Assessment and Analysis of Canada’s Bail System

Posted: November 8th, 2023

Assessment and Analysis of Canada’s Bail System

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Assessment and Analysis of Canada’s Bail System

Many humanitarians, journalists, scholars and criminal justice agents have raised concerns over the inefficiency and discriminatory nature of Canada’s money bail system. Millions of people are locked up for pre-trial at high costs to households and taxpayers, despite not representing any flight risk or potential threat to the community. The for-profit bail system has created an environment where individual wealth determines suitability for release more than public safety. Remaining in jail can have extreme implications, including the loss of employment, inability to care for children, deteriorating health and broken communication with loved ones. In reality, the money bail system is slow, releasing fewer people and increasing the criminal court backlog, which in turn is drastically affecting provincial remand populations. Canada’s bail system prioritizes risk avoidance and management characterized by colonialism and operational inefficiencies, contributing to the criminalization of vulnerable populations through failed releases, systemic delays in bond hearings, over-reliance on sureties, and stringent release conditions.

The Problem with the Money-Bail System

While the law dictates that an accused person is presumed innocent until found guilty, the realities of criminal practice do not accord this protection. Western law employs a two-tiered system of justice that levies a ‘poverty punishment’ for people who cannot make bail. A quantitative analysis by the Bail Verification and Supervision Services (OABVSS) found that most convicts in Ontario jails are not serving sentences after being found or pleading guilty (Legal Aid Ontario, 2019). Most of the inmates are in remand awaiting bail hearings or first trials. Jail registration data shows that there has been an increase in the number of individuals in remand in the last two decades, despite crime rates plummeting across Canada (Rogin, 2017). The detainees unable to afford bail experience some of the worst elements of the correctional system. Remanded persons do not have access to rehabilitation or rehabilitation programs, which makes them more at risk of deteriorating cognitive and physical health (Rogin, 2017). It is with reason to believe that the remanded develop the same attributes and undergo the same experiences as the convicted with time.

Long and unjust detainment has adverse individual, community and national level implications. In R. vs. Hall, the presiding judge concluded that when an individual is denied bail, he or she becomes motivated to take a guilty plea, which is the same as waiving protections accorded by the law (Rogin, 2017). At the community level, households bear the costs of accrued custody charges. Many families struggle to meet bail payments since one of the bread givers is incarcerated or has lost employment during their time in remand. At the national level, the growing remand population increases the daily operational costs for correctional facilities (Rogin, 2017). Overcrowding in provincial institutions is another concern due to potential public health implications. Medical research associates remand with a heightened risk of mental health disorders, hygiene-related complications like cholera, and behaviour-related problems like aggression (Rogin, 2017). The money bail system is causing all these issues without providing any social benefit.

Systematic Factors Contributing to the Criminalization of Vulnerable Populations

A Colonial Risk Aversion Approach to Policing

            Canada’s criminal code is built on the principle of risk aversion that has created a culture of law enforcement not exercising its duty to release individuals at scene while policing. Data gathered in the last ten years indicates a substantial increase in cases where law enforcement exercised discretion to charge and release. According to Webster, Doob, and Meyers (2009), discretion cases grew by 38% from 2001-2007. Important to note is that this rise in arrests is bound to disproportionally affect Native communities. In R. vs. Silversmith, the court put effort into highlighting how alcohol and substance abuse, unemployment and poverty are rampant in the First Nations reserves (Rogin, 2017). Socioeconomic factors predispose the Aboriginal communities to crime and criminal behaviour. Such a reality will result in many more Natives being arrested, reinforcing law enforcement’s belief that the Aboriginal way of life is intertwined with crime. The bias reveals the colonial mask behind the principle of risk aversion in community policing.

Delays in Bail Hearings

            Delays in courts holding bail hearings are not uncommon in Canada. Inefficiencies and bureaucracies in the criminal justice system negate its ability to provide the accused with the legal right to a fair and timely bail hearing (CCLAET, 2014). The law states that the police should bring the accused before a bail hearing within 24 hours of arrest for justice to be practicable and available. The law also states that bail hearings should not be suspended for more than three days without the consent of the accused (CCLAET, 2014). Data on the works of the bail court provide a different image of what is happening. The number of days an adult will spend in pre-trial custody ranges from four to twenty-four days. There are slight provincial differences, with Newfoundland having the longest median days at 31 (CCLAET, 2014). The consequences of delayed justice cannot be underplayed, as they extend beyond individuals.

