Bail and the Diminishing Presumption of Innocence

Electronic copy available at: http://ssrn.com/abstract=1901535

Bail and the Diminishing Presumption ofInnocence

Myles F. McLellan*

The adoption of the recommendations of the “Ouimet Report” into the BailReform Act, 1972 created a universally lauded codification of the law of bail inCanada enlivened by the presumption of innocence. Clearly release was to be therule and custody the exception in the pre-trial context. In the last twenty yearshowever, Parliament has broadened the discretion to restrict liberty by expandingthe grounds for detention and has accelerated the proliferation of reverse onusoffences. Neither policy has been empirically justified. Indeed, the downward trendin the commission of serious crimes runs counter to the current “tough on crime”legislative agenda. The exponential growth in remand custody compared to sen-tenced incarceration is disconcerting. The total disregard of an accused’s rights inthe face of police mandated bail compliance units is contemptible. The presumptionof innocence in the bail process has now become an illusory concept, at best.

L’adoption des recommandations provenant du Rapport Ouimet dans la Loisur la reforme du cautionnement, 1972 a mene a une codification, chaleureusementaccueillie par tous, de la loi du cautionnement au Canada, sous-tendue par lapresomption d’innocence. Manifestement, dans la phase precedant l’instruction, lamise en liberte etait la norme et la detention, l’exception. Toutefois, au cours desvingt dernieres annees, le Parlement a elargi la discretion de limiter la liberte enaugmentant les motifs de detention et en accelerant la proliferation d’infractionsou le fardeau est inverse. Aucune de ces pratiques n’a ete justifiee dans les faits. Eneffet, la diminution du taux de crimes graves semble contredire le programmelegislatif actuel de repression du crime. L’augmentation exponentielle de la deten-tion preventive lorsqu’elle est comparee a l’emprisonnement sur sentence estdeconcertante. Ce mepris total des droits des accuses au profit du respect des cau-tionnements est decevant. La presomption d’innocence dans le processus de cau-tionnement est devenue, ni plus ni moins, illusoire.

1. INTRODUCTIONThe presumption of innocence is the fundamental precept of law that invigo-

rates the process of judicial interim release in Canada. As pronounced by the Su-

* The author is a graduate student at Osgoode Hall Law School, Toronto. This article isan abridged version of a paper completed as part of the course work in the LL.Mprogram.

Electronic copy available at: http://ssrn.com/abstract=1901535

58 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]

preme Court:1

It has from time immemorial been part of our system of laws that the inno-cent not be punished. This principle has long been recognized as an essen-tial element of a system for the administration of justice which is foundedupon a belief in the dignity and worth of the human person and on the ruleof law.2

A charge is merely an allegation of criminality. This is insufficient to warrantinterference with a citizen’s life. As a legally innocent member of society, an ac-cused has the right to be secure from detention and punishment prior toconviction.3

The analysis on the vitality of the presumption as it has been applied in thebail context is an exercise in looking at the discretion applied to the right of release.The broader the discretion to abrogate this right, the more limited is the applicabil-ity of the presumption of innocence and thereby the greater the likelihood an ac-cused will be held in custody pending trial. It was this relatively unfettered discre-tion for centuries that led to the liberal minded reform in all common lawjurisdictions in the last 50 years.

This article will address the evolution of this discretion and will render anopinion as to the current place of the presumption of innocence in the law of bail.

2. BAIL IN CANADA

(a) The Right to ReleaseBlackstone characterized bail as:

. . . Delivery, or bailment, of a person to his sureties, upon their giving (to-gether with himself) sufficient security for his appearance: he being sup-posed to continue in their friendly custody, instead of going to gaol.4

In common law “just cause” for the denial of bail was originally limited tosecuring an accused’s attendance at trial and nothing else.5 It was not until 1947with the decision in R. v. Phillips6 that preventive detention emerged as an indepen-dent basis.

The law of bail in Canada changed inexorably in 1969 with the release of the

1 For the purposes of this article, all references to the Supreme Court, or Court, shallmean the Supreme Court of Canada, unless indicated otherwise.

2 Lamer J. (as he then was) in Reference re s. 94(2) of the Motor Vehicle Act(British Columbia), [1985] 2 S.C.R. 486, 23 C.C.C. (3d) 289, 1985 CarswellBC398, 1985 CarswellBC 816, 48 C.R. (3d) 289 at p. 513 [S.C.R.].

3 See Daniel Kiselbach, “Pre-trial Criminal Procedure: Preventive Detention and the Pre-sumption of Innocence” (1988) 31 C.L.Q. 168 and S. Braun, “Judicial Apprehension ofViolation of Legal Rights Under the Canadian Charter of Rights and Freedoms: To-wards a Framework of Analysis” (1987) 24 U.W.O.L. Rev. 27.

4 Sir W. Blackstone, Commentaries on the Laws of England, (1765–69) vol. IV(Chicago: University of Chicago Press, 1979) p. 294.

