How does Canada’s bail system actually work? And where does it fall short? | 24CA News
The head of Canada’s largest provincial police power strongly criticized the nation’s bail system within the wake of an on-duty officer’s taking pictures loss of life — drawing consideration to a authorized apply that’s continuously misunderstood and beset with inequity.
Ontario Provincial Police Commissioner Thomas Carrique stated he was “outraged” that Randall McKenzie, the suspect alleged to have shot Const. Grzegorz Pierzchala on Dec. 27, was out on early bail and had a lifetime ban from proudly owning a firearm.
Carrique referred to as for modifications to the bail system “to ensure that, where possible, people who are charged with violent offences that are firearms-related are not in those positions moving forward.”
But many authorized and justice specialists say requires stricter guidelines round bail miss the larger image of structural points within the justice system.
“Those problems are complex and deep and have very little to do with that moment at the beginning of the period of what could be somebody’s incarceration while they wait for a trial or in order to enter a guilty plea,” says Métis lawyer Patricia Barkaskas, an assistant professor with the University of Victoria’s school of legislation.
Here is a take a look at how bail works on this nation, what points exist inside it and the way it components into the Canadian justice system.
Why does Canada have a bail system?
Under the legislation, an individual accused of against the law is presumed harmless till they’re confirmed responsible. Granting them bail means they’ll stay out of jail whereas their case strikes by means of the justice system — a course of that can take many months.
Canada’s bail system is predicated on English widespread legislation, relationship again tons of of years. To cease prisoners escaping from jails, and scale back the price of incarceration, English courts started granting accused individuals bail, so long as sure circumstances have been met.
Much of that very same system stays in place in Canada in the present day. Under the Criminal Code, an individual has the fitting to a bail listening to inside 24 hours of their arrest if a decide is out there, or as quickly as attainable as soon as a decide turns into accessible.
If they’re denied bail, they are going to stay in custody. The monetary value of protecting an accused individual in jail is far higher than the price of supervising them locally whereas they await trial.
What are the factors for getting bail?
Under the Charter of Rights and Freedoms, accused individuals in Canada have the fitting to bail except there’s a very compelling cause to maintain them in custody.
It’s as much as police and prosecutors to make the case towards granting bail, though homicide and sure different offences have a “reverse onus,” which means the accused has to persuade the court docket to launch them.
“I’ve been at many bail hearings in my career, and they are always a challenge to bring to light to the judge the reasons why somebody’s liberty should not be taken away from them for the period of time in which they are supposed to be presumed innocent in our system,” Barkaskas stated.
WATCH | Is Canada’s bail system in want of modifications?:
A person charged within the taking pictures loss of life of an Ontario Provincial Police officer had been launched on bail whereas dealing with fees together with assaulting a police officer and possessing a handgun.
Bill C-75, handed in 2019, included an modification to the Criminal Code to introduce that reverse onus for repeat offenders charged with an offence towards an intimate companion.
The burden of proof for acquiring bail can be on the accused for sure firearms offences, stated federal Justice Minister David Lametti, as he reacted to the deadly taking pictures of the OPP officer.
“It is important to note that the bail laws are clear that detention of an accused person is justified if it is necessary to protect the safety of the public,” Lametti stated.
Often, an accused will want a surety — an individual who will promise to oversee their behaviour, and who pays a sure amount of cash if the accused breaches their bail circumstances.
Bail circumstances can embody orders to not contact sure individuals, like a co-accused or an alleged sufferer, in addition to curfews, restrictions on locations they’ll go, and a requirement to not use alcohol or medicine.
Why may somebody be refused bail?
The Criminal Code lists three justifications for protecting an individual accused of against the law in custody: it is necessary for making the accused attend court docket or for protecting the general public protected — or to “maintain confidence in the administration of justice.”
On that latter level, a decide or justice of the peace can take into account the seriousness of the alleged offence and the size of imprisonment it carries, in addition to whether or not a firearm was concerned and the “apparent strength” of the prosecution’s case.
Some of the the explanation why bail may be denied embody:
- An accused’s prison report, notably if they’ve didn’t adjust to previous bail circumstances or court docket orders.
- The accused is believed to pose an ongoing danger to the general public.
- Problems with their bail plan, reminiscent of not having an acceptable place to stay or not having a surety.
How many individuals are in jail as a result of they have been denied bail?
Many individuals in Canada’s jails are “legally innocent” — that’s, awaiting a bail listening to or trial and prone to be launched as soon as their court docket instances are finalized, says Anthony Doob, emeritus professor on the University of Toronto’s Centre for Criminology and Sociolegal Studies.
In 2020, the newest yr for which information is out there, about 77 per cent of individuals in Ontario’s jails have been in custody awaiting trial.
“We are not a lenient country, in terms of who we hold in jail awaiting trial,” Doob instructed 24CA News in an e mail.
“It is always easy, in retrospect, to suggest that certain accused people should have been held in prison awaiting trial. But it is very difficult to predict which ones we should imprison before trial.”
What inequities exist within the present system?
There are long-standing disparities between who will get bail in Canada, and who stays behind bars.
Indigenous individuals are denied bail extra usually than others, whereas Black individuals in Ontario spent longer in custody than white individuals did whereas awaiting trial on the identical offences, Reuters reported in 2017.
Many different marginalized teams — together with individuals with psychological well being points or substance use problems, LGBTQ+ individuals, new immigrants and the less-wealthy — can all additionally face discrimination within the bail system, says Jillian Rogin, an assistant professor within the school of legislation on the University of Windsor, Ont.
A key a part of the issue, she says, is the primary info that courts depend on at bail hearings: a police synopsis of the alleged crime and the accused’s prison report, if they’ve one.
“It’s really problematic because this is state evidence created for state purposes, and then the state relies on it to determine release or detention.”
The surety system additionally disadvantages poorer individuals, Rogin stated.
“If [an offender] doesn’t have a surety who has substantial means, or four sureties — it’s not uncommon to have three or four sureties — and tons of money, he won’t be released,” says Rogin.
What occurs if somebody violates their bail?
An individual who fails to abide by their bail circumstances can have their bail cancelled. They could have to return to court docket for a brand new bail listening to, and show why they need to be allowed to stay outdoors of custody. A bail breach could make it more durable for that individual to get bail sooner or later.
However, specialists level out that the majority bail violations do not contain the accused committing a substantive crime.
Federal authorities analysis highlights the issue of “onerous” bail circumstances, reminiscent of when an individual with an alcohol dependancy is ordered to not drink alcohol.
“It’s really rare that someone will be on bail and they’ll go out and, you know, commit a murder,” says Danardo Jones, an assistant professor within the Faculty of Law on the University of Windsor, Ont.
“[Those cases] get people kind of whipped up in a frenzy to think, ‘Oh my God, we are not safe, this person should have been behind bars’, but most breach of bail charges are usually someone breaching a condition of that bail, and a lot of time the bail itself sets the person up to fail.”
