While new bail policies are on the horizon for Ontario’s Crown attorneys, criminal defence lawyers say the bail process needs an entire cultural shift.
At an opening of the courts ceremony in downtown Toronto in early September, Attorney General Yasir Naqvi told judges and prominent members of the bar that his ministry will soon unveil a new set of bail policies and procedures for Crown attorneys.
“In the coming weeks, the Ministry of the Attorney General will be releasing our new Crown policy on bail, which will set out with clarity Ontario’s renewed approach to bail in the post-Antic world,” he said at the ceremony.
In December, the government enlisted the help of former chief justice Brian Lennox, former deputy attorney general Murray Segal and deputy Crown attorney Lori Montague to develop the new bail guidelines.
They were expected to consider a number of issues, including the use of sureties and bail conditions, as well as a specialized response to domestic abuse cases.
Criminal defence lawyers say they hope the new guidelines will focus on a culture shift at all stages of release they say is needed in order to address the true problems of the bail system.
“In terms of any new guidelines concerning bail, I think the real issue is what will it take for the police, the Crown and the courts to adhere to the ladder approach in our bail release laws,” says criminal defence lawyer Dan Stein.
“An undertaking without sureties — given to either a police officer or a justice — is supposed to be the default position when granting release. Any other form of release, as well as strict conditions, are meant to be exceptions to the rule.”
He adds that, instead, there are countless bail hearings that should not be held at all and that the default ends up being releases granted with strict conditions and sureties.
Criminal defence lawyer Sean Robichaud says the most significant issue affecting the province’s bail courts is the “gross misalignment” of the law and practice. He says that despite the fact that hearings are supposed to be done in an expeditious manner, with a presumption of release in most instances, bail courts are often bogged down by prosecutors seeking severe conditions.
“In my view, this is driven by Crown policies that are inflexible and create overly cautious approaches by prosecutors who are often felt constrained in their discretion,” he says.
“This, in turn, has a significant ripple effect in delay through the criminal justice system.”
Robichaud says he is hopeful that any new bail policies for Crowns will recognize that a “significant recalibration in perspective” is required.
He adds that whatever the changes are, “they must be profound in order to salvage the misapplication of law and massive delay issues they are causing.”
Naqvi told Law Times the ministry is looking at how it can have fewer people in remand, especially when it comes to low risk and vulnerable individuals.
“It’s a departure from how the Crown policies [are] laid out today,” he says.
Criminal defence lawyer Jessyca Greenwood says the government’s current bail policies have not helped reduce the overrepresented numbers of mentally ill and indigenous people in remand facilities.
“It is my hope that with changes to the bail system, persons who are vulnerable and unwell can get the help they need by being connected to community resources and stable housing rather than deteriorating in jail,” she says.
She adds that she hopes the policies with respect to straightforward and non-violent breaches of bail will be revisited with a less punitive approach.
In June, the Supreme Court of Canada released its decision in R. v. Antic, which clarified the correct approach to bail.
While the ministry was already reviewing its bail policies at the time Antic came out, Naqvi said the Supreme Court of Canada sent an unequivocal message to the government and courts, similar to the way it did in last year’s decision in R. v. Jordan.
“It might not set out prescribed timelines like Jordan, but in many ways it is a similarly critical wakeup call,” he said. “And just like Jordan, tackling this challenge will require all of us working together to make some tough decisions.”
While the Antic decision and bail were the focus of Naqvi’s remarks at the ceremony, Jordan was still top of mind as courts and governments continue to tackle delays.
The Jordan decision capped court delays at 18 months in provincial court and 30 months in superior courts, with some exceptions. This forced governments and courts into action to try to head off criminal charges being stayed.
Ontario Superior Court Chief Justice Heather Smith said that a year ago the courts had just begun to address the effect of Jordan but that this year they are feeling it in “full effect.”
Despite a number of court initiatives to improve the timely disposition of criminal matters, Smith said that the “challenges created by Jordan remain very real.”
She said the province’s appointment of more judges to the Ontario Court of Justice and hiring of new Crowns will mean new indictments will come to the Superior Court more quickly.
“The great efforts of our dedicated judges have held the line in criminal cases until now,” she said.
“But nothing short of a very immediate increase to the judicial complement of the Superior Court will allow this court to maintain control of its very heavy and highly complex criminal caseload.”
She noted that in the federal budget for 2017, the government announced funding to appoint 28 new Superior Court judges for all of Canada and she is hoping that Ontario will get a proportionate number of those new judges.
While a lot of attention has been put on how the criminal courts have been affected by Jordan, Court of Appeal Chief Justice George Strathy said it is important to ensure that civil and family matters have not been eclipsed by the needs of the criminal justice system.
Lawyers who work in the civil courts have complained that delays in civil matters have been getting worse as resources have been shifted to criminal matters.
“I think we need to take also a hard look at the effectiveness of [the] civil justice system in the ways it provides timely and efficient access to justice,” Strathy said at the ceremony. “The diversion of judicial resources — a necessary diversion due to Jordan — has unfortunately created even more strain on the civil docket. We must renew our efforts to improve access to civil justice.”
Strathy said the province also cannot afford to wait to move forward with expanding the Unified Family Court in Ontario, which has been a long-awaited reform.
Naqvi says changes to the bail system were also part of a wider look at tackling delays in the entire criminal justice system.
He says bail hearings are taking longer and more people are being denied bail.
“From an administration of justice perspective, all the advice that I have received is you have to look at the beginning of the process and one of the significant places we find a big challenge is the churn that takes place in and around bail,” he says.