I should correct the record. I'm a Ph.D. candidate. I'm not quite a doctor yet, but very soon. It does sound nice, though.
Thank you for the opportunity to be here today and to participate in the study on Canada's bail regime. I have three points I want to make today before taking your questions.
One, bail is a constitutional right. It finds its expression under section 11(e) of the Canadian Charter of Rights and Freedoms, but bail has also been part of the common law system for centuries. This is not a novel idea. It's not something that came into existence in 1982. It's been part of the common law tradition for a very long time. It recognizes that the state has a burden of establishing an accused person's guilt before denying or abridging their right to liberty. The right to bail subsumes other constitutional imperatives—for instance, the presumption of innocence; the right to life, liberty and security of the person; and the right to a fair trial. Taken together, though, all of these constitutional rights form perhaps the strongest procedural safeguards for people accused of criminal offences.
I mention this to set the tone that we have to be careful that protecting public safety, which is important and paramount, doesn't come at the cost of public confidence in the administration of justice, that it doesn't come at the cost of an erosion of constitutional rights.
My second point is that the granting of bail is not a matter of judicial benevolence or leniency. It never has been. I make this point because in our criminal jurisprudence on bail, the presumption in the Criminal Code and also in the case law is release. There's a reason for that. It's because accused people are presumed to be innocent. The Supreme Court of Canada has said over and over again that the granting of bail should not consider matters extraneous to the requirements articulated in the Criminal Code and in the jurisprudence on judicial interim release.
Bail is about risk management. It's not a science; it's an art. There are factors that are considered, that are set out in the Criminal Code, that a bail judge or a justice of the peace must consider in their decision-making, but we're also reminded that the principle of restraint is paramount—the idea that we should not rely, or overrely, on carceral responses at the bail stage.
There's a reason for that. We cannot compensate people for the loss of liberty after they are acquitted or a prosecution falls apart, which often happens. These people cannot be compensated. I have heard a few witnesses talk about some of the collateral consequences of being denied bail, or of being granted bail but on onerous conditions, whether it's the loss of a job or whether it's a disruption in family life and so on.
Moving to my third point, I want to talk about the reasons people do poorly on bail. It's not because they are inherently risky. There's a lack of social infrastructure to allow people to thrive while they are out in a community, waiting for their day in court. Oftentimes, that is the reason people breach. It's a lack of housing, and inadequate access to treatment and to the things necessary to lead a prosocial life.
Thank you.