A legal aid strategy for bail

1. Introduction

It has been clear for some time that the bail system in Ontario is not operating fairly. The failings of the bail process have long been a matter of discussion within Ontario’s criminal justice system.

Recently in the Premier’s September 2016 mandate letter to the Attorney General, reform surrounding bail and remand continued to be a top priority for the province. The Premier tasked the Ministry with developing a bail strategy that “should establish clear, measurable outcomes and provide for regular and ongoing public reporting to Ontarians.”¹ At the same time, the Premier mandated the Minister of Community Safety and Corrections to work with the Attorney General to develop and implement a targeted strategy to improve “the efficiency and effectiveness of Ontario’s criminal justice system in the area of bail and remand.”²

In November 2015, the Prime Minister mandated the Minister of Justice and the Attorney General of Canada to address bail reform as part of a larger modernization effort to improve the efficiency and effectiveness of the criminal justice system.

Legal Aid fully supports the need for a comprehensive strategy for bail reform and believes it can be a leader in both its development and its implementation.

2. The problems with the bail system in Ontario

2.1 An overview

As a matter of law, all accused persons are presumed innocent. The Criminal Code carefully defines and constricts the circumstances in which a person may be lawfully detained, or have his or her liberty restricted, prior to conviction. Unfortunately, the reality of how the law of bail is practiced in Ontario does not display the same protection for the presumption of innocence. Accused persons, including a significant number of Legal Aid clients, too often bear the brunt of this disconnect between the practical realities of bail and the overarching legal principles and protections accorded to by law.

The majority of inmates at Ontario jails are not serving a sentence after having pled guilty or being found guilty. Instead, the majority of inmates have been remanded into custody awaiting a bail hearing or a trial. In fact, over the past 15 years, there has been an increase in this “remand population”, during a time in which the crime rate has remained constant or has fallen.

Persons who are detained prior to trial are housed in overcrowded provincial institutions and “subject to the worst aspects of our correctional system”³, without access to recreational, work or rehabilitation programs that are available to persons who are serving a sentence. For persons with mental health and/or addiction issues, the lack of treatment programs available in remand facilities can have catastrophic and even life-threatening consequences. It is not without reason that the period of time that an accused spends in remand detention prior to trial is known colloquially in the criminal justice system as “dead time”.⁴

Detaining persons prior to trial and removing them from their community and access to counsel increase the likelihood of unjust convictions and/or more severe sentences after conviction. As noted by Justice Iacobucci in R. v. Hall, where an accused is denied access to bail he or she is “…rendered more likely to plead guilty, and, as a result, to waive the various safeguards against unjust conviction that the system provides”.⁵

Finally, the financial costs of holding an accused in custody prior to trial far exceed the costs of supervising in the community an accused who is awaiting trial. The 2012 Drummond Report on government spending found that the per diem cost of detaining an adult prior to trial is about $183 a day, as opposed to $5 a day for community supervision. The Report urged the Ministry of Community Safety and Correctional Services to work in tandem with the Ministry of the Attorney General “to address the growing challenge of increased custody remand”.⁶

The John Howard Society of Ontario in its 2013 report on bail (“Reasonable Bail?”) summarized the problems with bail in Ontario as follows:

“Less people are being released on bail, less quickly, and with more conditions, during a time of historically low, and still declining crime rates. These trends have not only impacted the amount of backlog in the criminal court processes, but have also had a dramatic impact on provincial remand populations. The net effect is significant expenditures on criminal justice processes on the taxpayers’ dime”.⁷

2.2 Impact of a failed bail process on legal aid clients

As outlined above, the bail system is in dire need of repair. Legal Aid clients who are the most vulnerable in our society, members of Aboriginal groups and racialized minorities, and persons living with mental health and/or substance abuse issues, are disproportionately affected by the inequities in the bail process.

• Historically, LAO’s low financial eligibility has meant that 73% of the 1.1 million Ontarians qualifying for legal aid certificates receive income support through Ontario’s two main income and employment support programs.
• Clients with mental health needs conservatively account for around $85 million – nearly 25% – of LAO’s yearly budget.
• Approximately 15% of LAO clients are Aboriginal, whereas Aboriginal people only comprise 2% of Ontario’s population.
• Several recent reports⁸ have documented the “racialization of poverty,” demonstrating that “racialized communities experience ongoing, disproportionate levels of poverty”.⁹

The discriminatory effect of the current bail system on the poor and persons living on the margins of society was aptly described by the Canadian Civil Liberties Association in its recent 2014 Report as follows:

“Legally innocent individuals are processed through a bail system that is chaotic and unnecessarily risk-averse and disproportionately penalizes and frequently criminalizes – poverty, addiction and mental health issues”.¹⁰

A number of other studies have also specifically documented how the current bail system in Ontario may prejudice LAO clients.

• A recent study of persons supervised by bail programs showed that over 40% of the group had mental health issues, 31% had recurring mental health and substance abuse issues, while one-third of this group identified themselves as homeless.¹¹
• Aboriginal people currently comprise 13% of persons in remand detention despite representing only 2% of Ontario’s population.¹²
• In 1995, the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System came to a “conclusion that is inescapable: some black accused who were imprisoned before trial would not have been jailed if they had been white, and some white accused who were freed before trial would have been detained had they been black”.¹³
• A 2002 study of bail courts in Toronto found that “race remains a significant predicator of pre-trial detention”, after controlling for relevant legal factors related to flight risk and danger to the public. The same study also found that black accused, after controlling for similar variables, tend to receive significantly more release conditions than non-blacks.¹⁴
• Data published by Statistics Canada in 2008 showed that 43% of persons remanded into custody were unemployed, compared to the national average of 6.1% at the time of the study. In 2000, the National Council of Welfare concluded, “the reason that accused persons are kept in custody for weeks and months before their trial is not because they are dangerous and poor, but mostly because they are poor”.

