Canada Needs More Bail, Not Less
Please hear me out on this one.
Suppose you found yourself charged with a crime. Nothing major, but you’re facing a few months in prison. You’re completely innocent, and lucky you, the judge knows it. You walk into court, confident that this will all work out in your favour. Suddenly, the ball drops. Even though the judge knows that you’re innocent, he decides to send you to prison anyways, just to be safe. You get out of prison in due time, but your entire life has been upended. Your job is gone, your reputation is ruined, and your landlord evicted you for not paying rent while you were in prison. I don’t think that you would disagree with me if I said that this would be a horrible miscarriage of justice. Yet, something similar to this happens every day around the world, including here in Canada.
One of the most fundamental principles of liberalism is that everybody is innocent until proven guilty. People who are unfortunate enough to not live in liberal societies have to live in constant fear that their government will decide one day that they’re inconvenient and have them arrested on trumped-up charges. We should be grateful to live in a free country, but that doesn’t mean we don’t fall short of our ideals. Even though we presume the innocence of everybody charged with a crime but not convicted, it’s common to place the accused in pre-trial detention. In other words, we lock people up despite presuming their innocence. To avoid this, the accused are usually offered bail.
Despite what Monopoly might have you think, bail isn’t a “get out of jail” card. What it actually does is create an incentive for the accused to show up to their trial without actually keeping them in prison. While out of prison, the accused have to check in with a bail supervisor to make sure that they’re not causing problems, and are kept detained until trial if they break the conditions of their bail. This is a great balance between respecting the rights of the accused and managing the issues that might come from allowing people credibly accused of crime be free up until their trial. Because of that, the Supreme Court came up with a principle of restraint, which requires judges to consider bail when appropriate and make sure that the bail conditions are reasonable. This has made bail a massive point of grievance for the Conservatives.
On one hand, the right has been very upset over instances of what they consider to be judicial activism. Because so much of how bail is decided comes from the Supreme Court instead of Parliament, the Conservatives have attacked our current bail system as the result of judicial overreach. On top of that, the Conservatives have spent the past few years blaming the Liberals for the (relatively minor) rise in crime1. Things as salient as crime concern everyday voters far more than abstract concepts like judicial activism, so the Conservatives have used their “tough on crime” rhetoric to attack bail by blaming it for making streets dangerous. This has made the very concept of bail incredibly unpopular among the broader Canadian public.
In response to backlash against the concept of bail, the Liberals have tabled a bill that will reform the bail system. Despite the fanfare surrounding the bill, it doesn’t change that much about how bail actually works. For the most part, it just takes pre-existing concepts like reverse onuses2 and makes them more strict. This is definitely going to be popular, but perhaps not for long. The Conservatives are already criticizing the bill for not going far enough, and consistent messaging influences the average voter more than bills that only politicians read. In that case, what do we get out of making bail stricter?
The Problem With Bail Isn’t What You Think
With how people criticize our bail system, you might think that it was an absurdly lenient program that has caused crime to spike. Actually, it’s the opposite. Bail is inaccessible for many accused of crime, which leads to disastrous results. Here in Ontario, the percentage of prisoners on remand has gone from 20% of the prison population in 1984 to 80% in 2024. That isn’t merely a problem in the legal system, it’s a perversion of the very concept of justice. Things aren’t much better in the rest of the country, either. The CCLA investigated pre-trial detention in 2022 and didn’t find a single jurisdiction where the percentage of prisoners on remand was less than 70%.
Now, people might be tempted to say that somebody who was accused of crime is probably guilty, so we shouldn’t act as if 70% of prisoners are innocent. We must resist this temptation. Like I wrote above, the presumption of innocence isn’t some silly tradition that’s outlived its usefulness, it’s the bedrock of every liberal society. If we want to live in a free country, we can’t start undermining the principles that make us free. That being said, plenty of genuinely innocent people end up on trial. Only 46% of people who stand trial are found guilty, and at least some of them are innocent people who were wrongly convicted or felt compelled to take a plea deal3. No matter which way you look at it, we have prisons filled to the brim with innocent people.
Being detained while awaiting trial technically isn’t a punishment, but it’s essentially identical to the actual punishment for crimes. Because of that, it’s common for judges to give people who were held on remand lighter sentences to account for time already spent in jail and to offset the injustice of being held without a conviction. Typically, you can expect your sentence to be reduced by 2 days for every day of remand. If you’re a criminal, this is great. You’re going to jail anyways, so you might as well get your bail rejected and just speedrun your sentence. If you’re innocent, this is horrible. You’re not getting time off from your sentence because you didn’t even do anything wrong. If you’re just a member of the general public and you have no direct stake in this, it’s still pretty sketchy to know that criminals are routinely avoiding their full sentences because they benefit from a system practically designed to harm the innocent.
