Base changes to bail on facts, not fears By: Editorial Posted: 7:00 PM CDT Wednesday, Apr. 26, 2023

Opinion

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This article was published 26/04/2023 (897 days ago), so information in it may no longer be current.

Federal Justice Minister David Lametti should tread carefully when deciding whether Canada’s bail laws should be changed.

Provincial premiers and the Canadian Association of Chiefs of Police have for several months been calling on Ottawa to enact laws to make it more difficult for repeat, violent offenders to be released on bail pending the outcome of their court cases.

The premiers and the CACP renewed their calls last week, arguing more stringent bail provisions are necessary to protect the public from chronic, dangerous offenders.

The premiers and the CACP renewed their calls last week, arguing more stringent bail provisions are necessary to protect the public from chronic, dangerous offenders.

Manitoba Premier Heather Stefanson, chair of the Council of the Federation, said changes should be made immediately to improve public safety.

Federal Conservative Leader Pierre Poilievre has gone further, making the specious claim that the Trudeau government adopted a “catch-and-release” bail system when it amended the criminal code in 2019.

There is no evidence changes to bail laws made four years ago — which codified several Supreme Court of Canada rulings — had any impact on violent crime. Most of what was put into the statute was already in effect through the binding decisions of the top court.

Politicians such as Poilievre have pointed to rising violent crime rates in Canada as proof the changes made communities less safe. In fact, violent crime began climbing in 2015, four years prior to the amendments.

Even if violent crime rates did rise shortly after the changes were made, correlation is not causation. Measuring crime and analyzing its causes, including the impacts of poverty, racial discrimination, mental health and addictions, is far more complicated and multifaceted than considering a single factor such as bail.

Mr. Lametti’s job when considering changes to bail laws will be to separate political grandstanding from legitimate proposals to improve public safety. To do that, the minister will have to carefully consider the evidence and critically analyze what is being recommended to determine if the proposals have merit.

Under Canada’s Charter of Rights and Freedoms, people accused of crimes have a right not to be denied reasonable bail without just cause. The Supreme Court has made it clear bail should the norm, not the exception. It is a right based on the presumption of innocence.

However, it is not an absolute right. It is balanced with the need to protect society and to detain an accused if one of several criteria is met, including threat to public safety.

For some indictable offences, such as murder, attempted murder and certain gun crimes, Canada’s bail laws contain a reverse onus where the accused must demonstrate to the court why they should be released.

None of those provisions was changed by the federal government when it modernized bail laws in 2019. In fact, the Liberal government added a new reverse onus bail provision for repeat domestic violence offenders.

None of those provisions was changed by the federal government when it modernized bail laws in 2019. In fact, the Liberal government added a new reverse onus bail provision for repeat domestic violence offenders.

Some proponents, including the province of Manitoba, are calling for the reverse onus list to be expanded by adding repeat violent offenders and those charged with violent crimes where knives and bear spray are used. Those proponents should be required to present detailed evidence to demonstrate how those changes would make society safer.

They should also show how any proposed changes might impact Indigenous people, who are disproportionately incarcerated in Canada and who would suffer the most if pre-trial detentions were increased. Provincial jails are already filled with more people awaiting trial than those serving sentences.

Changes to bail laws should only be made if there is strong evidence showing they would make Canada’s communities safer. They should not be amended to suit the political agendas of elected officials.