5 The history of the right to bail is set out fully in McWilliams, P.K. “The Law of Bail —Part I” (1966) 9 C.L.Q. 21

6 (1947), 32 Cr.App.Rep. 47 (C.C.A.).

BAIL AND THE DIMINISHING PRESUMPTION OF INNOCENCE 59

Report of the Canadian Committee on Corrections.7 The “Ouimet Report” recom-mended sweeping reform to the bail process, which translated into the enactment ofthe Bail Reform Act in 1972.8

With particular regard to same, the determination of pre-trial release becamean exercise in risk prediction. In determining whether bail was appropriate in thecircumstances, a judge had to predict whether the accused would attend in court tostand trial and whether he or she would refrain from engaging in criminal conductwhile on release.

(b) The Charter and the Supreme CourtThe Canadian Charter of Rights and Freedoms9 specifically addresses the

right to bail in Canada pursuant to section 11(e) which provides: Any person charged with an offence has the right

[. . .]

(e) not to be denied reasonable bail without just cause;

Animating this provision are the protections offered by the presumption ofinnocence; the right to life, liberty, and security of the person; and the right not tobe arbitrarily detained or imprisoned.10

Twenty years after the enactment of the Bail Reform Act, the Supreme Courtrendered the companion judgments of R. c. Pearson11 and R. c. Morales12 illumi-nating the application of section 11(e).

Lamer C.J.C. (as he then was) for the Court, interpreted this section as havingtwo distinct elements:

1. The right to reasonable bail, in terms of the quantum of any monetarycomponent and other conditions that impose restrictions on an accused’sliberty; and

2. The right not to be denied bail without just cause, in the sense that s.11(e) imposes constraints on the criteria by which bail is granted ordenied.13

In defining “just cause” the Court held that the restriction on the basic entitle-

7 Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice andCorrections (Ottawa: Ministry of Supply and Services, 1969) (Roger Ouimet, Chair-man) (hereafter the “Ouimet Report”).

8 S.C.1971-72-73, c. 37.9 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,

c.1.10 Sections 11(d), 7, and 9 of the Charter, respectively.11 [1992] 3 S.C.R. 665, 1992 CarswellQue 17, 1992 CarswellQue 120, 17 C.R. (4th) 1, 77

C.C.C. (3d) 124.12 [1992] 3 S.C.R. 711, 1992 CarswellQue 18, 1992 CarswellQue 121, 17 C.R. (4th) 74,

77 C.C.C. (3d) 91.13 R. c. Pearson, [1992] 3 S.C.R. 665, 1992 CarswellQue 17, 1992 CarswellQue 120, 17

C.R. (4th) 1, 77 C.C.C. (3d) 124 at para. 57.


ment to bail is permissible if the following conditions are met:

1. Bail is denied only in a narrow set of circumstances;

2. The denial of bail is necessary to promote the proper functioning of thebail system and is not undertaken for any purpose extraneous to the bailsystem.14

In Morales, the Court considered the validity of section 515(10)(b). With re-spect to detention where the prospect of committing further offences was at issue, itwas found that this long-standing restriction did not offend the Charter. Neverthe-less, considering whether the “public interest” was a legitimate ground to deny bail,Chief Justice Lamer for the majority held that this phrase was impermissibly vagueand as such, not capable of meeting the test for “just cause.

Finding that the “public interest” permitted a “standardless sweep”15 in thedenial of bail the Court severed the offending text.16 Parliament responded in 1997,by enacting the following new provision for detention, section 515(10):

(c) on any other just cause being shown and, without limiting the generalityof the foregoing, where the detention is necessary in order to maintain con-fidence in the administration of justice, having regard to all of the circum-stances, including the apparent strength of the prosecution’s case, the grav-ity of the nature of the offence, the circumstances surrounding itscommission and the potential for a lengthy term of imprisonment.17 (Em-phasis added.)

It is not clear why Parliament chose to respond to Morales in the way that itdid. Given the interval between the striking down of the “public interest” in 1992and its reinvigoration five years later, it was not considered to be a pressing matter.It was noted:

. . . there is no indication that the bail process did not function adequatelywith the public interest pruned from the pre-trial regime. The amendmentwould appear to be purely political.18

In terms of its breadth, by virtue of the phrases “on any other just cause beingshown” and “without limiting the generality of the foregoing,” section 515(l0)(c)appeared to have a greater reach than its predecessor.

3. BROADENING DISCRETION AND RESTRICTING THE RIGHTTO RELEASE

(a) The Hall Environment and Protecting the Public InterestIn what seemed inevitable, the Supreme Court in 2002 faced a Charter chal-

14 Ibid, at para. 60.15 R. c. Morales, 17 C.R. (4th) 74, 1992 CarswellQue 18, 1992 CarswellQue 121, [1992]

3 S.C.R. 711, 77 C.C.C. (3d) 91 at para. 18.16 Ibid, at para. 55.17 Criminal Law Improvement Act, 1996, S.C.1997, c.18, s. 59.18 Gary T. Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) at

p. 31.


lenge to section 515(10)(c) in R. v. Hall.19 The Court unanimously decided that thefirst part of the clause was inconsistent with the Charter right not to be denied bailwithout just cause and the presumption of innocence.

