Thank you, Mr. Chair and fellow committee members, for inviting me to speak to you today about the bail provisions as well as about shifting the process for administration of justice offences.
As we've heard from other people before, but I will reiterate, since 2005 in this country, we have had more people in pretrial detention than in sentenced custody in our provincial and territorial institutions. The rate at which we've held people in pretrial detention has more than tripled in the past 30 years. If we look at the overall proportion of those who are in custody across Canada federally and provincially, 37% of that population is in remand. However, looking only at those in provincial institutions, you'll see that this climbs to almost 59%. That means 59% of people in our provincial jails tonight have not been convicted of a criminal offence.
In an effort to understand this problem, I have been studying the bail system in Canada since 2005. I have spent hundreds of days observing bail court, watching thousands of bail appearances happen. I've done this mostly in Ontario; however, I have collected data across the country. I've also examined completed case files and conducted interviews with people who have gone through the bail process as accused persons, as well as people who have acted as sureties. I've also interviewed members of the defence bar, Crown attorneys, Justices of the Peace, judges, and representatives of community agencies that are involved in the bail process. It's from this position that I offer my comments today on the proposed changes.
I'd like to start by saying that I do agree with the comments that were made by my colleagues in the previous session, Professor Doob, Professor Webster, and Professor Sprott. Today I'm going to focus my comments on three different parts. One is around codifying the principle of restraint and the use of sureties, restraint and imposition of conditions of release, and creating a new process dealing with charges against the administration of justice.
Before I lead into those comments, a bit of background is required. It's important that we recognize that most accused people are ultimately released on bail. Most of the accused people who are released are released with the consent of the Crown attorney, meaning this is not the result of a contested show cause hearing. The Crown is consenting to the accused's release. However, that release is rarely unconditional. In Ontario, 76% of people released on bail require a surety in order to be released. This practice is not consistent across the country. Indeed, Ontario is a bit of an anomaly in the frequency with which it is relied on as a form of release.
Surety requirements can lead to a variety of delays in the bail process as it can take some time to find somebody who is deemed appropriate and is also willing to come to court and to take on this particular role. A surety requirement may be especially problematic for marginalized folks who may not have someone who can come forward in this role. The surety requirement may also delay the bail decision. It takes more appearances and more nights in remand, and may ultimately result in an individual being detained if they have been unable to find an appropriate individual.
Sureties are also generally required to be physically present in court. This is so they can hear the allegations. They may be called up to the stand to give evidence at a bail hearing, but they may also be questioned during a consent release.
I encourage and support the codification of restraint and the ladder principle and encourage a restrained use of sureties. That said, I do have some concerns, not only with the continued use of sureties but also with the lack of structuring around that discretion about making this kind of decision, as well as with other kinds of conditions of release. I'll come back to that in a moment.
With regard to other kinds of conditions of release—not supervision in terms of sureties—we don't really know how well these conditions of release attenuate risk. Some likely do, but we do know that there are some problems with the number of conditions that are routinely imposed. Some of them may be problematic on their face; some may be difficult to comply with, especially for extended periods of time; and some conditions may be setting the accused up to fail.
Each condition of release creates a new criminal offence, increasing the risk that this accused person might be brought back into the bail process. On average in my work, I have seen 7.8 conditions of release imposed on accused people, and that has ranged from as low as one. I have never seen anyone released unconditionally. I've also seen an individual who had 34 separate conditions imposed on their release order. That means 34 new criminal offences for that particular individual.
The most frequently imposed conditions are to be amenable to the rules and discipline of the home, not to possess weapons, to reside with your surety, not to contact the victim or witness, to observe boundaries or no-go zones, to attend treatment or counselling, to abstain from the consumption of drugs or alcohol, and to abide by curfew or house arrest. Not all of these conditions are problematic. Some, however, are.
Even if the conditions are not problematic as an individual, they may be as a collective. We may be packaging a group of conditions that are incredibly onerous, restrictive, and difficult to comply with for an extended period.
In my work, I've seen that a great deal of conditions have no clear or logical connection to the allegations or the grounds on which the accused may otherwise be detained.
We also know that the more conditions that are imposed and the longer an accused is subject to them, the more likely it is that the accused will be charged with failing to comply. An average time of case completion is around four months. This is a long period of time to be subject to a variety of conditions.
I again here support the codification of restraint in the imposition of conditions, but I would suggest that more needs to be done about structuring discretion on how conditions are going to be imposed.
I would suggest that there should be a clear and rational connection between the condition and the allegations or grounds for detention. We should also be thinking about people's reasonable ability to comply with those conditions for the duration that they're subject to them.
To this end, in terms of the use of sureties as well as conditions, I think more needs to be done to guide the discretion of the decision-makers: of the police in deciding to hold someone for a bail hearing; of the Crown and the judicial officer in deciding to release, consent-release, or after a show cause; and about the kinds of conditions that are going to be imposed.
If we're really interested in shifting bail practice, we have to start with the police as the gatekeepers to the court process. More needs to be done to figure out how we can encourage police to exercise their powers of release and also to ensure that any conditions police are imposing are also reasonable.
I'd also suggest that some thresholds should be established that might help guide the decision to release or to impose conditions. For example, we might want to think about this: if it's unlikely that an individual would be sentenced to a term of custody, perhaps that individual should not be detained at the front end of the process.
With regard to the release decision, if possible, we should be making this decision faster, with fewer restrictions placed on the accused.
Again, most people are ultimately released. The faster we make that decision, the less time people will spend in pretrial detention with the negative consequences that come from that. We can also improve the efficiency of the court by not having the same people coming back over and over again before a bail decision is made. I would encourage you to consider structuring the discretion more closely to the proposed amendments to the YCJA and how conditions for youth are going to be considered.
I'll shift lastly to responding to the administration of justice offences. As you've already heard, despite overall declining crime rates and declining violent crime rates, charges against the administration of justice have been steadily increasing over time. Our criminal justice system expends considerable resources in policing, in incarcerating, and in processing these kinds of charges in court.
We have to remember that bail conditions largely criminalize behaviour that outside of the bail order is not a crime. By this I mean, for example, talking to a particular individual, coming home after a certain time, or consuming alcohol.
Sometimes conditions that are imposed are clearly and closely related to concerns around public safety. However, this is not always the case. Restraint in the imposition of conditions is the starting place; it is what is most important if we want to see significant change.
My concern is that what we're doing with the judicial referral hearing is suddenly a parallel process that may end up reproducing the very challenges and problems that we are currently seeing.
As it stands, it's unclear how and when the police are to make the decision to charge somebody versus send that person forward for a hearing, and the circumstances in which a judicial referral hearing cannot be used are so broad as to impact the meaningfulness of this new process.
Here again, I would invite you to look at what's being proposed for youth for those who are then found not guilty or have the charges withdrawn around failing to comply, and look back at what that has meant in terms of their case processing.
The way bail is currently operating is an important problem that must be addressed. What is being proposed is a cautious start, and in some ways it does little more than codify what was there in R. v. Antic. I would say that those are important things—this codification—and I've made a number of recommendations in my brief for areas that I think should be considered to avoid creating the very difficulties that this bill is trying to address.
I think we need to step back, think very carefully about what we are trying to achieve in the bail process, and work towards shifting practices. The problems with bail are not new, and over time a culture has developed in the bail court. This culture is risk-averse; it is a nervousness or reluctance to be the one to make the release decision. Providing additional structure or guidance on how these discretionary decisions are to be made may inspire a shift in current practices and help promote consistency in decision-making. However, clear guidance and education will be required if we're going to shift the way that bail has been being decided in the last number of years.
Thank you.