Anecdotal evidence alone doesn’t prove bail reform needed

Opinion

When it comes to bail reform, Canada doesn’t need more slogans. What it needs is evidence.

Yet we continue to get the opposite.

Conservative Leader Pierre Poilievre continued his “jail not bail” campaign this week, proposing to automatically deny bail to anyone convicted of three serious violent offences, if charged again.

Not only is that unconstitutional and would almost certainly be stricken down by the courts, would it even be effective? Would it make our streets safer? No one knows because we don’t have the data and research to answer that question.

If anything, Poilievre’s rhetoric — and the sloganeering of others — highlights why the federal government should take a different approach.

Before rushing to amend the Criminal Code again, Ottawa should commission an independent, arm’s-length study on bail led by legal scholars and criminologists who know this area of law inside and out.

Bail is one of the least researched and least understood areas of criminal justice in Canada. Until we close that knowledge gap, every so-called “reform” is little more than guesswork.

The irony of Poilievre’s “jail not bail” crusade is that the Criminal Code was just amended in 2023 to make it harder for certain offenders to get bail. That’s when Parliament expanded the use of the “reverse onus” provision — meaning the accused, not the Crown, must prove why they should be released — in certain cases involving repeat violent offenders, including those with prior gun charges.

That was a significant tightening of bail. But you’d never know it listening to critics who paint Canada’s bail system as a “catch-and-release” exercise that automatically allows repeat offenders back on the street.

Not only is that grossly inaccurate (there’s no such thing as automatic bail in Canada), the reality is far more complicated and nuanced.

Most people accused of crimes are released pre-trial because they’re not deemed a danger to the public and because the Charter of Rights and Freedoms protects their presumption of innocence.

Judges and justices of the peace don’t release accused people on a whim — they follow criteria set out in law, including whether detention is necessary to protect the public, ensure attendance in court, or maintain confidence in the justice system.

Is it perfect? No. There are cases where repeat offenders released on bail are charged with new crimes. Those cases, especially the most egregious ones, are highlighted in the media and are easy targets for the “jail not bail” crowd, even though they represent a very small percentage of cases that go through the justice system.

Unless the courts lock up everyone accused of a crime — which would be thousands a year in Manitoba alone — there will always be some who re-offend while on bail. It’s unavoidable.

That doesn’t mean improvements can’t be made to mitigate that reality. Those improvements, though, should be based on evidence and a thorough analysis of the existing system.

Stories of people re-offending while on bail rightly incite anger and frustration. But anecdote is not evidence. Without rigorous, comprehensive data on bail outcomes across the country, nobody can accurately say whether Canada’s bail laws are too lax, too strict, or about right.

That’s the crux of the problem. For a country that churns out endless studies on sentencing, corrections, and other areas of the criminal justice system, there is remarkably little independent research on bail.

We don’t have a clear national picture of how many people are denied bail, how often bail breaches lead to new offences, or what proportion of violent crimes are committed by people on release.

Legal experts have been sounding the alarm for years about this data desert. Yet politicians continue to legislate as though they already know the answers.

The danger with this approach is twofold. First, government risks over-correcting by making it too hard for accused people to get bail, which clogs up jails with people who haven’t been convicted of anything (and disproportionately harms Indigenous and marginalized Canadians).

Pre-trial detention isn’t a neutral holding pattern, it increases the likelihood of guilty pleas, worsens job loss and family breakdown, and can even heighten the risk of re-offending later.

Second, governments risk under-correcting, by tweaking laws in ways that look tough but do little to actually improve public safety. That may buy politicians a good news clip, but it doesn’t make communities safer.

Neither outcome serves the public interest. And both stem from the same problem: legislating without evidence.

An independent commission on bail would provide legislators — and all Canadians — with facts, evidence and recommendations that could make our streets safer.

Armed with that kind of research, Parliament would finally be in a position to make evidence-based reforms — changes that could actually improve public safety while respecting constitutional rights.

Until then, every new “bail reform” bill — including the one expected from the Liberal government in the coming weeks — is just a shot in the dark.

tom.brodbeck@freepress.mb.ca