This morning, the Attorney General, Yasir Naqvi, announced a new ‘strategy’ to tackle Ontario’s growing bail problem. The ongoing attention to bail in the province has a lot of Ontarians questioning their knowledge of what is bail, really, and… who cares?

A keystone of the Criminal Justice System is that, as citizens, we are all presumed innocent until we are proven guilty beyond a reasonable doubt. Being charged, alone, cannot take away that presumption of innocence. However, once you are charged under the Criminal Code, the State (the police and the Crown) have the ability to hold you in jail (detain you) if it can show that you are a flight risk, pose a danger to the public, or that releasing you would be contrary to the public interest.

In other words, innocent or not, getting charged with a criminal offence may mean that you are going to be spending months in jail if you can’t “get bail”.

How does one get bail? Without getting into the nitty-gritty of the legal tests, most people will need a couple of key things: an address to live in pending trial and a surety. However, to be successful, these requirements are nuanced by the prevailing attitudes of Courts and Crowns:

  • Address: An address won’t likely be approved if it is where the offence took place or where the complainant (alleged victim) lives. Courts and Crowns may resist addresses that aren’t permanent (think shelters, or short-term hotel rooms). For many alleged offences, courts will want an address where the surety will live.
  • Surety: A surety needs to promise a bond (an amount of money – usually a minimum of $500) to secure their role – the surety will likely need to show that they are able to fulfill that monetary promise if needed. Sureties should know the accused person and should be able to justify their belief that the accused person will behave while released. Bail is less likely to be granted with sureties who have criminal records. Sureties cannot be co-accused, and should not be complainants (victims) of the alleged offences.

The conditions go on; however, I think this gives you a taste.

Now imagine you are charged with an offence against your partner at your home. Overnight, could you find a long-term home and a friend to live with (who will promise a large bond) that would satisfy these burdens? Now think about someone less privileged than you: someone who may not have a home or someone new to the area – how much harder would it be in this case?

With bail being harder and harder to secure, it means more people have the unbearable choice: do I stay in jail until my trial, or do I plead guilty and get a criminal record to get released (even if I didn’t do it)? This is the choice many Ontarians have to make.

On the flip side, provincial detention centers aren’t designed to hold a bunch of innocent people while trials take months to years to happen. This means that the jails are overcrowded, leading to a host of new problems.

Mr. Naqvi has announced proposed changes to our system: new beds (to address some of the address issues), more Crowns (I’m not sure how 32 Crowns across all of Ontario will actually help), and access to duty counsel in some detention centers (to provide more information). Will this change what is broken about our bail system? In my opinion: not really.

Although we can be thankful that bail is receiving some attention, the Minister seems to have overlooked a huge problem with bail: an attitude from many Courts and from Crowns that bail (the release of those presumed innocent) is something that should be heavily guarded and only provided with stringent conditions. Until then, all we can do as defence counsel is argue for change, fairness and the constitutional right to reasonable bail: one client at a time.

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