Bail-reform measures about perception, not public safety

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This article was published 01/03/2024 (605 days ago), so information in it may no longer be current.

It’s often said that public perception of crime is just as important as actual crime statistics.

If people feel unsafe in their communities , it doesn’t matter if the crime rate is falling. People want to feel safe in their homes. If they don’t, they typically demand that police, the courts and government do something about it.

That same principle applies to how governments and law enforcement respond to crime. It doesn’t matter so much what the actual policies are. What’s often more important is the public’s perception of what elected officials are doing about crime. Is government doing enough to be “tough on crime,” or is it too “soft on crime?” Are the courts letting dangerous criminals roam the streets almost immediately after an arrest, as some allege? If so, what are politicians doing about it?

Those perceptions — shaped by a combination of opportunistic politicians, social media and even some coverage in traditional media — is what’s driving the latest “bail reform” agenda in Canada. It is, for the most part, politically motivated. There’s very little research to support the latest calls for bail reform.

Manitoba’s NDP government got in on the act this week. Premier Wab Kinew and Justice Minister Matt Wiebe announced new “directives” for Crown attorneys to more aggressively oppose bail in cases where alleged offenders are seen as a threat to the community.

It’s a response to the perception that the courts are too lenient in granting bail to dangerous offenders and that governments should do more to keep those accused persons behind bars. There’s no real evidence to support that assertion, beyond a smattering of anecdotal stories across the country. But many believe it anyway.

Perception is a powerful thing in politics, which is why politicians ignore it at their peril. Politicians such as Kinew, Wiebe and others want to be seen as doing something to combat crime and bail reform is an easy target.

This week’s announcement will do little, if anything, to alter how and when bail is granted. When someone is charged with a crime, they are presumed innocent until proven guilty in a court of law. That’s a right everyone has and deserves under Canada’s Charter of Rights and Freedoms. It’s a fundamental aspect of our justice system.

Like all charter rights, those rights are not absolute. They are subject to “reasonable limits.” Which means if a Crown attorney can make a strong case before a judge that a person accused of a crime poses a threat to society and/or is a flight risk, a judge may deny bail and keep the accused behind bars. Those legal principles have been around for decades.

They are guided and protected by the charter, as interpreted by the Supreme Court of Canada, which has ruled, rightly, that bail should be the norm, not the exception.

There are so-called “reverse onus” provisions for more serious offences like murder, where an accused must convince a judge why they should be released. Canada’s top court has deemed that allowable under the charter. Still, reverse onus does not mean an accused is automatically denied bail. Far from it.

Either way, it’s up to a judge to decide whether an accused is released, no matter how many “directives” politicians announce. That’s as it should be, so that each case can be dealt with on its own facts.

Do judges always get it right? Of course not. They don’t have crystal balls. It’s impossible for anyone to know when or if someone is going to reoffend. In some cases, judges simply make poor decisions and grant bail in situations where it seems obvious a repeat offender should have been detained. Directives by politicians won’t change that.

Will the Kinew government’s new directives on bail make the public feel better about their justice system? Maybe. If so, then government will have achieved something without really doing anything.

There is one practical and potentially useful aspect to the NDP government’s bail-reform package: more supervision and greater enforcement of those who violate their bail conditions. Government announced funding to hire 12 more police officers to enforce bail and more resources for five extra bail workers. Government also announced an additional $514,000 to expand data and intelligence sharing between police agencies. That may help track down bail violators. It can’t hurt.

Most of this week’s announcement on bail reform was window dressing. It may make some people feel better, but it’s not going to change much in the courtroom.

tom.brodbeck@freepress.mb.ca