The Court, however, divided over the second part authorizing denial of bail“to maintain confidence in the administration of justice” resurrecting the former“public interest” ground. A 5-4 majority declared that this provision was not uncon-stitutionally vague or overbroad. The appropriate remedy was to sever and declarethe first part inoperative. The minority vehemently took the position that the publicconfidence ground should also be declared inoperative. Bail, they said, could onlybe justified where there was a flight risk or danger to the safety of the public.

McLachlin C.J.C. for the majority ruled that “to maintain confidence in theadministration of justice” was narrower than the former “public interest” standardstruck down in Morales. The Chief Justice concluded as follows:

Section 515(10)(c) sets out specific factors which delineate a narrow set ofcircumstances under which bail can be denied on the basis of maintainingconfidence in the administration of justice. . . . [S]ituations may arise where,despite the fact the accused is not likely to abscond or commit furthercrimes while awaiting trial, his presence in the community will call intoquestion the public’s confidence in the administration of justice. Whethersuch a situation has arisen is judged by all the circumstances, but in particu-lar the four factors that Parliament has set out in s. 515(10) — the apparentstrength of the prosecution’s case, the gravity of the nature of the offence,the circumstances surrounding its commission and the potential for lengthyimprisonment. Where, as here, the crime is horrific, inexplicable, andstrongly linked to the accused, a justice system that cannot detain the ac-cused risks losing the public confidence upon which the bail system and thejustice system as a whole repose.20

The Court’s broadening of discretion to enlarge the scope for detention waswidely criticized in the academic community. Many scholars took the view that itwas the Court’s obligation to uphold the basic rights and freedoms under the Char-ter and as a consequence, strike down legislation inconsistent with this ideal. Thejudgment in Hall was seen as contrary.

One critic took particular offence to the majority position. He saw the reason-ing as fundamentally deficient:

Particularly given the circular and insubstantial basis for the majority’s en-dorsement of s. 515(10)(c), one is drawn to the ineluctable conclusion thatthere will henceforth be a higher rate of detention for many classes of of-fences and types of offenders in Canada. The desire for precision and re-straint in bail which infused Morales (and the dissenting opinion in Hall)

19 R. v. Hall, [2002] 3 S.C.R. 309, 2002 CarswellOnt 3259, 2002 CarswellOnt 3260, 4C.R. (6th) 197, 167 C.C.C. (3d) 449, 2002 SCC 64. In 1999, a woman’s body wasfound with 37 slash wounds to her hands, forearms, shoulder, neck, and face. It ap-peared her assailant had attempted to decapitate her. The murder received much mediaattention and caused significant public concern and a general fear that a killer was atlarge. Based on compelling physical and other evidence linking the accused to thecrime, he was charged with first-degree murder.

20 Ibid at para.40.


has been suspended, if not extinguished.21

This view was buttressed by the minority position. The courts must “guard theCharter rights of the accused when they conflict with irrational and subjective pub-lic views”22 and, in the context of bail, public outcry in the community must not bea determinative factor:

It does not further our pre-trial release scheme to allow irrational fears andinclinations to distort the proper application of bail requirements. No au-thority is needed for the proposition that ill-informed emotional impulsesare extraneous to our bail system.23

Infusing bail hearings with the apprehension of fear can become a very influ-ential factor notwithstanding the lack of evidence of flight risk or reoffending. Thedissent clearly stated:

The problem with s. 515(10)(c) is that, stripped to its essence, it’s very pur-pose is to allow these subjective fears to form the sole basis by which bail isdenied.24

(b) Proliferation of the Reverse OnusSeparate and distinct from the broadening of discretion to deny bail under sec-

tion 510(a) to (c), Parliament has seen fit to impose the additional potential for pre-trial detention by way of the reverse onus. In these instances, the accused is bur-dened by showing cause why release is justified based upon the criteria in section510, as opposed to the Crown having to convince the court that detention is other-wise appropriate.25

In 1976, only three years after the introduction of the Bail Reform Act, thegovernment created the first reverse onus provisions under what is now section515(6) of the Code.26 This shift was applicable where an accused was chargedwith:

• an indictable offence that is alleged to have been committed while theaccused was at large awaiting trial for another offence;

• an indictable offence and the accused was not ordinarily resident in Can-ada; and

• drug trafficking, importing or exporting.The Supreme Court in both Pearson and Morales found reverse onuses as

constitutional. In Pearson, we find: the special bail rules created by section 515(6)(d) are necessary to create abail system which will not be subverted by continuing criminal activity and

21 Kaiser, H. Archibald “R. v. Hall: Erosion of Basic Principles in Bail and Beyond”(2002) 4 C.R.(6th) 241 at p. 246.

22 R. v. Hall, [2002] 3 S.C.R. 309, 2002 CarswellOnt 3259, 2002 CarswellOnt 3260, 4C.R. (6th) 197, 167 C.C.C. (3d) 449, 2002 SCC 64 at para.107 per Justice Iacobucci.

