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| John L. Hill |
The pressure to make revisions to procedures for granting bail became intense after a man was charged after shooting an Ontario Provincial Police officer and possessing a handgun. The shooting occurred while the accused was out on bail facing charges of assaulting a police officer and possessing a handgun.
Police unions were incensed that the courts were playing “catch and release” with dangerous criminals. They were fed up that justices of the peace had been directed to grant bail wherever possible during the COVID-19 pandemic to lessen the chance of the disease’s outbreak in overcrowded jails. They were also upset with decisions of the Supreme Court of Canada such as R. v. Myers 2019 SCC 18 that dealt with bail review hearings.
In Myers the top court held that the purpose of the s. 525 hearing is to prevent accused persons from languishing in pretrial custody and to ensure a prompt trial. The right not to be denied reasonable bail without just cause, which is enshrined in s. 11(e) of the Charter, must be enforced. The Supreme Court held that release should occur at the earliest reasonable opportunity and on the least onerous grounds. Holding an accused in pretrial detention can have serious detrimental impacts on an accused person’s ability to raise a defence. As well, there is significant cost in terms of their loss of liberty, the impact on their mental and physical well‑being and on their families and the loss of their livelihoods.
From a political perspective, the demand to toughen the granting of bail comes at a time when the governing Liberals are in a minority. “Get tough on crime” is always a popular slogan and without some action, the governing party could be accused as being soft on crime.
The actions taken by the justice minister this week represent the most reasonable and politically savvy response to the call to get tougher.
There is a segment of the voting public that forgets that even upon arrest those charged are “legally innocent.” Our jails are overcrowded. In 2020, 77 per cent of those in Ontario’s jail were awaiting trial and had not been convicted.
Simply getting tougher would exacerbate existing inequities in the bail system. Indigenous people are denied bail more frequently than their non-Indigenous counterparts and Black people spend longer in jail than their white counterparts. Other groups also face discrimination in the process — people with substance use disorders, mental health issues, LGBTQ community members, new immigrants and the less financially well off.
Everyone knew that the demand to restrict bail would be forthcoming. The proposals put forward by Lametti should be seen as the most reasonable option in this political climate.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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