Canada Votes: Bail reform complex issue despite campaign slogans, says criminal lawyer

"Crime and lack of punishment for offenders ... 'catch and release.'"

When CBC Windsor asked about the issues on your minds this federal election, that was one answer from a Windsor West voter.

It's a sentiment shared by others. Other respondents to the survey identified "unsafe streets" and "freedom for criminals" as their biggest neighbourhood issues that will influence their vote.

"I'm not surprised it's an election issue," said Jordan Gold, principal partner of Gold Law, a criminal defence law firm based in Toronto. "It's an easy talking point."

"Not many potential voters are going to [say], 'Well, more people should be getting bail and not kept in jail.' It's very easy to get people emotional and excited about the prospect of being able to reduce crime. Everybody wants crime to be reduced."

Gold has written articles on the subject for his firm's website. Last month, he dissected Conservative leader Pierre Poilievre's public statements on bail reform — particularly the slogan "Jail, Not Bail," and Poilievre's claim that he would end "automatic bail."

"If the notion is that certain people are getting bail without a bail hearing... That is just not something that happens. There is no such thing as 'automatic bail,' and there never has been," Gold told CBC Windsor.

Provincial governments and police associations have been calling upon the federal government to re-examine and revise the bail system.

The Police Association of Ontario (PAO), the Ontario Provincial Police Association (OPPA) and the Toronto Police Association (TPA) called for reform in 2024, after officers were caught in a shooting between two groups while doing bail compliance checks. 

'Effective bail reform must strike a balance between public safety and the rights of the accused," the associations said in a statement. "The public expects that in the name of public safety, violent and repeat offenders will not be released on bail unless there is a compelling reason and a sensible plan to ensure that they are not at risk of reoffending while awaiting trial."

Natalie Delia, a criminology professor at the University of Windsor, acknowledges there's a public safety concern that must be balanced against individual rights in a free society.

"Whenever you have people that aren't in jail or prison, crime of some sort is going to happen. The people that are most likely to commit those crimes happen to also be people who have been arrested for crimes," Delia told CBC Windsor.

"But that doesn't mean that we can pro-actively put them all in jail or prison — although that would 'fix' the problem."

For Delia, debate on denial of bail inevitably involves the Canadian Charter of Rights and Freedoms.

"What I'm saying is completely not controversial: In order to be incarcerated, you should have been convicted of a crime, right?"

Both the Liberals and the Conservatives mention changes to the bail system in their policy platforms.

The Liberals promise they'll make bail laws stricter for violent offences and organized crime. Those charged with home invasion or human trafficking, for example, will be subject to "reverse onus" — meaning it's the responsibility of the accused to prove to the court they're not a danger to public safety.

The Conservatives promise they'll repeal Bill C-75 — the 2019 legislation that sought to "modernize and streamline" the bail system.

Meant to reflect Supreme Court of Canada decisions on Charter rights, Bill C-75 codifies a "principle of restraint" to ensure that release at the earliest opportunity is favoured over detention.

According to the Tories, this has allowed "rampant criminals" to "go free within hours of their arrest."

Other parties have varying degrees of engagement with the issue. The federal NDP does not mention bail reform in its platform. Neither does the Green Party of Canada.

Meanwhile, a spokesperson for the People's Party of Canada blamed the Liberal government's "insane woke ideology" for Bill C-75, and said the party's position is to repeal the law and replace it with "a much more stringent bail regime."

But Gold says he believes what's being lost in the slogans is the other side of the debate: That people accused of a crime are presumed innocent and have a right to due process.

The Supreme Court of Canada has ruled that when you are charged, you have a right to a trial within a reasonable time, and bail courts must first consider the least restrictive options for your release.

"[People] get an opportunity to have a judge or justice of the peace decide whether it is proper to release them or detain them," Gold told CBC Windsor.

"There are robust and complex laws in place to determine who can be released on bail and who should be detained pending trial."

Gold said he's aware there are many situations where detention is needed due to the risk to the public or risk that someone will flee. 

But he says the issue is nuanced, and can't be understood with simple slogans. Voters, he says, need to educate themselves on the issue and not rely on "assumptions and misconceptions."

"The notion that we can punish offenders by jailing them before we know whether they're offenders — that's not what bail is about," Gold said.

Delia says she feels it's important to recognize that the justice system was built on generations of decisions trying to be responsible and equitable.

"We have faculties of law, we have law programs, we have whole processes for sentencing and for training judges... Canada is a safe place to live," Delia said.

"We're just going to scrap that and we're just going to vote to send them all to prison now? That doesn't work well anywhere else. There's no expectation it would work well here."