In addition, the particular vulnerabilities of LAO client groups are only exacerbated by the failings of the Ontario bail system:

• For Aboriginal accused persons living in remote communities, a decision by a police officer to hold the accused in detention pending a bail hearing, rather than craft a release with conditions, results in the accused being taken to a provincial detention centre many kilometres away without access to the very community supports that could support his or her release pending trial.
• Racialized and Aboriginal persons who are subject to over-policing practices and racial profiling are more likely to find themselves in pre-trial detention than those from non-racialized and non-Aboriginal backgrounds.

The disproportionate effect of the bail process on LAO clients flows directly from how decisions about bail are made in this province. In particular, Ontario’s over-reliance on surety releases, and the far too frequent imposition of multiple and excessive conditions on any release order, serve to increase the likelihood of pre-trial detention. These two particular defects in the bail process have a specific impact on Legal Aid clients and are discussed in detail below.

3. Reasons for a failing bail system

As documented in several recent reports¹⁵, it is not difficult to locate the reasons for the failure of Ontario’s bail process. These reasons – some of which are also specifically identified in the 2014 Premier’s Letter of Mandate to the Attorney General – are summarized below.

(1) Police do not exercise authority to release from the scene

Outside of a limited number of serious offences, the police are expected under the Criminal Code to release an accused with few conditions or restrictions on his or her liberty. The restrictions are largely geared to ensuring the protection of the public and the accused’s appearance at trial.

Notwithstanding the clear legal rules authorizing the police to release, and a falling crime rate, there has been a notable decrease in the past 15 years in the police exercise of discretion to charge and release persons from the scene. Instead, the police have been much more prepared to place accused persons under arrest and detain them for a bail hearing.

• Between 2001 and 2007, the number of criminal cases in Ontario that started in bail court (as opposed to a release from the scene by the police, for example) increased by 38%.¹⁶

A number of recent reports addressing both the problems of bail and inefficiencies in the criminal justice system have identified the over-use of police detention practices as an area which requires reform.¹⁷ These reports have been authored by parties from both outside and within the criminal justice system. All have recommended that the police make better and more expansive use of their lawful authority to release accused persons with conditions, rather than simply relying on their power to arrest and detain accused persons for a bail hearing.¹⁸

(2) Systemic delays in holding bail hearings

Under the Criminal Code, all accused have the legal right to a timely bail hearing. The police are required to bring an accused before a justice of the peace for a bail hearing without unreasonable delay, within 24 hours if a justice is available, or as soon as practicable, if a justice is not available. A bail hearing may not be adjourned for more than three days without the consent of the accused.

As was recently documented by the Canadian Civil Liberties Association (CCLA), however, and in despite of these legal protections, there are “continued systemic violation of constitutional rights in Ontario bail courts.”¹⁹ In Ontario, unlike any other Canadian jurisdiction, accused persons are being forced to “languish in custody” simply because a court does not have the time to hold a bail hearing.

• The CCLA found that Ontario is experiencing unique problems of systemic delay: during three weeks of observation, 20 people were returned to jail without having their cases heard simply because the court ran out of time.²⁰

The CCLA also cited with approval an earlier academic study of the reasons for the rise of the remand population in Ontario. In that study, the length of time spent by accused persons waiting for a bail hearing and the increase in the number of people detained by the police, were identified as the two determinative factors leading to the dramatic increase in the remand population between 2001 and 2007.²¹ The study noted that during the same period of time in which the remand population was increasing, the percentage of accused persons who were detained following a bail hearing stayed relatively constant.

The impact of delaying an accused’s legal right to a bail hearing cannot be underestimated. It is generally recognized that these delays increase the likelihood that an accused will feel compelled to plead guilty,²² or compelled to agree to onerous and unqualified release conditions, simply because there is no other way to be released from custody. Put bluntly, by not providing timely bail hearings, the likelihood of wrongful convictions, and the further criminalization of accused persons when they are unable to comply with the terms of their bail, are heightened.

(3) Overuse of sureties as a requirement of judicial interim release

The law of sureties and bail conditions

Under the Criminal Code, all accused persons who have been detained pending a bail hearing may be released by entering into a recognizance with the supervision of a surety. The surety enters into an enforceable agreement with the Crown that, in the event the surety fails to abide by their responsibilities of supervision (including notifying the police if the accused fails to comply with any release conditions), the surety will be indebted to the Crown for an agreed-upon amount. In addition to having sufficient financial resources, a surety must be someone who, because of his or her character, position of authority, and relationship and links to the accused, can ensure that the accused will attend court and comply with any and all conditions of pre-trial release.²³ The general rule for determining bail conditions, including the use of a surety release, is that the presumption of innocence continues to apply and that “conditions of release ought to be approached with restraint and should only be imposed to the extent that are necessary to give effect to the criteria for release”.²⁴ Further, Section 11(e) of the Charter guarantees that everyone charged with an offence has the right “not to be denied reasonable bail without just cause”. In R v. Pearson, Lamer C.J. articulated that

“Reasonable bail” refers to the terms of bail. Thus the quantum of bail and the restrictions imposed on the accuser’s liberty while on bail must be “reasonable”.²⁵

Following this general rule of restraint and the constitutional requirement for reasonable terms of bail, the Criminal Code mandates what has been called a “ladder approach” for determining the terms and conditions of an accused’s pre-trial release. A court must start from an assumption that the accused should be released with the least onerous conditions (e.g. undertaking without conditions) and may only move up the “ladder” and impose more onerous terms and conditions (e.g. requiring a surety and conditions) after concluding that the lower “rungs” are insufficient to authorize the accused’s release from custody.²⁶ Further, the Crown must show cause for each increasingly restrictive form of release.²⁷

The reality of surety releases in Ontario

A surety release is one of the most onerous forms of release, short of a cash deposit. As a result, the ladder approach would dictate that requiring a surety would be an exceptional form of release and not a common practice.²⁸ In actual fact, in Ontario the use of surety releases, as pointed out by the John Howard Society in its recent report, “has become increasingly entrenched, irrespective of the ladder approach that the Criminal Code directs.”²⁹

Recent studies show that the use of surety releases in Ontario exceeds that of all other jurisdictions in Canada, other than the Yukon.

