Matthew Nathanson a criminal defence lawyer in Vancouver.
May 09, 2023
The current debate does not make us safer, just angrier — and it skips over any meaningful discussion of the law,
The debate about bail reform is careening out of control. Instead of being an informed discussion about a matter of legitimate public interest, it has descended into a morass of political barbs and unwarranted attacks. The debate, as it is now being framed, does not make us safer, just angrier. It has become a race to the bottom, with public confidence in the justice system lying like a burnt-out car at the side of the road.
This needs to change. Before tackling the substantive issues, it is helpful to backtrack a bit. To see how we got here.
The current debate is an unfortunate example of the politicization of the justice system. Of politicians using legal issues like cudgels to smash each other over the head. This is nothing new. The “soft on crime” criticism has been a feature of politics forever. But it has recently come to a head in British Columbia with a vengeance.
On assuming the premier's chair, David Eby made big promises. Action. Tangible results. Fix everyone's problems in 100 days. But the reality of poverty, addiction, homelessness, mental health and crime — all exacerbated by the pandemic — did not co-operate. All of society's ills were not washed away with the wave of a magic wand, or a press conference microphone. Not only did crime fail to disappear, a series of random attacks occurred, featured prominently on the nightly news. Understandably, people were concerned.
Enter the Opposition: Premier Eby was at fault for this sorry state of affairs. He was in charge, he promised results, and where were they? Let the blame game begin.
Of course, the premier was not to blame. These are complex issues that could never be solved overnight. And despite the barrage of concerning stories on the news, crime was actually down in many places. But no one told that story. And the police were all too happy to stoke the flames: They were doing their part, they just weren't being given enough resources (read unlimited budgets), and every time they caught a bad guy and locked him up, he was back on the street in no time.
This misleading narrative is what started the bail debate. That and the tragic death of a police officer in Ontario, which led to calls from police organizations across the country to revamp the entire bail system. Not wanting to swim against the tide of public anger, premiers from across the country collectively signed a letter asking the federal justice minister to tighten up bail laws. He is presently considering some changes.
But back in B.C. the premier decided to put his thumb on the scales of justice. He ordered his prosecutors to start asking for more people to be kept in jail. Even if the law didn't support such requests. Big mistake.
The law of bail hadn't changed, but the premier wanted to make a political statement. He wanted to silence his critics. Predictably, it didn't work. Political expediency doesn't drive legal decisions. The law does. The constitution does. And that's what the courts apply. As they are bound to. What helps the premier politically is irrelevant. As a former attorney general, he should know that.
The Opposition, whatever they call themselves now, continued to criticize the government for being “soft on crime.” This criticism was unwarranted and unfair. But instead of saying that, the government doubled down. And changed tactics in a very unfortunate way.
They started criticizing the courts. The refrain became that prosecutors were asking for people to be kept in custody, but the judges were letting them out. What was the government to do? They even trotted out some supposed statistics to try to make their case. As if several weeks of “preliminary data” constituted a fair representation of a bail system that has been in place for decades.
The blame game continued, with the Opposition suggesting that prosecutors should be asking for people to be kept in jail 100 per cent of the time. As if that had any basis in law. News flash: it doesn't.
That brings us to the present. Let's cut through the smoke and tell it like it is. The misleading political debate doesn't make you one bit safer. It ignores the realities of the justice system. It skips over any meaningful discussion of the law. And in doing so, it does everyone a disservice.
Although I do not hold myself out as an expert, I do know a little bit about the law of bail. As a criminal lawyer for the past 25 years, I've seen a few bail hearings. And, coincidentally, I was one of the counsels in R v Zora, the Supreme Court of Canada's most recent examination of the law of bail.
A few basic principles. First, the right to reasonable bail is a constitutional right. It is enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms. Every judge must assess the case for bail against this constitutional imperative. It's not optional. It's required by law.
Second, the Supreme Court of Canada has recently affirmed the principle of restraint, recognizing that bail is not to be used as a means of punishment before conviction. These principles govern every bail hearing, regardless of what position the Crown takes.
Third, and perhaps most fundamentally, every person accused of a crime is presumed to be innocent. That means that every person whose recent release to bail “deeply concerns” the premier is at law innocent. That's kind of a big point. And if it were you, or one of your family members that was before the court, I suspect it would mean a lot to you.
Fourth, the law of bail incorporates the need to protect public safety. This is enshrined in section 515(10)(b) of the Criminal Code, which restricts detention to situations where there is a “substantial likelihood” a person will commit a further offence if released, in a way that would endanger the protection or safety of the public. This is nothing new. It was discussed by the Supreme Court of Canada in R v Morales in 1992. That was 30 years ago.
The B.C. judges now being criticized by both political parties are simply applying the law. That is their job — what they are required to do by the constitution. The same constitution that protects all of you. That would protect you if, God forbid, you or a family member were accused of a crime.
The government throwing up “statistics” gathered over several weeks, as opposed to the 30 years since Morales, is singularly unhelpful. I can tell you that over the last 25 years I can count on one hand the number of times a client of mine was released to bail and then charged with committing a further violent offence. You might say that doesn't mean much, and that my experience isn't necessarily representative of the entire bail system. And you would be right. But the same can be said of the government's recent “statistics.”
The truth is that the vast majority of people released to bail perform well and do not commit further offences. But nobody writes a story entitled “man released on bail complies with strict conditions for over a year.” Doesn't really grab your attention, does it? But “man on bail attacks person in broad daylight” certainly leaps off the page. And makes your blood boil. Or, if you're a politician, affects your approval rating.
To be clear, I'm not denying that public safety is important. Of course it is. We all want to live in a province that is safe and secure. These issues should be debated, but that debate must be honest and informed. It must be based on an examination of the facts, not misleading rhetoric. It cannot be built on the back of misleading, incomplete “statistics” that fail to represent the actual functioning of the bail system.
The public safety component of bail is about managing risk. But bail does not boil down to a stark choice between release or detention. Judges are required to consider whether risk can be appropriately managed through strict bail conditions, up to and including house arrest. But where is that reflected in the numbers? Or in the political debate, where release is equated with simply wandering the streets freely?
The fact that courts are releasing people to bail, as reflected in the recent “statistics,” does not say anything about whether those decisions are reasonable and justifiable. The expression of “deep concern” by politicians about people being released is a less-than-subtle way of saying those decisions are wrong.
But what is that criticism based on? A careful review of the circumstances of each case? A detailed analysis of bail hearing transcripts and the court's reasons for judgment? Nope. What underlies the criticism is ... apparently nothing. In today's political climate, release is seen as a breakdown in the system. Everyone should be kept in jail. The law be damned.
But that is not the Canadian way. We don't lock up presumptively innocent people because it is politically popular. We don't throw out the constitution whenever it is convenient to do so. We don't tear down our legal institutions to blunt criticism from our political rivals. And we don't attack our judiciary for doing their job and following the law.
Politicians from both sides of the aisle would do well to remember that.
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