Is Canada’s bail system too lax?

Olivier Huard was lucky. When the guards passed trays of food into the cell and then departed, Santos — the biggest and strongest of the 17 prisoners — made sure everyone received an equal portion. In other cells, the strongest might take the lion’s share, leaving the smallest and weakest to go hungry.

“The greatest high-value currency in prison is coffee powder,” Huard says.

He had traded a stick of instant coffee for a phone call on someone’s calling card, as he and his lawyer tried to work out a strategy for his release on bail. It was lucky, as well, that Huard and his co-accused, Jacob Pirro, were kept together for the week that they awaited their bail hearing in Rivière-des-Prairies prison outside Montreal. The month before, there had been a murder in the cells.

“Jacob is a lot smaller than me,” Huard says. “I wanted to keep an eye on him.”

Pre-trial detention is supposed to be a measure of last resort. Yet current political rhetoric is dominated by the narrative that Canada is too lenient in granting bail. Ontario Premier Doug Ford continually agitates for “jail, not bail” and has criticized “bleeding-heart judges,” even threatening to revisit Canada’s system of appointing rather than electing our judiciary. Last October, the province proposed Bill 75, a bail reform act that would, among other things, institute cash payment up front to secure release (a provision many legal experts believe will prove unconstitutional. The Carney government has also introduced a bail reform act, promising to make bail harder to get. This tough-on-crime stance has been bolstered by high-profile violent crimes committed by individuals out on bail, such as the murder of Scarborough widower Robert Dawson in September.

And yet, across Canada, people awaiting trial or a contested bail hearing in provincial prisons outnumber those convicted of crimes.

“It's a myth that bail is too easy,” says Toronto defence lawyer I. Loui Dallas.

“For serious charges, you’ve got to fight hard to get your bail.”

In Ontario, the proportion of pre-trial detainees — people presumed innocent who have not yet had their day in court — surpassed sentenced individuals in 2004. Nearly 80 per cent of Ontario’s prisoners are now pre-trial. Canada is an outlier in this regard. In the most recent World Prison Brief report from the University of London’s Institute for Crime and Justice Policy, this country’s pre-trial detention numbers were significantly above the world median.

In contrast to the prevailing political winds, many legal experts and advocacy groups believe Canada should be working to incarcerate fewer people awaiting trial, not more. And there is a period in recent history when justice actors were in widespread agreement on this point: during the COVID-19 crisis, when Ontario’s courtroom culture changed dramatically. (While the provinces have different approaches, criminologists often use Ontario, as the region with the highest population, to generalize Canadian trends.)

In a recent paper published in the Canadian Journal of Law and Society, criminologists Brendyn Johnson and Chloe Leclerc analyzed Statistics Canada data alongside interviews and 49 days of bail court observation data to establish that, given the high risk of infection and death in congregate settings, prosecutors, defence lawyers, and justices of the peace worked together to find solutions other than incarceration. Johnson and Leclerc found that from 2019 to 2021, remand admissions fell dramatically, as police and courts sent 12,000 fewer people per year to prison to await trial. The picture of crime trends during the pandemic is murky—some crimes, such as shoplifting, plummeted, while domestic violence skyrocketed. But a lesson from the study is that changing bail outcomes doesn’t necessarily require changes to provincial or federal legislation. During COVID, existing rules were simply interpreted in a way that placed more weight on the vulnerability of incarcerated people.

In all bail decisions, risk is the determining factor. Bail hearings consider three issues: whether there's a risk the accused won’t show up for their court dates. Does the accused pose a risk to public safety? And finally, is there a risk that allowing the accused to await trial at home will shake the public’s faith in the justice system?

But, as we learned during the pandemic, risk is a squishy metric. Risk of what? Risk to whom?  Of course, in some cases, the risk to public safety is too great to grant bail, and it should be judiciously denied. But, according to the Canadian Civil Liberties Association, denial of bail is going up even as crime severity has (with some blips) declined. The majority of cases before Ontario courts are for non-violent offences. There is a risk that keeping such cases in the system may increase, rather than reduce, the risk of recidivism.

Huard and Pirro were awaiting trial for a non-violent protest in which, as part of the environmental activist group Collectif Antigone, they climbed Montreal’s Jacques-Cartier bridge to draw public attention to the risks of climate change. In theory, the government agrees with them: Canada officially declared a climate emergency in 2019. But, as Huard says, “No one’s acting like we’re in an emergency.”

As remand numbers have crept back up and approach pre-pandemic levels — a level that many describe as a crisis — it seems that we may have missed a valuable opportunity to rethink the nature of the emergency in our bail system. Anecdotes of violent crimes committed by individuals out on bail continue to make headlines. We should take these incidents seriously, but we should not make the mistake of assuming that stricter bail would make all of us safer. Neither provincial nor federal governments collect statistics that could tell us how the incidence of violent crime among people on bail compares with the total population released on bail.