• A 2013 CCLA observational study of bail courts in Ontario found that 53.1% of those released on bail (on consent or after a contested hearing) were required to have a surety supervise their bail. Specifically, when the accused was released after a contested hearing, 68.75% were required to have a surety.³⁰
  • The CCLA also found that 42.7% of accused persons released on bail were required to reside with their surety, and to comply with any rule that the surety imposed in their home.
  • The same study found that the same observational study of bail courts in British Columbia and Manitoba showed that sureties were never required, even after a show cause hearing.
• A study published in 2009 found that 60.5% of accused in a select number of observed bail courts in Ontario were required to have a surety to obtain their release from pre-trial custody.³¹
• The report of the Ministry of the Attorney General’s expert panel on bail also found that “it is common practice in Ontario to require an accused person who is being released on bail to provide a surety”.³²

There is no evidence that the use of sureties, as opposed to a less onerous form of release, provides any more assurance that the accused will comply with the conditions of his or her bail. As cited above, in contrast to Ontario, British Columbia and Manitoba do not require sureties to supervise an accused’s bail, and yet the charge and conviction rates for failing to comply with a bail order in those provinces are almost identical to those of Ontario. In the western provinces, the use of surety bails is reserved for serious offences and where the accused has been arrested after being released on a less onerous form of bail.³³

Ontario does offer an alternative to surety release, through its bail verification and supervision programs³⁴, to accused persons who lack a suitable surety but are otherwise candidates for release. As their name suggests these programs employ a two-stage progress, with screening (“verification”) as a precursor to acceptance for supervision. Ontario’s bail verification and supervision programs are delivered through contracted agencies³⁵ and are not available province-wide. The Ministry of the Attorney General’s expert panel on bail found in 2013 that local knowledge and use of the programs varies across the communities in which they are offered.³⁶ In British Columbia, by contrast, bail supervision is delivered directly by the province, through the Community Corrections Division of the Ministry of Public Safety and Solicitor General. The provincial probation service provides community supervision to over 22,000 individuals each year, including over 7,500 persons who are subject to a bail order.³⁷

The over-reliance on surety releases in Ontario delays the bail process, as accused persons often must seek adjournments to put together a “release plan”, and the surety must be available to attend court to testify and be cross-examined under oath.³⁸ Requiring proposed sureties to testify during bail hearings decreases the number of bail hearings that can be held in court each day, and thus lengthens the delay faced by all accused awaiting a bail hearing. It has long been recognized that a streamlined process for surety releases, including not requiring viva voce evidence, would significantly advance the just and timely determination of bail hearings.³⁹

The Canadian Civil Liberties Association, the John Howard Society of Ontario and the Fourth Annual Criminal Justice Symposium have all recommended a reduction in the use of sureties as the preferred form of judicial pre-trial release.

Discriminatory effects on Legal Aid clients

The over-reliance on surety releases effectively discriminates against accused persons, many of whom are Legal Aid clients, who do not have access to persons in the community with sufficient private resources or standing to qualify as sureties. More specifically, the over-reliance on surety releases is particularly prejudicial for members of marginalized populations, including those with mental health and/or addiction issues who may not have support from family and/or friends to act as a surety. It stands to reason that these clients will have a much harder time finding a suitable surety, than would an accused with a higher income level and who may enjoy better family and other private support systems.⁴⁰ As pointed out by the CCLA:

Individuals without a job, property, strong family support or ties to the middle-class social networks often struggle to find a suitable surety and stable housing.

As a consequence, accused persons without sufficient resources and social supports to secure a surety are more likely to find themselves in remand custody pending trial (and for a longer period time) than other accused persons who have a suitable surety and release plan.

For Aboriginal accused who are from the remote communities in Ontario, there are additional barriers created by the use of sureties as the preferred form of release. These accused are often, on arrest, flown out of their communities and detained in custody many kilometres away from their home. As a result, their ability to contact a potential surety, and have that surety attend at court, is severely if not irretrievably compromised.⁴¹ It is only in limited parts of the province that efforts have been made to improve this situation by allowing sureties to appear by way of video from their local police station, rather than travel to the actual court house holding the bail hearing.

Jonathan Rudin, in his report to the Ipperwash Commission, found that the detention of Aboriginal accused is often the result of the “systemic conditions of Aboriginal people”.

Many of those arrested have little income, no jobs, and are often homeless. In addition, these individuals may have previous convictions for failure to attend court or failure to comply with a bail condition or a probation order. All of these factors combine to make the Aboriginal accused person seem less likely to appear for court if released and thus either detained absolutely, or required to obtain surety to gain release.⁴²

Although it is appropriate that the amount ordered in a recognizance is “relatively substantial to the accused and/or his/her sureties, it is inappropriate to set bail at a figure which effectively detains the accused person”.⁴³ Thus, to secure the release of the accused, it is imperative that the quantum of bail does not exceed what a surety can pledge in relation to his or her means. However, it must be recognized that for accused persons, and particularly Legal Aid clients, these amounts may still be beyond the means of their proposed sureties. Further, of greatest concern is the reality that accused persons of vulnerable backgrounds may only have potential sureties of no means, and as a result, without the likelihood of securing their release.

