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Light on crime, easy on bail

In the realm of criminal justice, the balance between ensuring public safety and upholding the rights of the accused is often precarious. Nowhere is this more evident than in Canada’s bail system, which has recently come under scrutiny following numerous incidents around the country involving consistent repeat offenders. Pointing to a recent incident in Victoria, BC, a case involved a suspected carjacker who was arrested three times inside of three days for break-ins. What happened each time? Caught, processed, and released.

The events in Victoria highlight a stark reality: despite being apprehended repeatedly for criminal activity, the individual in question was released each time, only to continue their suspected criminal activities. This revolving door phenomenon spotlights the shortcomings of a system that prioritizes liberty over public safety without adequate safeguards in place.

Canada’s bail system operates on the principle of presumed innocence, granting individuals the right to be released pending trial unless there are compelling reasons to detain them. While this approach is rooted in fundamental principles of justice, its implementation often falters in practice, as demonstrated by the Victoria case.

The Standards Council of Canada (SCC), a Crown corporation of the Government of Canada, concluded in a 2015 (St-Cloud) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.” In further 2017 (Antic) and 2020 (Zora) decisions, the SCC ruled that for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position. This system was based on English common law, dating back hundreds of years to stop prisoners escaping from jails while reducing the cost of incarceration by granting accused people bail if certain conditions were met. The problem with this? While the “granting accused people bail” part is still true, “certain conditions” are eroding.

The policies behind the concepts that have turned into “bail not jail” and “catch-and-release” were designed to prevent unnecessary pretrial detention, which can lead to undue hardship for defendants, including loss of employment, disruption of family life, and increased likelihood of reoffending upon release. However, it is also important to consider that this emphasis on release at all costs can undermine public safety when individuals with a history of criminal behaviour are repeatedly granted bail without appropriate conditions or oversight.

Further, the lack of meaningful consequences for breaching bail conditions can encourage offenders while eroding public trust in the justice system. When individuals repeatedly break the conditions of their release without facing meaningful repercussions, it sends a message that accountability is optional, undermining the deterrent effect of the law.

In cases like that of the suspected carjacker in Victoria, the failures to address repeat offenses come from a lack of assessment on the likelihood of an individual reoffending. There are more severe cases with the same issue – in December of 2022, an Ontario Provincial Police officer lost their life in the line of duty at the hands of an individual who was out on bail with an extensive criminal history. The devastating loss of a dedicated public servant should not just become a statistic – it should serve an important reminder of the potential consequences when individuals with a history of criminal behaviour are granted bail without adequate safeguards in place.

While the bail system is important, it needs reform with a risk-based approach that assesses the likelihood of reoffending and the potential risk posed to the community before determining whether to grant release. This reform should prioritize the safety of the public while ensuring that defendants’ rights are respected, and that their individual circumstances are taken into account. Recent incidents caused by Canada’s bail system serve as a sobering reminder of the need to reevaluate Canada’s “bail not jail” policy. By implementing reforms that prioritize risk assessment, accountability, and support for defendants, Canada needs to have a focus on building a more equitable and effective criminal justice system.

While the presumption of innocence is a cornerstone of our justice system, criminal history and immediately available evidence should be considered before deciding how innocent an individual is – if not, at what point does repeat criminal activity become a threat to public safety?