This Research in Brief is based on publicly available data from a number of Justice Canada, Canadian government (federal and provincial/territorial), academic and community organization studies and publications released from 2009 to 2018, as well as information from various media sources. Preliminary findings from a Justice Canada study are also presented.
Considering the extent and impact of current issues facing the Canadian bail system, stakeholders and experts (e.g., Office of the Correctional Investigator, Canadian Civil Liberties Association, academics, court workers) have noted that national leadership and a coordinated approach across the country are required to address bail issues. Indeed, the recent Senate Committee on Legal and Constitutional Affairs is in “agreement that there is need for reform of the bail process and of the manner in which accused persons are detained on remand.” Some areas for leadership and reform may come from investments in bail infrastructure and support, legal reform, and ensuring the availability of treatment, rehabilitation, and occupational programs at the bail/remand stage.
Academics, community organizations, and court workers argue that a cultural shift towards risk aversion has resulted in a bail system that is overly punitive
Concerns have been voiced with the increased focus placed on risk avoidance and risk management within the bail system. A risk averse mentality has influenced key decision makers, police officers, and the courts. This has limited the use of decision-maker’s discretion and contributed to the practice of not releasing accused who present non-trivial levels of risk to re-offend, even those who allegedly committed minor offenses.Footnote 2
Recent comparative research has shown how Canadian prosecutors may be preoccupied with risk management and placing onerous restrictions on accused people when released on bail, while court practitioners in England are concerned with quick bail processes, minimizing custody, and reducing costs associated with courts and prisons. Generally, this finding underscores the suite of factors at play in bail courts, the importance of court culture, and the practitioner and policy priorities when it comes to the role of the criminal justice process. As part of the court culture, defence and Crown relationships have been observed in Canadian bail courts to be full of contentions and coloured by prolonged negotiations. When bail decisions are made, information about risk, a bail plan, a surety, and mitigating risk are often presented to secure a release. When release does occur, it is usually after defence agrees to restrictive bail conditions which often involve some form of supervision.
Further, bail observations in Canada have illustrated how bail usually takes more than one appearance, contributing to delay and efficiency concerns in Canada’s criminal courts.Footnote 3
Analysts have also highlighted how legislative reforms have resulted in onerous release orders (including increasing the use of sureties, multiple conditions, bail supervision programs, and monetary assurances), often unrelated to the offence allegedly committed, which are being imposed on accused who are not detained. The extent of the situation challenges the presumption of innocence.Footnote 4
Various stakeholders have warned that the impacts of current bail issues result in further criminalization of vulnerable populations
A number of bail provisions have been identified by academics, community organizations, and court workers as having unintended consequences on vulnerable populations. For instance, reverse onus provisions, which place the responsibility on the accused for proving why they should be released, were noted as challenging for those with mental health issues or those that are not represented by counsel.Footnote 5 The requirements for sureties and/or monetary assurances were also described as impediments to release for individuals with lower income.Footnote 6 The use of abstention conditions, such as requiring accused with substance abuse problems to abstain from alcohol/drugs, were said to set people up with substance abuse and mental health issues for failure once released on bail. More specifically, abstention conditions can invite breaches of conditions.Footnote 7 Finally, recent research on youth bail conditions showed that on average, youth have seven conditions placed upon them and there are differences in the quantity and quality of conditions based on the gender of the accused.Footnote 8
The impact of bail issues has been noted for Indigenous people who face many intersecting problems.Footnote 9 A recent study conducted with 692 key Indigenous justice stakeholders by the Indigenous Policy and Program Innovation Hub highlighted the extent of the impact of current issues surrounding bail on Indigenous people.Footnote 10 Indigenous Court Workers have confirmed that various socio-economic, psychological or family factors regularly contribute to a high prevalence of bail breaches and administration of justice offences (AOJOs) among Indigenous people accused of crime.Footnote 11
Other analysts of bail issues have noted that important legal principles have gone unrealized at the bail stage when dealing with Indigenous people.Footnote 12 More specifically, there is concern that Gladue principles or systemic considerations that should be taken into account are not adequately being interpreted and applied at the bail/judicial interim release stage. For instance, overlooked are systemic issues such as institutional bias, policing trends, and bail practices that disproportionally impact, and have consequences, on Indigenous people.
