Is less bail the answer?
Mark Carney’s Liberal Party has proposed legislation intended to make access to bail increasingly difficult for violent offenders. This announcement was made on October 16, following the October 6 parliamentary session, where the House deliberated on the Conservatives’ Jail Not Bail Act. During the session, the Liberal Party proposed their own legislation, which it believes is distinct and “much stronger than the Conservative bill,” according to Secretary of State, Ruby Sahota. While the Liberals posit their bill differs from the Conservatives’, there are several similarities between the two. As Canadians await further information, an analysis of Carney’s statements and the Conservatives’ bill can aid in understanding the Liberals’ proposed legislation.
Bill C-242, colloquially known as the Jail Not Bail Act, would amend the Canadian Criminal Code and the Department of Justice Act. It would “replace the principle of restraint in section 493.1” of the Criminal Code and “prevent those charged with a major offence from being released after arrest by a peace officer.” Moreover, the bill wishes to alter paragraph 515(10)(b)’s standard of assessment, allowing courts to consider the accused’s criminal history during bail deliberations. Both the Liberal and Conservative bail reforms advocate for using the offender’s history to determine whether they deserve rehabilitation, thus pushing for longer holding periods. According to the CBC, under the Liberals’ bail reform, violent offenders will experience “consecutive sentencing”—sentences served after another without breaks—and would “have to prove they deserve bail before it is awarded.” By placing the onus on offenders, the bill reverses the Canadian Criminal Court’s adversarial system which places the burden of proof on the Crown attorney.
The Canadian justice system’s current stance on bail is encapsulated by Bill C-75, “An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts.” Bill C-75 modernised bail by incorporating the “Principle of Restraint” and by requiring the criminal court system to pay added attention to offenders’ vulnerable background during bail decisions. The Principle of Restraint requires that an adjudicator give primary consideration to releasing the accused at the “earliest and least onerous opportunity.” The principle and the bill primarily focus on Indigenous people and other vulnerable groups that are overrepresented and often incarcerated for long periods of time. However, the bill is a major point of contention for the Conservative party, who argue that encouraging early releases creates circumstances that endanger Canadians. During the October 6 Parliamentary session, both Conservative leader Pierre Polievre and Brampton West MP Amarjeet Gill cited recent violent crimes they attribute to the principle. They argue that repealing the principle and instating longer holding periods makes a safer Canada.
Mandating longer holding periods regardless of innocence might veer into infringing on S. 12 of the Charter: the right against cruel and unusual punishment. In R. v. Bissonnette, 2022 SCC 23, the Supreme Court of Canada ruled that Section 745.51 of the Criminal Code, which permitted consecutive sentencing, was unconstitutional and unjustifiable by S. 1 of the Charter, which allows reasonable limits to Canadian’s guaranteed rights and freedoms. Canada’s life sentences max out at 25 years; any attempt at lengthening through parole ineligibility periods is tantamount to an unconstitutional life sentence vis-à-vis the United States’ sentencing. This point has sparked debate on the bill, but Carney purports that the bill will withstand the Charter test.
If the bill does pass the charter test, according to Reuters, the longer bail periods will predominantly affect people of colour. Black people stay in remand twice as long for weapons offences and 46 percent of all violent offences. Similarly, longer bail periods affect student protestors. In one instance concerning a University of British Columbia protest in 1997, activist Jaggi Singh was arrested for harming an officer by speaking through a megaphone, and had a bail condition barring him from entering the school imposed. That provision ensured he could not lead a campus protest he organised. These instances and statistics exemplify how bail conditions and long holding periods harm students of colour and ensure subservience through limiting dissent. Given law enforcement’s relationship with activists and student protestors, one can see how these bail reforms may impact students voicing anti-establishment opinions.
These conversations on bail arise in a tumultuous time in Canadian history. Reports of gun violence and auto thefts, coupled with rising youth unemployment rates, have stoked fear in Canadians. In fearful times, hypermilitarisation and criminalisation can seem like sure forms of protection, prompting parliamentary representatives to discuss them. But are these new suggested bills appropriate measures or purely reactionary? These are questions only time will tell.