Unreasonable Over-reliance on Sureties

The criminal code states that detained individuals pending bail can be released with the recognizance of a surety. The law refers to an enforceable agreement with the state that if the surety fails to meet the supervision conditions, the surety’s owner will be liable to the government for the agreed amount (Myers, 2018). Surety is one of the factors determining bail conditions. However, it tends to place unreasonable financial burdens on the accused and owners of the surety. For instance, according to a study by CCLA, 43% of accused people in Ontario’s remand were required to abide by any rule or conditions imposed on their home by the surety (Legal Aid Ontario, 2019). The reality is a short cash deposit might result in people losing their homes because of failing to meet the demands of a surety. The potential financial cost prevents inmates from using sureties even if they are candidates for release (Coady, 2018). It can be argued that using sureties in pre-trial contributes to the delays in bail hearings.

Sureties are discriminatory as they primarily affect individuals who are legal aid recipients. Individuals in the community who do not have adequate resources or social standing to qualify for sureties spend more time in remand. Research shows that people without strong family support, property, employment or ties to the middle class find it challenging to identify a suitable surety (Myers, 2018). The difficulties in sourcing sureties are greater for Native communities. Arresting Aborigines tend to be taken across jurisdictional boundaries of their respective communities and denied bail in different districts (Myers, 2018). The inability to contact familiars increases the difficulty in using sureties. Canada’s criminal justice system needs to review the conditions for sureties to improve the likelihood of minorities securing their release.

Unjust Conditions for Release

Bail conditions are discriminatory and do not mirror the socioeconomic realities of persons most likely to be remanded. The Criminal Code mandates the courts to exercise caution and restraint when determining conditions for interim release (Legal Aid Ontario, 2019). The court normally assesses the risk of the accused not appearing at trial and public safety when imposing conditions. The determination process appears easy, but the reality is that it ends up creating multiple requirements, some unrelated to public safety or court appearance risk. A study by CCLA found that 58% of the accused were required to attend counselling or treatment programs to be eligible for interim release. 21% were required to undergo special programs within a particular period (Legal Aid Ontario, 2019). Even with an interim release, bail conditions contain strict geographical limitations. The distance restrictions disproportionally affect Native communities since they are normally transported across jurisdictional lines. The court cannot release an inmate with a 40-kilometre radius restriction if the First Nations reserves are beyond the set limit.

The behavioural requirements for bail are biased as they go against a person’s liberties. The true negative implication of behaviour-based conditions is the accused’s inability to abide by the requirements (Legal Aid Ontario, 2019). Locals cannot be expected to subscribe to a given way of life to meet remand conditions, yet they have distinct cultures and values. Research shows that multiple conditions for bail, compounded by the time spent in remand, increase the chances of an accused violating bail conditions once released (Legal Aid Ontario, 2019). The statistic highlights another way the criminal justice system creates conditions to criminalize vulnerable populations. The violation of bail requirements results in formal criminal charges, making the accused a registered criminal (Legal Aid Ontario, 2019). Moreover, the breach will make a person legible for pre-trial detention, which means spending time in remand without the possibility of an interim release. Risk avoidance dictates that the court not release an individual with a history of bail violation.

Inefficiencies in Legal Aid Services

             One of the understudied implications of the money bail system is its impact on legal aid agents (LAAs). LAAs are parties charged with providing legal assistance to individuals unable to afford representation or formal access to the criminal court system ((Legal Aid Ontario, 2019). One of the primary implications of the current bail system is the overcrowding in jails. The high number of remanded individuals creates conditions that affect the ability of marginalized persons to access basic welfare services (Donnelly & McDonald, 2018). Such a development negatively affects LAAs by increasing their workload. According to Legal Aid Ontario (2019), nearly 60% of cases in the province require legal aid services. The imbalance in the LAA-inmate ratio results in instances where individuals go to pre-trial without receiving legal counsel (Donnelly & McDonald, 2018). The lack of knowledge makes them more likely to enter a guilty plea for a lower sentence at the expense of becoming registered as a criminal.

