Gather ’round, folks… it’s bail-reform story time again

Opinion

By now, it’s a ritual as predictable as a pothole in spring: a high-profile crime occurs, public outrage builds and politicians rush to microphones to demand “bail reform.”

The words are meant to reassure the public that somebody is doing something about violent repeat offenders who keep getting released back onto the streets. But scratch beneath the surface of these declarations and you quickly discover there’s usually nothing there.

Winnipeg Mayor Scott Gillingham is the latest to jump on the bandwagon. After recent violent incidents, he called on Ottawa and the provinces to tighten up Canada’s bail system. But like nearly every politician who’s made the same demand before him, he offered no specifics.

What exactly should be changed in law? How should the Criminal Code be amended? What sections of the Charter of Rights and Freedoms need to be balanced against public safety? On those critical details, Gillingham — like most — has nothing to say.

That’s because calling for bail reform makes for great political soundbites, but actually delivering meaningful legislative change is far more complicated. And in many cases, it’s flat-out impossible under the Constitution.

Take federal Conservative Leader Pierre Poilievre, who has been one of the loudest voices on bail reform. Unlike Gillingham, he sometimes does cite specifics, such as his proposal for automatic bail refusal in some cases involving repeat violent offenders. On paper, that sounds like a straightforward way to keep dangerous people locked up. The problem is, it’s unconstitutional.

Canada’s Charter of Rights and Freedoms guarantees that anyone charged with a crime has the right not to be denied bail without just cause. The Supreme Court of Canada has made it clear over the years that pre-trial detention should be the exception, not the rule. People accused of crimes are presumed innocent until proven guilty, and it’s up to Crown prosecutors to convince a court that releasing them would either endanger the public and/or risk them skipping court dates.

That safeguard isn’t a mere technicality. It’s a cornerstone of our justice system, designed to prevent governments from locking people up indefinitely without trial. It’s why blanket bans on bail, or automatic refusals, would not survive constitutional scrutiny.

So when politicians promise voters that they’ll “crack down” on bail by stripping judges of discretion or imposing rigid rules, they’re not being straight with people. They’re offering a fantasy solution that wouldn’t withstand a legal challenge. It’s easy politics, not serious lawmaking.

To be clear, there is a legitimate public concern here. Canadians are, understandably, frustrated when they see stories about violent offenders being released, sometimes only to re-offend while awaiting trial. Police chiefs, premiers and mayors from across the country have all voiced frustration with what they view as a “catch and release” system.

But the answer isn’t to wave away the Charter. If anything, what the system needs is more rigorous application of the rules that already exist. Judges already have the power to detain accused people when there’s a demonstrable risk to public safety. The problem is often not the law itself, but how it’s applied — or whether prosecutors are making strong enough arguments in bail hearings.

There’s also the messy reality that bail decisions are often made under difficult circumstances. Courts are jammed. Prosecutors are swamped. Police lay charges, but cases get bogged down in backlogs.

If politicians are serious about tackling the problem, they’d be demanding more funding for courts and more Crown prosecutors. But those reforms don’t fit neatly into a soundbyte.

There are targeted reforms that could help. Parliament has already made moves in that direction, including amendments passed recently that make it harder for those accused of certain violent crimes involving weapons to get bail.

In many cases, for the most serious offences, there are reverse-onus rules where the accused must convince the court why they should be released pre-trial. The list of circumstances that fall under that section of the law has recently been expanded (yes, under a Liberal government).

Those are modest changes that try to address real risks while staying within constitutional bounds. But you’ll rarely hear politicians cite those details when they stand at a podium.

Which brings us back to the central problem: when politicians say “bail reform,” they often mean “I want to sound tough on crime without committing to anything concrete.” Unless someone can articulate specific, legislative changes that balance public safety with Charter rights, it’s just political smoke.

There’s no magical legislative fix here. The bail system is designed to balance two competing imperatives: protecting the public while upholding the presumption of innocence. That balance will never satisfy everyone, especially when a tragic case slips through the cracks. But pretending there’s an easy solution does a disservice to the public.

If politicians want to get serious, they should talk about more resources for the justice system, better support for police and prosecutors in bail hearings and investments in programs that actually reduce reoffending. They should also be targeting the root causes of crime, including poverty, addiction and mental health.

Those aren’t flashy talking points. They don’t fit neatly on a bumper sticker. But they’re the only real path to addressing the concerns the public keeps raising.

tom.brodbeck@freepress.mb.ca