PRUTSCHI: Ontario moves to make it easier to get bail
Article content
It reads like an uninspired but perfectly adequate summary prepared by a first-year law student in preparation for a Criminal Law 101 exam.
It states long-established principles already clearly articulated in the Criminal Code and repeatedly reinforced by multiple rulings of the Supreme Court.
That it is authored by none other than the Ministry of the Attorney General and its intended readership is the legion of senior crown attorneys toiling in the province’s bail courts each and every day is staggering.
Make no mistake, if widely adopted and followed, Monday’s “Bail Directive — Judicial Interim Release” memo will be nothing short of a revolution for Ontario’s bail courts, bringing them into line with the practice of other provinces across the country by committing crown attorneys to the so-called “ladder principle.”
An accused person should be released to await trial unconditionally whenever possible. Where necessary for public safety, minimally invasive conditions can be attached. Only as a last resort, should a surety — a trustworthy third party — be demanded to supervise and enforce those conditions.
The insistence on surety bail creates a high hurdle that is particularly challenging for the most marginalized citizens accused of a crime. If I were to be arrested, I can comfortably rely on a long list of contacts with good jobs, access to a car, and the capacity to drop everything on a moment’s notice to show up in court in my time of need. For the racialized, impoverished or mentally-ill accused, that list of potential sureties is often blank, leaving those most in need of community support to languish in jail awaiting trial on charges of which they are presumed innocent.
Before Monday, an arrest in Ontario, even for a relatively minor charge, frequently meant an overnight stay in the holding cells of the local police division, followed by an early morning wagon ride to the local courthouse. For those fortunate enough to have their matters reached on the first day in a clogged and overcrowded bail court, a crown attorney would routinely insist on the imposition of draconian terms — house arrest, curfews, non-association clauses — all to be supervised and enforced by a civilian surety.
A surety is commonly a friend, family member or co-worker of the accused who has the distinct privilege to answer the phone in the middle of the night and find their world upended as they call in sick for work, arrange for child care of their own dependents, and race off to a courthouse with little comprehension of what to expect. When they arrive in court, they may be asked to pledge thousands of dollars in collateral and supervise a raft of conditions that often including adopting the accused as their new roommate.
In Ontario’s through-the-looking-glass courtrooms, release conditions imposed on the presumptively innocent frequently prove more restrictive than probationary conditions imposed on the guilty.
As a restatement of the basic first principles that underpin our bail system, this Attorney General’s memo gets a long overdue passing grade. But passing the exam is of little value unless the pupil proves a commitment to put their knowledge into practice. Current mark? Incomplete.
Postmedia is committed to maintaining a lively but civil forum for discussion. Please keep comments relevant and respectful. Comments may take up to an hour to appear on the site. You will receive an email if there is a reply to your comment, an update to a thread you follow or if a user you follow comments. Visit our Community Guidelines for more information.