By contrast, the high incidence of harm suffered by prisoners is well known. Government discourse that focuses on incarceration as the answer to potential harms to public safety overlooks the fact that prisoners are also members of the public. The urgent response required during COVID allowed court actors to flip the script: rather than taking a blinkered view of the potential threat posed by accused individuals to society, they emphasized the known threats to prisoners awaiting trial.

Bail court not what public perceives

Over the course of several days last summer, bail court in Montreal and Toronto was an extraordinarily polite place. “Thank you,” prisoners, appearing by video (the standard since COVID), said to judges. “Have a nice day,” judges said to prisoners, incongruously, as guards came to lead them back to their cells. Everyone mister’ed and madam’ed each other. The judge or justice of the peace often gently asked the accused if they understood the discussion happening around them, even when it seemed impossible that they could. Prisoners struggled to hear through fuzzy speakers, and the language of court proceedings is a tangle of code numbers and jargon.

In Montreal’s bail court (a dingy, windowless room with neon tube lights and rows of chairs upholstered like thrift-store blouses), accused people often did not know the name of the lawyer representing them, or they had not managed to speak with a lawyer. People on the video feeds watching lawyers wrangle over whether they would be set free were usually quiet, but upon learning that she would be kept in prison at least two more days, one of the few female prisoners leaned her head against the wall and sobbed.

“There are these narratives of who's in jail, and often it's like the most sort of characteristically powerful, scary bad guy,” says Kendall Yamagishi, a duty counsel and delegate of the union representing lawyers employed by Legal Aid Ontario.

“The version that [the public] sees in their mind is probably not the same as the person that we see every day.”

In Canada, the representative prisoner is probably Indigenous or otherwise racialized (bail appearances on these days were translated into Spanish, Hungarian, Punjabi and Inuktitut). They probably suffer from mental health or addiction issues, and are almost certainly poor.

“They wind up in the judicial system because everybody just wants to push the problem somewhere else,” says former Crown prosecutor Warren Thompson.

It is true that COVID offered unique circumstances. With lockdowns and curfews in place, fewer opportunities to commit crimes may have presented themselves. But the jurists who spoke anonymously to Johnson and Leclerc pointed to a change in atmosphere in courts rather than a diminished risk to the public.

“It’s almost as if, it’s going to sound strange,” one judge is quoted as saying, “but COVID-19 gave [Crown attorneys] a bit of an excuse to take a lighter position.” The judge added, “They have to justify their position to a lot of people.”

Defence lawyers noted that suddenly it felt like everyone was working together to keep people out of custody. Police officers released more people at the scene, and prosecutors asked for less onerous terms of release. One defence lawyer described a client held in pre-trial detention before the onset of the pandemic, who “wasn’t getting out no way no how. Certainly, wasn’t getting out without a surety.” (A surety, often referred to as “a jailor in the community,” is a friend or family member who keeps tabs on the accused.) Once the pandemic hit, however, the Crown agreed to a release without a surety, provided the accused reported weekly by phone to police.

Criminologists have long pointed to a particularly risk-averse culture that makes Canadian bail courts unduly harsh. The Supreme Court has rendered numerous decisions emphasizing the right to release, underlining that people accused of crimes who have not yet had a chance to defend themselves should be set at liberty quickly and with few conditions. At the bail stage, allegations are unproven. But “the biggest concern that every Crown has is the person gets out on bail and then commits a homicide,” Thompson says. There are clear incentives for prosecutors to err on the side of caution, and fewer obvious incentives to favour release. Public outcry occurs on the rare occasions when someone out on bail commits a violent crime; newspapers do not run a front-page story every time an accused person is unnecessarily detained.

Delays at play

One instance observed in bail court stood out for the stark difference between the abstract principles of law and the muddy tracks where the rubber meets the road. The accused — young, male, and Black, like so many prisoners — had previously agreed with the Montreal duty counsel representing him that he would consent to his detention, essentially renouncing his right to a bail hearing. When the judge asked if he understood and explained in detail what he was agreeing to, the prisoner changed his mind. Why, he wondered, would he give up this crucial right? But then the clerks, judge, and lawyers all looked at their calendars. A date had already been booked for his trial — about 40 days away. If he wanted to exercise his right to a bail hearing, he would lose that date. A relatively speedy trial or an uncertain process that, if it didn’t go his way, could mean spending an unknown period in prison before another trial date was available? The prisoner chose the speedy trial.

Courts are overbooked, and as a result, they are often slow. Sitting in the audience in Toronto’s Regional Bail Centre is an exercise in watching highly paid people sit and wait for various things to happen — for prisoners to be brought from their cells (detention centres don’t have enough guards), for translators to be located (and then discovering that it’s Punjabi rather than Urdu that is required), for documents to be emailed from one jurisdiction to the next (and then finding that they need to be couriered which can’t happen until the next day). Everyone involved seems frustrated at the constant delays.

