Bail: The Difference Between Theory and Reality

Bail in Canada is supposed to be a liberal and enlightened regime. However, the operation of the bail system has diverged significantly from the way the law is written in the Criminal Code. This post will discuss some themes in those differences.

What follows is legal information, not legal advice, and should not be used to make a legal decision. If you want legal advice on bails, contact a criminal lawyer.

Theory

Prior to 1972, the bail system in Canada functioned in a manner more similar to the system seen in American television and movies. An accused person was held in detention unless they could post enough money to satisfy a justice that they should be released. This led to many injustices, one of which is the creation of a class of indigent persons detained solely because they could not afford bail.

In 1972 Canada enacted the Bail Reform Act, which sought to make a priority the release of persons who pose no threat of re-offending or failing to attend court. Under the bail regime as it exists now, a person charged with a criminal offence should be given every opportunity for release at every stage of the charging process, and should be released on the least restrictive conditions.

Look at the start of the charging process. An accused person, once arrested, should be released at the scene or police station unless the police believe that it is in the public interest to hold him or her for a bail hearing.

If the accused person is held they are sent to bail court. And once at bail court, the accused person must be released unless the prosecution can prove that he or she will fail to attend court, break the law, or the release will make the public lose confidence in the administration of justice. In some limited circumstances, the onus is on the accused person to prove why they should be released.

Even when the accused person is ordered released, the bail court must release him or her on the least restrictive release option. The ladder of increasingly restrictive release options is:

  • Release with an agreement to attend court and abide by conditions
  • Release with an agreement to attend court, abide by conditions, and be sued for an amount of money if the bail is breached
  • Release into the supervision of one or more people (a surety) and an agreement to attend court, abide by conditions, and be sued for a certain amount of money if the bail is breached
  • If the prosecutor consents, release after depositing money with the court that can be forfeited if the bail is breached
  • If the accused person resides more than 200km from where he or she is being held, release into the supervision of one or more people (a surety) after depositing money with the court that can be forfeited if the bail is breached

The bail court can only release an accused person on a stricter release option if the prosecution proves that every less strict release option is insufficient. This is supposed to be a difficult task. Accused persons in Canada – who could be you or me, your brother or your sister – are supposed to be released upon arrest in the general course, and if they are held for a bail hearing they should generally be released on their own supervision. The whole idea behind the Bail Reform Act is that bail should be used sparingly and only for people who are a threat to public safety or will flee before their trial.

This is not how things work in reality.

Reality

Bail in Canada is far from the liberal and enlightened regime it is ascribed in theory. The rate of people held in pre-trial custody Canada has nearly tripled in the past 30 years, despite the fact that the crime rate has fallen. The majority of people detained in provincial jails are people waiting for a bail hearing or their trial. Two-thirds of those people are charged with non-violent offences. All of these people are presumed innocent.

The difference between the theory and reality of the Canadian bail regime is caused by failure from police and bail courts to release accused persons on the least restrictive option possible. Accused persons who should be released at the scene or at the police station are being held for bail hearings. This requires them to spend a night at the police station or provincial jail before being brought to court. If you have seen the HBO series The Night of you have an idea of the anxiety this creates. If you haven’t seen The Night of you need to finish up Game of Thrones and get on it.

Bail courts are failing to release accused persons on the least restrictive release option possible – which they are required to do under s. 515(3) of the Criminal Code. Phrased differently, bail courts are failing to follow the law. The Canadian Civil Liberties Association reports that out of 196 bail releases observed across the country, not a single person was released without restrictive conditions. Accused persons are required to follow an average of 7 conditions after their release; one individual had 34 conditions imposed. Professor Martin Friedland’s research spurred the introduction of the Bail Reform Act and the shift away from American-style cash bails. Professor Friedland comments that “the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody” (citation is at the bottom of this post). Likewise, Ramsay J. of the Ontario Superior Court of Justice commented anecdotally in R. v. Rowan, 2011 ONSC 7362, [2011] O.J. No. 5731 at para. 16 that as a lawyer he “saw surety bail grow from an occasional requirement imposed in relatively narrow circumstances to the norm for almost every case.”

The end result is a bail crisis in Canada. Too many people are being held jail while they await their trial. Your tax dollars being wasted housing innocent people in custody.

What’s the solution?

The solution is already written in a book. It’s called the Criminal Code. Section 515 to be exact. In order to rectify the bail crisis, police and bail courts need to adhere to the liberal and enlightened law that is supposed to govern Canada’s bail regime. Bail courts must adhere to the ladder principle, which is written in section 515(3) of the Criminal Code: release accused persons on the least restrictive release option possible.

The Supreme Court will have an opportunity to reinforce the ladder principle on December 2, 2016 when it hears the case R. v. Antic. The case concerns a constitutional challenge to the highest rung on the ladder of release options. Hopefully the Court takes the opportunity to instruct to bail courts to assiduously follow the ladder principle. It is the law, after all, not a suggestion.

For more information on the bail crisis, check out the Canadian Civil Liberties Association’s report, Set Up To Fail: Bail And The Revolving Door Of Pre-Trial Detention: https://ccla.org/canadian-civil-liberties-association-releases-report/.

Professor Friedland’s comment about surety bails can be found at Martin L. Friedland, “Criminal Justice in Canada Revisited” (2004) 48 Crim LQ 419 at 434.

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