Bail might be the most misunderstood aspect of Canada’s justice system. It’s probably why it’s so easy for elected officials to politicize it.
If the public doesn’t fully understand the legal principles behind bail — that people charged with crimes are presumed innocent until proven guilty in a court of law — it’s that much easier for them to be manipulated by the kind of ramped-up political rhetoric we’ve seen on bail reform in recent years.
Canadian premiers and territorial leaders last year wrote Prime Minister Justin Trudeau demanding the federal government “toughen up” provisions around bail to make it more difficult for repeat violent offenders charged with new crimes to be released into the community.
Ottawa responded with Bill C-48 which, among other things, expanded the use of reverse onus for repeat violent offenders. Reverse onus requires the accused to argue why they should get bail. Normally it’s up to the Crown to argue why bail should be denied.
Reverse onus previously existed for a handful of serious offences, including murder. Bill C-48 expanded the list.
It doesn’t mean reverse-onus offenders are automatically denied bail. Far from it. Canada’s Charter of Rights and Freedoms stipulates — for good reason — that no one can be refused reasonable bail without just cause.
If just cause, such as a threat to public safety, cannot be established, the accused should be released, pending the outcome of their court case.
It’s not a perfect system. Some accused released into the community will be charged with another crime, sometimes a serious one, such as murder. Unless the courts detain everyone charged with a crime, that risk will exist.
“Accurately predicting and eliminating all risk is impossible, and attempting to do so would require the mass incarceration of an untold number of innocent people,” the Canadian Civil Liberties Association wrote in its recent report Still Failing: The Deepening Crisis of Bail and Pre-Trial Detention in Canada.
“Such a system would be fundamentally contrary to Canadian values and the Constitution.”
If the courts can’t detain everyone charged with a crime — or every repeat, violent offender charged with a crime — what is the solution? There is no easy answer to that question.
Even though all provinces expressed approval of C-48 last year, they now say it didn’t go far enough. The premiers sent another letter to the prime minister last week (following several high-profile cases of accused allegedly re-offending) demanding once again that the federal government fix the country’s “broken” bail system.
Not surprisingly, they offer no specific proposals. That’s because it’s easy to demand changes to bail, but it’s far more difficult to specify what those changes should be. Short of automatically locking up everyone charged with a violent offence — which would be unconstitutional — there will be cases, usually rare, in which people released on bail will be charged with another offence.
In some cases, the alleged re-offence will be nothing more than a breach of conditions, such as abstaining from alcohol or violating residency requirements. Sometimes it will be worse — a stabbing or a gun crime. Those are the ones that attract the most attention and prompt some elected officials to politicize what is a very complicated and nuanced issue.
Conservative Leader Pierre Poilievre leads the charge on that front. He called the federal Liberal government’s bail reform (including Bill C-75 — passed in 2019 — which mostly codified a series of Supreme Court of Canada rulings) “whacko,” “insane” and “radical.”
“Trudeau’s Bill C-75 has all but guaranteed that even the worst violent offenders will be released on bail shortly after they’re arrested,” Poilievre said in a release Thursday.
That, of course, is completely inaccurate. No one is guaranteed — or even “all but guaranteed” — bail, especially the worst violent offenders.
“Trudeau’s insane catch-and-release policies are putting dangerous, repeat, violent offenders back onto our streets,” said Poilievre.
That may be an effective sound bite designed to instil fear. But it’s a falsehood that undermines Canada’s ability to have an intelligent, evidence-based debate around bail reform.
There were repeat, violent offenders released into the community long before Trudeau won office in 2015 and there will be after he’s gone. The best the justice system can do is mitigate and manage those risks while balancing them with the charter’s presumption of innocence rights.
The more the public understands that, the less likely they will be manipulated by the political spin from Poilievre and other politicians like him.
tom.brodbeck@freepress.mb.ca
Tom Brodbeck
Columnist
Tom Brodbeck is a columnist with the Free Press and has over 30 years experience in print media. He joined the Free Press in 2019. Born and raised in Montreal, Tom graduated from the University of Manitoba in 1993 with a Bachelor of Arts degree in economics and commerce. Read more about Tom.
Tom provides commentary and analysis on political and related issues at the municipal, provincial and federal level. His columns are built on research and coverage of local events. The Free Press’s editing team reviews Tom’s columns before they are posted online or published in print – part of the Free Press’s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.
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