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

7. Targeted Changes to the Current Bail RegimeFootnote 15

Whether or not Canada has a completely new bail regime, the introduction of strong incentives which discourage risk averse behaviour would – at least in my mind – help to remedy the current status quo. I draw inspiration from the dramatic reduction in the provincial imprisonment rate in Alberta during the early 1990s. When Ralph Klein became Premier, he decided to balance the budget by cutting provincial expenditures in all departments by approximately 20% rather than by raising taxes. The justice ministry was not exempt. Faced with this non-negotiable imperative, it closed one of its prisons, forcing the ministry to restructure its criminal justice system in a way to ensure that the prison would not be missed. Police became more selective in whom they charged. Crowns became more selective in whom they prosecuted. Judges became more selective in whom they sentenced to prison. Within 5 years, the average daily prison count dropped from 102 provincial prisoners per 100,000 total residents of the province in 1993 to 69 in 1997 – a decrease of 32%. In simplistic terms, the expenditure cuts created a strong incentive to change established behaviour amongst all criminal justice players.

Within the bail context, new incentives against risk averse behaviour need to be created to force key players to adopt a different mindset that favours release. Such incentives need to begin with support from the top. In Alberta, a new focus on serious and violent crime created a politically acceptable framework in which to reduce the use of imprisonment. Further, the Justice Minister, the Deputy Minister, and others in the Ministry supported the overall goal of decarceration. As such, those players on the ground not only had the comfort of an explicit policy to which they could point in the face of criticism but also knew that their decisions to implement the changes would be supported from above. A similar top-down approach is needed with regards to bail. To-date, this has not happened.

Simultaneously, public education will be fundamental. In Alberta, residents – in the face of across-the- board expenditure cuts - appeared to be more willing to close prisons than schools or hospitals. By extension, it is likely more palatable in today’s world in which the ‘tough on crime’ mentality is being challenged by soaring costs and strained resources to argue for restraint in the use of detention for those who are still considered innocent than for those already found guilty of a criminal offence. Indeed, as the US can attest, new ‘less-tough-on-crime’ criminal justice policies are growing out of necessity because prison populations have reached levels which are unsustainable and costly. With simply no more room to house additional prisoners, it may be politically more acceptable to use the remand population as a safety valve than the sentenced population.

On the ground level, specific incentives to release accused persons can also be either legislated or incorporated into provincial policy. For instance, steps should be taken to encourage arresting police officers to release accused people on a promise to appear. I would argue that there are two (non- mutually exclusive) ways to achieve this goal: (a) reduce the imposition of conditions in later stages of the bail process, hence taking away the ‘incentive’ to detain an accused in a belief that conditions are necessary; (b) address directly the arresting police officer’s decision. Police officers can be told that they should release unless there are compelling reasons to do otherwise relating directly to the need for detention (not the need for conditions to be imposed). Police officers, then, could be required to provide reasons to the accused (in writing) for the need to detain.

Similarly, officers-in-charge of police stations who have the power to release (with certain conditions, but not requiring sureties) may be detaining many people for a bail hearing on the belief that a surety is ‘necessary’ for the safe release of an accused. Hence the reduction in the use of sureties may help police in making release decisions more in keeping with the legislative justification for pretrial detention. Once again, though, given that we are talking about the need to violate the accused person’s right not to be punished without a finding of guilt, it would not be unreasonable to require police officers to justify in writing the detention of an accused for a bail hearing. The reasons, then, would have to be justified in court. If we truly believe that the Crown must justify (at least for most accused people) why they need to be detained, then it would be reasonable to require the police to indicate – in advance of the court hearing – exactly what those reasons are.

