The following letter was sent to Ontario Attorney General Doug Downey, with a copy sent to Minister of Justice and Attorney General of Canada Sean Fraser, outlining the Society's concerns with the Ontario government's repeated calls to further restrict access to bail for accused persons. The letter's release corresponds with a recent announcement by Prime Minister Mark Carney regarding his government's plan to present legislation that would expand reverse-onus bail provisions, allow consecutive sentencing, and impose harsher penalties for certain crimes. The Society is raising concerns with potential policy change that could infringe on the human rights of accused persons without increasing public safety.
To Hon. Doug Downey,
The Society of United Professionals represents approximately 400 Legal Aid Ontario (LAO) lawyers, the majority of whom are employed as Duty Counsel. They are experts in Ontario’s bail system and represent 82.4 per cent of accused people in Ontario bail hearings.[1] In addition, our union represents LAO articling students, and Aboriginal Legal Services, Chinese and Southeast Asian Legal Clinic and the National Judicial Institute staff.
The Society is concerned about the province’s continued call for the federal government to amend the Criminal Code of Canada to reform the bail system to restrict access to bail. We are further alarmed by sensational messaging communicated by the province that propagates misleading information about how the current bail system operates. The bail system is not a revolving door for violent offenders.
Contrary to public perceptions, a significant number of accused people are being held in pre-trial detention. In 2021/2022, 77 per cent of accused people in Ontario custody were in pre-trial detention,[2] and the rate of pre-trial detention has more than doubled in the past 40 years.[3] These individuals are presumed innocent under the Canadian Charter of Rights and Freedoms and they should be treated as such. Granting reasonable bail is not lenient or benevolent – it is a constitutional right grounded in the presumption of innocence.
The bail system is not soft on those charged with violent offences or on those with a history of convictions for any offences, let alone violent offences. Even individuals charged with shoplifting with a lengthy history of similar offences are often denied bail. Detention is already explicitly justified when it is necessary for the protection or safety of the public. The Criminal Code contains reverse-onus provisions that further restrict the rights of violent or repeat offenders. It applies a presumption of detention for those facing firearm charges, among other offences, meaning that the onus is on the accused, not the Crown, to prove why they should be released.
The research suggests that further restricting access to bail does not improve public safety. According to a 2015 report by the Department of Justice, time spent in custody increases the likelihood of the accused committing crimes in the future.[4] When the accused spend time in pre-trial detention, factors such as job loss, loss of housing, and family separation can have detrimental impacts that can lead to future crime. The Society of United Professionals is calling for reforms to the criminal justice system that will decrease crime and increase access to justice in line with expert opinion and research. Experts agree that the bail system is broken but not for the reasons espoused by those claiming to be tough on crime. Discrimination and overreliance on incarceration and sureties are major systemic issues that need to be addressed.
The Society calls on the provincial government to properly resource the justice system to increase its effectiveness and efficiency. Timeliness is an important factor for deterring crime and for the effectiveness of the judicial system overall. Reform efforts should focus on: addressing delays in the justice system, including trial and bail hearing delays; properly funding programs that provide effective alternatives to remand; and properly funding social and community programs that address the root causes of crime.
A main source of delay in the justice system is caused by defendants who appear in court without legal representation, be it privately retained, or Certificate or Duty Counsel.[5] Inadequate LAO funding and LAO staffing levels are increasing court time, with significant cost to the justice system. We call on the province to deliver sustainable and stable funding to Legal Aid Ontario.
Anti-poverty initiatives, mental health and addiction services, and access to affordable housing are crucial steps to deter crime. The cost of providing social supports is far more economical than holding someone in pre-trial detention. It costs just $72/day to house a person in the community with supports, according to the Canadian Mental Health Association. The average daily cost of keeping someone incarcerated in Ontario was $409 in 2020/2021.[6] Addressing the underlying causes of crime committed by those who face socio-economic hardships would allow the bail system to more effectively process serious cases by alleviating the system of relatively low-level offences committed by vulnerable populations, while eliminating some serious crimes.
It is of upmost importance that the presumption of innocence be protected in the law of bail. This foundational principle is a protected right in Section 11(e) of the Charter and is a basic tenant of the Canadian justice system. Bail reform measures that restrict access to bail may infringe on the human rights of accused persons, while creating additional financial pressures on the public purse. Public safety concerns can be better addressed through other acts and initiatives, including those outlined here.
We strongly urge the provincial government to reverse course on its calls for increased bail restrictions. The government’s proposals neglect due process, edging Canada towards civil liberty violations characteristic of detention practices seen south of the border by Immigration and Customs Enforcement (ICE). This is not the direction Canada should take. Our province should instead focus on repairing the systemic problems facing our criminal justice system: prolonged delays, underfunded legal aid, and underfunded community and social programs that, when properly resourced, can deter crime, reduce recidivism, and improve system efficiencies.
Sincerely,
Rebecca Caron, Society of United Professionals President
[1] Rachel Schumann & Carolyn Yule, “Unbreaking Bail?: Post-Antic Trends in Bail Outcomes” (2022) 37 CJLS 1 at 8.
[2] Statistics Canada, Average counts of adults in provincial and territorial correctional programs (2022), Table 35-10-0154-01
[3]Canadian Civil Liberties Association, “Still Failing: the Deepening Crisis of Bail and Pre-trial Detention in Canada” (2024), p. 51
[4] Cheryl M Webster, “Broken Bail in Canada: How We Might Go About Fixing It” (Research and Statistics Division, Department of Justice Canada, June 2015) at 12
[5] Standing Committee on Justice Policy, A Report on the Modernization of the Bail System: Strengthening Public Safety (2023).
[6] Canadian Civil Liberties Association, “Still Failing: the Deepening Crisis of Bail and Pre-trial Detention in Canada” (2024), p. 3.
Photo credit: Chris Barker, Flickr
