Dog the Bounty Hunter who, with his gang of thugs – sorry, I mean, team of relatives — hunts down those who have skipped out on their bail and drags them back to court may have no place in the Canadian legal system, but even so bail is a hot button item for many in this country.
On one side, many politicians, members of the public, victims and family members of those harmed by people while on bail call for stricter bail rules. On the other, those who advocate for the rights of accused persons argue that far too many people – especially those from racialized, Indigenous, poor and other marginalized communities — are being denied bail when they pose no threat to public safety.
The federal government’s Bill C-48 will make those who want to see fewer people released on bail happy, but it poses serious challenges to those who care about justice.
Before exploring Bill C-48, let’s have a quick look at how bail operates.
What’s bail?
People charged with a criminal offence can be released from jail to live in the community while awaiting the resolution of their case. This is what we commonly call bail. It’s the default, and, for the most part, it’s up to the Crown Attorney to prove why someone should not be released rather than up to the accused to prove why they should be released.
However, under some circumstances – for instance, the accused commits a new offence while already on bail or the offence is particularly serious — a reverse onus bail hearing is held, in which it falls to the accused to prove why they should be released.
In making its decision about whether or not to release an accused person on bail, the court considers the evidence and arguments made by the Crown and the accused or their lawyer and then decides whether or not the accused should be released. The court’s job is to:
- Ensure the appearance of the accused in court when required;
- Protect the safety of the public, and
- Maintain confidence in the administration of justice
Often, people have conditions they must follow if they are released on bail. These can include a curfew, prohibition on places they can go and people they can see, alcohol restrictions, an obligation to report regularly to police or a requirement that they live somewhere specific. Sometimes, the accused person has to have a surety; someone who agrees to keep an eye on them and call the police if the accused breaches any of their conditions.
What changes are being proposed?
Bill C-48 will significantly increase the number of offences in which reverse onus will be required, meaning the accused will have to prove why they should be released from custody rather than the Crown having to prove why they should not.
The government claims that this will strengthen Canada’s bail system, improve public safety and reinforce public confidence in the justice system, a theme that is popular with some victim rights organizations as well as, unsurprisingly, the Conservative Party.
However, the notion that dangerous criminals roam the streets looking for new victims while they are on bail awaiting trial is simply not true. While the rate of individuals in jail after they have been found guilty of a crime has declined, the number of people in pre-trial detention – before they have been found guilty of any offence — has more than quadrupled in the past 40 years. Nearly 70% of people in Canada’s provincial and territorial jails are there because they have been denied bail, not because they have been found guilty of any offence.
Bill C-48 pushes Canada’s bail system in a direction that will harm, not protect, individuals and the public. Increasing reverse onus provisions will lead to increased criminalization of marginalized communities. Putting even more people in jail before they have been found guilty of an offence will further burden an already overwhelmed system.
The connection with intimate partner violence
At Luke’s Place, we see the reality of the bail system on many of the women we assist in family court. Their partner may have been charged and released on bail, with onerous conditions that the woman does not feel she needs. Or, he may have been held in detention, creating further chaos and difficulty for the family. We work with women who have been charged as a result of mandatory charging policies, in which case restrictive bail conditions can have a significant and long-lasting impact on their family law case; particularly on the time they can spend with their children.
Because the criminal system, including the current bail regime, does not work well in IPV cases as well as our concerns about the proposed changes with respect to reverse onus, Luke’s Place has joined with LEAF, the Canadian Association of Elizabeth Fry Societies and the Barbra Schlifer Clinic to urge the government not to proceed with Bill C-48.
You can read our full submission here, but below is a brief summary of the elements that speak directly to the potential negative consequences on survivors of IPV of the Bill.
Bill C-48 would extend the reverse onus provision to apply to an accused person who has previously received an absolute or conditional discharge for intimate partner violence. A discharge can be the outcome of a guilty plea or finding of guilt in less serious cases, and means the accused person does not have a criminal record. If C-48 passes, people – including survivors – with a prior IPV-related discharge who are later charged with another offence would have the onerous job of proving why they should be released from custody.
This will increase the criminalization of survivors of IPV. We’ve seen this in the past: one of the negative consequences of mandatory charging policies has been the extent to which a public policy intended to protect victims of IPV has, instead, led to the criminalization of women who call the police for help and then find themselves facing criminal charges. The truth is that there is no neat dividing line between survivors of intimate partner violence and those charged with intimate partner violence. Survivors sometimes engage in acts of aggression to protect themselves or their children when systems have failed to keep them safe and, too often, are charged criminally for doing so.
Bill C-48 addresses a problem that does not exist while ignoring the many real problems related to bail. It creates new problems for many — including survivors of IPV — that will extend well beyond the criminal context.
We need to start looking at meaningful, non-carceral responses to IPV if we are to move towards its eradication.