Manitoba Crown attorneys take important step toward meaningful bail reform

Opinion

For years, politicians have been locked in an endless cycle of sloganeering about bail reform. You’ve probably heard it, especially from the federal Conservatives: “jail, not bail.”

The idea is that Canada’s bail laws are too weak, too “soft on crime,” too quick to release dangerous offenders back onto the street. It’s an easy line to deliver, and it taps into public anger over violent crime. But like most easy lines, it’s not grounded in reality.

We’re now beginning to learn, at least in Manitoba, why some repeat offenders charged with serious crimes may be released on bail when they shouldn’t be. And it has nothing to do with the law itself. It has everything to do with how bail court is actually run day-to-day — the nuts and bolts of how cases are handled.

On Monday, the Manitoba Association of Crown Attorneys pulled back the curtain on a system that is in disarray. They released a discussion paper and held a news conference to tell Manitobans what really goes on in bail court. Their message was clear: prosecutors often don’t have enough time, information or resources to properly argue bail cases.

They won’t come right out and say it directly, but it means in some cases, dangerous people who should remain behind bars are being released, while others who may not pose a risk are kept locked up.

This isn’t about legal loopholes or “weak” bail laws. It’s about the administration of justice. It’s about a system that is so overloaded and under-prepared that fairness — both for the public and for the accused — is being compromised on a regular basis.

According to MACA, bail hearings in Manitoba often involve as many as 100 cases in a single day. That means Crown attorneys are scrambling, sometimes at the very last minute, to review applications.

Some come in with incomplete information. Others arrive right as the bail docket is underway. How is a Crown attorney supposed to prepare a thoughtful, well-argued case against bail under those conditions?

The answer is simple: they can’t, at least not as effectively as they would if they had the time to properly review the case.

Instead, they’re often forced to wing it. And when you’re dealing with people charged with serious offences — sometimes violent crimes — that is not just unacceptable, it’s dangerous.

How can a judge weigh all the factors — criminal history, risk to public safety, community supports — when the Crown doesn’t have the time or data to present the full picture? They can’t. The result is that judges sometimes make decisions in the dark.

Sometimes, an accused who should clearly remain in custody gets released. That’s the scenario the public worries about most — and rightly so. If the court doesn’t hear about a person’s past convictions, or their history of breaching court orders, how can it assess whether they pose a risk?

This is what makes Monday’s revelation so important. For years, federal, provincial and civic politicians have hammered away at bail reform, arguing that the Criminal Code needs to be toughened.

But that wouldn’t address the problems exposed by MACA this week. The problem isn’t necessarily the law; it’s how bail hearings are administered. If Crown attorneys don’t have time to prepare, no law in the world is going to fix that.

If Manitoba wants a bail system that protects the public and upholds the rights of the accused, it has to invest in the basic mechanics of how that system runs. That means giving Crown attorneys more time and resources to prepare bail applications. It means improving the flow of information between police, prosecutors and the courts.

Among MACA’s recommendations is that a court directive be given that would ensure Crown attorneys have at least 24 hours’ notice to prepare for a bail application. That doesn’t sound like too much to ask.

None of this is flashy. None of it makes for a good sound bite. You won’t hear a premier, a mayor or a federal opposition leader rallying a crowd by shouting “more prep time for Crown attorneys!”

But that’s what the system actually needs. Without it, Manitobans will continue to see headlines about offenders released on bail who go on to commit more crimes. And each time that happens, confidence in the justice system takes another hit.

Bail reform debates at the federal level will continue, as they should. It may be that bail laws need to be tweaked in some areas, if there is evidence to do so, which is why I will continue to argue for a national commission on bail reform to study whether changes are needed – based on evidence, not political rhetoric and misinformation (the kind federal Conservative Leader Pierre Poilievre continued to peddle this week).

What MACA did Monday was start a conversation about a very important aspect of the criminal justice system, one most people were not aware of. It’s now time for governments and the courts to act.

tom.brodbeck@freepress.mb.ca