23 Ibid, at para.108.24 Ibid, at para.107.25 “Court” in this context is the court hearing the bail application.26 Criminal Law Amendment Act, 1975, RSC 1974-75-76, c 93.


by absconding accused. The offences subject to s. 515(6)(d) are undertakenin contexts in which criminal activity will tend to continue after arrest andbail.27

Empirical justification for these significant changes cannot be found.28 None-theless, the proliferation of the reverse onus for a number of offences continuedover the ensuing years and has recently taken on an accelerated pace. Legislationon organized crime in 1997 and 2001,29 as well as the Anti-terrorism Act,30 re-versed the onus in cases where the accused was charged with criminal gang activityor terrorism.31

In 2006, Parliament commenced the pursuit to see bail denied for virtually anyoffence where a weapon or firearm was present, whether being simply possessed orallegedly used in the commission of a crime. Bill C-3532 was given its first readingin the House of Commons on November 23, 2006, and was aimed at substantiallyadding the following indictable offences to section 515(6):33

• weapons trafficking;

• possession of weapons for the purpose of trafficking;

• importing or exporting a firearm knowing it is unauthorized;

• discharging a firearm with the intent to cause bodily harm;

• attempted murder (with a firearm);

• sexual assault with a weapon, threats to a third party or causing bodilyharm (with a firearm);

• aggravated sexual assault (with a firearm);

• kidnapping (with a firearm);

• hostage-taking (with a firearm);

• robbery (with a firearm);

27 R. c. Pearson, [1992] 3 S.C.R. 665 , 1992 CarswellQue 17, 1992 CarswellQue120, 17 C.R. (4th) 1, 77 C.C.C. (3d) 124 at para. 144.

28 Gary T. Trotter, “Pearson and Morales: Distilling the Right to Bail” (1993) 17 C.R.(4th) 150. More particularly: “Both in the House of Commons and during the proceed-ings of the Standing Committee on Justice and Legal Affairs, there were calls for anempirical foundation to justify the proposed changes. As the Department of Justice hadforegone an earlier opportunity to have the functioning of the Bail Reform Act evalu-ated by researchers at the Centre of Criminology, University of Toronto, the govern-ment was forced to rely upon anecdotes and speculation.”

29 An Act to amend the Criminal Code (criminal organizations) and to amend other Actsin consequence (S.C. 1997, c. 23); An Act to amend the Criminal Code (organizedcrime and law enforcement) and to make consequential amendments to other Acts (S.C.2001, c. 32)

30 S.C. 2001, c. 41.31 Today, see s. 515(6)(a)(ii) and (iii) of the Code.32 Introduced in the First Session of the 39th Parliament and reintroduced as Bill C-2 in

the 39th Parliament, Second Session receiving Royal Assent on February 28, 2008.33 As well as s. 515(11) and s. 522.


• extortion (with a firearm).34

Additional measures have been enacted as recently as June 23, 2009 withRoyal Assent to Bill C-1435 adding to the listed offences that of recklessly dis-charging a firearm.

As part of these recent amendments to the law of bail there has been a signifi-cant structural change in procedure. In 2008, in addition to the expansion of thefirearm offences effecting a reverse onus, the fundamental ground of “public confi-dence” was amended in section 515(10) as follows:

(c) if the detention is necessary to maintain confidence in the administrationof justice, having regard to all of the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the of-fence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a poten-tially lengthy term of imprisonment or, in the case of an offencethat involves, or whose subject-matter is, a firearm, a minimumterm of imprisonment for a term of three years or more.36 (Em-phasis added.)

As such, an accused facing a reverse onus for a named firearm offence bearsthe burden of arguing for release based upon the grounds in section 515(10), andafter having done so; the accused is then confronted with the public interest andconfidence consideration against which firearm offences are further referenced.This makes the argument for release circular and it is suggested, one that is virtu-ally impossible to succeed.37

(c) Public SentimentJust as there was no empirical evidence to motivate Parliament to amend the

Criminal Code to reintroduce the “public interest” consideration in 1997, the ques-tion becomes whether there is any such evidence more recently to suggest that bailshould be denied where specific offences are the subject of a hearing. Are therefacts that give rise to public outcry in this regard?

Recent press releases certainly give rise to debate and would seem to indicatethat the community wants pre-trial release to be made difficult for accused that facecertain types of offences, most recently those involving firearm, such as the follow-ing from the Toronto Sun:

A Montreal court may be about to make history in a case that could see

34 See the Tackling Violent Crime Act, S.C. 2008, c. 6.35 Now An Act to amend the Criminal Code (organized crime and protection of justice

system participants) S.C. 2009, c. 22.36 Tackling Violent Crime Act. S.C. 2008, c.6, s. 37.37 A more moderate opinion is given by Professor Don Stuart in “Bail: Decisions on Ef-

fect of New Amendments in Firearms Cases” (2008) 61 C.R. (6th) 136 at p.139 wherehe states: “The new amendments have reversed the bail onus for firearms offences andwill likely result in more detention in such cases.”


offenders considered guilty until proven innocent . . .

