Will calls in Manitoba to reform bail help make communities safer? Not quite, experts say

Experts say they agree Canada's criminal justice system has a problem with people being arrested for new crimes while on release for other offences — but they say recent calls to reform the bail system over concerns it's become too lenient are missing the point.

Defence lawyer Christopher Gamby said generally speaking, people arrested for another offence while on release are often nabbed for things like property crime, "not the crimes of the century."

"We're not locking people up and throwing away the key for petty theft. And I think it's time for us to actually ask why that person is engaging in this conduct in a repeated and almost compulsive fashion," said Gamby, the communications director for the Criminal Defence Lawyers Association of Manitoba.

"Is it because that person is fundamentally a bad person and they should be separated from society? Or is it because they're living with a really bad addictions problem and don't have basic needs met? 

"I've had clients on release who are saying to me, 'Look, I really need help with this.' And help is not easy to come by."

Calls for bail reform have grown recently, including in Manitoba, where municipal leaders gathered earlier this month to raise their concerns about the issue ahead of the upcoming federal election. 

But concerns what's been described as a dangerous revolving-door criminal justice system are better explained — and potentially addressed — by considering the root causes of the crimes being committed, said Adelina Iftene, an associate professor of law and the criminal justice program co-ordinator at Dalhousie University's Schulich School of Law.

"It's not that the bail system is lenient," Iftene said. It in fact often "works on overtime … in terms of how much it incarcerates people," she said, noting more people in provincial jails are generally awaiting trial than serving sentences.

"But it does not provide the supports that these people need in order to prevent their reoffending and to protect people in the community from the various issues that led to that."

Ben Wickstrom, a spokesperson for the Manitoba Association of Crown Attorneys, said in a statement any calls for changing bail laws in Canada also need to be met with "proper resources" for prosecutors to be able to handle their workloads.

Iftene said it's important to remember that even people who are denied bail, or those who are later convicted of their charges and serve a sentence, will eventually be released from custody.

Without the support they need to address what led them there, the chances they will reoffend remain high — an effect Iftene said can be even more acute in smaller communities, where such resources are often scarce.

"Nothing suggests that more remand is keeping communities safer," she said.

"On the contrary, there is a lot of work that's showing that the lack of opportunities for rehabilitation, which include keeping people in prison, is actually what's making us a lot less safe."

'Always going to be some risks'

In Canada, people accused of crimes are legally presumed innocent unless proven guilty — and under the Charter of Rights and Freedoms, they have the right to bail unless there's a compelling reason to keep them in custody.

More recent legislation changes in response to bail concerns tightened some aspects of Canada's regime, including expanding the use of reverse onus provisions for certain offenders — meaning the person charged has to show why they should be released, instead of the prosecutor having the onus to prove they shouldn't be.

Lawyer Gamby said it's the kind of bail reform some have been asking for — and from what he's seen, it's hard to say what effect it's had.

"If that's not making a change, maybe they need to ask a different question, right?" he said.

"This idea that bail reform is going to be how we make wholesale changes to the justice system and make our society dramatically safer, I just — with the greatest of respect, I just don't see it."

That doesn't mean Canada's bail system is perfect, said Christopher Sherrin, an associate professor and associate dean with the faculty of law at Western University in London, Ont. — there will always be cases where, in hindsight, a bail decision is seen as inappropriate.

But there's also a cost to not granting people bail, both in the financial sense of having to incarcerate a person and in the sense that it takes away the liberty of a potentially innocent person.

"The reality is that with a bail system, unless you keep everybody behind bars pending trial, there's always going to be some risks taken," Sherrin said. 

"[But] when prosecutors go into a courtroom and a justice makes a decision, they don't leave their common sense at the door. They are members of the communities like anybody else, and they are acutely alive to the concerns and the risks that are present with bail decisions."

And even without changes to federal legislation, there are steps provinces can, in theory, take to tighten bail in their own jurisdictions, said Danardo Jones, an associate professor in the University of Windsor's faculty of law.

That includes hiring bail compliance officers to make sure people are following their release conditions, using more GPS monitoring, empowering prosecutors to refuse to consent to more bails and assembling specialized teams of Crown attorneys to handle those bail hearings, he said — some of which Manitoba is already doing.

But "if we're going to essentially rewrite our bail laws, we have to make sure that we're doing that in a way that's consistent with data," not just political discourse, Jones said.

"The bail system tries to strike appropriate balance. Is it perfect? No. But what are we asking for? Are we saying that because it's not perfect, we should just get rid of the whole thing?"

He said widespread changes to the bail system are possible, and Canada could "go back, if we wanted," to a time when a person could be "accused in the morning and sentenced in the afternoon and … [hanged] in the evening."

"But I mean, I think we would all agree that that was an unenlightened time — and not a time that any of us want to go back to."