The Liberal government has introduced bail reform legislation to expand “reverse-onus” provisions in the Criminal Code, stipulating that someone accused of a crime, rather than the Crown, must demonstrate why they should be released before trial.
Bill C-14 also proposes tougher sentencing laws for serious and violent crimes.
The goal, according to Prime Minister Mark Carney, is to “keep violent and repeat offenders out of our communities.”
But will these changes effectively address concerns from some politicians, police and the public that bail is too easily granted and contributes to rising crime? Probably not. They are symbolic responses unlikely to satisfy critics or address the root causes of crime.
Bail decisions are challenging
Bail laws are designed to strike a balance between protecting public safety and upholding the rights of people who are supposed to be presumed innocent until proven guilty.
Under the Criminal Code, there is a presumption that an accused person should be released with as few conditions as necessary. But bail can be denied if the person is unlikely to attend trial, poses a threat to public safety or if their release would undermine confidence in the legal system.
The law provides some limited guidance, requiring courts to consider factors such as an accused’s past convictions for violence and the circumstances of Indigenous or otherwise vulnerable or marginalized people. Appellate court decisions provide further direction.
Bail decisions are inherently discretionary. Judges and justices of the peace must already weigh factors like risk, criminal history and the nature of the offence to determine if an accused can be safely released. Given the nature of bail decisions, more reverse-onus provisions are unlikely to substantively change bail outcomes.
A correctional officer at the Collins Bay Institution in Kingston, Ont. THE CANADIAN PRESS/Lars Hagberg
A dearth of reliable information
Bail reform should be driven by evidence to ensure policy changes are effective and accountable. Yet the biggest barrier to evaluating the bail system is a lack of reliable information. We know little about:
1. How many people are released;
2. Under what conditions they are released;
3. How often accused who are released on bail reoffend.
The few studies available suggest bail courts are handling more cases and are doing so more slowly, but relatively few people are denied bail.
Little data exists that explain what factors shape bail outcomes. Information that is available suggests those charged with a prior criminal history, and a history of failing to appear in court or comply with release conditions, are more likely to be denied bail.
A review of bail decisions for 2022-23 by the BC Prosecution Service in British Columbia revealed that detention rates were slightly higher than average when there was a violent offence involved (between 10 to 13 per cent) and notably higher where there was a violent offence and breach of conditions (between 17 and 24 per cent).
According to a report from the Toronto Police Service, seven out of the of 44 gun-related homicides in 2022 (16 per cent) were allegedly committed by people on bail. The Alberta government reported that 27.9 per cent of adults under bail supervision between 2021 and 2022 were admitted to remand custody at least once due to violating bail conditions and/or incurring new charges; however, no other contextual data is provided.
A 2013 study prepared for Canada’s justice department found that 51 of 291 people from two locations violated the terms of their bail release — and the vast majority were for breaching conditions or failing to attend court rather than new offences.
Crime scene tape in Calgary in October 2023. THE CANADIAN PRESS/Jeff McIntosh
Balancing enforcement with support
While the scant data available do not support the belief that the current system releases all offenders who then go on to commit serious crime, it’s also clear that some accused released on bail subsequently do in fact reoffend — a fact acknowledged by bail supervisors.
But Canada cannot arrest its way to safer communities. A recent report, Finding Common Ground, found that police, lawyers and service providers are aligned on the need for both better supervision of high-risk individuals and greater investment in social supports as top priorities for improving bail.
A recent poll also suggests many Canadians are open to balanced, long-term solutions that combine accountability with social investment, recognizing that real safety comes not from quick fixes but from a more responsive and supportive system.
The Liberal government has also acknowledged the need to invest in community-based supports as part of broader bail reform efforts.
Read more: Race is closely tied to who gets bail — that's why we must tread carefully on bail reform
5 ways to strengthen the bail system
We offer concrete solutions that will enhance fairness, public safety and democratic accountability:
1. A more detailed set of guidelines in the Criminal Code — passed by elected parliamentarians — to make bail determinations. These changes may largely codify existing considerations but could be used to adjust the bail calculus, including de-emphasizing more minor breaches and emphasizing the need to address repeat offending.
2. More social service provisions are needed, particularly in terms of housing. Allowing people to remain in the community and possibly maintain familial and employment connections is more cost-effective and better for public safety than jail time.
3. Better tracking and monitoring of people on bail — including electronic monitoring and improved information processing and communication — can help ensure compliance with conditions and reduce the risk of reoffending.
4. Better data collection on the bail process and outcomes can inform policy reforms and support more effective judicial decisions.
5. Improving bail court efficiency and decision-making through increased resources, information sharing and a shift in courthouse culture can help reduce delays and support more timely and effective hearings.
To build safer communities, the federal government should follow through on its commitment to invest in support services while also helping provinces better monitor and enforce bail conditions. Doing so will ease pressure on the legal system while improving outcomes for people and communities.