Further highlighting the impact of bail on Indigenous people, a recent Justice Canada study on guilty pleas used insights from members of various working groups and committees working with Indigenous people in the criminal justice systemFootnote 13 to expose how Indigenous accused may plead guilty due to a variety of different factors, including bail-related factors. When Indigenous accused are denied bail, they may want to ‘get it over with,’ to get out of remand, and receive a reduced sentence in return.Footnote 14 Bail, therefore, not only impacts the processing and efficiency of the criminal justice system, but it is possible to have a differential and consequential impact on different groups, especially Indigenous and vulnerable groups.
Most stakeholders criticize the bail process for its inefficiencies
Issues of timeliness of the bail process have been demonstrated by academics and community organizations,Footnote 15 confirmed by court workers,Footnote 16 and recognized by several jurisdictions through the implementation of reviews or action plans.Footnote 17 There is widespread concern about bail courts being routinely delayed due to adjournments for a variety of reasons (e.g., finding sureties, retrieving information, and seeking legal advice) which results in unproductive court proceedings and longer wait times in remand.
Inefficiencies in the bail process have been further noted with the use of stringent release orders that may essentially set up the accused for failure by imposing unattainable requirements or multiple onerous conditions. This can result in breaches and thus inundate the criminal court system with administration of justice offence charges.Footnote 18
Inefficiencies are not the only concern as many studies have highlighted the serious problems associated with an increasing number of accused persons held in jails while awaiting bail hearings and trials. For example, there may be: potential Charter violations of accused persons; increases in the numbers of presumptively innocent people in custody; increases in costs; increases in exposure to criminal and criminogenic behaviours; and increases in the negative custodial impact on vulnerable populations.Footnote 19 There is the added issue of the lack of programming in the bail environment. For example, while sentenced offenders are supervised and placed in rehabilitation programming, people in detention in the remand environment are unlikely to receive the type of attention/programming/service needed to address their rehabilitation or treatment needs.Footnote 20
Many Canadians support initiatives aimed at reforming the bail regime and the response to AOJOsFootnote 21
A survey conducted by Justice Canada in 2016 highlights that young Canadians believe the Criminal Justice System is not fair to people in jail awaiting trial. Further, the majority of the Canadian public are in favor of increasing bail releases if there is a low risk to public safety (75%) and Canadians are in favor of not charging individuals with a criminal offence for administrative offences that do not include criminal activity (68%).
Young people believed that an accused should remain in the community on bail for all types of offencesFootnote 22
A youth engagement project by Justice Canada, in partnership with the Students Commission of Canada, showed that young people believe that an accused should remain in the community on bail for all types of offences (with some conditions) while awaiting trial. This is preferred over being remanded to jail.
When it comes to bail determinations, young people wanted caregiving responsibilities and lived realities of people (like poverty, mental health needs, and employment circumstances) to be considered when judges place conditions on an accused person on bail. Further, youth thought that accused persons should have greater supports to help them meet reasonable bail conditions, for example referrals to support services or rides to court. Youth felt that appropriate resolution of a breach of conditions requires individualized responses, including examination of personal circumstances, as well as the reason for and nature of the breach.
Canadian Bar Association supports bail reform but expressed caution with proposed provisions of bail reform initiatives
In a 2008 letter to the Department of Justice Canada, the Canadian Bar Association’s National Criminal Justice Section confirmed their support of initiatives aiming to simplify procedures surrounding bail and acknowledged that increasing releases by police is a promising avenue to address current bail issues.Footnote 23 However, they cautioned that increasing police officers’ authority to release accused with conditions may lead to further complications in the bail systems if these officers are not properly trained. As such, they urged that such initiatives be paired with appropriate training resources. The Canadian Bar Association’s 2018 comments on Bill C-75Footnote 24 also support bail-related amendments and efforts to encourage more expedient hearings, ensure consistency with existing case law, discourage the use of cash deposits and sureties, encourage a more streamlined process, and confront the increasing rates of pre-trial detention.Footnote 25
Victims of crime and advocates have voiced their desire for bail legislation that effectively protects Canadian citizensFootnote 26
Following various events of tragic deaths in the community at the hands of accused released on bail, victims and advocates have raised their discontent with current bail provisions and have suggested that amendments be made to the Criminal Code to restrict bail releases for certain individuals (e.g., as part of former bill S-217, defeated in June 2017Footnote 27).
While there is limited research and data on the frequency and type of offences committed on bail, victim groups have various concerns when it comes to bail. This includes the need to carefully consider victims in the bail process, maintain flexibility and responsiveness in the bail process, enhance safety and security measures, enshrine rights in the Canadian Victims Bill of Rights, and ensure supports, information, policies, and practices are available to victims and keep victims safe.Footnote 28