Poilievre's 'jail, not bail' idea may not pass constitutional muster, experts say

Conservative Party Leader Pierre Poilievre says that, if he becomes prime minister, his government will pass legislation to deny repeat violent offenders access to bail. While the proposal speaks to Canadians' deepening concerns about crime, experts suggest it would likely be unconstitutional — though Poilievre disagrees.

"A repeat violent offender, newly arrested for another serious violent offence, will have to serve their entire period in jail," Poilievre told reporters in Ottawa on Tuesday.

"Not bail, and not early parole. That's common sense."

Poilievre said in a news conference Thursday that his proposal is constitutional.

"It's already charter-proof. What I'm proposing is what we had before Justin Trudeau, and that was never shot down in the courts," Poilievre said.

The Opposition leader's comments come in response to the federal government announcing its own plans to reform Canada's bail laws by bringing in measures making it more difficult for some repeat violent offenders to get released on bail.

The Liberals introduced the proposed changes in response to mounting pressure from provinces, police associations and victims' rights groups to strengthen the system amid a spate of high-profile crimes.

Poilievre says the measures don't go nearly far enough to improve public safety. But experts reacted to his alternate proposal with skepticism.

Boris Bytensky, a criminal defence lawyer, says legislation that would deny some accused people access to bail hearings would not pass constitutional muster.

The approach doesn't account for the possibility of innocence, he says.

"Somewhere in there, there should be room for a person to be found not guilty. Because presumably, we don't actually sentence people until and unless they've been found guilty beyond a reasonable doubt," he said.

"But that doesn't seem to be included in the narrative."

Bytensky said Poilievre seems to be suggesting that the existence of a prior record means people should be presumed guilty and sentenced as soon as possible so that they can remain behind bars.

"That's what he's essentially saying that his government is pledging to do, if he's elected, so I'm a little surprised by that."

Danardo Jones, an assistant professor at the University of Windsor's law school, said that from a constitutional legal perspective, the promise does not make "a tremendous amount of sense."

"I'm not really sure what society these folks are imagining, if it's a society where there is no risk, or a society where there is no crime," he said.

"I would love to live in a society like that, but I don't know if draconian criminal measures are going to usher in a society like that."

Detention facilities are already holding a lot of people because they were denied bail, Jones said. 

Making bail even harder to get will lead to "an even higher representation … of folks who have not been criminally convicted of the offence for which they've been charged," he said. 

Nicole Myers, a Queen's University sociologist with expertise in bail and pretrial detention, said the idea "completely ignores the foundational principles of our criminal justice system" and the fact that the right to be released on reasonable bail is protected by the Charter of Rights and Freedoms. It's a right has been repeatedly affirmed by the Supreme Court."

Poilievre's pitch seems to be more about politics, Myers said.

"He's trying to grab onto and exploit public fear and public concern."

The slogan Poilievre is using to promote his idea — "Jail, not bail" — is "misguided," said Myers.

"We do not have a lenient bail system in this country. We've had more people in pretrial detention than in sentence provincial custody since 2004," she said.

Moreover, she said spending time in prison makes people more likely to commit an offence after they are released.

And if people who are ultimately convicted spend more time in prison awaiting trial, time will be shaved off the end of their sentences, Myers added.

"If he were actually interested in public safety, as he says he apparently is, then we would not be trying to put more people in jail."

A good 'first step'

The Liberals' legislation would make it more difficult for some those accused of certain weapons and violent offences to be granted bail.

The National Police Federation (NPF), the union which represents RCMP members, said Thursday the bill is a good "first step," but that more action needs to be taken.

"Real, meaningful, and impactful change in Canada's bail system is a shared, national responsibility," Brian Sauvé NPF president and CEO, said in a statement. 

"We are confident that Canada's bail system can be improved, but such improvement will require the commitment of significant federal and provincial resources, and extensive data collection, policy development and monitoring of individuals on bail."

Poilievre says, while he wants the government to make bail more strict, his party has to decide whether to support the bill.

"We'll go through our caucus and our shadow cabinet to take a stand on it," he said.

"But I can appreciate that the police want any steps that can reverse Justin Trudeau's catch-and-release policies, even if they don't go far enough."