Frequent delays in tech-deficient court system contribute to bail concerns

Last week, the federal government (once again) delivered a bail reform package that it promised would make Canada safer. It is unlikely to work, but not for the reasons you think.

The current national preoccupation with the bail system has driven a debate that is short on facts and data but long on emotion and conjecture.

Federal Justice Minister Sean Fraser’s suggested changes are not problematic, in and of themselves. Bill C-14 is lengthening the list of offences for which accused persons will face a “reverse onus,” the legal premise where someone charged with a crime has to prove they should be eligible for bail, as opposed to putting the onus on the Crown to prove why they should not.

This expanded list of crimes includes breaking and entering a home and sexual assault involving choking. These crimes join a host of other violent offences that were already subject to a reverse onus.

Does this solve the bail problem? Honestly, before we can deduce that we’d have to know what the problem is. And right now, we haven’t got a hot clue.

Many Canadians, including many politicians, believe the bail system is too lenient. Their concerns are based on a series of high-profile cases going back over the past several years, where someone accused of a serious crime was released and committed an even more serious crime.

Do these cases prove the bail system is too lenient, or broken? Unfortunately, no one has been able to show that this is anything more than a concerted effort to bundle together a gaggle of anecdotes to prove a theory.

It has been said in this space before, but it deserves to be said again: the plural of anecdote is not data. And while a lot of critics who are freaking out over bail don’t want to acknowledge it, we don’t have the data to reach any firm conclusions. And what data we have challenges some of the most common assumptions.

So, let’s look at some of the main concerns, starting with the bail system is, in general, way too lenient.

On this point, there is some data. Emphasis on “some.”

For example, the Globe and Mail recently reported bail numbers from Ontario, which showed the number of people charged with criminal offences who are being granted bail is falling. In addition, the number of people released by police on undertakings to appear has also fallen.

The premise that bail is actually harder to get is buttressed by data on remand incarcerations. Right now, roughly half of all people in provincial jails are in pre-trial or remand custody. That number has been going up in recent years, and is expected to rise even more with tougher bail eligibility being prescribed by Ottawa.

But what about the most violent offenders — are they somehow able to get released more often even as most people are finding it tougher to get bail? It’s a great question with virtually no supporting data. Canada’s justice system remains, save for a few progressive outposts, a dinosaur of information management. Manitoba is among the best examples of a jurisdiction that literally has no way to analyze bail decisions.

Manitoba’s courts — from the provincial courts, through Court of King’s Bench and the Court of Appeal — all rely on paper records that are managed manually. If you think that is madness given the sheer volume of cases handled each year in Manitoba courts, you’d be absolutely correct. And you’d have some good company in that perspective.

A 2023 special report by Manitoba auditor general Tyson Shtykalo on court delays found the system not only lacked the technology to efficiently manage court files, it lacked the personnel and an overarching strategy to make use of the new integrated case management system being implemented years behind schedule.

Started in 2019 under the former Progressive Conservative government, the current timeline for completion of the ICM system is now April 2029. However, “given that the ICM project is already behind, and scope and size of the ICM project is substantial, there is a significant risk that the project’s timeline and associated costs could be underestimated.”

A lack of modern information management not only makes it difficult to track and analyze bail decisions in real time, it contributes to delays that put enormous pressure on the court system. Delays that, no doubt, contribute to some of the errors in bail decisions.

The worst part of this story-behind-the-story is nobody involved in the hyperbolic debate on bail seems aware it even exists.

You won’t find any of the “jail not bail” crowd calling for greater investments in information technology and staffing to ease delays and create the conditions for better bail decisions. Instead, we can only make it harder for people to get bail.

On its own, restricting bail eligibility is unlikely to eliminate tragic cases. But even if it does, with the complete lack of data at our disposal, how will we ever know?

dan.lett@winnipegfreepress.com