How the Trudeau government can fix Canada’s broken bail system

Posted on February 23, 2016 in Child & Family Delivery System – Opinion/Editorial
Feb. 22, 2016.   Globe Editorial

Last summer, we asked whether there is a politician in Ottawa who has the courage to take up the cause of reforming Canada’s pretrial detention system. A report on the same subject delivered to the federal government at about the same time, but only made public this week, adds new urgency to the question. As the report makes clear, this country has turned a basic principle of justice on its head in the name of craven political expediency.

In Canada today, there are more legally innocent people in prison than there are guilty ones. The innocent – about 55 per cent of total prison populations – are people charged with crimes, many of them minor, non-violent offences, who are being detained by a system that is punitive, inequitable and ultimately self-defeating.

This is not how Canada’s bail system was intended to work. The Bail Reform Act of 1971 put an end to unfair pretrial detentions, but a steady corrosion of its principles has occurred since then. The corrosive substance has come from the mouths of tough-on-crime politicians, who have stigmatized the bail system by focusing on the rare cases where an accused person out on bail has committed a violent crime. The system has been cowed into putting the perception of public safety above all other consideration.

Police officers are now reluctant to use their discretion to release a person charged with a minor offence on his or her recognizance, instead putting the suspect into the bail system and leaving it to the courts to take on that responsibility. Judges, prosecutors and even defence lawyers are equally risk averse. Accused people are generally given overly strict bail conditions that set them up for failure, or demands for surety that they cannot meet. Lower-income people are especially hurt by this, creating a gross inequity.

Canada is supposed to be a country that upholds the presumption of innocence and is restrained in its used of imprisonment. But as this report demonstrates, that is not our country today. Pretrial detention rates have become unacceptable. Of all the things the activist Trudeau government should act upon, this is one that goes closest to the heart of what it means to be a just country. The government has said it will reform the bail system. Now it must summon the courage to do it.

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