The legal balancing act of the right of an accused to be considered innocent until proven guilty and granted bail versus the right of citizens to be safe from accused violent offenders who should not be granted bail is a tricky one to get right.
By the time Bailey McCourt was savagely beaten with a hammer on an afternoon this past summer in a Kelowna parking lot, the nuance of that debate was entirely lost on many Canadians.
The man charged with killing her is her ex-husband who, just hours before the attack, had been convicted of assault and choking. Despite the conviction, he left the courthouse on bail while he awaited sentencing.
Last week, the federal Liberal government introduced sweeping legislation aimed at toughening Canada’s sentencing and bail laws. The proposed bill includes more than 80 changes to the Criminal Code.
Those changes include a new list of crimes for which bail will be harder to get, including breaking and entering a home and sexual assault involving choking. Bill C-14 would require judges to consider whether an accused engaged in random or unprovoked violence.
The government also proposed consecutive sentences for some convictions, which would mean more jail time for crimes such as violent auto theft and breaking and entering.
Justice Minister Sean Fraser said the justice system has “failed to keep up” with how Canadians feel about public safety.
The package of reforms is a direct response to public outrage over cases such as Ms. McCourt’s and others: Last month, a woman was killed and seven others injured after a stabbing rampage by a man who was killed by police as he attempted to flee. Tyrone Simard was out on bail on charges of assault with a weapon and sexual assault.
In December, 2022, Ontario Provincial Police Constable Grzegorz Pierzchala was killed, allegedly by a man out on bail at the time for previous alleged violent offences.
Amid concerns of deteriorating safety and public disorder, Conservative politicians seized on bail reform during last fall’s B.C. election and the federal election this past spring, narrowly losing both campaigns.
Almost four in five people, 79 per cent, say it is too easy for serious offenders to get bail, according to an Abacus poll in September.
So the bail-reform changes introduced last week were politically necessary, if not also necessary to restore public confidence in the justice system.
But as David Ebner writes, it remains to be seen whether this package of reforms will be successful.
It’s the Liberals’ third swing at bail reform in seven years and follows multiple Supreme Court of Canada rulings that have emphasized the priority of granting bail, not denying it.
Data show a record number of people are not getting out on bail, with an increase of almost 20 per cent last year. Roughly half the people imprisoned on an average day in Canada have not been convicted of the crime of which they are accused.
The top court, in a series of unanimous decisions from 2015 through 2020 on aspects of bail, has literally underlined the Charter right to not be denied reasonable bail without just cause. In a 2019 decision, Chief Justice Richard Wagner wrote: “The release of accused persons is the cardinal rule and detention, the exception.”
But the court has also, in a 2015 decision, bolstered leeway to detain an accused in serious cases on the singular ground of public confidence in seeing justice rendered.
David Cole, a retired Ontario provincial court judge and a former defence counsel, writes in a recent opinion essay that the new package of reforms does not address the core problem at the heart of what he calls systemic dysfunction.
Cole writes that until the chronic delays plaguing the system are solved, it will be difficult to keep more people in custody.
"The reality in most criminal courts is that substantial numbers of accused people must be bailed because trials, even for minor offences, are routinely delayed by as much as 18 months,“ he writes.
“Unless we are prepared to meaningfully speed up trials, these proposed reforms are fair neither to accused persons nor victims – and they won’t do much to assuage the long-term safety concerns of the public."
Editor’s note: A previous version of this newsletter incorrectly said that Bailey McCourt is from Kamloops. She is from Kelowna.
This is the weekly British Columbia newsletter written by B.C. Editor Wendy Cox. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.