• The CCLA 2013 study found that the amount of bail was set at a mean of $3,004 and at a median of $1,000.
• A 1999 study of bail found that about 50% of consent release cases required more than $1,000 to be promised on behalf of the accused.

Professor Martin Friedland, one of the architects of the Bail Reform Act which formed the basis for the present law of bail in Canada, has suggested that the increased requirement of surety releases effectively creates a danger of re-introducing “security in advance” as a common condition of pre-trial release.⁴⁴

Risk avoidance, or what has been called “organizational risk aversion,”⁴⁵ has become entrenched at the bail stage of the criminal justice process. It fuels over-reliance on surety release and the imposition of too many, often unrealistic, bail conditions, despite the “ladder approach” mandated by the Criminal Code. Eliminating organizational risk aversion may never be possible. However, revised ministry policies could help to influence the decision-making of police and crown attorneys. Improved training or strengthened educational requirements for justices of the peace, who preside over the majority of bail hearings, could strengthen their skills and confidence in making bail orders that are consistent with the Code’s provisions.⁴⁶

(4) Too many conditions attached to release

The law of bail conditions

As discussed, the Criminal Code mandates that courts should exercise restraint in imposing conditions when ordering the accused’s interim release. A court can only impose a specific condition after concluding that the Crown has met its onus to show that the accused’s appearance at trial, and public safety, cannot be adequately protected by a less onerous form of release.

Importantly, if an accused is arrested while out on bail for violating a condition of his or her release or for a subsequent offence, the usual onus is reversed and the burden is placed on the accused to justify his or her release from detention pending trial and to demonstrate why the most onerous release conditions should not be imposed by the court.

The Criminal Code provides a mechanism for an accused to challenge the legality of a judicial pre-trial detention order, or the conditions attached to a judicial interim release order. As a general matter, a Superior court may on a bail review set aside a detention order or any conditions attached to the judicial interim release order if the court finds that the original lower court made an error in law or there has been substantial change since the issuing of the original release order.

Reality of bail conditions

The law imposes strict limits on the imposition of terms and conditions on bail release. The reality, however, is that many accused are subject to multiple conditions that are unrelated either to the need to ensure his or her appearance at trial or to protect the publicThese conditions often seek to restrict the accused’s personal behaviour that is unrelated to the charged offence, or even criminal behaviour in general, but over which the accused has had difficulties in the past. Examples of these kinds of conditions include non-alcohol orders for those with substance abuse issues, and residency requirements for persons who are homeless.⁴⁷

The subsequent failure of the accused to abide by these conditions may result in his or her arrest on the charge of fail to comply which makes his or her detention pending trial on the original charge even more likely.

• The Canadian Civil Liberties Association in its observational study of bail courts found that in Ontario accused persons were released with between six and seven conditions attached to their bail.
  • The same study found that 57.3% of all releases in Ontario required the accused to attend treatment or counselling, while 21.2% required the accused to report to a program within a specified period of time.
  • More than half of all releases (52%) imposed geographical restrictions on where the accused could be found while out on bail.
  • 17.2% of accused persons were required to abstain from the use of alcohol.
• The John Howard Society of Ontario’s study pointed out that, of the 158 clients with current alcohol or drug use issues who were granted bail and placed in a supervision program, about 81% were given conditions requiring them not to consume alcohol or to abstain from drugs.
• Other research has shown that youths have an average of six bail conditions placed on them, “with most receiving relatively broad conditions such as obey the rules of the house”.⁴⁸

The prejudicial effect of “behavioural” bail conditions on the life of an accused who must comply with them cannot be underestimated. These conditions provide stringent limits on the accused’s liberty even though the accused has yet to be convicted of a criminal offence. In many circumstances, these kinds of behavioural restrictions, because they are unrelated to purposes of bail, are illegal and unconstitutional.⁴⁹ These onerous conditions are invariably experienced by accused persons as punishment before a finding of guilt.⁵⁰

The true adverse impact of the use of behavioural conditions as part of bail releases flows from the likelihood that an accused will be unable to comply with those conditions. Research shows that the imposition of multiple conditions on a bail order, along with the length of the accused’s release, increases the likelihood that the accused will breach those conditions and be charged with a fail to comply offence. Over the past 10 years, the rise in the use of multiple behavioural conditions has been accompanied with a corresponding rise in the number of charges of failing to comply with a bail order.

• Between 2006 and 2012, the number of charges of failing to comply with a bail order increased by 27%.
• The rise in the number of fail to comply with bail orders is the main factor that has increased the number of fail to comply charges as a whole.

