By AdvocateDaily.com Staff
The defence bar has become well acquainted with the frustrating reality of a bail system that suffers from numerous deficiencies, Toronto criminal lawyer Melanie Webb writes in For the Defence.
“One need not be a particularly astute observer to notice that, as it operates today, it frequently fails the most vulnerable and marginalized who find themselves repeatedly in contact with the justice system,” she says.
Webb, founder and principal of Melanie J. Webb Barrister, points to a recent SCC decision that highlights how the Charter enshrines the right not to be denied bail without just cause.
“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system,” the judgment says.
But Webb asks whether Canada’s criminal justice system is really enlightened when it comes to bail.
“The indigent and those who struggle with addiction or mental health issues face tremendous hurdles in trying to attain bail in the first place,” she writes in the Criminal Lawyers' Association publication.
“They are all too often told they ‘need a surety,’ and one with significant assets, or at least warned that if they try to run the bail on their own recognizance, they run the high risk of detention. This over-reliance on surety releases in Ontario poses the most significant barrier for those who, for whatever reason, may not have a network that includes suitable sureties with ‘sufficient’ assets."
And in instances where the accused is granted bail, “they all too often have a plethora of conditions imposed upon them, which are of dubious relevance to the allegations,” Webb says.
“It is no wonder that an accused who is struggling enough in day-to-day life has difficulty complying with a litany of new rules and restrictions imposed upon them, and end up inevitably drawn back into the system, over and over again.”
Webb says a desperate person will often consent to virtually any conditions simply to get out of jail.
And despite many reports calling for bail reform over the years, little effort has been made to implement numerous recommendations, she says.
Webb points to the 1965 Friedland Study, in which Professor Martin Friedland focused on the Toronto bail courts, sampling some 6,000 cases over the course of six months.
“The original study revealed the serious consequences that were visited upon an accused detained pending trial, being not only physical and psychological endangerment, but the deleterious impact upon the ultimate outcome: the likelihood of being acquitted, and the quantum of sentence,” she says.
The findings and conclusions from Friedland’s work were instrumental in informing the Bail Reform Act, in 1971, Webb notes.
“The Act codified the reasons a person could be detained in custody, made clear that the onus was on the Crown to show why the accused should be detained, encouraged police to release accused before their first appearance, established the ladder principle, and limited the use of cash bail. This was the last major overhaul of the bail provisions,” she says.
“Reverse onus provisions were enacted shortly afterwards, however, in the mid-1970s. It survived constitutional scrutiny. New legislation to expand the reverse onus provisions would be introduced in 2006, prompted by public outcry to the notorious 2005 Boxing Day shooting in Toronto, and a rash of gun violence that year."
Friedland in 2007 concluded that the bail system required more careful examination than before, despite the advances made by the Bail Reform Act.
That was a decade ago, notes Webb.
In 2012, the fourth annual national symposium on criminal justice reform, “Reinventing Criminal Justice,” was held in Victoria, the topic at issue that year being the bail system and remand populations, she says.
Twenty-nine recommendations were developed from the symposium, including a call for real-time consultation by police with prosecutors on bail decisions, policies on police discretion on release following arrest, police and prosecution policies favouring release where the most serious charges were only administration of justice charges, reduced reliance on cash and surety bails, and community alternatives to bail, such as the bail supervision program or bail hostels, to manage the risk of the accused in the community, and other innovative alternatives to detention.
Two years later, the Canadian Civil Liberties Association and Education Trust released a lengthy report on bail and pretrial detention, which would ultimately be heavily relied upon in the CCLA submissions as an intervener on the 2017 SCC decision.
In December 2016, the Ontario government released Bail and Remand in Ontario, a report authored by Raymond E. Wyant, former chief justice of the provincial court of Manitoba.
In it, Wyant aptly noted:
"Several noteworthy reports have been released in recent years that are critical of the bail and remand system and which contain recommendations for improvement. Some of these reports have been anecdotal and some have involved scholarly research. Their common theme is that the criminal justice system in Canada is failing in the way it detains individuals accused of criminal offences. . . all presumed innocent of the charges laid against them.”
Wyant provided a total of 67 recommendations.
Webb notes that the SCC decision in 2017 was hailed as a refreshing affirmation of the “ladder principle” — something which was codified 45 years ago by the Bail Reform Act — and helpful language to remind the court of the fundamental principles in decision-making on bail to bolster an argument for release.
“All the scholarly literature, statistics, studies, and social commentary in the world will not change the system, without it translating into action on the ground,” she says.
“There is some reason for optimism. As of the time of the writing of this article, changes for the better seem to be underway at the College Park courthouse in Toronto, which appear to be along the lines of some of what was recommended in the Wyant report and others. This includes the embedding of a Crown at the police station to provide advice to police. Ottawa has apparently also implemented this step for their local region, along with other positive developments reported earlier this year.
“These are promising steps, and one hopes that similar practical improvements will be implemented in jurisdictions across the province, modified according to local need," Webb adds.
“However, some changes must be made at the 'molecular level,' so to speak, to truly change the culture of bail. How do we retrain ourselves to be less risk-averse, for example? Defence lawyers are not immune to this characteristic either: counsel would prefer to be on the safe side, bring their sureties to court, and have them testify, rather than risk detention of their client. Some would also simply consent to the imposition of more conditions than necessary rather than engage in a full-blown argument on the issue.
“Changing the culture of bail requires a fundamental readjustment of our collective thinking.”
Webb urges counsel not to wait for the system to change: “Let us do our part to change the system ourselves.”
She calls on counsel to:
Review the recommendations in the Wyant report;
In formulating a release plan, explore alternatives to a surety release, such as a bail verification and supervision program, or arrangements with other social supports, if available in your jurisdiction.
In preparing for your bail hearing, be aware of issues such as whether it is a reverse onus or not, and why; whether or not the accused is already on any conditions of a recognizance or probation order and what they are; and whether the Crown is bringing a “s. 524 application,” etc. When it comes to youth matters, be sure to understand the relevant provisions of the Youth Criminal Justice Act.
In running your bail hearing, do not necessarily accept the allegations being read in without question.
Do not let things slide even if you receive pushback from a justice of the peace. Object to the improper questioning of sureties during the course of cross-examination.
Don’t be afraid to simply suggest relying on submissions, rather than calling the sureties or the accused.
Remember that Gladue principals apply at a bail hearing.
Remind the court of the language in the 2017 SCC decision and adherence to the “ladder principle,” which has been codified for the past 45 years. Argue against the imposition of unnecessary and unconstitutional bail conditions, especially “behavioural” bail conditions. Do not “leap” to house arrest even where the allegations are seemingly serious.
For someone who may have no assets or sureties who have assets, stress to the court every person’s constitutional right to reasonable bail, absent just cause, together with the presumption of innocence, even where the charges are serious. Where an accused would be otherwise releasable, poverty must not be an impediment to bail.