Solution to national bail problem requires information that doesn’t exist

Opinion

There are few topics so thoroughly debated and so profoundly misunderstood as bail reform.

When headline news is rife with stories about violent offences being committed by individuals out on bail, the politicians howl, the police shake their heads in frustration and the public demands answers. Unfortunately, this is a debate afflicted by half-truths and misleading facts.

As an example, let’s consider the recommendations released a week ago by the Manitoba Association of Crown Attorneys, who complained the sheer volume of bail applications was so great, and there was so little advance warning when a case needs an actual bail hearing, prosecutors cannot “properly prepare for these hearings and put full information before the court.”

It is absolutely true that everyone involved in the court system is overwhelmed. All provinces are suffering through a period of intense threat to public safety brought on by rampant drug addiction and mental illness. When the prosecutors complain that each day is like drinking from a fire hose, they are likely telling the truth.

However, there is more than just a whiff of “the dog ate my homework” to the arguments in the Crown attorneys’ discussion paper.

For example, they inexplicably failed to make any reference to Sec. 516 (1) of the Criminal Code of Canada, which allows any prosecutor overseeing a bail hearing to request that an accused be remanded in custody for up to three days while the application is more thoroughly reviewed.

Manitoba’s Crown attorneys will, no doubt, argue that delaying some bail applications does not entirely solve their caseload problem. However, although the volume of cases is significant, it is not unmanageable, as the prosecutors suggest.

According to the association, there can be as many as 100 individual applications on the bail court docket each day. That is a heavy workload, but it’s also important to note that all those cases have already been through a bail triage process, where applications and the backgrounds of the applicants are reviewed by other Crown attorneys.

There are four Crown attorneys assigned to bail court each day, which means individual caseloads are a lot smaller.

So if prosecutors do have a mechanism to slow down complex bail applications, what was the point of their recommendations? Likely to make sure that when blame goes around, it doesn’t head in their direction.

Unfortunately, pointing out the flaws in the prosecutors’ arguments doesn’t get us closer to a full explanation of why some bad people get repeatedly released on bail. Before we can identify the true weak links in this system, we need to know more about how people get released.

Most of us simply don’t know how much we don’t know when it comes to bail mechanics.

For example, an almost completely ignored aspect of the bail system is how police have the legal right to release someone charged with a crime without putting them in front of a judge in bail court. They can also be subject to conditions, such as having no contact with the victim of an alleged crime.

How many people charged with crimes are released by police? And are the cops applying the same standards for release that judges use? Nobody knows, because no one is tracking the people who are released without appearing in bail court.

Even without formal tracking, there is some evidence that this is a much bigger issue.

In May 2024, former Winnipeg Police Service chief Danny Smyth said that most people who are arrested and charged with an offence in Winnipeg are released by police through one of a range of administrative pathways, including appearance notices, undertakings, release orders and consent releases by a Crown attorney. All require the accused to return to court as directed to answer the charges against them.

What exactly does “most” mean? Manitoba’s court system does not currently have a modern information technology solution to track individuals who are released by police or, later, following a court hearing in front of a judge. There are some older analyses from the federal Justice Department that suggest “most” means a solid majority.

In 2013, the Justice Department studied police and judicial detention and release trends. It found that two-thirds of individuals charged with a crime are released by police on some sort of undertaking and never appear before a judge on a formal bail application.

How many of them reoffend? How many people who reoffend after being released by police are, again, released on bail after a hearing in front of a judge? Most important, what other factors are in play that would lead police or the courts to release anyone charged with a violent offence?

Again, in the absence of real-time data, there is no way to answer any of these questions with certainty. That means our national bail-reform debate is being undermined by some inconvenient realities.

First, how and when offenders are being released are much more complex questions than the “jail not bail” crowd would have us believe.

And second, in the absence of reliable data, we’re all trying to find a solution for a problem we don’t really understand.

dan.lett@freepress.mb.ca