Canada’s Bail Reform Act

Canada’s Bail Reform Act has proven controversial because of its perceived leniency toward dangerous suspects.  The act severely limits police officers’ ability to arrest suspects without warrants, which has caused some Canadian citizens to demand further reforms and tougher laws granting the police more power to arrest and detain accused persons.  Though intended to respect the rights of the accused, suspects released under its provisions have committed serious crimes in recent years (including several murders), and public demands for increased public safety have targeted the act.

Before the Bail Reform Act’s passage in 1971, “a number of the civil liberties of Canadians were being systematically ignored and abused by the police” (Brannigan).  Suspects in Canada had to demonstrate why they should not be detained until trial, which frequently meant that those accused of dangerous violent crimes remained in custody.  According to the Legal Information Institute, “Prior to the Bail Reform Act, [suspects] could have been arrested on reasonable and probable grounds that they had committed the offences charged” (Canadian Legal Information Institute).  The act intended to grant the accused more civil liberties, especially preventing the unnecessary detention of suspects.  It limits the police’s arrest powers (in the absence of a warrant) by requiring suspects’ release if the they have no reasonable grounds to believe that the public interest or safety would be in jeopardy.  The Act also empowers the police officer in charge of lock-up to release a suspect in accordance with the Criminal Code.

The act does not require that a judge preside over a bail hearing, and a suspect may be released with as little as a single signature on a court document, with little or no money posted.  This is true for virtually any crime, including those involving violence.  The logic behind the law, according to the Canadian government, “is to establish a presumption that [the accused] . . . should not be arrested or held in police custody or detention unless this is necessary in order to conduct a legitimate criminal investigation, to ensure attendance of an accused in court, or to protect the public – and then, for no longer than is necessary” (Department of Justice Canada).  However, while this has certainly prevented many accused persons from being held needlessly (especially the innocent and falsely accused), it has also been applied too leniently to dangerous criminals, some of whom later committed violent crimes while on bail.

The law is rather difficult to navigate and creates problems for the police, who must have concrete evidence that a suspect has or is about to commit a serious crime; without it, suspects must be released, and in some cases commit more serious offenses.  Currently, Canadian police can make arrests without warrants only if they are certain or have probable grounds to believe the suspect has committed or is about to commit a crime, is committing a crime in a police officer’s sight, or already has an outstanding warrant.  According to the Canadian legal system itself, “[the] main sections of the Criminal Code which constrain the police use of discretion with young persons – as with adults – are the rather tortuous provisions governing arrest, detention and release in Part XVI” (Department of Justice Canada).

With very few exceptions, the Bail Reform Act of 1971 forbids police from making warrantless arrests unless they believe that suspects will not appear for trial or if it is required in the public interest.  This puts the police into a difficult situation, because they are unable to hold suspects without warrant or very clear cause.  Also, the police cannot freely assume that a suspect will automatically commit a more serious crime while on bail.  The law clearly favors the accused, which can work against the police and create the perception that they are unable to protect the public.  According to Canadian sociologist and legal expert Gus Brannigan, the act “puts the onus on the state to show why an arrested person should be confined to jail before trial. Consequently we only rarely find people incarcerated ‘three or more days’” (Brannigan).  In the eyes of the police, this does not always give police and prosecutors sufficient time to gather necessary information about a suspect’s records and current criminal status.

For years, the Canadian government has considered changing the Bail Reform Act’s lenient policies to hold suspects long enough to determine whether they should be released from custody, especially in the face of public demands for greater public safety.  In the 1990s, over 2.5 million people signed the de Villiers petition, which called for changes to make the law tougher in the wake of several brutal murders of young women between 1983 and 1993.  In its support, parliament member Howard Hilstrom told the speaker in 1998, “Petitioners are asking for changes to the Bail Reform Act to make this a safer country [and] . . . impose harsher penalties for crimes of violence and that release not be quite so quick” (Parliament of Canada).  In November 2003, Manitoba’s provincial Justice Minister Gord Mackintosh proposed revamping Canada’s bail laws so that “people with criminal records would be automatically denied bail. The rare exceptions would come when a defence lawyer makes an argument that a judge feels is particularly compelling” (Owen and McIntyre).

Changing the Bail Reform Act would grant police more power to hold suspects they consider dangerous, which in turn may make the public feel better protected from violent criminals.  In addition, it would speed prosecutors’ and judges’ access to suspects’ parole history, so that bail would be tougher for suspects in violent crimes to attain.  The legal challenge is determining a proper balance between the rights of the accused and the courts’ and law enforcement officials’ ability to determine how great a risk a suspect proposes to the public.

REFERENCES

Anonymous.  “Chamber Business.”  19 October 1998.  Parliament of Canada.  5 October 2005.  <http://www.parl.gc.ca/36/1/parlbus/chambus/house/debates/137_1998-10-19/han137_1530-e.htm>.

“The de Villiers Petition.”  The Caveat: Canadians Against Violence.  5 October 2005.  <http://www.caveat.org/history/petition.html>.

“Youth Justice – Police Discretion with Young Offenders – Environmental Factors Affecting Police.”  8 July 2004.  Department of Justice Canada.  5 October 2005.  <http://canada.justice.gc.ca/en/ps/yj/research/carrington-schulenberg/environmental/legal.html>.

Brannigan. A. (Gus).  “Civil Rights and Limits to State Powers.”  Faculty of Social Sciences, University of Calgary.  7 October 2005.  <http://www.acs.ucalgary.ca/~branniga/rights.html>.

Owen, Bruce and Mike McIntyre.  “Bail courts need better access to accused’s past.”  3 January 2005.   Garry Breitkreuz, Member of Parliament Yorkton – Melville.  7 October 2005.  <http://www.garrybreitkreuz.com/publications/Article516.htm>.

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