            Overworking LAAs affects their ability to provide quality legal counsel, which increases the likelihood of the accused becoming convicted. Numerous studies highlight the consequences of a poor work-life balance on individual work performance and health. A tired, sleepy, and confused LAA might miss information crucial to an accused’s bail hearing (Legal Aid Ontario, 2019). On the other hand, overcrowding in jails increases the operational costs for LAAs. Since Natives are most likely transported across jurisdictional lines, legal aid organizations must cater to their agents’ transport costs. In addition, travelling vast distances exhausts LAAs, which equally impacts the quality of their legal counsel (Legal Aid Ontario, 2019). Heightened operational costs for LAAs mean less available funds for meeting the bail demands for the remanded. Reducing the availability of legal assistance is perhaps the most dangerous and understudied systemic implication of the money bail system. Even when vulnerable populations lack private funds and social standing to meet interim payments, there is still no hope for public assistance.

Potential Solutions to the Bail Problem

Reforming the money bail system means tackling the issue from two fronts, the remand problem and the conditions for bail. Coady (2018) talks about increasing rapport among Canadians to transform the structure of the bail system. The youth are of the opinion that those remanded should be held within the community. Accused persons should not be removed from their greater support to ensure the continuity of caregiving responsibilities and the prevention of adverse health developments, such as anxiety and depression (Coady, 2018). Social proximity is critical to people accessing the resources necessary to meet bail conditions. Such a reform should be expanded to include the mandate that Natives should not be taken across jurisdictional lines to be remanded. Taking people outside the contexts of their communities contributes to the possibility of guilty pleas or the acquisition of criminal behaviours.

The criminal justice system should create incentives that create a different culture to risk aversion, as applied by law enforcement. The first alternative would be introducing a new bail regime and completely eradicating the for-profit bail system (Webster, 2015). Under the new system, the presumption of innocence is prioritized, and detainment is done under the strict confirmation of the state. The approach targets the reduced use of discretion in arrests to prevent biased arrests of minorities. The new system should equally make terms of release simpler to satisfy by mandating the court to provide individualized reasons for continued detainment (Webster, 2015). The courts should outline which types of harm to public safety and evidence supporting such potential harm that base the decision to detain an individual. Justifications for remand must be highly individualized to ensure the court considers all socioeconomic factors that impede a person from receiving justice.

The Canadian government should identify ways to provide public funding for bail to eradicate the predatory bail insurance industry. The capitalistic reasons behind bail contribute to the overcrowding in remand and actual prisons. In the United States, the bail insurance system allows private companies to act as arbiters of personal freedom, basing the choice to fund bail on a person’s ability to pay (Ofer & Roberts, 2020). Freedom is a basic human right and should not be restricted under financial or economic grounds. Such an act is synonymous with the criminalization of poverty, reminding people that bail is designed to serve the wealthy only. Apart from publicly funding bail, the government should expand targeted bail reviews. Expanding interim conditions provides legal counsel with leeway to challenge illegal requirements (Ofer & Roberts, 2020). The vulnerable should be subject to alternative interim conditions, such as restorative justice since they are more predisposed to criminal tendencies.

Public funding of bail also implies escalating the level of financial and systemic support offered to LAAs. The government needs to establish better systems for integrating pre-trial legal counsel. For instance, improved information sharing between duty officers may allow one LAA to represent the same client in different matters or different clients on the same matter (Legal Aid Ontario, 2019). Federal funding can improve LAA staffing, enabling the provision of counsel during weekends and statutory holidays. Employee training and development should be the next step to improve the quality of legal advice provided in pre-trial. The lack of access to quality LAAs is cited as a major contributor to the accused taking guilty pleas (Legal Aid Ontario, 2019). The government can engage in joint initiatives with relevant stakeholders to design and execute suitable training and development programs for LAAs.

Conclusion

            Canada’s bail system focuses on risk avoidance and risk management, which has contributed to the criminalization of vulnerable populations through the practice of not releasing offenders who present non-trivial levels of risk to re-offend, offenders who have allegedly committed minor offences or placing onerous restrictions on accused people when released on bail. There is growing discontent with existing bail conditions, and there are suggestions for reforming the criminal code. Some potential solutions presented by critics are increased financial support for LAAs, restricting remand to the community setting, and eradicating the for-profit insurance bail system. Further research on the types and frequency of crimes done during bail and the conditions of remand cells should be done to build sufficient social rapport for implementing policies that create suitable bail conditions. Flexibility, responsiveness and consideration for individual factors are urgently needed in the Canadian bail process.