In turn, the most common reason for an accused person to be detained prior to trial is that the accused was arrested while out on bail and charged with a failure to comply with a condition of his or her bail.⁵¹

Within the criminal justice system, a conviction for a breach of a bail condition is particularly prejudicial to an accused since it denotes a failure to abide by court orders and the rules of the administration of justice generally. It makes the accused person’s release pending trial on any subsequent charge much more unlikely.⁵² In fact, a failure to comply with a bail condition is the most common reason for a person to be admitted to pre-trial detention.⁵³ As noted by Professor Cheryl Webster, the overuse of restrictive bail conditions, and the inevitable resulting charges for breaching those conditions, has created a “vicious circle…whereby the criminal justice system manufactures, in effect, its own crime.⁵⁴

Both the 2012 and 2013 Annual Canadian Criminal Justice Symposiums, discussing the topics of bail and mental health respectively, strongly recommended against the imposition of multiple bail conditions on interim release orders. The recently convened national 5th Annual Criminal Justice Symposium specifically noted that “careful consideration should be given to the conditions imposed upon release from custody to avoid setting up the individual for failure”. ⁵⁵

Effect on legal aid clients

The imposition of bail conditions that are directed largely to improving the behaviour of the accused is particularly prejudicial to Legal Aid clients, many of whom may be homeless and have mental health issues and/or substance abuse problems. The imposition of conditions that are geared to controlling these kinds of personal issues and problems often result clients being arrested again for breaching those terms of release, and being detained pending trial.

The effect of these conditions has particularly adverse affects on marginalized persons in society:

These conditions have particularly dramatic impacts on marginalized individuals, who may find themselves legally prohibited from accessing the basic welfare services that they need in order to survive as a result of overlapping, stringent restrictions on location, contact and movement.

The CCLA has recommended that to address the number of illegal and unreasonable bail conditions, and their adverse impact on marginalized groups, enhanced public funding should be provided to support and expand “purposive, rapid targeted bail reviews”. These bail reviews could be directed towards challenging particularly onerous but commonly issued bail conditions that are unrelated to the purposes of bail.

4. LAO and bail

LAO plays a major role in Ontario’s criminal justice system. It is estimated that about 60% of matters in the Ontario Court of Justice are Legal Aid cases. Representing criminal accused in bail proceedings is a fundamental role for duty counsel. LAO estimates that duty counsel represent 80% of criminal accused in bail hearings in Ontario. In addition, through the certificate system, LAO provides funding to private lawyers to conduct bail hearings, to bring bail reviews and to represent clients who have been charged with failing to comply with the terms of their bail.

• Bail hearings
  • Certificate lawyers billed for 9,172 bail proceedings on all criminal certificates issued in 2012-13; 8,728 in 2013-14; 8,872 in 2014-15; and 6,930 in 2015-16.⁵⁶
  • Duty counsel conducted 37,031 bail hearings in 2012-13; 33,594 in 2013-14; 33,066 in 2014-15; and 31,641 in 2015-16.
• Bail reviews
  • LAO issued 546 certificates with a bail review authorization in 2012-13; 474 in 2013-14 and 321 billed to date in 2014-15.
  • In each of the years between 2009-2015, LAO issued an average of 551 bail review certificates a year. However, from 2009 to 2014, authorized certificates for bail reviews decreased from 692 to 460 a year.
• Impact on LAO costs LAO’s own costs have been affected by what the CCLA has called the “revolving door” of bail decision-making, whereby an accused is released on unreasonable conditions that inevitably result in a further “administration of justice” charge and the detention of the accused.
  • 50% of LAO certificates issued for the defence of a new charge have an administration of justice charge covered on the certificate.
  • 8% of all criminal certificates are issued for an administration of justice charge alone.
  • The cost of certificates where an administration of justice charge is the only charge on the certificate is approximately $3.5 million per year.

5. LAO’s initiatives to improve bail

As an institution, LAO has for many years worked with other stakeholders to improve the efficiency of the bail process by improving its role in advancing Justice on Target and promoting an effective use of available technology. LAO senior staff participated in the recent Bail Expert Table that was established by Justice on Target to provide advice on potential improvements to the bail process. On the local level, LAO staff is actively involved in court management committees with the bar, private defence counsel and the Crown.

Finally, both LAO’s Aboriginal Justice Strategy and LAO’s consultations to develop a Mental Health Strategy have documented the disproportionate adverse effect of the inequities of the bail process on Aboriginal persons and persons with mental health and addiction issues. Importantly, LAO’s bail system initiatives will not be developed in a policy vacuum, but rather in a manner that recognizes and works to address the connections and intersections that affect the vulnerable low-income client groups that LAO serves. Further, LAO’s ongoing consultations with the Violence Against Women (VAW) community, most particularly in support of the development of a dedicated LAO Domestic Violence Strategy, ensure that LAO’s work on bail initiatives is situated within a broader context that acknowledges the risks faced by victims of domestic violence and the need to provide this vulnerable group with access to appropriate services.

LAO’s involvement in the bail process, on both a micro and a macro level, makes it well suited to develop its own initiatives to address the problems of bail in Ontario, and to identify other opportunities for a co-ordinated response with other stakeholders.

Some of the ideas that may be considered by LAO or have recently been adopted by LAO to improve bail include the following:

1. Improve Efficiency of LAO Services

• Continue to explore ways in which information can be shared between the Brydges telephone duty counsel who assist a client upon arrest and detention, and between different duty counsel who may represent the client on the same or different matters.
• Developing better systems for “service integration” and sharing of information between different duty counsel who may represent the client on the same or different matters.
• Continue to collaborate with other stakeholders to develop policies and local best practices to ensure that matters are dealt with in an appropriate order, allowing time for discussions between Crown and defence counsel to occur, sureties to arrive, and sureties to be prepared for a hearing.

2. Support Duty Counsel Services

• Continue LAO’s commitment to staffing bail courts with duty counsel whenever the courts are open and are conducting bail hearings, including a renewed commitment to staffing weekend and statutory holiday (WASH) court.
• Target particular jurisdictions for enhanced support to introduce “best practices” to challenge and litigate improper practices by both Crown and judicial decision-makers. Included in these best practices would be access to immediate and effective bail reviews for clients (“Bail Court Blitz”).
• Continue to provide and upgrade LAO’s “hands-on” training for duty counsel on representing clients at a bail hearing.

