of improvement has been small, despite – in a number of cases – large-scale efforts (e.g., Ontario’s Justice on Target Initiative). Moreover, despite a drop in the overall provincial remand rate between 2009 and 2010 (Figure 1), it has once again been creeping up.

My interpretation of our current inability to reduce our remand rates in any significant way is that – simply put - it is not tinkering that has got us into this situation and it will unlikely be tinkering that is going to get us out of it. Our current bail system is the result of a particular mentality, driven in large part by a climate of risk aversion and risk management. The problems that we have are both endemic and systemic in nature. In fact, they are feeding off each other in what amounts to a vicious circle. What is needed is an approach which will break this feedback model by challenging the underlying mentality. Indeed, isolated changes are unlikely to be particularly effective in the long run. For instance, while the repeal of the reverse onus provisions might have symbolic value, it is likely to have little real impact as most offences are already treated – in (our current risk averse) practices - as if there were a reverse onus. Or a new policy explicitly discouraging the need to have sureties appear in court might marginally speed up the bail process but will do little to address the underlying (risk averse) problem of the frequent recourse to this more onerous type of release. Or even a requirement that all adjournments need to be justified – if not scrutinized – by the (risk averse) presiding justice will unlikely translate into little more than a trivial reduction in the multiple court appearances currently used to delay, as long as possible, a determination of bail. Despite these changes in legislation, policy or practice, the underlying risk averse culture remains. To bring about systemic change, a different mindset is needed that will force the key players to reconceptualise bail as it was originally intended: a summary procedure which upholds and defends the presumption of innocence while ensuring – above all – the attendance of the accused in court.

The trick – of course – is to create incentives for this type of cultural change. I see two possible avenues. Having said this, they should not be considered as mutually exclusive.