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What happened to the Right to Reasonable Bail?

The Canadian Civil Liberties Association just released a comprehensive paper on a major problem in Canada’s criminal justice system: too many people are languishing in our jails because they haven’t been granted bail. Entitled “Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention” details how the rates of those awaiting trial while in custody now exceed the numbers of those who have been found guilty and sentenced.

Yet section 11 e of the Canadian Charter of Rights and Freedoms guarantees the right not to be denied reasonable bail without just cause.

How could this have happened?

The study details a host of reasons, ranging from over-cautious prosecutors and Justices of the Peace through the imposition of conditions that are unrealistic for an accused who’s almost certain to be unable to comply. Crowded courtrooms result in bail hearings not conducted in a timely manner. Those same problems also mean that trials aren’t completed in a timely way, notwithstanding that the accused is presumed innocent while still in custody for months awaiting trial.

The problem isn’t new. Judges such as Mr. Justice Casey Hill and others have spoken on the growing numbers of detainees waiting for trial but there hasn’t yet been any meaningful response from the government to address the problem.

And the consequences of the Harper Government’s ill-advised “tough on crime” approach has undoubtedly been a major contributor. How?

The math is fairly simple: Add more crimes that carry higher statutory minimum sentences and more people will likely be held in custody due to the seriousness of the offence they’re charged with.

More people will fight the charges rather than accept incarceration and judges and Crowns won’t be able to do anything, such as use the option of a conditional sentence of house arrest, as those too have been removed by Criminal Code amendments.

But it’s not just a matter of those imprisoned waiting for their trials, seeking their day in court and, if successful, never getting the time spent without liberty back.

The fact that the jails are triple-bunked-that’s right, 3 in a cell meant for 2, with someone sleeping on the floor- doesn’t garner the credit it used to for time spent in custody awaiting trial. At least the Supreme Court of Canada provided a measure of common sense in generally permitting a judge to grant more than a day’s credit for a day served when deciding on what total sentence to impose on conviction.

I’d anticipate that we’ll see a challenge to the current bail regime on the basis of an infringement of someone’s right to reasonable bail. It may even be something advanced on a broad scale with many denied that right seeking redress. And maybe then the government will do something that will really make a difference, whether by policy, statute or resources.