‘We’re presuming arrest equates to guilt’: Legal Aid head critiques bail-reform bill

The executive director of Legal Aid Manitoba has added his voice to the national bail-reform conversation, urging careful forethought on any changes.

The Liberal government tabled legislation Thursday proposing sweeping changes to Canada’s Criminal Code that would make it harder for people accused of certain crimes to get bail.

The new legislation also proposes longer sentences for some violent and repeat offenders.

The move comes after several years of debate over reforming the bail system, amid heightened public and political concern that accused individuals allegedly continued to commit crimes while on pre-trial release.

But any reforms to the system must not trample the Charter rights of people accused of crimes, said Peter Kingsley, a long-time defence lawyer and the head of Legal Aid Manitoba, which provides free or low-cost lawyers to people with low incomes in the province.

“People who are arrested are presumed to be innocent… we keep talking about, ‘We’re arresting these violent offenders, we’re locking people up who commit offences.’ We’re presuming that arrest equates to guilt,” said Kingsley on Sunday.

“Our Charter says that you’re presumed innocent and that you have a right to liberty… except where reasonable by law, and that is the starting point.”

Kingsley, who said he is not opposed to reforming the bail system, said he’s concerned that increasing the number of people denied bail will increase the number of miscarriages of justice and the number of people who take plea deals, not because of their guilt, but because it’s faster than awaiting trial.

“When you remove discretion from judges, when you take away their ability to do their job, when you take away the ability of the Crown to do their job, to properly assess and weigh evidence, you’re going to have more miscarriages (of justice),” said Kingsley.

“When you remove discretion from judges, when you take away their ability to do their job, when you take away the ability of the Crown to do their job, to properly assess and weigh evidence, you’re going to have more miscarriages (of justice).”

“And who does that tend to target? It tends to target the people who have the least money, the least resources, the least education — all of those factors that we know lead to abuses within the law, which is why we have a significantly higher Indigenous population in custody than we do of any other population.”

Kingsley said resources must be put in place to ensure accused still get adequate legal representation in a reformed system.

“I certainly didn’t see anybody saying, ‘By the way, we’re funding legal aid programs across the country,’” said Kingsley, adding that last week’s proposal did call for increased funding for policing and for other aspects of the justice system.

Kingsley called for the increased use of GPS electronic monitoring ankle bracelets, more oversight and support services for those on pre-trial release and what he called culturally sensitive court conditions, as a means of still granting bail but decreasing the chance of repeat offending.

“I’m not saying bail reform shouldn’t happen — of course, there has to be bail reform, of course, we have to look at these things — but we have to look at it from a holistic point-of-view,” said Kingsley.

“What are the factors that are leading to these types of offences, what are ways that we can assist people in a culturally sensitive (way)… Are we giving them resources so they don’t resort to poor choices?”

“I’m not saying bail reform shouldn’t happen… but we have to look at it from a holistic point-of-view.”

He said society must recognize the rights of the accused and allow the system to assess evidence.

“(Otherwise), those outliers, those people who might have gotten a more community-oriented sentence, who might be salvageable, who might not become career criminals, we’re going to treat them like hardened criminals,” said Kingsley.

Kingsley made his comments ahead of Access to Justice Week, which begins Monday and runs through Friday. The week will include several public events about justice issues.

The legislation tabled by the federal Liberals last week was largely met with optimism from Manitoba political leaders, though some involved directly in the justice system urged caution: unions warned prosecutors and jails will need more resources, and defence lawyers raised concerns about human rights.

Local Conservative Party of Canada Members of Parliament Raquel Dancho, James Bezan and Colin Reynolds were slated to attend a town hall meeting on bail reform Sunday afternoon, led by Ontario Conservative MP Arpan Khanna (Oxford) at the Gateway Recreation Centre in northeast Winnipeg.

The event was to call on the federal Liberals to vote for the Conservative “Jail Not Bail Act.”

erik.pindera@freepress.mb.ca