‘No big reinvention of the wheel’: impact of NDP bail plan debated

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This article was published 29/02/2024 (593 days ago), so information in it may no longer be current.

Manitoba Crown attorneys received a new policy directive on bail from the NDP government Thursday, billed by Premier Wab Kinew as a “common sense” approach to crack down on repeat offenders.

The marching orders form part of the province’s multi-pronged plan to reform its bail system.

However, the reforms could lead to more contested bail hearings without substantially changing how prosecutors assess whether an accused person should be kept in custody, according to legal experts.

Why is this policy needed?

The last bail policy was drafted in 2002, and revoked in 2019, following amendments to the Criminal Code and Supreme Court of Canada decisions.

The directive is intended to guide the Crown’s discretion in bail positions and ensure consistency in approach as it exercises its discretion.

Kinew said the policy standardizes and strengthens the approach taken by Crown attorneys, who now have to include in their presentation to the court — and in their thinking about the bail process — the impact on community safety.

Will this change how Crown attorneys approach bail in Manitoba?

No, it’s unlikely to make a material difference, lawyers say.

University of Manitoba law assistant professor Brandon Trask said the directive is essentially a restatement of what the Criminal Code already sets out.

“That in addition to considering the importance of ensuring that an accused individual shows up to court, a prosecutor must consider protection of the public and victims, as well as public confidence in the administration of justice, in arriving at decisions about how to approach bail from the Crown’s perspective in a given case,” Trask explained Thursday.

The new policy tells prosecutors to take “a more stringent approach to bail” in circumstances involving intimate partner violence, offences against children and vulnerable adults, sexual and cyber exploitation, or charges of serious violent crime.

Crown attorneys should consider “all factors” that speak to risk and the need for continued detention, the directive states.

Stacey Soldier, a senior associate at Winnipeg firm Cochrane Saxberg, said the directive simply reinforces the status quo.

“There’s no big reinvention of the wheel going on here,” the defence lawyer said.

The new emphasis on assessing the community impact when considering bail for an accused — as touted by the NDP government — does not come through in the directive, Solider added. “These are things that are already considered by people who are in a bail courtroom.”

Will this improve public safety?

Under the directive, Crown attorneys must consider seeking detention of repeat violent offenders charged with an offence against a person or involving a weapon, “unless satisfied, having regard to all the circumstances, that the risk to public safety posed by the accused’s release can be reduced to an acceptable level by bail conditions.”

That could be interpreted as pressuring prosecutors to seek detention as a starting point instead of crafting conditions for release, Trask said.

“That gets dangerously close to flying in the face of what the Supreme Court of Canada has reiterated in two recent decisions, which remind everybody in the system that there is a charter right to not be denied reasonable bail without just cause.”

It may also spark more contested bail hearings and hinder negotiations that can produce release conditions more onerous than what a court would order, Trask added.

“I could see this actually backfiring, as far as public safety.”

Is the NDP reforming bail supervision and monitoring?

The province will spend $500,000 to add five bail workers and provide intensive supervision and support to chronic or violent offenders.

The program will include an “effective alternative to remand custody” that ensures individual accountability and compliance with release conditions, the province said. The money will also be spent on helping offenders with targeted mental health and addictions programming.

People released on bail require adequate support and programming, after years of inaction and failure to invest in housing, addictions treatment and counselling services for those who end up before the Manitoba courts, Soldier said.

“There could be better focus and better tools getting to the root of the problem,” the lawyer said. “When you just focus on law enforcement resources and investment, that’s great, but at the end of the day, the police come once the crime has already been committed.”

danielle.dasilva@freepress.mb.ca