Justice Minister David Lametti is preparing to face off with his provincial counterparts in Ottawa Friday on whether to reform Canada’s bail system, as premiers, federal Conservatives and law enforcement leaders demand more restrictions.
But while he has signalled an openness to reform, Lametti has also cautioned that more-restrictive laws could bump up against the Charter of Rights and Freedoms—and experts warn there are already too many innocent people awaiting trial behind bars.
In a January letter to Prime Minister Justin Trudeau, all 13 provincial and territorial premiers called on the feds to establish a “reverse onus” system for firearm and other offences, which would require a person seeking bail to show evidence as to why they should not stay behind bars.
Nearly two months later, the provinces’ patience seems to be wearing thin.
British Columbia Premier David Eby said earlier this week that residents are “very frustrated” with a small group of repeat, violent offenders “cycling in and out” of the justice system.
The province has directed new teams of prosecutors, probation officers and police to focus on how to handle repeat offenders within existing federal law.
But Eby said the province is limited without a “strong federal partner.”
Manitoba Justice Minister Kelvin Goertzen said in an interview that he wants to see meaningful, quick changes following the meeting on Friday.
“What we have now isn’t working. And violent offenders are essentially getting released after being charged—right back into the community to commit another crime,” he said.
Goertzen said he believes that there should be a reverse onus system for repeat violent offenders.
“Reverse onus doesn’t mean you can’t apply for bail. It doesn’t even mean you won’t get bail. That ultimately is a decision of a judge,” he said.
“It simply means you have to prove why it is you won’t be a risk to the public.”
Alberta is also calling for the repeal of a 2019 Liberal government bill that updated bail provisions in the Criminal Code.
That law codified a “principle of restraint” that had been affirmed in a 2017 Supreme Court case, which emphasizes the release of detainees at the “earliest reasonable opportunity” and “on the least onerous conditions,” based on the circumstances of the case.
“The law on bail is fundamentally unsound and must be reformed. This can only be done through federal legislation,” Alberta’s justice minister, Tyler Shandro, said in a statement on Thursday.
Lametti has said he is open to reviewing federal laws, but he has also warned that if bail becomes too restrictive, the Supreme Court could force the government’s hand.
The country’s highest court has repeatedly affirmed that bail is a fundamental right in Canada, and Lametti has argued that making it harder to access could run contrary to the Charter.
Calls for reform ramped up early this year in response to the killing of Ontario Provincial Police officer Const. Greg Pierzchala in late December.
Court documents showed that one of the two people facing a first-degree murder charge in his death, Randall McKenzie, had been initially denied bail in a separate case involving assault and weapons charges but was released after a review.
The documents show a warrant had been issued for McKenzie’s arrest after he didn’t show up for a court date in August.
It’s understandable that governments and police “would like to find a way to make sure this does not happen again in the future,” Nicole Myers, a criminology professor at Queen’s University who specializes in bail and pretrial detention, told members of Parliament this week.
At a meeting of the House of Commons justice committee, Myers said that data should come first when deciding on policy. And data shows that pretrial detention has more than doubled over the past 40 years, she said, and the number of people in pretrial has quadrupled during that time.
“Given the rate, number and proportions of people in remand, it is clear that Canada is not lenient when it comes to pretrial detention. Many people are serving time before they have been found guilty,” she said, adding that there is no “accurate, reliable way” to predict who will reoffend.
“Creating more reverse onus situations is not the way to improve bail in Canada,” she said.
Myers said that improving efficiency and case processing, which would include better access to justice and more funding for legal aid, would be a good place to start if members of Parliament want to prioritize long-term public safety.
