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Several political leaders have recently made statements calling for making it harder, if not impossible, for people charged with certain kinds of offencss to get bail.
The Conservative Party platform specifically calls for no bail for anyone accused of belonging to a gang, and automatic revocation of parole for anyone who associates with gang members.
Mayor John Tory also called for an end to what he termed ‘automatic bail’ for people accused of a repeat offense involving a gun. (In the same letter he spoke, confusingly, about appropriate sentencing for these crimes which, as we will shortly see, is an entirely different matter.
These statements are not only bad policy, but they also increase public confusion about what bail is and why it exists.
Bail is part of the presumption of innocence
In Canada, a person accused of a crime is presumed innocent until pleading guilty or found guilty at trial. (In more than 90% of cases it’s the former, and there never is a trial where the evidence is weighted to determine innocence or guilt, another problem for another post.) Until someone is convicted, she or he is officially innocent.
When the Crown believes a person is dangerous and should be held in custody even though NOT GUILTY AT THIS POINT OF ANY CRIME, the Crown can apply to have the person held in custody. Otherwise people arrested and charged are released, either on their own recognizance (which means they agree to appear in court at the appropriate time) or on bail (which means they must adhere to a set of conditions set by the court and usually must provide a financial guarantee that they will appear in court).
In theory, everyone accused should be released unless there is a compelling reason for that person to be held. The Supreme Court of Canada has several times, most recently in R vs Myers, reinforced the point that normally people should be released, as quickly as possible and with as few conditions as possible. Otherwise we are presuming they are guilty rather than innocent.
Many innocent people are held in jail
In practice, that is not how bail works at all. On any given day in Canada some 18,000 people are being held in provincial jails because they were not released on bail. That is about 2/3 of all the people in provincial jails, and almost as many as all the people being held in jail or prison in Canada. Many of those being held have been charged with quite minor crimes, and very few of them could be considered dangerous.
Moreover, while in many cases people in this situation are only held for a few days or a week, in some cases people have been held in remand for two years or more, only eventually to have the charges dropped or to be acquitted. In other cases, prosecutors will offer to release a person immediately if they plead guilty, since they have already been held as long or longer than the sentence related to their charge. So people may plead guilty to things they did not do in order to avoid more jail time and more costs for lawyers.
Moreover, people charged and released on bail are often given all kinds of conditions that assume they did commit the crime. For example someone accused of drunk driving will be prohibited from driving while on bail. Or a person suspected of committing a crime as part of a gang may be prohibited from seeing his friends. If such a person is found drinking, even if not driving, or associating with those friends, even just talking, a new criminal charge can be levied of breaching a bail condition. The person can be found guilty of this even if innocent of the original charge. In Canada nearly 25% of all criminal charges are for violations of bail or parole, and in most cases these involve breaching a condition that is not in itself a crime, such as the examples given here. This problem has been identified by every report on bail as leading to a large number of unnecessary criminal charges.
Making bail harder is not an answer
Those who call for not releasing on bail people who are charged with crimes such as using guns or being part of a gang ignore that that these people have NOT BEEN FOUND GUILTY and at least some of them never will be. In fact in Canada about 35% of those charged with a crime are not convicted. So what is being advocated here is keeping people in jail in case they might be guilty of something, and the inevitable cost to that is jailing people who are, in fact, innocent.
In Canada the issue is not that we are releasing too many people, but the opposite – that we are holding jail far too many people for no good reason.
Those 18,000 people are incurring high costs given that they are still innocent, and that. They may lose their jobs, their housing, access to their children, and suffer many other severe consequences. Canadian courts have recognized this problem by giving people held on remand extra credit against their sentences if they are convicted, but that hardly resolves the problem and does nothing for those who are not convicted. And, again, this happens to thousands of people in Canada every year. Punishing people who are not convicted of a crime is a huge unfairness in any justice system.
The suggestions that justice in Canada would be improved by making bail tougher are entirely wrong. They reflect a basic misunderstanding of the whole idea of a fair justice system. Responsible politicians should not be making such proposals.