The Bail System's Not Broken

Christopher Husbands, who is charged with one count of first-degree murder and six counts of attempted murder in the Toronto Eaton Centre shooting, was on bail for sexual assault at the time of the shooting. There is no doubt he should have been at home under house arrest and nowhere near the Eaton Centre when the shootings took place. Husbands was blatantly in breach of his bail conditions.

As a result recent media pieces have slammed the bail system. Newspaper headlines claim "Clueless JPs" fail to protect the public. Prominent journalist Christie Blatchford says:

"Court insiders — prosecutors, defence lawyers, clerks, judges and reporters — know that what happens in bail court is often a farce."

All this makes for good reading but, like many exciting stories, it is largely fiction. Our bail system works and works well.

Reasonable bail is a right guaranteed to all Canadians by our Constitution. The Constitution provides: "Any person charged with an offence has the right... not to be denied reasonable bail without just cause". This is a right that the Courts properly take very seriously. People accused of crimes have not been found guilty; to put someone in jail, without a trial, when they may be innocent is not something that should done casually or as a matter of course.

In most cases bail is granted on the consent of the Crown. Only when release is opposed by the Crown is a bail hearing held. Bail hearings are serious matters thoroughly considered by trained judicial officers, usually Justices of the Peace. Justices of the Peace, far from being 'clueless', have specific and extensive legal training, both when appointment and on an ongoing basis, in bail issues. They form a cadre of highly skilled professionals; they are specialists in bail and are often far more knowledgeable and probing than the lawyers appearing before them.

Bail hearings themselves often have hours of testimony from police and civilian witnesses followed by lengthy legal submissions. Since bail hearings take place shortly after arrest, and often before police investigations are complete, much that is said in a bail hearing later turns out to be false. Justices of the Peace on bail hearings have to work with limited and contradictory information; it is hardly surprising that errors are occasionally made.

Sometimes (as seems to have happened with the Eaton Centre case) bad people are released when they should not be. But sometimes innocent people are held pending trial and the months or years spent waiting in jail can never be recovered.

While Christopher Husbands is held up as proof the bail system is too lax, many forget Byron Sonne. Charged with explosives charges at the time of the G20 meeting Sonne was denied bail and kept behind bars for nearly a year waiting for trial. In that time Sonne's marriage crumbled and his business was destroyed. At trial Sonne was acquitted of all charges. Sonne stands as an example of an innocent accused denied bail and suffering harm he can never recover.

Despite the errors, overall a good balance is struck between protecting society and respecting the fact that those accused of crime may be innocent. Terms of release are carefully structured to protect the public. And almost always the releases work well.

According to recent statistics, almost 97% of persons on bail checked by police in Toronto (on a targeted, priority basis) comply with their release conditions. Since the police only check the high risk offenders likely to breach, the actual compliance rate is certainly higher. While any breach of bail conditions is troubling, most breaches are minor; a serious breach always leads to an immediate re-arrest and usually incarceration until trial.

It's easy to blame the justice system when something goes wrong. And the system did go wrong in the Husbands case. But that error does not point out systemic problems. Canadians can rest easy. The bail system works.