Critical Response Assignment

Going through your post triggered some emotional and physical responses that I thought I had forgotten or overcome. Time in prison is no easy feat for an individual with no history of criminal behaviour or experience with crime. As a Native, it is unfortunate that my experiences with the Canadian bail system did not come at the hand of the Tribal Police. There is an identifiable blur on how Tribal police and local law enforcement exercise their jurisdictional powers. I recall being stopped by police around 10p.m after coming from a local bar in Ohsweken, Ontario. According to the law enforcement officers that stopped me, my physical appearance and demeanour matched the descriptions of individuals reported to have caused a public brawl at the bar I had come from. Despite leaving the recreational facility before the fight, my drunken state made it difficult for me to plead my innocence. By the time I regained normal cognitive and physical functioning, I was in a cell in Oshawa, 120 kilometres from the Ohsweken jurisdiction.

Law enforcement deliberately takes the accused to different jurisdictions, making it hard to get out. One of the main points in the essay is the integration of bureaucratic checks to impede access to legal counsel or social support (Rogin, 2017). I took nearly 24 hours to access a telephone call to inform close friends that I was locked up in Oshawa. I had to wait until the next morning for my friends to complete the contributions for my bail. A total of six men with families had to contribute to my interim release, highlighting income as an impediment to bail (Rogin, 2017). Even though I had money to secure my release, the process took another day because law enforcement had to verify my conditions for bail. Luckily, I am friends with our head of Tribal Police, who gave me sufficient social standing for my release. Your post talks about unreasonable bail conditions and their impact on minorities. I was required to present a spiritual leader or community leader to validate my behaviour as a null risk in breaching bail conditions.

While I did secure my interim release, bail conditions ensured I did not enjoy my basic human right to freedom. The fact that I was arrested in Ohsweken, but my bail hearing conducted in Oshawa led to the courts imposing bias conditions. For instance, I had to report daily to the head of our Tribal Police to provide physical evidence that I had not left the county. Legal Aid Ontario (2019) complains about how stringent geographic limitations imposed by bail impact the quality of life of the accused, including the ability to work. If I was a truck driver, the set bail conditions would have meant a potential loss of employment for the duration of the pre-trials. The reality for Aborigines is that there is an inevitable loss or consequence at the individual level once a person is arrested. The criminal justice system is designed to ensure unwarranted personal compromises under the justifications of risk avoidance.

Effective reform of the bail system is only achievable through a bottom-up approach. The main problem is the discriminatory policing approach that results in more minorities getting arrested. I was fortunate to be given the cause behind my detainment, as the essay highlights an increase in discretionary arrests. Police should have more substantial reasons to detain a person at scene. Moreover, arrests should not entail moving across community lines. The criminal justice system is designed so that each community has its law enforcement facilities. I would have spent more time in Oshawa if I did not make my bail because I had no contact or access to legal counsel. The public needs to read more about issues presented in your essay to build collective action toward establishing alternatives to bail.

References

Canadian Civil Liberties Association and Education Trust. (2014). Set up to fail: Bail and the revolving door of pre-trail detention. CCLA.

Coady, K. (2018). Assessments and analysis of Canada’s bail system. Department of Justice, https://www.justice.gc.ca/eng/rp-pr/jr/rib-reb/bail-liberte/index.html

Donnelly, E. & McDonald, J. (2018). The downstream effects of bail and pre-trial detention on racial disparities in incarceration. Journal of Criminal Law and Criminology, 108(4), 775-816.

Legal Aid Ontario. (2019, July 18). A legal aid strategy for bail. Legal Aid Ontario, https://www.legalaid.on.ca/documents/a-legal-aid-strategy-for-bail/#footnote16-marker

Myers, N. M. (2018). Shifting risk: bail and the use of sureties. Current Issues in Criminal Justice, 21(1), 127-148.

Ofer, U. & Roberts, S. (2020, July 22). This Canadian company is bankrolling the predatory bail industry. ACLU, https://www.aclu.org/news/criminal-law-reform/this-canadian-company-is-bankrolling-the-predatory-bail-industry

Rogin, J. (2017). Gladue and bail: The pre-trial sentencing of aboriginal people in Canada. The Canadian Bar Review, 95(2), 325-357. https://cbr.cba.org/index.php/cbr/article/view/4411

Webster, C. M. (2015). ‘Broken bail’ in Canada: How we might go about fixing it. Research and Statistics Division, Department of Justice Canada.

Webster, C., Doob, A. & Myers, N. (2009). The parable of Ms. Baker: Understanding pre-trial detention in Canada. Current Issues in Criminal Justice, 21(1). https://www.tandfonline.com/doi/abs/10.1080/10345329.2009.12035834