And while the overuse of remand is one puzzle piece in Ontario’s high proportion of pre-trial detainees, delay is the overall picture that emerges.

“We wouldn't have a bail problem if you could have a trial in a month,” says Dana Fisher, local vice president for Toronto in the union representing Legal Aid Ontario lawyers.

“And people would be a lot less concerned about releasing somebody on bail if they knew they were only releasing them for a month or two, as opposed to potentially two years or more.”

A recent collaboration between law professor Dylan R. Clarke and mathematician Adam Metzler published in the Journal of Law & Empirical Analysis finds that queueing theory — a type of analysis that can predict wait times at banks or airports — offers the best solution to the paradox between rising pre-trial detention numbers and falling crime rates. A doctor’s office waiting room becomes overcrowded when new patients arrive before those already waiting can be seen.

Perhaps most concerningly, the dangerous and unsanitary conditions in many Canadian prisons (a class action currently underway against Quebec’s Leclerc prison alleges mould, rodents, bedbugs, and temperatures so cold that detainees sleep in winter coats), coupled with overbooked court calendars, work together to pressure prisoners to enter false guilty pleas. For low-level crimes, sentences are short, and you could easily spend more time awaiting trial than the length of your sentence if found guilty. A 2021 study in the Wrongful Conviction Law Review surveyed 158 Canadian defence lawyers on the incidence of false guilty pleas, and the most frequent answer was 25 per cent or more. Prisoners are rational actors, and the math of maintaining one’s innocence — and exercising one’s rights — often doesn’t work.

Prisons as a last resort

Last May, a report by the UK’s Independent Sentencing Review made a bold proposal: the virtual abolition of prison stays for people sentenced to less than one year. The reasoning: short prison stays contribute to overcrowding, offer very little opportunity for rehabilitation, and are associated with high rates of reoffending compared with community supervision. Such a policy would obliterate the majority of custodial sentences in Canada, where, in 2020 and 2021, 70 per cent of all sentences were of six months or less. The median is a little over a month.

In conducting bail court observations during the early period of the pandemic, Johnson felt optimistic that justice actors seemed ready to reimagine the role of prisons as truly institutions of last resort. Watching the numbers creep back up has been disillusioning.

“The courts could justify a short-term change in incarceration practices because of the extreme scenario we were in,” he says, noting once the COVID emergency faded, so too did the consensus on keeping people out of jail.

For those who see bail in Canada as too harsh, it isn’t necessarily the rate of outright refusals that poses the problem: it can be that prosecutors seeking to impose too many conditions for release draw out the process, meaning the accused is incarcerated as they await a contested hearing. Even a short prison stay reverberates beyond the prison walls. During the nine days Olivier Huard was in prison awaiting his bail hearing, he lost $900 in work contracts (he’s a professional arborist). For parents, a week’s unanticipated absence has a significant impact on childcare. Medication routines are disrupted.

“Maybe you've lost your job when you're in custody for certain people; maybe you've lost your housing,” Yamagishi says.

“Now you're out on the street, and you're struggling to survive, and what are you going to do?”

An exceptional irony of the bail process is that courts spend a significant amount of time resolving problems that they have, in effect, created. According to a 2024 report from the Canadian Civil Liberties Association, in 21 per cent of all criminal cases before adult criminal courts in 2020 and 2021, the most serious charge was an administration of justice offence. This means not showing up for a court date, not complying with a probation order, or breaching a bail condition. Bail conditions criminalize behaviours that are, for the ordinary person, unremarkable. Missing the bus home is now an offence, if curfew is a condition; talking to your sister is now an offence, if you were arrested together. Fewer conditions imposed for those released on bail would free up court time for more serious infractions.

Huard was interviewed for this story because the judge at his bail hearing rejected many of the conditions the prosecution sought, including one that barred him from discussing his case with the media. Six months after his stint in prison, he ran as a federal candidate for the Green Party. His campaign was punctuated by court appearances stemming from a previous arrest, this one for a protest action in which he helped block access to an oil terminal owned by Valero. On election day last April, Huard was in court to receive a sentence of 90 days of house arrest.

“They say we’re causing trouble,” he said the previous week.

“But we’re at a point where houses are burning down, and there are floods. Is it really us who are causing trouble?”

No one wants higher rates of violent crime. But the research on the use of incarceration has been conclusive: higher rates of incarceration don’t result in less crime. Investments in poverty reduction and the social safety net do. Bail policies that address a surface risk of harm to the public leave untouched the underlying conditions that make some people into dangers to society, or to themselves.

For a brief window of time, the pandemic forced a reconsideration of many of our values. But in the courts as elsewhere, mainstream society has largely moved on, sweeping the poorest and sickest along with it.

A version of this story was originally published in The Toronto Star