. . . The new amendment to the Criminal Code is part of the Tackling Vio-lent Crime Act, introduced by the Harper government as part of its get-tough-on-crime policy. The law took effect in May.

On Thursday, a dozen alleged members of the Crips street gang face a bailhearing for illegal possession of firearms charges laid last week.

. . . Crown prosecutor David Simon said the hearing will likely be post-poned a few weeks, leaving him more time to get used to playing by thenew rules — and to use them to his advantage. “[This] new legislation givesme more leverage,” Simon said.38

And from The Globe and Mail: A provincial court judge, acknowledging the wave of gang-related violencein the region, yesterday handed Vancouver police a small win in their cam-paign against gangs by denying bail to two suspects nabbed in a high-profilepolice initiative.

Udham Sanghera, 58, and Gordon Taylor, 42, were among five people takeninto custody in Project Rebellion. The arrests, announced by Chief Jim Chuin a news conference two weeks ago, were aimed at heading off violencebetween two southeast Vancouver gangs, the Sanghera Group and the But-tar Group.

Yesterday, Madam Justice Jeanne Watchuk ordered both men held in cus-tody pending further legal proceedings on weapons charges . . .

In her 27-page ruling, Judge Watchuk acknowledged the climate ofviolence.

“I take judicial note of the number and frequency of shootings in the LowerMainland in the past months. Crown submits that there is a grave publicconcern regarding the shootings. I agree,” she told the accused in courtyesterday.

Mr. Taylor and Mr. Sanghera are jointly charged with unauthorized posses-sion of two .40-calibre firearms and two 9mm firearms, unauthorized pos-session of an unloaded prohibited firearm — a .40-calibre weapon — withreadily accessible ammunition; and unauthorized possession of unloaded re-stricted firearms.

“His [Taylor’s] criminal record and bail status at the time of the purchase ofthe guns and ammunition lead to the conclusion that he is not a candidatefor release on further bail,” Judge Watchuk said.

She concluded that releasing Mr. Taylor would harm public confidence inthe administration of justice, noting that people have “a high level of con-cern” about the shootings.39

Another opinion recently expressed has suggested that the current govern-ment’s crime control culture may well have changed the views of Canadians to-

38 Terrine Friday, “They have to prove their innocent,” Toronto Sun, Tuesday Au-gust 5, 2008.

39 Ian Bailey, “Judge cites wave of violence in denying bail; two suspects held incustody after being arrested in major police operation to prevent bloodshed be-tween rival gangs,” The Globe and Mail (Tuesday March 17, 2009).


ward crime and punishment: Can it be that in just four years, Stephen Harper’s government has managedto change the views of Canadians toward crime and punishment? This is thefrightening possibility raised by an Angus Reid poll that has found thatCanadians, who have always prided themselves for being more compassion-ate than the Americans, are more and more favourable to the hard-line ap-proach of the Conservatives . . .

According to Andrew Grenville, the pollster in charge of the survey, when agovernment pursues a tough agenda on crime, it actually feeds a popula-tion’s fears. Craig Jones, head of the John Howard Society, says this “dis-connect from reality” might be the result of government rhetoric combinedwith broad public fears about the future.40

4. STATISTICAL VIEWWhen addressing the issue of pre-trial detention from a statistical point of

view, the number of inmates in provincial and territorial correctional facilitieswould seem to be an appropriate place to start.41 In particular, it would be instru-mental in looking at the trends in overall imprisonment rates in Canada over thelast three decades for those receiving a custodial sentence as compared to those inremand. The number of admissions for sentenced inmates was first recorded byStatistics Canada in 1978 and for remand prisoners in 1982.42 In 1978 there were80,387 convicted persons incarcerated in provincial and territorial facilities in Can-ada. As at 2004, this number had declined to 62,388.43 This represents an overalldecrease in the order of 22.4%. From 1994 to 2004, the decrease accelerates from98,174 to 62,388 admissions being a decline of 36.5%. Clearly the incidents of

40 Lysiane Gagnon, “Judge cites wave of violence in denying bail,” The Globe andMail (Friday, January 29, 2010).

41 The distinction between inmates serving a sentence in federal prisons or provincial andterritorial jails is determined by the magnitude of the sentence. Provincial and territo-rial institutions house inmates serving two years less a day; federal inmates are servingall sentences longer. All remand prisoners are in provincial and territorial facilitiesawaiting bail, trial or sentencing.

42 See Statistics Canada (Stats Can). Table 251-0001 — Adult correctional services, ad-missions to provincial, territorial and federal programs, annual, CANSIM (database),using E-STAT (distributor), as collected from Adult correctional services survey andIntegrated correctional services survey, Canadian Centre for Justice Statistics (CCJS).