3. Support Private Bar Services

• LAO has identified bail as a key area for its first wave of expanded legal eligibility.
  • Expanded legal eligibility to allow more clients to have unreasonable bail conditions varied.
  • Expanded legal eligibility to allow more clients to have certificate representation on a second bail hearing after they have been arrested while out on bail.
  • Expanded legal eligibility coverage to allow more clients to challenge illegal detentions and unreasonable bail conditions.
• Expanded use of test case funding.

4. Support Particularly Vulnerable Clients

• The Mentally Ill
  • Provide resources and supports to both private lawyers and duty counsel to ensure that restrictive conditions, including requirements for treatment, that relate to the mental health of the accused, are not as a matter of course required by the Crown, or imposed by a court, as a condition of judicial interim release. All counsel should be in a position to challenge these kinds of conditions unless the client, with full knowledge of his or her rights, has instructed counsel to agree to the conditions as a term of release.
  • Both private lawyers and duty counsel should be supported to ensure that any conditions that are imposed on a client with mental health issues recognize the rights of the client.
  • Connect an accused with mental health services, to stabilize accused and make him or her a better candidate for diversion.”⁵⁷
  • Develop “peer support systems” to assist an accused with mental health⁵⁸ or substance abuse issues to meet the conditions of his or her bail, by assisting with travel, keeping appointments and court appearances, managing paperwork and living with supervision.
  • Develop with other stakeholders a “specialty bail system” for accused with mental health disabilities and addictions. This “mental health bail court” could facilitate and coordinate specialized services and procedures while removing the more complex and time-intensive cases from the general bail system stream.
• Aboriginal
  • Expand use of Gladue submissions at bail stage to provide better information on the background, personal history, circumstances and available Aboriginal resources or services upon release.
  • Provide co-ordinated training to both duty counsel and private bar on making Gladue submissions at a bail hearing.
  • Ongoing and updated training on how to properly interview Aboriginal clients, on the traditional and cultural background of Aboriginal people and on available services.
  • Support use of video appearance for potential sureties from remote locations, to lessen travel and delay for court appearances.
• Racialized Communities
  • Provide co-ordinated training to both duty counsel and the private bar on representation of persons from racialized communities.
  • Ongoing and updated training for both duty counsel and the private bar on effective cross-cultural communication techniques.
  • Expanded translation services
  • Identifying culturally appropriate and targeted support services for persons seeking bail.
• Youth
  • Develop a strategy to promote the values of the Youth Criminal Justice Act (YCJA) at the bail stage, including addressing the over-reliance on custody as a social measure to detain young persons, contrary to s.29 YCJA.
  • Provide coordinated training to both duty counsel and private bar on making submissions at a bail hearing for young persons charged with criminal offences.

5. Expand “Rapid and Targeted” Bail Reviews

• As part of expanded legal eligibility, LAO has increased the scope of LAO-funded bail reviews to include review of conditions and to authorize “public interest” bail reviews. LAO has also increased the number of hours that private counsel may bill on a bail review.
• Authorize duty counsel to bring immediate bail reviews, in appropriate circumstances, on behalf of clients for whom LAO has provided representation at the bail hearing.
• Authorize LAO staff lawyers to bring targeted bail reviews, in appropriate circumstances, to challenge commonly attached but illegal bail conditions.
• Pre-authorize high quality criminal defence lawyers, such as members of LAO’s Complex Case Rate Panel, to bring bail reviews without requiring merit assessment and approval by LAO.
• Develop similar initiatives for youth bail matters by way of a bail de novo – s.33(1) of the YCJA.

6. Joint initiatives with Other Stakeholders

• Develop with both Crown and Judiciary “Model Bail Rules” that will set out the law and governing principles of bail, as well as documenting best practices. These Model Bail Rules would be relied on by all parties and decision-makers in the bail process. For example, the rules would inform Crowns, in exercising their discretion to request sureties and bail conditions; duty counsel and defence lawyers, in advising clients and advocating for less restrictive forms of release; and the judiciary, in making the final decision of granting bail, imposing bail conditions and requiring sureties.
• Work with other branches of government and community service providers to arrange for greater access for accused persons to transitional residences, and additional and more flexible community options for the release of accused persons prior to trial.

7. Improve LAO Data about Bail

• Bail hearings
  • Certificate vs duty counsel representation
    • Trends over the last one to five years by region, type of charge and vulnerable client group.
• Bail reviews
  • Trends over past one to five years in number of bail review authorizations by region, type of charge and vulnerable client group.
  • Success rates for certificate applications for bail review authorizations.
  • Time required to obtain bail review authorization.
  • What do counsel ask for on discretion, and what does LAO pay?

6. Questions and comments

Questions and comments can be addressed directly to Marcus Pratt, Director, Policy and Strategic Research by email at prattm@lao.on.ca

Footnotes

Footnotes for 1. Introduction:

1. Ontario, “September 2016 Mandate letter: Attorney General, Premier’s instructions to the Minister on priorities” (23 September 2016) online: https://www.ontario.ca/page/september-2016-mandate-letter-attorney-general.
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2. Ontario, “September 2016 Mandate letter: Community Safety and Correctional Services Premier’s instructions to the Minister on priorities ” (23 September 2016) online: https://www.ontario.ca/page/september-2016-mandate-letter-community-safety-and-correctional-services
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Footnotes for 2. The problems with the bail system in Ontario:

3. R v. Hall 2002 SCC 64 at para 118, [2002] 3 SCR 309, Iacobucci J dissenting in the result [Hall].
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4. See statements by the Minister of Community Safety and Correctional Services in 2016 describing the “appalling” and “unacceptable” conditions for inmates held in the Ottawa-Carleton Detention Centre, many of whom are on remand, cited in Ottawa-Carleton Detention Centre Task Force Action Plan at Introduction, online: http://www.mcscs.jus.gov.on.ca/english/Corrections/OCDC_task_force.html#actionplan.
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5. Ibid at para 59. Iacobucci J dissenting, quoting with approval from Herbert. L. Packer, The Limits of the Criminal Sanction (California: Stanford University Press 1968) at 215.
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6. “Commission on the Reform of Ontario’s Public Services”, Public Services for Ontarians: A Path to Sustainability and Excellence, (2012) at 354, online: http://www.fin.gov.on.ca/en/reformcommission/chapters/report.pdf.
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7. “Reasonable Bail?”, John Howard Society of Ontario, (September 2013) at 3, online: http://www.johnhoward.on.ca/wp-content/uploads/2014/07/JHSO-Reasonable-Bail-report-final.pdf. [“Reasonable Bail”].
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8. “The Hidden Epidemic: A Report on Child and Family Poverty in Toronto”, Children’s Aid Society of Toronto,(November 2014), online: http://www.torontocas.ca/app/Uploads/documents/cast-report2014-final-web71.pdf; “Falling Behind: Ontario’s Backslide into Widening Inequality, Growing Poverty and Cuts to Social Programs”, A Report of the Ontario Common Front, (2012) online: http://www.weareontario.ca/wp-content/uploads/OCF-RPT-FallingBehind-20120829.pdf; “Poverty Profile: A Snapshot of Racialized Poverty in Canada” National Council of Welfare,( 2012), online: ; Sheila Block, “Ontario’s Growing Gap: The Role of Race and Gender”, Canadian Centre for Policy Alternatives, (June 2010),online: http://ywcacanada.ca/data/research_docs/00000140.pdf; “Colour of Poverty: Understanding the Racialization of Poverty in Ontario”, (series of factsheets), (2007).
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9. “Colour of Poverty: Understanding the Racialization of Poverty in Ontario, An Introduction in 2007, Fact Sheet # 1″(2007) at 1, online: http://www.learningandviolence.net/lrnteach/material/PovertyFactSheets-aug07.pdf.
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10. “Set Up to Fail”, supra note 1 at 1.
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11. “Reasonable Bail?”, supra note 5 at 12
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12. Samuel Perrault, “Admissions to adult correctional services in Canada, 2011/2012”, (Ottawa: StatCan, 20 March 2014), online: http://www.statcan.gc.ca/pub/85-002-x/2014001/article/11918-eng.htm.
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13. “Report of the Commission on Systemic Racism in the Ontario Criminal Justice System”, Commission on Systemic Racism in the Ontario Criminal Justice System, (Toronto: Queen’s Printer for Ontario), at v, online: https://archive.org/details/reportracismont00comm.
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14. Gail Kellough & Scot Wortley, “Remand for Bail: Bail Decisions and Plea Bargaining as Commensurate Decisions” (2002) 42 Brit J Crim, as explained in Akawsi Owusu-Bempa & Scot Wortley, “Race, Crime and Criminal Justice in Canada” in Sandra M. Bucerius & Michael H. Tonry eds The Oxford Handbook of Ethnicity, Crime and Immigration, (Oxford, UK: Oxford University Press, 2013) at 292.
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Footnotes for 3. Reasons for a filing bail system:

