Principled bail reforms: Proactive not reactive solutions | Neha Chugh and Jessyca Greenwood

By Neha Chugh and Jessyca Greenwood

Law360 Canada (January 26, 2023, 11:05 AM EST) --
Neha Chugh
Jessyca Greenwood
On Dec. 27, 2022, a young Ontario Provincial Police officer Grzegorz (Greg) Pierzchala was shot and killed for what seems like no reason. This officer was on regular patrol, responding to a car in the ditch and was shot by two individuals. His death was senseless and a tragedy to the community. The individuals charged by the courts for his murder were on bail for other offences at the time that this event occurred.  

Much of the public response to this case reflected common misunderstandings about criminal justice procedures, our collective and democratic Canadian values and the underlying principles of bail and interim release. The Canadian Charter of Rights and Freedoms guarantees that everyone has the right not to be denied reasonable bail without just cause. This fundamental right is informed by the presumption of innocence. As Canadians, we don’t want innocent people housed in our jails awaiting trial. We want our community members to maintain employment, to support their families, and to attend rehabilitation or schooling all while waiting to find out the outcome of their matter in court. “Bail” is a short form for the legal term “judicial interim release.” Bail court is a court of release. 

There is also the “just cause” analysis. We value sound decisions, thorough analysis and thoughtful decisions by justices who are trained to assess all the evidence and legal principles put before them. Our bail court justices are tasked with weighing risk and release when an individual first comes before them in bail court. What risk does this individual pose to the public if they are released? What is the plan for release? How does the plan mitigate any potential risk issues that may be presented? The evidence at bail is different from the evidence at trial. The accused’s record of compliance, the seriousness of the offences, the plan for release all become part of the evidentiary record. 

What happened to Const. Grzegorz Pierzchala is every justice system participant’s worst fear. However, we advocate for a justice system that is built on our collective principles and not fear.

Tragedy happens often in our criminal justice system. Often those accused of crimes have been victims themselves. In human trafficking cases, the victims are often used to, and do lure other women into the fray. Drug dealers use the apartments and rooms of vulnerable addicts as stash houses or runners. The abused young person grows up to be the abuser themselves. We know these stories exist, we hear them all the time. Tragedy begets tragedy; cycles repeat themselves.

Some are using this particular tragedy as a platform for media attention and to generate public outcry about our current bail system, saying it is too lenient and requires reform. Some blame the current Liberal government for changes that were brought into effect with the passing of Bill C-75 in 2019. These changes to the bail provisions allowed for police officers to have greater release powers and was largely aimed at reducing court backlog created by what are referred to as administration of justice offences and seeing accused persons who should be released on bail, released faster. The idea was to reduce delays, as this also causes important cases to go off the rails, which is not good for the system.

From Dec. 28, 2022, to mid-January 2023 there were news articles, criticisms of the bail system and cries for review and change. On Jan. 13, the premiers of the provinces sent an open letter to the federal government calling for a review and reform, including creating a reverse onus for certain gun offences.

The safety of the public is paramount, and the presumption of innocence is critical to the proper functioning of our justice system. If we lose sight of the importance of granting those who are presumed innocent bail, we risk eroding the laudable and internationally well-regarded system we have now. That is why in many cases, the Crown bears the onus of showing cause to the court why the individual should remain in custody while awaiting their trial, also known as pretrial detention. An individual’s loss of liberty by being imprisoned is such a serious intervention that we ask the prosecution to give strong argument for their detention, give the accused person an opportunity to respond, and then for a presiding judge to give reasons why that individual cannot be released and why conditions cannot be fashioned to monitor that individual’s release in the community. 

Those who are charged in serious cases including firearms and weapons offences are already bearing the onus of showing the bail court why they should be released. If they are out on bail and charged with another indictable offence, they too are in this reverse onus situation. This means the onus is on the accused person to show why they should be released into the community and the court must be satisfied that the plan proposed ensures the safety of the public. While this assessment of risk can never be perfect, the system cannot be held accountable for the actions of one person (who is presumed innocent) who is alleged to have committed a homicide. The legislative changes allowing for greater release powers was aimed at reducing the number of accused persons in pretrial custody.

Those involved in the criminal justice system are often marginalized, homeless, dealing with addictions, mental health issues or other systemic factors that played a role in how they ended up where they are. We know that we have an overrepresentation of Indigenous and racialized people in our custodial facilities, as recognized in the case law and bail statutes. Granting or denying bail is meant to be flexible and reflect the complexity and context of the person before the court and the circumstances of the case. We should not remove that flexibility. Flexibility and discretion are hallmarks of a well-functioning, democratic judicial system. When we take away a tailored approach to law, we are rubber-stamping outcomes without concern for the individualized nature of social problems.

There are other problems posed by pretrial detention. Keeping people warehoused in jail is expensive, the cost of corrections services being borne by taxpayers. A stay in custody does not lead to better outcomes for the person, with very few services being offered in provincial remand centres. As a cost proposition, it is overall less expensive and cumbersome to our tax dollars for our community members, urban and rural, to have access to mental health supports, rehabilitation beds, housing and employment.

Pretrial detention can also impact trial fairness. If a person is facing a four-month jail sentence, but has to wait eight months in custody for their trial, the mathematics of the delay may pressure them to plead guilty even though they are innocent. Some argue that a determination at bail can have an overall impact on whether or not the accused person goes to trial. This erodes our fundamental presumption of innocence, the golden thread that is woven through our justice system. 

While it is normal, even expected, to react to such a horrific event, the calls to overhaul our entire bail system as a result is not the answer. Putting more people in pretrial detention will not solve the deep-rooted social and systemic issues that are the precursors for criminality. Rather, an investment into rehabilitation, reintegration, housing and employment may yield better social outcomes for our communities and reduce recidivism. Our response to a terrible, shocking crime should not be reactionary, but with a view to the big picture.

It is time for a different approach with more resources for electronic monitoring for bail, community based supervision programs and proactive support like rehabilitation beds via the health-care system that focus on the prevention of crime and recidivism, not after-the-fact reactions.

Based in Cornwall, Ont., Neha Chugh, a criminal lawyer, started Chugh Law in 2014. She also serves as prosecutor in the Akwesasne Court, assists with provincial offences prosecutions with the City of Cornwall and is an instructor at Iohahi:io Akwesasne Education and Training Institute. Chugh was appointed as the Law Foundation of Ontario’s representative on the board of governors of the Law Commission of Ontario. As principal lawyer at Greenwood Defence Law Jessyca Greenwood has been fiercely guiding and defending clients facing allegations of wrongdoing for more than a decade. You can follow her @jessycadefence.  

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, 
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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