Bail ‘reform’ is an attack on presumption of innocence

One of the great ironies for me of current “conservatism” is its willingness to denigrate the institutions we learned long ago were key to a free society, protected by the rule of law.

A recent example was Wednesday’s harmonic chorus of bail-bashing from Ontario Premier Doug Ford and Toronto Mayor John Tory in the wake of the release on bail of the young man accused in the heart-rending death of Toronto police officer Const. Jeffrey Northrup.

Ford wrote on Twitter, apparently based simply on a news bulletin of the release, that “it’s completely unacceptable that the person charged for this heinous crime is now out on bail. Our justice system needs to get its act together …”

Incredibly, Tory went further, tweeting it was “almost impossible to imagine a circumstance in which an accused in a case of first-degree murder would be granted bail” and that the release here — for which he knows none of the details — “represents one more argument supporting my long-standing call for bail reform.”

Not knowing better than this has surely come to be expected from Ford.

But Tory was trained as a lawyer, and he does know better — much better.

This is what he knows: the right to bail is intertwined with the presumption of innocence. (It is already a circumscribed right; in the case of many charges, cause for release must be shown by the accused, as opposed to cause for detention having to be shown by the state.) Very simply, there is no point in being presumed innocent if you are going to be jailed until your trial anyway. The law allows the state to take up to 30 months to give you your trial — more than enough time to destroy your life while detained in a jail awaiting that trial, regardless of your innocence or guilt.

The presumption of innocence — the castle that protects citizens from tyranny, and which the right to bail and many other principles of our criminal law defend — recognizes that anyone can make a criminal charge negligently or, worse still, falsely. Indeed, the concept arose in our common legal history — “the common law” — as the only way to prevent rulers and sitting politicians from wielding the law as a weapon against the innocent, people they wanted to steal from or simply desired out of the way. It is the golden thread running through our criminal law.

Cutting this thread at any point opens the door to tyranny.

Tory knows what all honest lawyers admit: the police often charge completely innocent people and, even more often, overcharge people. It is irrelevant whether this is the result of negligence or malice.

Moreover, the statistics are clear that the vast majority of people released on bail are not even alleged to reoffend on bail. The numbers are even more striking in favour of bail being safe and successful in terms of released individuals charged with violent offences. Bail for such accused involves a bevy of conditions — often including electronic monitoring — which makes committing a serious violent criminal offence next to impossible.

Yes, John Tory knows all of this very well, which makes his attack so shameful. And it is not the first time he has done it. Undermining the presumption of innocence in this way for a wide array of charges seems to be an obsession for him. For years now, he has never missed an opportunity to make similar attacks.

In the fall of 2007, for example, during his failed campaign to become premier of Ontario, I had to push through Tory and his entourage to get into the Toronto Superior Court of Justice courthouse to apply for bail for a young man who was wrongfully detained — and would later be acquitted — while Tory inveighed against bail outside. It was a frightening attempt to intimidate the judges inside to ignore the rule of law. (Fortunately, my judge would have none of it.)

Now, however, Tory is the mayor of the largest city in Canada, home to the largest police force. Millions of souls depend upon his respect for the basic principles of our constitutional democracy. He should unequivocally reaffirm his commitment to the critically fundamental importance of the right to bail. His current anti-bail position is dangerous to all of us — and it is the epitome of anticon-servatism to boot.