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Ontario’s bail problem: Attempted solutions

Thursday, April 16, 2020 @ 12:16 PM | By Senem Ozkin

Senem Ozkin %>
Senem Ozkin
The law of bail has garnered a lot of attention in the last seven years, starting with the John Howard Society’s seminal paper identifying, and suggesting ways to ameliorate, the bail problem in Ontario. In that same time frame, the Supreme Court of Canada has released three decisions on bail, with another one on the way this year, to provide guidance to all players in the justice system on how to do bail correctly and to right the wrongs that have festered in the bail system for decades.

While everyone seems to be in agreement that there is a bail problem in Ontario, there seems to be a difference in opinion as to where the solutions to the problem can be found. As a result, we have seen the implementation of various changes in bail court in Ontario over the last few years. These include: the introduction of a new Crown policy manual on bail; a pilot project wherein two courthouses saw a change of decision-makers in bail from justices of the peace to judges; the creation of new positions for Crown attorneys as embedded crowns at police stations and as bail vettors; and most recently, on a federal level, new bail provisions in the Criminal Code of Canada thanks to Bill C-75.

With the exception of the new bail provisions in the Code, which are too recent to have had much effect, the remainder of the potential solutions on the list do not seem to have made much of an impact, if any, on fixing the bail problem in Ontario. As this paper will suggest, there are two reasons for this: that the proposed solutions are premised on a belief that the bail problem is the result of the prevalence of risk aversion in the criminal justice system, which is likely not where the problem lies; and that the solutions are geared to treat the symptoms of the problem rather than the problem itself.

This paper will argue that instead of widespread risk aversion, the crisis in our bail courts is due largely to the fact that bail has lost its status as a constitutional right and come to be treated as a privilege for the accused, something that has to be earned, in all cases. In order to restore bail back as the constitutional right that it is, we have to advocate to recalibrate the lens through which bail is seen; to challenge the practices that have developed in our bail courts and to urge for interpretations of bail law that are in line with the rights of accused persons.

The lens through which we have come to view bail has influenced the way bail law is interpreted and led to the practices that have developed in our bail courts. A prime example of this is that for Crown onus cases. Despite the provisions in the Code that outline that the burden is on the Crown to show cause why an accused person should not be released on the least onerous form of release, these hearings have, in practice, come to be run as though the onus was on the accused to justify release — for example, by asking the defence what plan of supervision it is proposing, and requiring the attendance/evidence of sureties despite ample case law decrying their use for close to two decades.

Another example can be seen in how quickly we jump to adopt interpretations of bail law that go against the rights of the accused, when other interpretations of the law are available. A good illustration of this can be seen in the debate over whether the ladder principle applies to reverse onus hearings. Between 2018 and 2019 alone, there were at least three decisions from the Ontario Superior Court that held that the ladder principle does not, in fact, apply in these situations.

While the interpretation in these cases is correct that s. 515(3) (as it then was, outlining the ladder principle) did not apply to reverse onus cases, what these decisions ignored was s. 515(7) (as it then was) of the Code, which, arguably, is where the ladder is found for reverse onus cases. Not only did the language of then-s. 515(7) support bifurcated hearings so that the question of release was to be considered separately from the form of the release, it also supported the conclusion that a ladder of release applied to reverse onus situations. If this was not the intention of the section, it would not make sense why it would have included the option for the court to release the accused on the least onerous form of release that existed at the time, an undertaking, once the onus for release had been met.

On the basis of the wording in then-s. 515(7), it could thus be argued that a court has an obligation, even in reverse onus situations, to release an accused on the least onerous form of release. While the burden shifts to the accused in these cases, thus alleviating the Crown of having to show cause why detention or a more onerous form of release is required, the inference to be drawn from a reading of the section is that as long as the accused has shown cause why s/he should be released, the obligation to impose the least onerous release is still incumbent on the court.

Even though the wording under s. 515(7) has been updated to reflect that all releases ordered by a court are now called release orders, it is likely that the caselaw pre-Bill C-75 is what will be binding on this issue going forward. The question remains then, when the above-noted interpretation of the law was equally available to the court and went further to protect the rights of the accused than exclusively considering s. 515(3) and finding the ladder does not apply in reverse onus cases, why it would not be the one that was adopted?

Similarly, the issue of whether a potential surety can be examined about their knowledge of the accused’s guilt regarding the alleged offence is one that has seen much debate over the last couple of years. But if the actors in bail courts were truly only concerned about mitigating the risk that a presumptively innocent accused poses to the community, why would this issue even be worthy of litigation? Instead of making the accused choose between a rock and a hard place — having a bail hearing wherein a surety to whom the accused has made utterances about the offence has to testify, thus potentially strengthening the Crown’s case, versus not having a bail hearing at all — why would it not be the case that a surety, when required to testify, does so simply on the basis of evidence pertinent to their ability and willingness to supervise the accused?  

This is part one of a two-part series.

Senem Ozkin is a criminal lawyer practising in Newmarket, Ontario.

Photo credit / allanswart ISTOCKPHOTO.COM

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