43 Ibid. Statistics Canada has data for this table to 2006. Nevertheless, the numbers re-flected in 2005 and 2006 are skewed by the prior omission of data from Alberta before2005 and the inclusion of data for this jurisdiction in 2005 and 2006. The impact of thelack of custodial admissions up to 2004, and the inclusion of data thereafter, is notknown as Statistics Canada does not provide any indication as to why such a largesection of data is unavailable, and how the inclusion of the most recent years affects thetotal for the provinces and territories. As such, the data for Alberta in 2005 and 2006has been removed so as not to unduly represent admissions to custody for those years.The conclusions herein do not include reference to the territories as data for the North-west Territories and Nunavut is substantially incomplete and the numbers from theYukon are so small that I believe they are statistically insignificant.


persons being institutionalized as a sentencing option have been dramaticallyfalling.

When looking at the remand population, the results are even more significant.In 1982 there were 49,669 inmates awaiting trial. By 2004 the number had grownto 115,385 representing an increase of 132.3%. By all standards this change indi-cates a major shift in penal and correctional philosophies.

The comparison of these changes shows that those who are being sentencedinto custody have been decreasing steadily for the most part of the last thirty yearsat the same time that the number of prisoners doing remand time has exploded.Figure 1 illustrates the convergence of the inmate populations from 1982 to 1990,and then the increasing divergence from 1991 forward.

Figure 144

In 2006, being the latest year data has been provided; we can see the graphiccomparison below.

44 Statistics Canada (Stats Can). Table 251-0001.


Figure 245

Seeing the jump in the remand population raises the question if use of the“public interest” or “confidence” factor for detention has been widely used. In thisregard, a relatively small study was conducted in 2004.46 The original premise wasthe Supreme Court’s declaration that the tertiary ground in the bail context shouldrarely result in detention. In Hall it was said that there were “relatively rare caseswhere it can properly be invoked”47 and that “the circumstances in which recourseto this ground for bail denial may not arise frequently.”48 The researchers in thisstudy drew those cases between 2002 and 2004 where section 515(10)(c) was ap-plied.49 In total 64 decisions were reviewed, and of that number 35 resulted in acustodial disposition. As such, the conclusion reached was that when the publicconfidence ground was employed, it resulted in a denial of bail in over half thetime, and therefore, was not being used sparingly.

Perhaps the more interesting question is what this large and growing pre-trialdetention population says — more broadly — about Canadians. Certainly withinthe “tough-on crime” law and order mentality being loudly pursued by the current

45 Ibid.46 Don Stuart and Joanna Harris, “Is the Public Confidence Ground to Deny Bail Used

Sparingly?” (2004) 21 C.R. (6th) 232.47 R. v. Hall, [2002] 3 S.C.R. 309, 2002 CarswellOnt 3259, 2002 CarswellOnt 3260, 4

C.R. (6th) 197, 167 C.C.C. (3d) 449, 2002 SCC 64 at para. 27.48 Ibid, at para. 31.49 Quicklaw was the research source.


conservative government, it would be tempting to suggest that Canadians are alsoliving in harsher times. As recently noted: “Indeed, it would not seem unreasonableto claim that the dramatic increase in remand in Canada simply reflects this new“punitiveness.”50

So if the remand population is increasing dramatically, is this a function of arise in more egregious crimes that trigger public outcry to justify detention? Forthis we can turn to the newly created Crime Severity Index introduced in 2009.51

This tool is a new measure of police-reported crime that reflects the relative seri-ousness of individual offences and tracks changes in severity. Each crime is as-signed a weight depending on its seriousness and as such, serious crimes will havemore impact on fluctuations in the Index. The Crime Severity Index tells us ifcrime was relatively more or less serious than in previous years. For ease of inter-pretation, the index is converted to 100 for the base year 2006.52

There is a decline in the Index from 119.1 in 1998 to 94.57 in 2007 evidencinga downward shift of 20.6%. With the exception of 2002-2003, every year hasshown a decrease from the preceding year which represents a steady decline in theoverall severity of crimes being recorded.

The other measure available to gauge serious crimes is to look at the incidentsof crimes of violence over the past decade per 100,000 of population.

50 Cheryl Marie Webster, Anthony N. Doob, and Nicole M. Myers “The Parable of MsBaker: Understanding Pre-Trial Detention in Canada” (2009) 21 Journal of the Instituteof Criminology: Special Issue on Bail in Australia, the United Kingdom and Canada,no.1, 98.

51 This index is found at Statistics Canada, CANSIM Table 252-0052. A background pa-per for this Index was released in April 2009. It became part of Statistics Canada’sannual release of crime statistics in July 2009.

Geography=Canada

Statistics=Crime severity index

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

119.11 111.49 106.97 105.53 104.31 106.95 104.16 101.35 100.00 94.57

52 More specifically, looking at 2006, all one has to do to compare the Index to otheryears is to simply analyze the difference from 100.00 to the applicable period


Figure 353

Quite simply, the incidence of crimes of violence in the last ten years hasdeclined from 970.86 per 100,000 population in 1999 to 940.87 in 2007 for thatsame comparable of population, which in real terms means a decline in the order of3.1%. More telling is the fact that the incidence of serious crimes increasingly de-clined from 2005 to 2007, which is the same period that saw the introduction ofBill C-35 aimed at tackling violent crimes. This reinforces the inevitable conclu-sion that serious crimes have not been rising of late, which is the antithesis of themessage public sentiment and Parliament seems to be promoting

Lastly, with particular regard to the focus of the recent amendments to theCriminal Code aimed at not only expanding the instances where an accused faces areverse onus where a firearm is in play, but more so, where section 515(10)(c) isalso used as the public confidence consideration when a firearm is present, we canlook at the data that reference these incidents.

