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

6. A New Bail Regime

The first option is perhaps the most radical – the introduction of a completely new bail reform act (akin to the one created in 1971). Given that the Constitutional division of labour in regard to the administration of justice is vested in each individual province/territory, arguably the most powerful tool for change at the federal level is its responsibility over the criminal law. I draw on both the Bail Reform Act of 1971Footnote 8 and the Youth Criminal Justice Act (YCJA) of 2003Footnote 9 as inspiration for this recommendation. Both new Acts constitute dramatic successes in addressing chronic criminal justice problems in Canada.Footnote 10 Shortly after the introduction of the Bail Reform ActFootnote 11, Canada saw a substantial reduction in the number of accused in pre-trial detention. Police were more likely to use their discretionary power to release accused persons on their own recognizance and for those cases held in custody, the determination of bail was accomplished in only 1-2 appearances in the vast majority of cases.

Similarly, after several unsuccessful attempts through legislative changes to the Young Offenders Act of 1985Footnote 12 to reduce the number of youth being charged by police and incarcerated by judges at sentencing, the government announced, in 1998, its intention to bring in entirely new youth legislation. Almost immediately after the new law came into effect, the number of youth charged and brought to court fell and continued to fall for several years after the introduction of the YCJA. A similar – dramatic – decline in the number of youth sentenced to prison occurred. Youth rates of custody and imprisonment have remained low ever since.

My suspicion is that both of these new Acts had the advantage of being seen by those making decisions under the legislation as completely new regimes for dealing with criminal cases. Hence, it was expectedthat everything (or at least most things) would change. I would argue that it is precisely the ‘clean slate’ mentality inherent in a wholesale new regime that might allow key players in our current bail process to be more open to changing long-term (risk averse) practices, even if the new regime maintains elements of the old regime. In other words, a new bail reform act might more effectively open up space for cultural change than mere tinkering (legislative or otherwise).

However, I would also argue that the success of the Bail Reform Act of 1971 and the YCJA in dramatically reducing pre-trial detention/youth imprisonment was not rooted exclusively – or even principally – in their ‘newness’. Rather, it was found in the various components of the legislation and how they were packaged. Using the YCJA as an illustration, many of the rules/decisions were made as explicit as possible. For instance, the decision to charge by police officers was simple. In allcases (not “all appropriate” cases), police officers were required to consider not charging a youth. The fact that there are no consequences for not following this requirement did not apparently matter. Police officers, not surprisingly, followed the law. Similarly, judges had a fairly clear mandate under section 38 to hand down proportional sentences (and to avoid disproportionate sentences even if they were ‘for the youth’s own good’). Probably more importantly, section 39 listed four exhaustive possible justifications for a custodial sentence. Even the last – which allowed, in theory, infinite flexibility – was made difficult because judges were required to provide detailed reasons why a case was exceptional. Most youth cases are remarkably unexceptional.

Similar explicit guidelines could be developed in the new bail regime. Simply as an illustration, the grounds for detention would be situated within a (new) legislative framework that starts with the presumption of innocence and does not detain anyone unless the Crown demonstrates a need to do so.Footnote 13 One obvious ‘need’ would be to ensure that the accused person appear in court. However, detention on this ground would require clear evidence that the particular accused in question would not show up for court and not simply the presumption that any persons without fixed addresses will be unlikely to appear as required. Similarly, another ‘need’ would be that the accused person – if released – would be likely to commit crimes that cause serious harms to society. In the spirit of making this requirement explicit, the detention decision (if there is one) would have to outline what those suggested harms would be and what evidence there was that this person would do it as well as an explanation of why ‘conditions’ imposed on the accused person would not sufficiently reduce the likelihood of serious harm. Obviously, these justifications for detention would have already been discussed broadly and widely in the context of an understanding that innocent people will be detained.

Further, the rules should not only be made explicit, but also operational (and not simply aspirational). For instance, an individual player in the bail process does not know how to accomplish a goal such as “90% of bail cases should be decided within two court appearances.” However, a policy that states that “cases that are not ready to proceed should not be adjourned to a later day. Instead, they should be set down until later that same day. Accused people without lawyers present in court should be referred to duty counsel who are instructed to prepare for a full show cause hearing that will take place that same day”Footnote 14 explicitly sets out the steps to accomplishing the general principle of bail as a summary procedure. Indeed, each critical section of the bail regime would make reference to the overall principles of bail which would be set out in a statement of general principles. Beyond providing direction and coherence, this ‘principled’ framework would also provide institutional support for individuals who follow the new policies. Particularly if a case ‘goes bad’, it is not the individual (or the institution) who made the decision to release an accused who is ultimately held responsible.

Within this same context, it would also be important to packagechanges in the law and practice in terms of clear, acceptable principles. It is probably not too difficult to remind Canadians of the principle of the presumption of innocence, and that a police charge does not constitute a conviction. At the same time, Canadians can be told explicitly that pretrial detention is, without doubt, punitive for those experiencing it even though that is not its purpose. Thus, in explaining the law to Canadians, the inherent conflict between the presumption of innocence and the need to protect Canadians from dangerous people (as well as the need to ensure that accused people are properly tried) needs to be respected. I am not suggesting that this approach will be 100% successful. But I do think that in this one case – the removal of an important Charter right - is something that Canadians can understand. At the same time, it needs to be made clear to Canadians that the identification and ‘preventive detention’ of those who are deemed to be dangerous are not likely to be perfect: some will not be identified as people who are dangerous. But, once again, if Canadians are taught the difference between a good policy that is not perfect, and a bad policy, a ‘tragic incident’ may not automatically be seen as a justification for a change in the law.

Another lesson that we learned from the YCJA is that training and education for criminal justice personnel is also fundamental. It helped that there was an almost 5-year period between the release of the YCJA “framework” and the coming into force of the new law. More important, there were four years between the first introduction of the new law and its coming into force. During this time, governments spent millions of dollars ensuring that youth justice personnel understood that on 1 April 2003, new rules would come into effect. It is unsurprising, therefore, that in the 3-month period following the implementation there was a dramatic change in the administration of youth justice in Canada. Everyone knew that the law had changed and, it would appear, they tried to follow the law.

Within this context, it would seem imperative that in order to accomplish meaningful changes in the bail process, broad consultation and discussion should occur long before the new bail reform act is introduced. Specifically, I would strongly suggest that a document analogous to the 1998 “framework” document for youth justice be produced which outlines the problems with the bail system as it stands. These problems – with statistical evidence – should be described in the context of the overall values and principles (e.g., presumption of innocence) that are relevant. The evidence could include

In this same document, proposals for legislative changes could be outlined (in ordinary language), followed by wide consultation with relevant groups (police, prosecutors, defence counsel, judicial officers, provincial officials, the public).