Trudeau says Ottawa looking at bail reform after letter from premiers demands action

OTTAWA — Prime Minister Justin Trudeau says his government is looking “carefully” and “quickly” at a letter Canada’s premiers sent him last week that called for reforms to the country’s bail system. 

“There’s a real concern out there,” he acknowledged when speaking to reporters in Saskatoon on Monday.

Trudeau is taking heat from the premiers and from Conservative Leader Pierre Poilievre, who say that the federal government isn’t doing enough about repeat criminal offenders. 

But criminal defence lawyers argue a focus on federal bail rules is misplaced, saying that provinces can do more to address such issues themselves and that any changes to bail rules will have consequences for people facing trial. 

Premiers from all 13 provinces and territories signed a letter sent to Trudeau on Friday that argued the time for action on bail reform is now, and “our heroic first responders cannot wait.”

The letter, which was initiated by Ontario Premier Doug Ford’s office, follows the late December killing of an Ontario Provincial Police officer, Const. Greg Pierzchala. 

Court documents show that one of the officer’s two alleged killers, Randall McKenzie, was originally denied bail in a separate case involving assault and weapons charges, then later released. 

The documents show a warrant was issued for McKenzie’s arrest after he didn’t show up for a court date in August.

Poilievre said at a news conference in Montreal on Monday that he believes repeat offenders pose the biggest risk to public safety.

“It’s not that we have lots of criminals. It’s that we have a very small number of repeat offenders that continue to do more and more crime,” he said. 

He argued that the system should be reformed so that those who are facing serious charges and have multiple convictions on their records should have to prove that is it in fact safe for them to re-enter society.

Friday’s letter from premiers suggested that a “reverse onus on bail” should be created for the offence of possession of a loaded prohibited or restricted firearm.

Someone accused of that crime “should have to demonstrate why their detention is not justified when they were alleged to have committed an offence where there was imminent risk to the public,” the letter said.

Poilievre denied that such a policy could lead to overincarceration.

“I don’t think it’s true that bail reform would cause more people to be behind bars,” he said.

Deborah Hatch, a veteran criminal defence lawyer in Alberta, said it is human nature to focus on cases like McKenzie’s, where things go poorly, rather than the bulk of the cases that go well.

But there would be “huge implications” if the presumption of innocence is abandoned, she said.

“The Supreme Court has ruled in many cases over the last decade or so that far too many people are being detained, and that release should be the norm,” she said. 

Right now, most people charged with an offence in Canada, and even most people found guilty of an offence, will not face any jail penalties, said Hatch — but provincial jails are full of people being detained before their trials. 

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, argued that it is “problematic” and “dangerous” to make large public-policy changes based on on high-profile, tragic events, because while politicians may feel a need to show they are taking action, legal changes can have “devastating consequences.”

She said a “reverse onus” system would lead to more people being incarcerated. 

“They are going to have a harder time meeting that burden,” she said, adding that more marginalized people, including Indigenous people, will end up in jail.

That’s a concern Trudeau raised in Montreal on Monday.

“Any time we make a chance to the bail systems, there’s challenges around impacts, particularly on Indigenous or minority groups, that we have to make sure we’re taking into account,” Trudeau said.

“We all want a system that ensures Canadians are safe in their homes and their communities, and that’s why we’re looking very carefully at this proposal from the premiers.”

Provinces and territories agreed last fall to review Canada’s bail system and the federal government says that work is “ongoing.”

Saskatchewan Premier Scott Moe said Monday that he was glad to see Trudeau’s response to the letter. 

“We’re pleased to see that he wants to have a look at that. I would say that catch and release works well when you’re fishing. It doesn’t work so well when you’re dealing with serious offenders,” he said.

But while the premiers’ letter suggested bail-reform changes fall squarely under federal jurisdiction, some argue that provinces could be doing much more to address the problem of repeat offenders.

Daniel Brown, a criminal defence lawyer and president of the Criminal Lawyers’ Association, said the problem is compliance with bail, not bail itself.

“Bail enforcement is the type of thing that the provinces can do to address the concern that they’re raising,” he said. 

Moe said that in Saskatchewan, some 1,300 to 1,500 “serious offenders” are out on bail and have violated the conditions of their release, a number he said was “simply too high.”

“We also need to invest in the appropriate law enforcement,” he said. 

In Ontario, Brown said, police could have moved to detain McKenzie after he failed to show up in court and a warrant was put out for his arrest.

“The police had the lawful authority to bring that person back into custody, but they didn’t,” he said, adding that provinces could better fund police efforts to ensure that people violating their bail conditions are held accountable. 

He said the provinces can also direct public prosecution offices to hold people to account for failing to adequately supervise people who are on bail. 

Known as “sureties,” these are people who make a pledge to monitor an accused’s bail conditions and report any violations back to police. 

They are rarely held accountable, Brown said. 

“Rather than attacking a constitutional right to bail that everyone has in Canada, the premiers should be focused on ensuring those out on release (are) complying with the terms of their release,” he said. 

“To sort of shift the blame on the federal government is just playing politics, because it fails to recognize something that’s already within their own power to control and address.”

This report was first published by The Canadian Press on Jan. 16, 2023.

David Fraser, The Canadian Press