15. See “Set Up to Fail”, supra note 3; “Reasonable Bail”, supra note 8; Professor Cherly Webster, “Broken Bail in Canada: How We Might Go About Fixing It”. Report prepared for Justice Canada, 2015. Released in February 2016 and “Report of the 5th Annual Criminal Justice Symposium”, (Montreal: January 18-19, 2013).
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16. See CM Webster, AN Doob & NM Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009) 21:1 Current Issues in Criminal Justice 79 [Webster, Doob & Myers, “Pre-Trial”] in “Set Up to Fail”, supra note 1 at footnote 19.
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17. See for example, “Set Up to Fail”, supra note 3; “Reasonable Bail”, supra note 8; “Bail Experts Table Recommendations”, Justice on Target, Ministry of the Attorney General, Province of Ontario, online: https://www.attorneygeneral.jus.gov.on.ca/english/jot/bail_experts_table_recommendations.pdf and “Re-inventing Criminal Justice: The Fourth National Symposium Final Report”, The Fourth National Criminal Justice Symposium, British Columbia, 13/14, January 2012; Ottawa-Carleton Detention Centre Task Force, 2016 at recommendations 13 and 14, online: http://www.mcscs.jus.gov.on.ca/english/Corrections/OCDC_task_force.html#actionplan.
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18. In May 2016 the Ministry of the Attorney General launched a six month pre-trial custody project in Ottawa to provide prosecutorial advice to the police on release and bail decisions. The project will assess whether the use of Crowns early in the bail process can result in a reduction in the use of police remands into custody. Online: http://www.mcscs.jus.gov.on.ca/english/Corrections/OCDC_task_force.html#actionplan.
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19. “Set Up to Fail”, supra note 1 at 2.
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20. Ibid.
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21. Webster, Doob & Myers, “Pre-Trial”, supra note 14.
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22. For example, in R v. Daibes, 2015 ONSC, the court found a miscarriage of justice to have occurred, and set aside the accused’s guilty plea. The court found that the accused entered the plea in order to secure his release from custody, and after being improperly being denied the opportunity to enter into a residential surety recognizance, and after he was not made aware of the availability of a potential surety.
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23. Gary Trotter, The Law of Bail in Canada, 3d ed (Toronto: Thomson Reuters) at 7-18. [Trotter, “Bail”].
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24. Ibid
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25. R v. Pearson, [1992] 3 SCR 665 at page 689, Lamer CJ.
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26. Trotter, “Bail”, supra note 20 at 6-8.1.
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27. R v. Cole, 2002 SCC 53, [2012] 3 SCR 34.
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28. That is a common practice and the conclusion reached by Nicole M. Myers, “Shifting Risk: Bail and the Use of Sureties” (2009), 21 Current Issues in Criminal Justice 127 at 21.
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29. “Reasonable Bail”, supra note 5 at 7.
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30. “Set Up to Fail”, supra note 1 at 36..
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31. Ibid at 37.
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32. “Bail Experts Table Recommendations”, Justice on Target. Ministry of the Attorney General., Province of Ontario, at 22, online: https://www.attorneygeneral.jus.gov.on.ca/english/jot/bail_experts_table_recommendations.pdf.
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33. “Set Up to Fail”, supra note 1 at 40.
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34. Available in 17 Ontario communities as of early 2014: “Successful Bail Program Expanding to Kingston”, Ontario Ministry of the Attorney General press release (December 29, 2013), online: http://news.ontario.ca/mag/en/2013/12/successful-bail-program-expanding-to-kingston.html.
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35. Chiefly the John Howard Society of Ontario, although the Elizabeth Fry Society offers a program in the Sudbury area.
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36. “Bail Experts Table Recommendations”, supra, at 15.
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37. “A Profile of B.C. Corrections (October 2013), online: http://www.pssg.gov.bc.ca/corrections/docs/BCCorrectionsProfile, at 18.
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38. Ibid at 2.
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39. “The Final Report on Early Case Considerations of the Steering Committee on Justice Efficiencies and Access to the Justice System.”, Department of Justice, (2006), online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/ecc-epd/toc-tdm.html.
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40. See “Set Up to Fail”, supra note 1 at 3.8.
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41. See “Report on Fly-in Court Operations, (Toronto: 2013), in “Set Up to Fail”, supra note 1 at 110.
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42. Jonathan Rudin, “Aboriginal Peoples and the Criminal Justice System”. Paper prepared for the Ipperwash Inquiry, 2006), at 53, online: http://www.archives.gov.on.ca/en/e_records/ipperwash/policy_part/research/pdf/Rudin.pdf
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43. See Trotter, “Bail”, supra note 20 at 6-22, with reference to, R v. Sexton (1976), 33 CRNS 307 (Nfld Dist Ct); R v. Cichanski (1976), 25 CCC (2d) 84 (Ont HC); and R v. Cooke (1973), 10 CCC (2d) 111 (NB QB).
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44. Martin L. Friedland,”The Bail Reform Act Revisited” (2012), 16 Canadian Criminal Law Review 315 at.
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45. “Reasonable Bail”, supra at 7.
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46. Pursuant to s. 15 of the Justices of the Peace Act, R.S.O. 1990, c.J4, a candidate must possess a university degree or diploma in order to be qualified as a justice of the peace; a law degree is not a requirement.
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47. As recently noted by a sitting Justice of the Peace, too often in bail court the “law goes out the window, and cynicism and bullying kick in” to take advantage of “…the fact that people will agree to just about anything to regain their freedom and go back to their families and daily routines” Julie Lauzon J, “Our bail system is broken: Ottawa justice of the peace”, Ottawa Sun (15 March 2016) online: http://www.ottawasun.com/2016/03/15/our-bail-system-is-broken-ottawa-justice-of-the-peace
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48. Jane B. Sprout & Nicole M. Myers, “Set Up to Fail: The Unintended Consequences of Multiple Bail Conditions” (2011) 53:4 Canadian Journal of Criminology and Criminal Justice 404. [Sprout & Myers, “Unintended Consequences”].
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49. “Set Up to Fail”, supra note 1, citing recent case law.
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50. Sprout & Myers, “Unintended Consequences”, supra note 38, in “Reasonable Bail”, supra note 5 at 10.
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51. Lindsay Porter and Donna Calverly, “Trends in the Use of Remand in Canada” Trends in the Use of Remands in Canada”, (Ottawa: Juristat, 2011)., in “Set Up To Fail”, supra note 1 at 8,
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52. The recommendations of both the Canadian 2012 and 2013 Annual Criminal Justice Symposiums, dealing with the topics of bail and mental health and the criminal justice system respectively, both cautioned against the imposition of bail conditions in order to avoid setting up the “…setting up the individual for failure.” “Report of the 5th Annual Criminal Justice Symposium”, (Montreal: January 18-19, 2013). See also “Set Up to Fail”, supra note 1 at 63.
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53. Porter and Calverly, “Trends in the Use of Remand in Canada”, supra note 52; in “Set Up to Fail”, supra note 32 at 8
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54. See, “Broken Bail in Canada: How We Might Go About Fixing It”. Report prepared for Justice Canada, 2015. Released in February 2016.
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55. “Report of the 5th Annual Criminal Justice Symposium”, (Montreal: January 18-19, 2013) at recommendation 24. See also Ottawa-Carleton Detention Centre Task Force, supra note 18 at recommendation 19.
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Footnotes for 4. LAO and bail:

56. This year is likely under-reported as some of the certificates have yet to be billed.
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Footnotes for 5. LAO’s initiatives to improve bail:

57. “Report of the 5th Annual Criminal Justice Symposium”, (Montreal: January 18-19, 2013) at recommendation 22.
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58. “Report of the 5th Annual Criminal Justice Symposium”, (Montreal: January 18-19, 2013) at recommendation 24.
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