Ontario must make bail reform meaningful

TheStar.com – Opinion/Commentary – For those charged with a criminal offence, being wealthy and white is still the best guarantee of avoiding a prolonged stay in a decrepit jail cell awaiting your day in court.
Nov. 7, 2017.   By DANIEL BROWN

Ontarians have waited decades for a slate of visionary reforms to a bail system that is grossly unfair and none-too-subtly racist. They are still waiting.

Reforms to the policy directive governing how Crown prosecutors ought to conduct bail hearings, announced last week by Attorney General Yasir Naqvi, are long on hopeful optimism and short on genuine promise.

They are not going to alter the fact that, for those charged with a criminal offence, being wealthy and white is still the best guarantee of avoiding a prolonged stay in a decrepit jail cell awaiting your day in court.

Once a person is charged with a crime, a bail hearing becomes a life-changing event. Depending on the prosecutor and jurist who are in court that day, you may or may not be offered favourable bail conditions. If you own a house, have a job, and have family or friends who can pledge a sizable sum of money and act as supervisors, you are likely to soon be on your way home.

‎‎In contrast, statistical data has confirmed time and again that immigrants, the mentally ill, racialized groups, and the poor stand the least chance of being released on bail. Despite remaining wholly innocent under the law, they lose their freedom for months or years as the criminal process plays out.

Barriers to fairness are everywhere. To take just one example, an individual who works two jobs and 80 hours per week may not be an acceptable bail supervisor because they are not available to meet the rigorous supervision requirements expected by the courts.

‎In many instances, house arrest has become a kind of default release plan. For the accused person, it means a measure of freedom but at the expense of his or her employment or social connections. ‎

The systemic price we pay for our antiquated bail system is equally sobering. It costs more than 40 times as much to house an inmate pending trial as to monitor him on bail.

‎‎To his credit, Naqvi has recognized the staggering cost and discriminatory nature of bail. Unfortunately, his reform package is rooted in a naive assumption that a punitive, risk-averse culture will embrace change.

Fixing the bail system requires more than principled words in a policy manual. ‎It needs education and a commitment by those on the front lines to take the “presumption of innocence” seriously.

‎Systemic cultural and racial biases infect our court system. The effects are subtle and opaque. ‎No prosecutor acts overtly racist when consenting or not consenting to bail. ‎To the average prosecutor, the indigent and the Indigenous alike simply present as poor bail prospects.

The racism and discrimination inherent in these decisions can only be detected in after-the-fact statistics. To exacerbate the problem, even when bail is proffered to a member of a marginalized group, the onerous conditions attached to it may well lead to bail breaches — one of the most common charges in the criminal courts.

Meaningful bail reform would begin by standardizing bail procedures across the province. It would also create a mechanism for holding ‎Crowns accountable if they do not take steps to change the way they approach bail‎.

We need more options for people who do not have supports in the community, such as easily accessible bail programs run by properly funded agencies that can act as sureties for those without resources or families. Greater funding for legal aid is also necessary to ensure that those accused of crimes have access to private counsel at their bail hearings.

The province should create more bail courts while at the same time educating police about the various release provisions that allow them to release accused people from the station without requiring a bail hearing in the first place. Justices of the Peace, who conduct most bail hearings, should also have adequate legal training in order to be appointed.

Naqvi’s reforms constitute a timid first step that simply reminds prosecutors of what the law is (and has been) for some time. He could show his sincerity by ordering a systemic review of accused people currently in jail who have been denied bail pending their trials. Where appropriate, the Crown should consent to their release.

The Supreme Court of Canada said it best in Regina v. Hall, a 2002 decision that decried the inequities of bail: “Liberty lost is never regained and can never be fully compensated for.”

Precious little has changed. ‎

Michael Lacy is criminal defence lawyer in Toronto and president of the Criminal Lawyers’ Association. Daniel Brown is a criminal defence lawyer and a Toronto director with the Criminal Lawyers’ Association.

https://www.thestar.com/opinion/commentary/2017/11/07/ontario-must-make-bail-reform-meaningful.html

 

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