Bail Reform and Fundamental Rights

In conjunction with the CCLA (Canadian Civil Liberties Association), CAEFS has sent a letter to Prime Minister Trudeau and Minister of Justice, Minister David Lametti, highlighting the ways in which the direction for bail reform contradicts the findings of an extensive body of research documenting the operation of judicial interim release in Canada.

CAEFS and the Council of Elizabeth Fry Societies of Ontario (CEFSO) have also prepared submissions for the consideration of the Ontario Standing Committee on Justice Policy, as in-person consultations regarding this issue continue. In this submission, we make clear that to those of us who work with people who are seeking bail or who are in pre-trial detention, the problems with the bail system are not only a reflection of wider problems in the Canadian criminal justice system but also of a lack of investment in community-based supports and services. While these submissions focus especially on Ontario, CAEFS is writing in collaboration with CEFSO as we recognize that bail reform is a national issue.

In recent weeks, we have witnessed swift and public condemnation of the law of bail. The Premiers have called for legal reform, and both police and political leaders have stated that our bail system has become significantly more “lenient” in recent years. They argue that changing the law to ensure more people are held in jail while waiting for the resolution of their charges will meaningfully enhance public safety.

Decades of evidence regarding the bail system and the impact of pre-trial detention demonstrates that this assumption is inaccurate – and if used as the basis for legal reform, has the potential to cause significant harm to individuals and the public.

Below is a summary from the letter and submission of some of the most salient points of evidence regarding the operation of bail in Canada:

1. Canadian crime rates, including violent crime rates, continue to be at historic lows.
2. While the rate of individuals found guilty of a crime and incarcerated has declined, the number of people in pre-trial detention has more than quadrupled in the past 40 years.
3. The law already provides mechanisms to keep people in pre-trial custody where appropriate, including for reasons of public safety (Criminal Code, RSC 1985, c C-46 at s 515(10)(b)).
4. Bail decision-making in Canada has become more restrictive and risk-averse over time.
5. It is impossible for our criminal justice system to accurately predict, much less eliminate, risk – and attempts to do so lead to discriminatory outcomes.
6. The only contribution sending an individual to pre-trial detention could make to public safety comes through removing them from the broader community – and that temporary impact is almost always going to be undermined by longer-term negative public safety outcomes.
7. Increased reliance on pre-trial detention makes it significantly more likely that an individual will plead guilty just to be released from jail, raising concerns about wrongful convictions.
8. “Tightening” the bail system and increasing reliance on pre-trial detention will have discriminatory outcomes and undermine efforts to combat systemic discrimination and the legacies of colonialism.

While we have linked a few relevant sources above, you can find more in-depth citations and references included in our documents below.

We are facing a crisis of bail and pre-trial detention in Canada – but it is not one of an overly lax system. If anything, Canada’s bail system is detaining more people than ever, with intensely negative outcomes for the individuals and communities that are most directly impacted by the criminal justice system. Reactionary reforms will not make us safer.

Read the full letter, as well as the committee submission, below.