Provinces must step up on bail reform

If you ask inmates, most people in jail are innocent. And you know what? They’re right.

According to Statistics Canada, 70 per cent of Canadian inmates are in remand, meaning they’re awaiting either trial or a bail hearing. Since they haven’t yet been convicted of the offence with which they’re charged, they’re legally innocent.

Nonetheless, recent high-profile events like the killing of OPP officer Grzegorz Pierzchala have convinced many Canadians — and many provincial politicians — that Canada’s bail system is in need of repair. Indeed, according to an analysis by the CBC, violent offences allegedly committed by people on bail or peace bonds increased by 29 per cent between 2017 and 2021 in Ontario.

The provinces therefore pressured the federal government to rectify the situation, and on Tuesday, the feds responded. Justice Minister David Lametti introduced Bill C-48, which will create a host of new “reverse onus” offences, ostensibly to lock up more people before trial.

Since the Charter of Rights guarantees accused people have the right not to be denied reasonable bail without just cause, the onus is normally on the Crown to show why the accused should be detained. But in reverse onus charges, the accused is required to show why he or she should be released.

The Criminal Code already contains a number of reverse onus bail hearings for serious offences, and Bill C-48 proposes many more, primarily for alleged repeat offenders accused of serious violent offences.

Despite the popular appeal of such measures, there’s little reason to believe reverse onuses make a significant difference, since courts remain Constitutionally obligated not to deny reasonable bail without just cause.

In fact, in a March submission to the House of Commons Justice Committee, the Canadian Bar Association said there’s “little practical difference” between Crown onus and reverse onus offences.

Consequently, reverse onuses might not lead to more accused people being jailed before trial. But they don’t need to, since we’re already locking up more innocent people than ever before.

Canada didn’t always imprison 70 per cent of defendants before trial. In 1980, we only jailed about 20 per cent. Since then, we have steadily and dramatically increased pretrial detention, to the point where seven in 10 inmates are legally innocent.

In Ontario, nearly 80 per cent of inmates are in remand. If locking up people before trial were a recipe for public security, Ontario would be the safest place in the country, if not the world.

But it isn’t, and it won’t be with Bill C-48. The best way to prevent offenders from repeating their offences is to prevent them from offending in the first place. Granted, the feds have recently funded many prevention programs including those addressing family violence, gun and gang violence, child maltreatment and youth dating violence.

Ottawa should be commended for that. But there’s much more that needs to be done, by all levels of government.

When it comes to bail, that means providing improved, intensive supervision of those on release. This, however, is not something Ottawa can do.

This is a provincial responsibility. And as we argued previously, the provinces can implement many proactive improvements, including hiring more people to supervise bail and integrating criminal justice, health and social services so accused people can more easily avail themselves of treatment for addiction or mental health challenges.

Unfortunately, though, the provinces tend to favour reactive measures. Ontario, for example, recently announced new measures to develop bail compliance teams — police squads who will arrest those who have violated bail — but it hasn’t explained how it will improve bail supervision and thereby reduce the risk of those on bail violating conditions of their release in the first place.

Since the provinces received exactly what they requested from the federal government on Tuesday — however ineffective it might be — the ball is now in their court. Now it’s time to provide the proactive, meaningful bail supervision reforms Canadians want and deserve.