For those accused persons who continue to be held for a bail hearing, the most urgent need is to address both the conditions and the consequences of violating a condition of release. To discourage the current imposition of multiple – often automatic - conditions, the presumption should be that no conditions be placed on release unless they can plausibly be related directly to the goals of ensuring the accused person’s attendance in court or that he/she does not commit a(nother) serious offence while in the community. Each condition that is imposed must be evaluated against these criteria and justifiedFootnote 16. Treatment conditions – in particular – should not be imposed on accused people unless there are compelling reasons to conclude that the condition being treated is related to the offence alleged to have taken place as well as to the reason(s) for which the accused would otherwise be detained. But in addition, evidence should be provided to demonstrate that the treatment has been shown to be effective in circumstances such as the one facing the accused, and that the requirement of treatment can be fulfilled without undue hardship to the accused or others (e.g., those required to take the accused to a treatment facility, those who are displaced from treatment by an accused).

But reducing the number of conditions is not enough to break the revolving door phenomenon rooted in additional charges of ‘failure to comply with a court order’ and even greater likelihood of detention. I am proposing a response very similar to that used with adults who violate a condition of their release on parole (e.g., they fail to report as required to their parole officer). The consequence is not a new criminal offence. Rather, parole can be suspended, the person is returned to prison or penitentiary, and a decision is subsequently made on what to do. The parole authority can re-release the offender with the same conditions or with different conditions, or parole can be revoked. When applied to bail violations, there is – at least in my mind - no need to criminalize accused persons who violate conditions of release that prohibit normal legal behaviour. Instead, the apparent violation should put the accused person in jeopardy of being brought back before a court to have bail reconsidered. Using the analogy of parole, the court might re-release the accused on the same conditions, change the conditions, or decide to detain the accused.

Equally important, while there are currently mechanisms in the law for a review of conditions, those on release with conditions need to be explicitly informed of them by the court. Further, they need to be easily and quickly accessed. In addition, there needs to be a guarantee that more onerous conditions cannot be placed on the accused without his/her consent. In addition, the accused should not be in jeopardy – as a result of the appeal of conditions – of being detained.

As for types of release, sureties – at least in some parts of Canada – are apparently almost always ‘required’ for release. Given that we have no convincing evidence of the value of sureties in so many cases, two changes should be introduced:

  1. The purpose for requiring a surety must be included as part of the record. In order to ensure compliance, it should be stated in the law that a surety should not be required.
  2. Sureties, if required, should presumptively not be required to appear at the bail hearing. The acceptability of the surety should (presumptively) be determined by a justice outside of court.

To encourage greater case processing efficiency during the bail process, ensuring that an accused’s case is dealt with at the first appearance, the provisions in the Criminal Code should be altered to make it more difficult for the Crown or the defence to ask for an adjournment. At present, under section 516(1) of the Criminal CodeFootnote 17, a case can be adjourned on application of either party for 3 days (or more, with the accused’s consent). This could be strengthened by, first of all, stating that adjournments should be allowed only in exceptional circumstances where there is clear evidence that to proceed would cause a miscarriage of justice.Footnote 18 In addition, there should be a requirement ensuring that the judicial officer must be convinced that there is no way that the case can proceed on the first day andthat the adjournment to the specified date will lead to the bail decision being made on that date. The party making the adjournment could be required at the beginning of the adjourned hearing to report on the matter that was the justification for an adjournment. Adjournments are expensive and can be damaging to the accused (even if the accused’s lawyer is the one asking for the adjournment)Footnote 19. At the moment, nobody is accountable for the adjournment.

Finally, if we truly believed in the presumption of innocence, we would re-visit the list of offences in which the onus is reversed and accused people must demonstrate why they should be released. At a minimum, consideration should be given to two matters:

  1. Ensuring that there is truly a reverse onus. This might be done by suggesting that the provisions be made explicit: if the Crown does not provide evidence that an accused must be detained or that specific conditions of release must be imposed on an accused, the accused shall be released on an undertaking without conditions.
  2. If the accused demonstrates that there is no need for detention, it should be made clear that the accused should be released on an undertaking without conditions unless the Crown shows cause as to why a more onerous form of release is required.