By Rob Lamberti, AdvocateDaily.com Contributor

Canada's bail system needs reforming because it's not being applied uniformly across the country and remains unattainable for many marginalized people, says Toronto criminal lawyer Melanie Webb.

But the founder and principal of the firm Melanie J. Webb Barrister says she's not expecting reform anytime soon despite Ottawa's promise to implement changes.

"The culture of bail is that the people who are most marginalized in society, the very poor, the addicted, the mentally ill, they repeatedly find themselves back in the court system," she says.

The bail system, particularly in Ontario, has regularly required someone to act as a surety, which is a barrier for many on the fringes of society who often have no one to speak for them, Webb tells AdvocateDaily.com.

"They just don't have sureties that are suitable for one reason or another, or quite often, they or their sureties don't have the assets," Webb says. "It is very unfortunate for the poor or the marginalized who are charged with a serious crime and who do not have the same opportunities as those with the means, and do not have a realistic chance at getting bail."

She says many end up pleading guilty just to be released.

Frequently, some of the conditions imposed on the marginalized are often unfair and unconstitutional, even though the law requires that conditions imposed must be related to a purpose that would otherwise justify the accused's detention pending trial, Webb argues.

"And you can't expect someone who is already struggling to manage the complexities of life to be capable of complying with a litany of conditions," she says. "It's just not realistic for them."

Webb says if someone is then charged with breach of bail, it creates a reverse onus under the Criminal Code, which makes it even more difficult for them to get bail, and they are generally required to have a surety if they did not have one before. If they already had a surety, the Crown and courts will typically want a new one, she says.

There is also a disparity in services and resources depending on the locale.

While some places may have bail supervision programs or facilities that can provide “bail beds,” Webb says other communities may not have such programs in place. Toronto, for example, also has mental health court, drug treatment court and Gladue court, but these types of specialized courts are not available in smaller communities.

There is no uniformity or standardization in what is needed in terms of assets for someone to be able to act as surety and a person to be granted bail, as it is left to the discretion of the judge or justice of the peace, she says. Cases where an accused is granted bail for serious offences, when they or their sureties have no appreciable assets, are few and far between, Webb says.

“The Charter of Rights and Freedoms guarantees everyone has the right not to be denied reasonable bail, without just cause,” she says, “But many people have been detained for months or years before trial" because they can't meet the financial expectation of bail.

"These are all people who are presumed innocent no matter how bad their record might be," Webb says. "There have been many studies and reports on these inequities and injustices and problems with the bail system.

"The system reached a point where the default became that accused were essentially expected to have a surety when in bail court," she says. "It's a cycle that keeps going and going. For a middle-class citizen, someone with a stable job, family, and assets, getting bail may not be so difficult, even for serious offences.

"But for people living on the fringes of society, who don't have assets or a supportive network who can bail them out, this creates a very high expectation that may be impossible to meet." Webb says.

"There's a real need for bail reform but progress is extremely slow," she says. "In some jurisdictions, we hear of improvements but we don't see them or the implementation of recommendations made by these studies."

One study of bail practices in five provinces and territories found disparities in how it is applied, Webb says.

"In some areas, people are released more commonly on their own recognizance or on cash bail, but in Ontario, there is an over-reliance on surety releases," she says.

"There are many factors that go into this, but a major one is risk aversion," Webb says. "People are very risk averse and, at the end of the day, a Crown doesn't want to be the one who had someone released when there was no surety, and then we hear of them going out and committing some heinous crime while on bail.

"The same applies to justices of the peace who have become more reluctant to release someone without a surety," she says. "It's a culture that has evolved from an over-reliance of cash bail more than a half century ago, before the Bail Reform Act."

She calls for an even application of bail provisions across the country, a focus at the heart of a recent Supreme Court ruling. It reinforced the application of the ladder principle, which was codified 45 years earlier.

This means that release on an unconditional undertaking is the default when granting bail and the Crown must justify a more restrictive form of release, Webb says.

She hopes that would lead to a new or better way in how accused are dealt with during bail hearings.