New directive on bail a step in right direction
Ontario’s prosecutors will stop trying to keep people in jail while they face charges unless there’s no other choice, their boss Yasir Naqvi said Monday.
The province’s attorney general has sent a directive on bail — what prosecutors should seek and what they should agree to — that’s to kick in on Nov. 14.
It’s virtually the opposite of the 12-year-old instruction it will replace.
“An accused is presumed innocent and the prosecutor must be aware of the impact of even a brief period of detention in custody upon an accused,” the new directive says. “Even a brief period of detention in custody affects the mental, social and physical life of the accused and his family. An accused is presumed innocent and must not find it necessary to plead guilty to secure his release.
“Too many of the people in our province’s correctional facilities are on remand. More than have actually been convicted of an offence,” Naqvi said, releasing the new order at the University of Toronto’s law school.
About 60 per cent of the people in Ontario’s provincial jails are awaiting trials, not yet convicted. When we talk about overcrowded jails that can’t house people in humane conditions or even try rehabilitating them, we’re talking about the consequences of keeping people “on remand.”
People kept in jail lose jobs, apartments, relationships. Sometimes they’re behind bars longer waiting for trials than the time they’d serve if they were convicted.
Those in jail waiting to be tried are sometimes there because they’re clearly dangerous, with criminal histories and new charges involving violence. Prosecutors should keep asking the judges who handle bail hearings to lock them up, Naqvi’s directive says.
But very often people are kept in jail because they’ve been unable to come up with bail money or find someone to vouch for them, or they’re given bail but returned because they’ve violated conditions — alcoholics or drug addicts ordered to stay sober, for instance, or people with undertreated mental illnesses ordered to keep the peace. Nearly half of Ontario’s provincial inmates have mentalhealth “flags” on their files.
“Jails are not the places you send somebody to get better. The right kinds of supports are in the community,” Naqvi said.
The old directive was just over a page long. It told prosecutors three times that protecting public safety was their primary duty, even at the expense of confidence in the justice system or efficient and effective courts. “While all of the factors listed above must be accorded serious consideration, given the potential for tragedy at the bail hearing stage of the process, protection of the public including victims must be the primary concern in any bail decision made by Crown counsel.”
It referred to three cases from the previous decade or so in which a man was released on bail and killed someone. Two killed women they’d been charged with abusing, Arlene May and Gillian Hadley. The third was Jonathan Yeo, who was on bail on sexual-assault charges when he separately kidnapped and murdered 19-year-old Nina de Villiers and 29-year-old Karen Marquis.
All three cases ended with the men killing themselves. All three were the subjects of inquiries.
Since 2005, the Supreme Court has said we can’t drag out criminal cases too long, going so far as to order charges thrown out because of long delays. It followed up with a decision in another case earlier this year, R. v. Antic, reiterating that reasonable bail is a right that shouldn’t be denied without a very good reason.
We used to let people out too easily, including some guys who killed people. Now we’ve clogged up our jails and courts, slowing justice and damaging people who really need help, not punishment. The obvious danger is that this is just the pendulum swinging back again, and we’ll go back to freeing people who are too dangerous to be released.
In the past few months, Ontario has opened “bail beds” in halfway-house settings where people can be sent if they have no reliable housing. It’s embedded Crown prosecutors in two police headquarters, including Ottawa’s. Among other things, they’ll help police decide to use their discretion to release people after laying charges on promises to appear in court down the line, rather than keeping them in custody.
These are experiments, not yet mature programs. Naqvi touted them, and rightly so, but they have to get bigger and stay properly funded and monitored if they’re going to work properly. Considering how we’ve handled jails until recently, that’s not a sure thing. But these are steps in the right direction.
WE USED TO LET PEOPLE OUT TOO EASILY, INCLUDING SOME GUYS WHO KILLED.