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Defence lawyers fear loss of rights: Tightened bail access criticized

Saskatchewan's planned bail reform includes requiring judges to provide written consideration of the impacts to public safety when releasing violent offenders on bail.

OTTAWA - Federal Justice Minister, David Lametti, said he will tighten access to bail in Canada. This comes in response to concerns about the potential release of dangerous offenders who may pose a risk to the public.

However, Legal Aid Saskatchewan [LAS] has cautioned that any changes to the bail system must be carefully considered to ensure that the rights of the accused aren't compromised and the impact on the judicial system is taken into account.

“While a ‘balanced approach’ is often sought on justice issues, one must not only consider the public's concerns with respect to public safety but also the accused’s rights when release is being considered by the Courts and the overall impact the proposals under consideration would have on our judicial system,” LAS CEO and lawyer Jayne Mallin told Thursday.

She said LAS will be analyzing the proposed amendments to determine what the impact would be for their clients and resources. The organization, which provides legal assistance to low-income individuals in Saskatchewan, will be closely examining the changes to ensure that they align with their mission of providing access to justice for all.

Sask. Justice Minister and Attorney General Bronwyn Eyre, along with other provincial justice ministers, met with Lametti last week in Ottawa after calling on the federal government to reform Canada’s bail system. Following the March 10 meeting, Lametti told reporters that the federal government will make it tougher for some offenders to get out on bail.

Bail a contentious issue

The issue of bail has been a contentious one in recent years, with some arguing that the current system is too lenient and allows dangerous offenders to be released back into the community too easily. Others, however, argue that the current system already strikes the appropriate balance between public safety and individual rights.

Minister Eyre had pointed out the impacts federal Bill C-75 has had since it was passed in 2019. Bill C-75 set out a principle of restraint that favoured release on bail at the earliest reasonable opportunity and on the least onerous conditions.

"Bill C-75 codified 'catch and release' as the default on bail," said Eyre in a prepared statement March 14. "Minister Lametti's commitment is an important first step to begin to restore the balance on bail, particularly when it comes to releasing repeat violent offenders."

Saskatchewan has proposed amendments to the Criminal Code to hold repeat violent offenders accountable, improve public safety, and restore Canadians' confidence in the justice system.  The province wants to see the creation of reverse onus for repeat violent offenders, strengthening language around the importance of community safety, and requiring judges to provide written consideration of the impacts to public safety when releasing violent offenders on bail.

Bail reform will hurt Indigenous people: LAS

Tightening bail access will hurt Indigenous people, said Mallin, pointing out that the majority of LAS's clients are Indigenous and are already over-represented in Saskatchewan jails. 

She also said tightening bail access would only worsen the problem of over-crowded jails.

“Saskatchewan currently has some of the highest remand rates in the country, and the proposed change without corresponding community supports on release will exacerbate this problem,” said Mallin.

 “Further, more duty counsel resources would be required to address an increase in bail hearings, if the trend is to fewer releases.”

Potential constitutional issues

Moreover, Mullin said tightening bail access may create constitutional issues.

“It is contrary to the presumption of innocence, thereby further delaying the administration of justice,” said Mallin.

There are already provisions in the Criminal Code that provide adequate guidance to the judiciary when considering bail for individuals facing charges, said Mallin.

“As we saw with the reverse onus clause for intimate partner violence that was included in Bill-75, no research has been provided to demonstrate that women and children are any safer. On the flip side, domestic violence courts have been shown to reduce the rates of recidivism.”

Province to release updated bail policies

The province plans to release an updated provincial bail policy that would build on existing practice and policies that Crown Prosecutors must already consider where public safety is at risk, including high-risk offences, those involving intimate partner violence, and children and vulnerable adults.

"While respecting prosecutorial discretion above all, I have requested that the new policy explicitly emphasize that where any of the conditions for refusing bail are met, prosecutors should advocate for the detention of repeat violent offenders, in particular, awaiting trial," said Eyre.

The new provisions would require prosecutors to take a more stringent approach to bail in certain circumstances.

This means that when a repeat violent offender is charged with a crime against a person or that involves a weapon, the Crown would have to seek that person's detention unless they're satisfied the risk to the public can be reduced to an acceptable level through bail conditions.

In addition, when considering the risk to public safety, the Crown Prosecutor would be forced to consider whether any factors indicate a risk that needs to be addressed, including whether, at the time of arrest, the accused: had one more outstanding criminal charges alleging an offence against a person or involving a weapon, had breached a condition of recognizance or weapons prohibition, was subject to any court orders, reverse onus provisions, and/or has a history of convictions related to violence, weapons, or endangering the public.

Other measures should be considered: LAS

LAS has expressed concerns that the proposed changes may have unintended consequences for their clients, who rely on their services for legal representation and advice.

Mallin said instead of tightening bail access, other means should be considered to address the issue of violent crime to ensure public safety.

“Innovative technology to monitor individuals released on bail could assist. More supports are needed in the community for mental health, addictions and supportive housing. More therapeutic courts with these types of supports would go a long way toward address public safety concerns.”

LAS's commitment to advocating for the rights of low-income individuals in the province is widely recognized. The organization provides a range of legal services, including advice, representation, and education, to help individuals navigate the complexities of the legal system.

 Click for more from Crime, Cops and Court. 


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