In Canada, the total charges involving the use of, discharge, or pointing of afirearm have gone from 2,131 occasions in 1999 to 1,655 in 2007, representing adecline of 476 incidents or 22.3%. At the height of these offences in 2003, therewere 2,299 actual incidents which represents a 28% greater number than 2007.Once again, just as the trend in the number and index of serious crimes has beensignificantly dropping in the last ten years, the view of the much more focused fieldof firearm offences for this same period bears out the same conclusion.54 One

53 Statistics Canada, CANSIM Table 252-0013.54 Statistics Canada, CANSIM Table 252-0051. The rate per 100,000 population has a

corresponding and even greater decline. In 1999 the rate was 7.01per 100,000 and in


would assume that there must be some tangible basis for the exceptionally height-ened concern over firearm offences. Perhaps the place to look is in the context ofthe country’s most populated metropolitan city, Toronto.

In doing so it becomes clear that in this context, again there has been no in-crease. Indeed, from 1999 to 2007, firearm offences in Toronto went down an ap-preciable 44.4%.55

The rate per 100,000 of the population for this time span also bears out thisdecline from 9.78 to 4.59; this marks a change downward of an even greater 53.1%.

By expanding the data base out to the country as a whole, the quest is to locateany jurisdictions that give rise to a fear in the increasing possession or use of fire-arms in the commission of crimes. In the last ten years there are only two provincesor territories that show an increase in the subject offences, being Quebec and Brit-ish Columbia. The remaining eleven jurisdictions show a decline. Quebec shows avery modest increase for this time period of less six per cent overall, or 0.07% peryear.56 British Columbia, on the other hand shows a marked increase over thissame period from 329 actual incidents in 1999 to 525 incidents in 2007. This repre-sents a dramatic upswing in the order of 59.9%. As such, if there is anywhere inCanada where there appears to be a justification for concern over the use or posses-sion of firearms, it is British Columbia. On closer examination, the greatest portionof these incidents was centred in Vancouver where just over 35% of the total forthe province were committed.57 The most dramatic statistic for our purposes here isthat in the last ten years the increase for B.C.’s largest city was 93.8%.58

In this one isolated example where the numbers bear out public outcry, thejudiciary seems right in its acknowledgement of the climate of violence.59

The inescapable conclusion to the statistics on crime and corrections data isthat not only is the use of remand custody growing exponentially, but there appearsno empirical basis to justify that growth notwithstanding the community’s fears that

2007 the rate was 5.02 per 100,000, being a decrease of 28.4%. The percentage changein the decrease rises to 30.9% from 2003 to 2007.

Geography=Canada

Violations=Total firearms; use of, discharge, pointing

Statistics=Actual incidents

1999 2000 2001 2002 2003 2004 2005 2006 2007

2,131 2,236 2,187 2,157 2,299 2,208 1,990 1,531 1,65555 Statistics Canada, CANSIM Table 252-0051. In 1999, the total firearm actual incidents

in Toronto were 455 or 21.3% of the national total of 2,131 incidents. In 2007, the totalfirearm actual incidents in Toronto slowed to 253 or 15.3% of the national total of1,655 incidents.

56 Statistics Canada, CANSIM Table 252-0051. From 291 incidents in 1999 to 308 in2007.

57 Statistics Canada, CANSIM Table 252-0051. Actual incidents for Vancouver were 186in 2007 compared to 526 for British Columbia in 2007.

58 Statistics Canada, CANSIM Table 252-0051. From 96 incidents in 1999 to 186 in2007.

59 Supra note 40.


bail should be denied for a growing litany of offences. This is all the more ex-traordinary in light of the current Justice Minister’s lack of foundation for the gov-ernment’s “tough talk” on crime. In this regard, it was recently reported that JusticeMinister Robert Nicholson has no departmental research to support the Tories’ ma-jor law and order thrust. Nor is there reliance on reports by independent experts.60

Quite candidly, the former chief of staff to Prime Minister Harper revealed theConservative strategy as follows:

Every time we proposed amendments to the Criminal Code, sociologists,criminologists, defence lawyers and Liberals attacked us for proposing mea-sures that the evidence apparently showed did not work . . . That was a goodthing for us politically, in that sociologists, criminologists and defence law-yers are all held in lower repute than Conservative politicians by the votingpublic. Politically it helped us tremendously to be attacked by this coalitionof university types.61

The government’s response to repeated requests to provide a factual basis forits policies is quite simply: “we have the higher mandate of the Canadianpeople.”62

5. CONTEMPT FOR INNOCENCE: BAIL COMPLIANCE UNITSIn what appears to be an Orwellian mandate instituted by the Toronto Police

Service, all seventeen divisions over the course of 2009 have implemented BailCompliance Units (BCU).

