Reforming Canada’s bail system to keep certain offenders behind bars will not reduce crime, but it will put more people who are legally innocent in jails, according to criminologists and experts — contrary to what Pierre Poilievre has said.
The Conservative leader has been calling for changes to bail policy that would target repeat offenders as a way to bolster public safety, telling reporters this week he did not think that would result in more people being detained.
Poilievre has often pointed to an overall increase in crime rates over Prime Minister Justin Trudeau’s three terms in power.
Though he and other politicians have called for bail reform in the past, scrutiny of the issue hasramped up since the shooting death of Ontario Provincial Police Const. Greg Pierzchala in late December.
Randall McKenzie, 25, is one of two people charged with first-degree murder in the case. Court documents show he was initially denied bail on separate assault and weapons charges, but was later released. A warrant had been issued for his arrest after he failed to show up for a court appearance in August.
Carolyn Yule, a sociology and anthropology professor at the University of Guelph who studies bail, said she understands the public concern behind the calls for change.
But Yule said there’s no evidence to suggest that a “tough on crime” approach to bail increases public safety.
“Their intention is to increase the number of people behind bars,” she said.
Data show that the majority of people in Canadian jails are being held on remand, either before they have stood trial or before they have been sentenced. Less than half of all sentences result in jail time.
She and other experts said the type of reform Poilievre and others, including premiers, have called for brushes up against the Charter of Rights and Freedoms.
“That’s what bail tries to balance, right? It’s presumption of innocence, which is protected by the Charter, with the protection of community safety,” said Yule.
“Reasonable people can disagree about how you strike that balance, but that is the balance that the courts are trying to strike when they make bail decisions — and the presumption of innocence is important.”
As Yule sees it, the existing law on bail provides judges plenty of room to detain those who are considered dangerous or who might not show up for court.
She said it comes down to interpretation, though she added that key data are missing, including how often offenders breach their conditions and what consequences they typically face.
Toronto Metropolitan University criminologist Jane Sprott said there is no reliable way to predict who is going to commit violent offences — and she warned it is not financially feasible to increase the number of people in detention based on the risk that some people might.
Sprott said not everyone who is released on bail reoffends. If the government ushers in measures to try and predict which accused people are likeliest to do so, individuals could end up being punished without any certainty, she said.
“This creates a whole host of legal and personal problems,” she said.
Sprott said it’s more difficult for people who are in detention to mount a defence, given their limited phone access. Many people face the risk of losing their housing and employment while they are behind bars, she added.
“You’re never going to have a perfect system that can identify who’s going to do what,” Sprott said.
Complicating matters even further, experts said, is that evidence shows people who are Black, Indigenous or have mental-health issues already tend to have difficulty accessing bail under the current system.
The federal Liberals have devoted their justice policy agenda to reducing the overincarceration of those populations. Prime Minister Justin Trudeau said earlier this week that his government is looking at the issue of bail reform and that “challenges around impacts, particularly on Indigenous or minority groups” will have to be taken into account.
University of Ottawa criminologist Cheryl Webster said the “fatal flaw” in Poilievre’s argument is that it would be possible to identify what she calls “false negatives” — or people who were assessed as not dangerous but who turned out to be.
She said in an email that “decades of research” on selective incapacitation — the incarceration of people who are predicted to be at high risk of committing more crimes — have “repeatedly failed to prospectively identify and incarcerate high-rate offenders sufficiently early in their careers to reap the … benefit of crime reduction.”
While Webster said many feel the current bail regime needs reform, the “starting point” should be an acknowledgment that the system will never have the capacity to identify who should be detained or released with “100 per cent accuracy.”
Irvin Waller, a criminology professor at the University of Ottawa, said making communities safer means preventing violence from happening in the first place.
“Arguments about bail reform or minimum penalties … these are not the issue,” he said.
True violence prevention takes different forms, Waller said, including sending more outreach workers into cities like Toronto to assist populations, such as young men, that are most often involved in violence. Providing them with income and opportunity is another factor, he said.
Vancouver-based lawyer Kevin Westell said if the country wants to develop a system that makes it harder for innocent people to get bail, “people should think hard about whether or not that’s the kind of country they want to live in.
“They should think really hard about that.”
—Stephanie Taylor, The Canadian Press