Ontario’s Bail System under Review Soon?

The John Howard Society of Ontario recently released a report on the state of Ontario’s bail system. The report gets right to the point, starting off by saying outright that “We have a bail problem in Ontario.” The report summarizes the problem as such:

… less people are being released on bail, less quickly, and with more conditions, during a time of historically low and still-declining crime rates.

The report discusses how some of these trends have developed over the years, and I found the increased use of conditions attached to bail particularly interesting. It basically comes down to setting people up to fail: imposing a greater number of stricter conditions (many of them included by default) gives people out on bail more and more things to worry about and – in many cases – a greater likelihood of breaching their bail conditions. This contributes, the report concluded, to the often cyclical nature of the criminal justice system: someone is brought in on one charge and keeps returning on subsequent and mostly-unrelated charges.

The problem is worse when the conditions added are from the category that the report calls conditions for “character modification or improvement” – conditions that have no logical connection to the actual stated purposes of pre-trial detention (Adam has a great summary of the Primary, Secondary, and Tertiary grounds for pre-trial detention here.) As the report says, courts shouldn’t be in the “business of mandating self-improvement for its own sake,” especially when all that does is invite individuals to breach.

The important thing to remember in all discussions of bail policy, though, is that all of the individuals we are talking about are supposed to be presumed innocent. The report points out that one of the biggest culprits to the growing bail problem has been the expansion of what are called “reverse onus” offences. Essentially, this means that instead of the Crown having to show reasons why the accused person should be kept in pre-trial custody (based on those 3 grounds above), the onus (burden of proof) flips to the defendant. For reverse onus offences, it’s up to the defence to show why pre-trial custody should not be needed in their case. There’s a big debate in the criminal law community surrounding reverse onus offences and to what extent, if any, they complicate an accused’s right to presumption of innocence.

With all this in mind, the report makes 3 main recommendations:

  1. The presumptive release of charged persons onto their own recognizances, and the reversal of the trend of overreliance on sureties;
  2. A moratorium on the prevalent practice of affixing certain conditions to bail; and,
  3. Administrative improvements and greater accountability in courts.

In the wake of the John Howard Society’s report, the Globe and Mail recently covered some comments from new Justice Minister Peter McKay on the topic. He referred to a couple of the issues I mentioned above as concerns that had been raised to him, but since he only just started this new job on the Cabinet 2 months ago, he isn’t familiar enough with the issue to make any definitive statements – yet.

As hopeful as that sounds, there’s no timeline in place and it isn’t exactly clear whether or not the federal government will be following closely (or at all) with the report’s recommendations. It will definitely be interesting to see what results – if any – come out of these discussions.

This blog post was written by Ricardo Golec.  Ricardo is an articling student working for Adam Goodman.  If you have questions about an upcoming bail hearing, you can contact Adam at 416-477-6793 or by email at adam@aglaw.ca

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