Canadian Lawyer

May 2023

The most widely read magazine for Canadian lawyers

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4 UPFRONT NEWS ANALYSIS IN A poll released on April 26, Nanos research asked Canadians which statement more accur- ately reflected their view on bail policy: • "A 'tough on crime' approach to bail increases public safety" or • "A 'tough on crime' approach to bail will put more people who are legally innocent in jails" The view that the approach would enhance public safety resonated with six out of ten surveyed. Only 19 percent reported that the latter statement reflected their view. Twenty-one percent were unsure. Tory leader Pierre Poilievre has seized the issue, calling Canada's bail system "broken" between 2017 and 2021, Ontario saw a 27 percent increase in incidents where a person on bail or peace-bond conditions was charged with a violent crime. Provincial premiers and the Canadian Association of Chiefs of Police have called on the federal government to reform the bail system. And in March, Justice Minister David Lametti committed to "move forward quickly on targeted reforms." But any federal bail reforms will have to contend with the "right not to be denied reasonable bail without just cause" under s. 11(e) of the Charter. "Bail is a constitutional right," says Danardo Jones, assistant professor at the "The presumption is that a person is going to be released – not only released but released unconditionally," says Jones, who has worked in criminal law at various legal-aid organizations and whose research interests include criminal law, procedure, sentencing, and race and the law. In a bail hearing, the judge or justice of the peace must determine three factors: whether the person is a flight risk, whether the person poses a substantial likelihood of reoffending, and whether the accused's release would bring the administration of justice into disrepute. When a court releases an accused on condi- tions, the "ladder principle" applies, says Jones. If they are seeking bail again after breaching their conditions, the conditions of their release become more stringent – from a surety to GPS monitoring to house arrest, until they reach the top of the ladder: detention. "Our criminal justice system is profoundly unequal. This is not my language. This is something the courts have said over and over again" Danardo Jones, University of Windsor Faculty of Law Behind bail reform There is a national political conversation underway on reforming the bail system, but legislative action will have to contend with Charter rights University of Windsor Faculty of Law. "Everyone has the right to reasonable bail." The Supreme Court of Canada's most recent interpretation of s. 11(e) was in R. v. Antic, 2017 SCC 27, where the court found that "the corollary to the presumption of innocence is the constitutional right to bail…. Unconditional release on an under- taking is the default position." and blaming it for a rise in violent crime. A few high-profile incidents have helped Poilievre make his case. For example, one of the suspects accused of first-degree murder for the shooting death of Ontario Provincial Police officer Grzegorz Pierzchala was out on bail for firearms offences and allegedly assaulting a peace officer. According to a CBC study of crime data,

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