Province changing bail rules to make system ‘fairer’ to accused
The Ontario government has come out with a new policy for Crown attorneys to make the bail system “faster and fairer,” with a shift in focus from protection of the public to the rights of the accused that could lead to far more people being granted bail.
A response to court delays and the staggering number of legally innocent individuals crowding Ontario’s jails awaiting trial, the new policy emphasizes that Crown attorneys should be demanding only as a last resort that a person have a surety in order to be released.
A surety is a person who promises to ensure that the accused complies with the conditions of their bail, and who puts up money that they can end up losing if they fail in their surety duties.
Criminal defence lawyers have long complained of an overreliance by Crown attorneys on the use of sureties, which can make it difficult for vulnerable but otherwise low-risk individuals to secure their release.
The new policy also comes after the release of provincial data showing that Black people spend more time in jail awaiting trial than white people, even when facing the same type of charge, and as experts reiterated that the lack of a surety can, for accused Black people, be a major barrier to being released from custody.
“Let me be clear: there are some people who pose a risk to public safety and should rightly be denied bail, but for those people who are low risk and may just need a bed to sleep in, that is where Ontario can step up and help,” Attorney General Yasir Naqvi said at a news conference Monday. “People should not be denied bail by the simple virtue of their disadvantage.”
Ultimately, the decision to release an accused on bail is left in the hands of the court, almost always a justice of the peace. The new nine-page policy, which takes effect Nov. 14, adopts the “ladder principle,” which Naqvi said was outlined in a Supreme Court of Canada decision this year known as R v. Antic.
“Antic sent the justice system an unequivocal message: it is a clear reminder that at the bail stage, save for some exceptions, an unconditional release of the accused should be the default position,” Naqvi said. “The Supreme Court spelled out the ladder principle for us, which in practice means starting at the least onerous form of bail, considering it before rejecting it, and moving up the ladder.”
The policy also stipulates that the Crown should be requesting only bail conditions that are “necessary and required in the interests of the accused and the safety and security of the victim or public and related to the commission of the offence.”
Naqvi said cases of individuals breaching bail conditions that had nothing to do with their alleged offence have been clogging the courts.
The new policy also tells prosecutors that they must consider the unique circumstances of Indigenous persons at the bail stage, as well as those from racialized communities and persons with mental health and addictions issues. Naqvi highlighted that the government has introduced more supports in communities for individuals who may need supervision and assistance, but who cannot secure a surety.
“Pretrial detention should never be used as a substitute for mental health or other social measures,” the new policy says.
Under questioning from reporters, Naqvi maintained that the current Crown policy on bail — adopted in 2005 and not much more than a page long — did comply with the Criminal Code, and outlined the various interests the Crown must weigh when deciding its stance on bail, including protection of the public and the liberty interests of the accused.
But the current policy also said that protection of the public must be the Crown’s primary concern, “given the potential for tragedy at the bail hearing stage of the process.” It also said that while “speed is essential” for an efficient court system, Crowns must “exercise particular care in conducting bail hearings,” while the new policy urges Crowns to complete the bail hearing at the accused person’s first bail court appearance.
Naqvi said Monday the current policy “focused significantly on risk aversion.”
The new policy is the result of a review conducted since last December by three bail experts, led by Brian Lennox, the former chief justice of the Ontario Court of Justice. The review was part of a provincial government announcement last year to respond to the Supreme Court’s R v. Jordan ruling, which set strict timelines to bring criminal cases to trial.
The new policy is supported by the associations representing Ontario’s Crown attorneys and criminal defence lawyers, as well as the John Howard Society of Ontario, a charity that advocates for humane treatment of those accused or convicted of crimes.
“(The society) has long been recommending an approach to bail that places greater emphasis on the presumption of release and the presumption of innocence, and moves away from the reliance on sureties as a condition for release,” said Michelle Keast, the society’s director of the centre of research, policy and program development, in a statement.
One of the supports the province announced last year, when it also announced the bail review, was the creation of a bail bed program, which funds 70 beds in Barrie, Kitchener, Ottawa, Thunder Bay and Toronto, allowing vulnerable individuals who require supervision to still be granted bail rather than sent to jail.
In a separate move, the Ontario Court of Justice, which deals with the bulk of the province’s bail hear- ings, recently announced that judges would replace justices of the peace at all bail hearings in Ottawa and at Toronto’s College Park courthouse, as part of a pilot project to explore “whether the introduction of judges’ criminal trial experience at the earliest stage of the criminal court process could reduce time to final disposition.”
The Star’s Justice in Turmoil series shed light on delays in the court system.