Bailing out the bail system

The recent debate about the bail system in Canada has reinforced the need for politicians to look long and hard at how we want our justice system to function in this country. It is time for a well-thought-out restructuring of the system and not a reactionary tinkering of elements that impact individuals' liberties and create greater disparities for marginalized, vulnerable groups in society. Canada's bail laws have evolved over the last 155 years. It started from the point where bail was discretionary for all offences, to then placing the onus on prosecutors to justify the need for detention, to enshrining the right not to be reasonably denied bail without just cause, to putting the onus on the accused in certain cases to justify why they should not be detained. With every change to the law or clarification through court decisions, there have been unintended consequences. Those changes have impacted vulnerable communities, victims, families, law enforcement agencies, and public safety. Don Head had a 40-year career in the public service, beginning in 1978. From 2008 until he retired in 2018, Head was the commissioner of the Correctional Service Canada. Photograph courtesy of Don Head It is abundantly clear that all sides of the debate examining the efficacy and evils of the bail system have raised significant points for consideration. However, it is often only when an egregious incident occurs that there are calls for reform. And then, unfortunately, the debate always centres on a single element of the system. No law enforcement officer should ever have to lose their life due to a system that is inadequately resourced to provide proper supervision to a person on bail with a documented history of repeat, violent behaviour. At the same time, no individual should be detained because of the lack of appropriate housing, jobs, or physical health care or mental health supports. It is worth noting that there is no easily accessible, nationwide detailed data regarding the bail system in Canada. This complicates any meaningful discussion about the efficacies and deficiencies of the system. However, various reviews and analyses have pointed to enough gaps in the system that politicians need to heed the call for reform and immediately start addressing them. There is no question the bail system needs to be reformed, but it must also establish an equal and equitable balance for all who interface with the system and those within it. The guiding principles of a reformed bail system must reflect a balance between individual liberties and public safety while addressing the root causes of the behaviours that have led to a person encountering the justice system. A reformed system must be linked to an informed, evidence-based risk management approach that is consistently applied throughout all levels of the justice system and fully considers the socio-economic situation and history of the individual in question. Numerous factors must be weighed and put into perspective to reform the overall bail system. Multiple reviews and studies over the years have been critical of the bail system from both sides. It has raised important issues, such as the system becoming too risk-averse or being too lax on repeat offenders, police not exercising their authority to release from the scene or the systemic delays in holding bail hearings, the overuse of sureties as a requirement for judicial interim release or the excessive use of conditions for an interim release, all of which have been identified as concerns that need immediate attention. The longer these issues go unaddressed, the more likely a grave incident will occur again in the community. As well, provincial and territorial remand populations will continue to grow, with individuals still deemed innocent until proven guilty. In the end, the overall confidence in the Canadian justice system will continue to erode. Conservative public safety critic Raquel Dancho at a press conference calling for bail reform on Feb. 2, 2023. Earlier this month Conservatives presented a motion in the House of Commons calling on the government to toughen bail conditions in certain cases. The Hill Times photograph by Andrew Meade Moving forward, there are several steps that can be initiated, provided there is will, commitment, and joint leadership at all levels of government to set the stage for an enhanced justice system that will carry this country into the next several decades. It goes without saying there is no need for lengthy reviews of the issues. A good solid literature review will clearly identify the concerns that have been raised by victims, accused, law enforcement agencies, academics, bar associations, civil liberties groups, and the provinces and territories. A roadmap for reform can easily be developed from the various points of view shared over the last five to 10 years. A first interim step in creating a basic road map for reform would be to define some immediate changes to bail requirements for repeat, violent offenders that could be implemented and mandatorily reviewed within five years for their effectiveness. As well, adequate interim funding needs to be provided for bail supervision programs in all provinces and territories to instill confidence in the system, particularly to minimize individuals who abscond from these programs. This would significantly move the yardstick in the right direction, coupled with implementation within two to three years of a consistent risk assessment process sensitive to individuals' cultural and socio-economic factors that all police forces and courts could use for assessing discretionary or judicial interim release opportunities. However, this would need to occur in conjunction with the overall re-development of a social justice system that results in a strategy that addresses the housing, jobs, physical and mental health needs of Canadians that run into conflict with the law. Such an undertaking would need to be defined within the next three to five years for Canadians to have confidence that our justice systems truly reflect the rights, freedoms, safety, and security that all expect to enjoy in this country. At the end of the day, bailing out the bail system is a priority. However, it must not tinker with a few exceptions or elements of the system. It will require significant commitment and leadership across the country, and a roadmap with well-defined principles, objectives, and timeframes. This is truly a moment for moving beyond partisan positions to focus on Canadians' overall rights, well-being, safety, and security while enhancing confidence in our justice system. Don Head had a 40-year career in the public service, beginning in 1978. From 2008 until he retired in 2018, Head was the commissioner of the Correctional Service Canada and served on various deputy minister-level committees that were actively involved in various aspects of public service delivery. Head currently assists the Aleph Institute, which is a non-profit Jewish organization dedicated to assisting and caring for the well-being of members of specific populations that are isolated from the regular community. The Hill Times