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.

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