Let’s leave aside for now the debate over whether bail is too easy, though experts agree that overall, bail in Canada is too hard to get for way too many people. Here I want to focus on what living on bail is like for most people.
I had nearly two years on bail. During all that time, though I faced criminal charges, I had not been found guilty of anything. Officially I was innocent. But that’s not at all how bail feels.
Even in my case — older first-time offender, without any risk factors and with no victims — bail was not easy to get. When I was arrested, after my initial questioning at a police station (and being fingerprinted), I was held in a police cell and later in the afternoon, taken (handcuffed in a jail services van) to a court for an initial bail hearing. There was no compelling reason for this; the police could have released me on a promise to appear in court. But they chose to have me jailed, and the Crown opposed my getting bail. This often happens despite Supreme Court rulings that bail is too hard to get, that it has too many conditions, and that more people should be released on a promise to appear.
At my initial bail hearing, the Crown said it needed more time to make the case to keep me in jail until a trial. So I was put back in a cell, then in another court van, handcuffed and taken to a provincial jail. There I spent two nights locked in a remand cell, sleeping on the floor with my head next to the toilet.
All of this is very humiliating. I was handcuffed every time I was moved and strip-searched when entering the jail. For my second bail hearing, I did not have the opportunity to shower and shave beforehand. I spent quite a few hours in an uncomfortable holding cell with no idea when my case would be called. In court, I was not allowed to sit with my lawyer. It all felt like deliberate humiliation.
At my second hearing, which involved ridiculous accusations against me by the Crown, I was released on bail with a long list of conditions. The conditions also assumed my guilt; if I were innocent (and more than a third of all charges never lead to a conviction), then the conditions made no sense. And again, the Supreme Court has said more than once that bail provisions tend to be too onerous given the presumption of innocence.
Compared to others I knew, my conditions were not too bad. Many people, for example, have house arrest as a condition, which means they cannot leave their home except under very limited and specified conditions. Any violation of bail conditions can lead to a new criminal charge, even for something that would not be a crime for anyone else — like being out after 9 p.m. if you have a curfew. On bail, you are subject to many restrictions on your life that other people do not have.
During my 22 months on bail, I could not live a normal life at all. I could not work. Most of my social contacts disappeared, especially any related to my occupation. Many people I knew seemed to presume I was guilty and just stopped being in touch. I was spending large amounts of money on lawyers and worried about money. I had to get permission from the police, through my lawyers, for various ordinary activities, such as any travel to see my family (including, at that time, a very ill parent in another city). When I did go out, I wondered every time I saw a police officer if they knew who I was, if I would be arrested again. Because my arrest had some media coverage, anyone I ran into on the street might also accuse me. My neighbours all knew — the police took time to inform them all; I wondered what effect that would have.
To be fair, nobody accosted me over my arrest, but the fear of it happening was very real. A certain amount of paranoia goes with being on bail.
The worst thing was uncertainty about the future. I had no idea how long it would be before there was a resolution to my case. My lawyer thought I had a good defence but also that a judge might not allow it, and it would take a long time and cost a lot to pursue that option. After a few months, I started to worry about how long I could afford to pay my lawyer, since there were (expensive) meetings quite regularly, while there seemed no progress on a resolution. (In saying this I am not criticizing my lawyer; that is how the system works, and it is one reason many people choose to plead guilty.) It took many months before the police provided my lawyer with disclosure of the evidence they had against me, even though they had all the evidence that was ever relevant within a few days of my arrest.
I was also told early on that the Crown would be seeking a significant prison sentence. Was I now looking at spending years in prison? If so, how would I cope with that experience, physically and psychologically? The prospect of prison was very frightening to me. Could I survive that environment? Would I be physically safe? What would a conviction and prison time do to my personal life? Was there any chance I could re-establish a professional life after a conviction, even with the decades of success I had behind me? The uncertainty and anxiety was enormous. And this went on for nearly two years. Ending the uncertainty was a major factor in my eventual decision to plead guilty.
I was fortunate. I had family and friends who stood by me the whole time. My bail conditions were not the worst. I was educated and understood the legal system. I could afford a skilled lawyer. Generally, I had the means to manage my life. I don’t know how people without those advantages cope with being on bail for months and years.
It may be that some people get bail who should not. But for most, being on bail is a singularly unhappy time, full of stress about the present and the future. Nobody should think that being on bail is a fortunate state.
David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted him anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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