The Supreme Court of Canada in Ottawa on Friday. Several media organizations challenged the constitutionality of the mandatory nature of the bail-hearing ban in 2010, but the Supreme Court upheld it in an 8-1 decision.Justin Tang/The Canadian Press
The next reform of Canada’s bail system should be to lift the near-universal publication ban shrouding the bail courts in secrecy – and let the country see what reforms if any are working and what is failing to take root.
It is illegal, in most cases, to publish what goes on in a bail hearing. A publication ban is mandatory if an accused asks for it.
Canadians have little idea of what actually goes on, or why those with a history of violating court orders are frequently walking out the doors with seeming ease.
Parliament is now debating its second bail-reform package since 2023, after the first was an abysmal failure. Serendipitously, we now have a revealing snapshot of this largely closed world – a court transcript from a January hearing in which the accused did not ask for a publication ban. It involves a 50-year-old, Skye Atoa, charged with sex crimes against three underage girls, and sexual assault against an adult woman.
The transcript should be required reading for Parliamentarians; it shows the ineffectiveness of their efforts to date on bail reform.
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The hearing seemed remarkably pro forma. Despite the complex matters at stake, it wrapped up in under 50 minutes. Justice F.C. Fisher of the Alberta Court of Justice did not explain why he decided to release Mr. Atoa. Nor did the judge acknowledge the public safety concerns embodied in federal legislation. It was as if the two worlds, courts and Parliament, were in orbits that never crossed.
As has been widely reported, Mr. Atoa was rearrested less than an hour after his release, found in a shop frequented by young women, violating a bail condition. No surprise, given the superficiality of the hearing.
The transcript reveals unchallenged evidence that police found the three underage girls, ages 14, 15 and 16, all of them reported missing, in Mr. Atoa’s Lethbridge apartment, one of them naked and in medical distress, and disclosing sexual assaults from multiple men.
It also shows that Mr. Atoa was under a community service order because of a theft conviction. He was therefore under a “reverse onus” – that is, he faced a presumption of detention, unless he could show why he should be released. And police alleged Mr. Atoa violated the conditions of his community service order in a serious way – first by failing to answer the door when police knocked. Eventually they obtained a warrant and found Mr. Atoa inside with two of the girls. Hardly a fulfilment of the “good behaviour” condition of the order.
Keep in mind, reverse onus was the centrepiece of the Liberals’ 2023 bail reforms. Pressed by the public, police and all the premiers to do a better job of protecting communities, the federal government expanded the list of offences for which detention was now the starting point.
And yes, a further expansion of the reverse onus is part of a second bail-reform package now before Parliament to address the failure of the first one.
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The transcript shows the limited impact of reverse onus provisions. Justice Fisher did not mention reverse onus, let alone explain how Mr. Atoa met the onus. The judge’s only stated concern was whether an addiction treatment facility meant for 10-day stays would keep Mr. Atoa until a new treatment bed could be found. Justice Fisher never asked the obvious question: How would addiction treatment keep the public safe from an alleged sexual predator?
In 2010, several media organizations challenged the constitutionality of the mandatory nature of the bail-hearing ban, and the Supreme Court upheld it, 8-1. The lone dissenter in that Supreme Court case, now-retired Justice Rosalie Abella, said a judge should impose a ban only if the accused person’s right to a fair trial demands it.
It’s time for Parliament to prohibit publication bans in bail hearing, unless the right to a fair trial is imperiled. Not only because of the Atoa hearing – it is just one case – but because justice unseen will never reach the standards expected of it.
All the tinkering in the world will not make a difference unless the public is allowed to see how bail actually functions. Judges might not ignore Parliament’s will so cavalierly if they know the details of their rulings will be scrutinized.
Without public scrutiny, the bail system and Parliament will remain worlds apart, and trust in both institutions will continue to erode.