A fairer approach
The dead giveaway that Ontario’s current bail system is too onerous is this shocking fact: Two-thirds of people held in the province’s correctional facilities have not been convicted of the crime for which they are accused.
The majority of the province’s prisoners are being held in overcrowded jails for days, weeks or even months until their case, which can be a simple bail hearing, comes before the courts.
It should not be this way. And, happily, as of Nov. 14 it won’t. That’s when the Wynne government is introducing a detailed new policy to make the bail system both fairer and faster.
“An accused is presumed innocent and the prosecutor must be aware of the impact of even a brief period of detention in custody upon the accused,” the new directive reminds Crown attorneys. “Even a brief period of detention in custody affects the mental, social and physical life of the accused and his family.”
The key point in the new policy is that accused persons should not have to provide a surety, except in exceptional circumstances, in order to be released.
A surety is a person who can help ensure that the accused complies with the conditions of their bail, and who promises money to the court if they fail in their duties.
That requirement means the disadvantaged and those without friends and families with whom they can stay are less likely to get out on bail than others. Disproportionate among these are Indigenous people, who according to a 2015 Statistics Canada study accounted for 26 per cent of admissions in provincial and territorial prisons while representing only about 4 per cent of the population.
As Attorney General Yasir Naqvi said upon announcing the new directive, “People should not be denied bail by the simple virtue of their disadvantage.”
The policy also promises to get cases through the court system faster, by ensuring bail conditions aren’t so onerous that they can’t be kept. And when conditions are violated less often, fewer people will find themselves unnecessarily back in jail, with new hearings further clogging the court system.
This sensible policy goes hand in hand with other measures the province is pursuing to keep people out of jail who shouldn’t be there. In the past few months, for example, Ontario has opened “bail beds” in halfway houses. People can be sent there, instead of to jail, if they are homeless.
The province is also experimenting with embedding Crown prosecutors into police headquarters, where they can advise police on whether to release people who have been charged with a minor crime on a simple promise to appear in court.
Jails were created for those convicted of crimes. The new bail policy will go a long way to ensure that Ontario’s prisons stop being used as expensive warehouses for the disadvantaged, the racialized, Indigenous peoples, and the mentally ill.