Thank you very much.
It's a welcome opportunity to present the views of the John Howard Society on bail issues in our country. We regret the tragic death of the police officer at the hands of someone who had been released on bail and was not respecting the conditions.
Criminal law reform, however, that is motivated by a single tragedy incident too often does not address the real problem. In our view, another reverse onus provision will not fix our broken system. It is our hope that the death will be the impetus for a comprehensive reform of the dysfunctional pretrial release and detention system in Canada.
Our hope is that the reforms are empirically based and address both the respect for the presumption of innocence and the right to reasonable bail while serving to protect the public over the short and long term. It appears our current system is failing on both fronts.
The presumption of innocence has been a principle of our criminal justice system since the Magna Carta. Most first world justice systems include this presumption and the attendant right not to be punished prior to the conviction of a crime.
High pretrial detention rates raise concerns among international human rights bodies and others that rights are being violated in a country's justice system. Compared to other countries, Canada's proportion of pretrial detention prisoners to total prisoners is shockingly high. In England and Wales it's 11.7% and in the United States it's 22%, while Canada's pretrial prisoners amount to 38.7% of the total prison population, according to 2017-18 data. Compared to other developed countries, that proportion jeopardizes Canada's reputation as a country that takes the presumption of innocence and rights to reasonable bail seriously.
Hopefully this study of bail will get an explanation of why the legislative provisions lead to such high rates of pretrial detention. Delays and inefficiencies in the system could lead to prisoners being detained for longer periods of time than in other developed countries. That is a serious deprivation of liberties. Delays in the system could also be leading to people who are released on bail being subjected to liberties-limiting conditions for longer periods than necessary.
Trial processes may be taking too long in Canada. Courts are bogged down with low-level offences, including administration of justice offences. Most effective alternatives to the criminalization of addiction, mental illness, homelessness and poverty would make the criminal justice system more efficient and allow it to focus on the more serious offences.
In 2018-19, of the 310,000 cases of decisions in adult courts taken across Canada, about 119,000 were not guilty findings. How many of those were subjected to pretrial detention or had liberties restrained due to bail conditions? While those detained and convicted tend to have the days in pretrial custody deducted from the proportionate sentence, there is no offset for the innocent for their deprivation of liberty prior to the charges being dropped or being found not guilty.
Would the number of cases clogging down the system that result in acquittals and charges being dropped be reduced if Crown attorneys rather than the police lay the charges? The issue does not seem to be the need to keep more people detained in pretrial detention but the need to focus detention on those who pose a flight risk or an immediate risk to public safety.
On principle, the John Howard Society opposes reverse onus provisions. If a person is to be denied liberty, it should be the state that persuades the judge that it is necessary. Risk of future criminality is very difficult to predict accurately, and while past conduct is one of the better indicators of future behaviour, studies show that after five years of being crime-free after completing the sentence, the risk of a person with a criminal record committing another offence is about the same as the risk posed by someone who's never committed an offence.
There is undoubtedly a risk posed by people who are in an active violent crime cycle. The person—referred to by your witness Robert Davis—who breached his current bail conditions, was in possession of a handgun and was nevertheless re-released on bail, should be studied to find out why. Did the Crown fail to persuade the court to detain? What evidence was presented? Was there a reverse onus that was applicable?
On the other hand, how many are defaulting into pretrial detention due to homelessness, mental illness, addiction, no access to counsel, no surety and no community bail supervision or alternative programs. Courts are bogged down with low-level crimes and administration of justice offences and offences connected with mental illness and addictions.
Community-based alternatives would provide greater efficiencies, and we know that the community-based bail verification supervision programs work well, are less expensive than detention and counter the systemic discrimination against the marginalized in the criminal justice system. There should be greater investment in them.
Studies are clear that time spent in pretrial detention increases the risk of future crime. Even short periods disrupt stabilizing employment, housing, health and treatment regimes, child care responsibilities, education, social networks and families. Custody in provincial jails, pretrial, expose people to violence, deny them access to rehabilitative programming and often limit their access to medical treatment. It is a harsh experience. Too many people die in pretrial detention.
In conclusion, John Howard hopes there is a comprehensive reform to our bail system.
Thank you.