Canada's bail system

Evaluations and analyses of Canada’s bail system

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This Research in Brief is based on publicly available data from several studies and publications by the Department of Justice, Canadian governments (federal, provincial and territorial), academia and community organizations that were published between 2009 and 2018, as well as information from various media sources. Preliminary findings from a Department of Justice study are also presented.

Bail issues are a national issueFootnote1

Given the magnitude and impact of the issues currently affecting Canada’s bail system, stakeholders and experts (e.g., the Office of the Correctional Investigator, the Canadian Civil Liberties Association, academics, court staff) have argued that national leadership and a coordinated approach are needed to address bail issues. Indeed, the recent Standing Senate Committee on Legal and Constitutional Affairs “recognizes the need to reform the bail process and the manner in which accused persons are remanded in custody.” Aspects of leadership and reform can come from investments in bail infrastructure and supports, legal reform, and the establishment of treatment, rehabilitation and employment programs at the bail and remand stages.

Academics, community organizations and court workers have argued that a cultural shift away from risk aversion has led to the creation of an overly punitive bail system.

Many stakeholders have expressed concern about the increased focus on risk avoidance and management within the bail system. Key decision-makers, police officers and court staff are influenced by a risk-averse mindset. This mindset has had the effect of limiting the discretion of these stakeholders, and as a result, they avoid releasing accused persons who pose a significant risk of reoffending, even for minor offences.Footnote2.

Recent comparative research has revealed the extent to which Canadian prosecutors are likely to be concerned with general risk management and onerous restrictions on accused persons released on bail, while court practitioners in England are concerned with expeditious bail proceedings, minimizing detention and reducing costs associated with courts and correctional facilities. Overall, this finding highlights the range of factors at play in bail courts, the importance of judicial culture, and practitioner and policy priorities regarding the role of the criminal justice process. With respect to judicial culture, it has been observed that the relationship between the defence and the Crown in bail courts is highly contentious and characterized by protracted negotiations. When bail decisions are made, risk information, a bail plan, a surety and risk mitigation are often presented to secure release. Typically, bail is granted once the defense agrees to restrictive bail conditions, which often require some form of supervision.

Furthermore, observations on bail in Canada have highlighted that bail most often requires more than one appearance, which contributes to the problems of delay and efficiency in Canadian criminal courts.Footnote3.

Analysts have also highlighted the extent to which legislative reforms have led to the issuance of onerous release orders (including through increased use of sureties, multiple conditions, bail supervision programmes and monetary guarantees) that are often unrelated to the alleged offence and are imposed on defendants who are not in custody. The extent of this is seen as a problem for the presumption of innocence.Footnote4.

Various stakeholders noted that the impact of current bail issues could further criminalize vulnerable populations.

Academics, community organizations, and court staff have identified a number of bail provisions as having undesirable impacts on vulnerable populations. For example, reverse onus provisions, which place the onus on the accused to provide reasons for their release, have been identified as being difficult for individuals with mental health issues or those who are not represented by counsel.Footnote5The requirements of having to find the necessary sureties and monetary guarantees have also been described as a barrier to the release of low-income people.Footnote6. The use of conditions that include prohibitions, such as requiring an accused with substance abuse problems to abstain from alcohol or drug use, is seen as a measure that promotes the failure of the release of persons with substance abuse and mental health problems. Specifically, abstention conditions can result in breaches of conditions.Footnote7. Finally, recent research on youth bail conditions has revealed that, on average, youth are subject to seven (7) conditions and that there are differences in the quantity and quality of conditions depending on the gender of the accused.Footnote8.

The implications of this have been particularly significant for Aboriginal people, who face several interrelated problems.Footnote9A recent study conducted by the Centre for Aboriginal Policy and Program Innovation with 692 key stakeholders in Aboriginal justice highlighted the extent of the impact of current issues surrounding bail on Aboriginal people.Footnote10. Aboriginal Courtworkers confirmed that many socio-economic, psychological or family factors regularly lead Aboriginal people accused of criminal offences to violate their release conditions and commit offences against the administration of justice (AOJ).Footnote11.

Other analysts of bail issues have observed that important legal principles have not been respected at the bail stage when it comes to Aboriginal peoples.Footnote12. Specifically, there is concern that Gladue principles  or systemic considerations that should be taken into account are not being adequately interpreted and applied at the bail or judicial interim release stage. For example, systemic issues such as institutional bias, policing trends and bail practices that disproportionately impact, and result in consequences for, Indigenous peoples are being overlooked.

Further highlighting the impact of bail on Indigenous peoples, a recent Department of Justice study on guilty pleas draws on input from members of various working groups and committees working with Indigenous peoples in the criminal justice system.Footnote13to outline the extent to which Aboriginal accused may plead guilty based on a variety of factors, including bail-related factors. This can be seen in Aboriginal accused who are more likely to plead guilty when denied bail simply to “get it off their chest”, to get out of pre-trial detention and to get a lighter sentence in return.Footnote14. Thus, bail not only impacts the processing and effectiveness of the criminal justice system, but can potentially have a differential and consequential impact on different groups, particularly Indigenous and vulnerable groups

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