As recently reported: . . . the Bail Compliance Unit at 51 Division cold calls those out on bail tosearch for bail violations . . . police concentrate on those most likely to reof-fend — the worst criminals in each division.63

The theory is that the police in doing random checks on those out on bailmotivates compliance with the conditions imposed at the hearing.

The court in releasing an accused on bail has the option to impose any numberof conditions in a recognizance under section 515(4) of the Code. The conditionscan be as simple as staying within the jurisdiction and reporting to the police on afixed schedule to ensure attendance at court, to more restrictive measures such ascurfews and house arrest. It is open to the court to impose any conditions that aredeemed fit including monitoring of compliance.64 Clearly the court in deciding torelease an accused imposes what is thought to be sufficient restrictions to ensurethe integrity of the bail process. The random checks of the BCU are done without

60 See “Are we really soft on Crime? The Tories prefer tough talk to hard proof on pun-ishment,” Maclean’s, (November 16, 2009) at p. 21.

61 Ibid, at p.22, quoting Ian Brodie.62 Ibid, at p.22 per Justice Minister Nicolson.63 CTV Local News, “Keeping tabs on criminals out on bail,” (Toronto: November

3, 2009).64 The option of electronic monitoring of an accused is available in those jurisdictions

that adopt the costs


deference to a court’s imposition of conditions that do not require monitoring: “It’s all about risk assessment,” said Det. Alan Macdonald, who leads 22Division’s BCU . . .

. . . BCU officers conduct bail compliance checks any hour of the day ornight. Those out on bail are required to appear to police within five minuteswhen officers arrive unannounced at the door of their home or workplace.

“If it’s a particularly violent offender and we get an inkling he could re-offend, we could go every day as often as three to four times a day,” Mac-donald said of the bail compliance checks.65

Note that just as an accused in the CTV news report are described as“criminals,” they are additionally described as “offenders” in this report.66 Moreflagrantly unsupportable, however, is the proposition that the police have the rightto attend an accused’s residence without prior authorization and seek out the poten-tial arrest of someone where there is no indication of an offence having beencommitted.

The activities of the BCU make clear that random warrantless searches are animperative in their operations.

6. CONCLUSIONThe law of bail in Canada has seen a dramatic shift in its guiding principles.

For centuries the determination as to whether pre-trial release would be available toan accused was subject to a broad and relatively unfettered discretion.

Reform to tighten this discretion and to clarify the rights of an accused wasenacted in 1972 with the passage of the Bail Reform Act. This legislation was her-alded as a significant move forward in the protection of the individual’s rights toliberty, security, and the presumption of innocence, all of which were subsequentlyconstitutionalized in the Canadian Charter of Rights and Freedoms.

In the early years following the amendments to the Criminal Code implement-ing these reforms, relatively little was done to impinge upon the freedoms grantedan accused. In the mid-1980s however, Parliament entered the field with an attemptto return to broadening of the discretion for detention. This was answered by theSupreme Court by striking down any notion that the grounds for bail could be lim-ited by vague references to a concept such as the “public interest”.

Without the benefit of any empirical evidence justifying the reestablishment ofany such notion, Parliament commenced, in earnest, the process of eroding thegains made by the reform of 25 years earlier.

Beyond the long-standing grounds for determining the availability of pre-trialrelease, being flight risk and public safety, the purposely vague and overreachingground of taking into consideration the public’s confidence in the administration ofjustice became the touchstone of the federal government’s focus. This legislativeagenda, coupled with the growing proliferation of offences where a reverse onus isimposed upon an accused, has now significantly eroded the progress gained by any

65 Tamara Shepherd, “Stopping the Revolving Door” InsideToronto.com (TuesdayMay 5, 2009).

66 Note the further reference to “re-offending,” which presumes guilt in the first instance.


rights minded reform.Unfortunately and with virtually universal academic scorn, the Supreme Court

has now endorsed Parliament’s drive to return to broad discretion. It is not much ofa leap to suggest that the law of bail in Canada today presents more challenges toan accused in being released prior to trial than was the case preceding 1972.

This is indeed a very unfortunate state of affairs, particularly in light of thegovernment’s purpose to restrict these rights based upon political expediency with-out regard to the factual environment that rates of crime or seriousness thereof dic-tate that legislative change is not warranted. Clearly, public fear and political op-portunism are the motivations of the day.

The presumption of innocence in the bail process has become an illusory con-cept, at best. The presumption has been diminished so dramatically that it is now anafterthought in the considerations for the pre-trial release of an accused.

With respect to the engenderment of bail compliance units, to have the Statetrample upon an accused’s rights after the presumption has nevertheless prevailedin actually granting bail is contemptible.

When it comes to a person’s liberty, being “tough on crime” has no placewhen an accused’s guilt has been neither tested nor proven.

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Bail and the Diminishing Presumption of Innocence