Ontario AG's announcement of new provincial bail directives admission of decades of failure

Last month, Ontario Attorney General Yasir Naqvi delivered a stunning rebuke of his Crown attorneys and publicly announced that they had not been following the law.

But that was not how Naqvi spun the announcement of new provincial bail directives. Naqvi did not directly call out his Crowns. In fact, he insisted that they had been acting perfectly appropriately. Naqvi instead focused on the fact that his new directives would make the bail system operate faster and fairer and help to protect the safety of the public. According to Naqvi, the new bail announcement was part of a progressive effort on the part of the government to reduce inequities in the justice system — particularly when it comes to indigenous and racialized communities.

The Toronto Star’s editorial board characterized the Naqvi announcement as “sensible policy.” But what did Naqvi really announce? The new bail policy seems pretty elemental: Prosecutors should only seek detention if there is a prospect of conviction, any bail order should be as least restrictive as possible and conditions of release should be rationally connected to the allegation and to one of the three grounds for detention in custody.

This was not the case before? Were prosecutors seeking the detention of presumed innocent accused when they had no chance of proving guilty? Were prosecutors insisting on overly restrictive bail conditions? Were prosecutors advocating for bail terms that had no relation to the alleged offence?

Sure they were. And this should have been the real story.

Naqvi’s new directives bring Ontario’s bail policy up to the minimum standards. This can hardly be called progressive.

This year, the Supreme Court of Canada released its decision in the case of R. v. Antic and reiterated the long-standing principle that the “right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system.” The Supreme Court went on to say that bail should be granted as soon as possible and with the least restrictive conditions as possible. But all of this was not a newly created legal precedent. In 2008, the Quebec Court held that “release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds.” And as far back as the parliamentary debates on 1972’s Bail Reform Act, it was recognized that an unlighted bail system operates harshly against poor people.

But why stop there.

In 1969, the Report of the Canadian Committee in Corrections — which came to be known as the Ouimet Report — was commissioned by then-minister of Justice Guy Favreau and was chaired by Justice Roger Ouimet and vice-chaired by the inestimable G. Arthur Martin.

Ouimet detailed some pretty fundamental aspects of a just bail system: that the basic purposes of the criminal law should be carried out with no more interference with the freedom of individuals than is necessary; that restraint should be applied and bail should be denied where necessary; that pre-trial detention to obtain pleas of guilty or to inflict punishment on a person whose guilt is not established is indefensible; and that bail conditions should be as least restrictive as possible.

Naqvi’s announcement of a “new” bail policy seems pretty similar to Ouimet’s old 1969 recommendations.

Some credit needs to be given to Naqvi. Even if his new directives only get the justice system to 1969’s starting line, it is better than a continuation of the status quo.

And it is certainly better than the solution proposed by former Ontario ombudsman and current partisan Conservative surrogate André Marin, who would see the bail problem solved by building bigger and more expensive jails.

So, what more needs be done? We need to build smaller jails. We need to employ more restraint and incarcerate only those who represent a danger to the public. We need to ensure people in custody are granted prompt funding for legal representation. We need to actively assist people in jail in putting together successful bail plans. We need to make robust addiction and mental health treatment available to those in custody. We need to go even further to decouple mental health and addiction issues from the criminal justice system. We need to be less risk averse. We need to divert more criminal charges away from the court system. Quite simply, we need to be releasing more people on bail more of the time, more quickly. 

So while the new announcement makes the situation less bad, there should be no mistake — Naqvi’s bail policy announcement is an admission of decades of failure.

Naqvi’s new announcement must be seen as a starting point for bail reform and not a progressive finish line.