It also creates a perverse incentive to take a plea deal. Normally, when you’re accused of a crime, you’re offered a reduced sentence in exchange for pleading guilty, which spares the government the hassle of going through with a full trial. If you’re an innocent person on remand, you could very well find that the amount of time you would have to serve after taking the deal is less than the amount of time you would have to be in prison while waiting for your trial. Once again, this is great if you’re a criminal. If you commit a crime, there’s a real chance that some stranger will end up taking the hit for you. For the rest of us, it’s horrible knowing that criminals get to go free while law-abiding citizens like ourselves get screwed over. If we want to actually make our streets safer, we need to make it easier for the innocent to challenge their charges, and that means a lot more bail.
The Opposite Of Bad Isn’t Good
Some people might argue that bail allows potentially dangerous people back out onto the streets, where they can prey on potential victims once again. This is true. Undeniably, a large number of people who find themselves accused of committing a crime ended up in that position because they actually did what they were accused of. We can even find examples of when people out on bail went on to kill somebody, like in 2022, when a police officer was shot by a man who was out on bail for previously assaulting a different police officer. Could this have been prevented by denying the killer bail? Yes. Does this mean that we should be more careful about who we offer bail to? No.
If you take any group of people and arrest some random subset of them, you will inevitably prevent some crimes from happening. At any given office building, grocery store, or neighbourhood, you’ll find rapists, child abusers, and pedophiles. These are horrible people that absolutely should be brought to justice, but that doesn’t justify arbitrarily arresting entire groups of people. The idea that we should prevent crime at all cost is fundamentally illiberal. We should prevent crime if doing so doesn’t require us to give away our civil liberties and we should be prepared to accept a slightly higher crime rate if that means we get to live in a free society. That’s not me saying that crime is good, that’s me saying that life without freedom is more dangerous than life as it is today. Because we’re slowly eroding our right to be presumed innocent until proven guilty with bail reform, we’re increasing our chance of falling victim to the justice system. To me, this is a much greater risk than the (incredibly unlikely) chance of getting mugged, attacked, or worse by somebody who happened to be out on bail.
That’s not me saying that we shouldn’t do anything to prevent people that are out on bail from committing crime. After all, even the most extreme proponent of bail accepts that the accused should have some conditions to follow when they’re out of jail. If they break those conditions, then yes, bring them back to jail. There’s ways that we can reduce the real possibility that people out on bail will commit a crime without immediately jumping to incarceration. For example, that man who killed a police officer actually broke his bail conditions months beforehand. If the police force was better funded and more effort was put into monitoring the killer, they likely could have caught him before he actually did any real damage.
However, we can’t afford to be careless when it comes to bail reform. When we have a system designed exclusively for the benefit of the innocent, fighting against the system is going to cause serious harm to law-abiding citizens. When you look at how overcrowded our jails are, it’s hard to argue that we give bail out too much. Even if people released out on bail have a higher chance of committing crime than the general population (and there’s absolutely no evidence that this is true), it’s still entirely possible that the damage they cause is outweighed by the benefits that come from releasing the law-abiding citizens. In fact, more bail might even lower the crime rate by allowing the accused to continue living stable lives, whereas the trauma of being detained and losing your livelihood would push genuinely innocent people into actually breaking the law for real.
We Must Be Bold
While I don’t like this bail reform, I’m sympathetic to the Liberals here. Like I said above, the Conservatives have pushed bail reform as a major issue for the past several years, and there’s real pressure on the Liberals to adopt the right-wing position on this issue. However, while compromise is an inevitable part of politics, you shouldn’t take it too far. The Conservatives are never going to stop criticizing the Liberals over crime, and some segment of the population will always buy it. When our bail system is already so dysfunctional, we can’t afford to make bail even harder to get. Instead, we have to promote a message of strength over fear.
My political awakening was around the time when civil libertarians began to criticize how much the global war on terror had eroded people’s rights, particularly our right to privacy. They made it clear that terrorism is extremely rare, but they also made it clear that you can’t just take rights away just because it might make the world safer. In the past couple of years, society has lost its ability to be bold in the face of danger. With the global war on terror, you could at least rationalize that people were so afraid of terrorism because of legitimate trauma from 9/11. Now, people are begging for their rights to be taken away because they fried their brain on right-wing tiktoks about crime and refuse to go outside and see that the world isn’t that scary. This is a huge problem, and trying to validate people’s feelings on bail reform will only hurt us all.
You sometimes see people point out that crime isn’t as bad as people think it is, which is good. However, it’s not enough. People need to defend bail as a human right, something worth preserving regardless of whether or not there’s a serious crime problem. We can’t let ourselves panic our way into a horrible dystopia where our rights are just a suggestion, even if that’s what people want. We can push back and convince people that bail is good, but we have to try first.
The crime rate rose by 12% between 2014 and 2023, but declined 37% between 1998 and 2014, and is currently declining again. That means the country is still much safer than it was 2 decades ago.
A reverse onus is when the accused has to convince the judge that they deserve bail.