The bail system changes today in Canada. We hear what’s new, and how it impacts the justice system.

Calgary Eyeopener with Loren McGinnis, Angela Knight

Loren McGinnis: Changes to the bail system in Canada come into effect today. The amendments to the criminal code were made in response to several violent incidents involving suspects who were out on bail. Both the Alberta government and Calgary police called for the changes which passed the House of Commons late last year with all party support. Calgary-based criminal lawyer, Jillian Williamson joins us in the studio now with more. Good morning, Jillian.

Jillian Williamson: Good morning.

Loren: Thank you for doing this. How is the bail process changing today?

Jillian: Several reverse onus positions are coming into effect today. A reverse onus position means that instead of the prosecutor having to prove or show cause why a person has to stay in custody, the accused person has to convince the judge or justice of the piece why he or she ought to be released.

Loren: Okay, so the burden shifts. What’s the significance of that? How will that change things?

Jillian: It’s difficult for people to meet that burden. A bail plan has to be presented. It’s difficult when someone’s in custody for either them on their own or through duty counsel, or maybe through a lawyer that they have retained to create that bail plan and convince a judge or a justice to release them, especially if they come from a marginalized group. It becomes much more difficult and it slows the process down for the person in custody.

Loren: Okay, so you’re a defence lawyer. How will this affect how you approach a bail hearing?

Jillian: It’s going to affect every single defence lawyer in Canada, to be frank. We’re just going to have to be that much quicker. We’re already operating with the best-limited resources, so it’s going to put a strain on the defence system, in my opinion.

Loren: What goes into a bail plan?

Jillian: It could be creating a meeting with a surety, someone who can be a personal support worker in the community. It can be financial obligations. There are lots of different factors that go into a bail plan that you can present. You have to do your legwork and meet with a person, meet with their family, figure out what the case is about, and then figure out how you can convince the judge or justice to release them.

Loren: Now, you mentioned this will affect people from marginalized communities, and I expect you to say this will affect people who are in the system based on maybe violent crimes or allegations of violent crimes. Can you put all that in context, sort of what this is aimed at, but your concerns around who it affects?

Jillian: This is, I think, a knee-jerk reaction to some of the matters that you addressed a moment ago by a parliament. Everybody wants our system and our streets to be safe, everybody, including defence lawyers. The biggest change is the reverse onus to someone who’s alleged to have committed a serious violent crime with a weapon and has been convicted in the past five years. And so let’s picture an indigenous person who lives on the streets, who may have a record who is charged with or maybe is out on release and has a condition. This is another change in the system who is on release to not have a weapon. Lots of indigenous people or homeless people or marginalized people, have to carry something to protect themselves. It’s not safe on the streets, and so if they’re picked up on that and then put into custody trying to convince a judge or a justice, it’s just going to take a lot of work. It’s going to keep a lot of people in remand. It’s going to put strain on the bail system, defence lawyers, and legal aid.

Loren: Okay, so I want to pull apart some of those issues or concerns. You’re raising this matter of a backlog or keeping people in remand. What is the significance of that?

Jillian: Well, first of all, bail is relevant when someone’s been charged with an offense, but it’s important to remember that they’re presumed innocent. The Supreme Court of Canada and the Antic case said, we are to release on the lease owner’s conditions at the earliest opportunity. Now, with these reverse onus positions, we’re keeping people in custody longer, so because of the reverse onus, because it’s going to take time to create that plan, remand is already at capacity. Sometimes you have three people in one single cell that’s really designed for two. You’re just slowing the system down and putting an incredible amount of straight.

Loren: Now, are you skeptical that this will make this street safer? I mean, there’s a cost and potentially a benefit. Will this make the street safer?

Jillian: In my opinion, no. And I think several liberties unions were consulted through this process, and they voiced concerns and have said, I think what all defence lawyers are saying, you need to address the issues that are at hand. We need support workers, we need mental health workers. We need to address those systemic issues, not just keep people in custody. The bail, not jail or jail, not bail slogan is just so shortsighted.

Loren: Okay. You mentioned some of the rhetoric around this. The Alberta government, Calgary police were both calling for this, as we noted, passed the House of Commons unanimously. What do you see as the political discourse surrounding bail in Canada right now?

Jillian: The tough on crime policies are what get people elected, unfortunately. It’s really sad, and again, I think this was a knee-jerk reaction, and our last change in the bail system was also a knee-jerk reaction. Anytime, especially a police officer, which happened in Ontario is hurt or killed in the line of duty and a person was on release, this is when we have these fundamental shifts and changes in the legislation. But have you seen once where we’ve said, we’re going to take a concerted effort, devote resources to mental health, to drug addiction? Have we ever even tried that?

Loren: I think, there are lots of efforts to support people with addictions. There are lots of community agencies that are working street level to support people, so I do think that’s part of what’s happening. Whether it’s enough or not, it’s an important conversation to be sure. So around this matter of bail and crime and punishment and street safety at the street level, what would you like the conversation to look like?

Jillian: Certainly there are times when I would like the conversation to look like this. We need to trust our judges to make the decisions that they have. They already have the tools in the toolbox through the bail provisions. In my opinion, we didn’t need to add a bunch of reverse onus provisions in there. The judges already had those tools in their discretion. What I would like to see the conversation focused on is when you have someone who’s out on release and then gets charged with a new criminal offense. Let’s remember, A, they’re presumed innocent, and B, let’s look at the supports that we can put in place.

Loren: It’s a risk or a sort of part, an element of the system. You’re willing to accept that while people are out on bail, there is this risk.

Jillian: I am a mother and I want these streets to be safe like every other person, but we also have to remember what the constitution says, what our common law says, and we need to remember that the presumption is people are out. They are on the least one’s conditions that are carefully crafted by a judge that we’ve given discretion and decisionmaking power to.

Loren: You’re worried this is a drift towards incarcerating people that have not been convicted of anything.

Jillian: You’ve absolutely nailed it on the head. Thank you for that.

Loren: Well, it’s good. I appreciate coming in to speak with us. Thank you, Jillian. Thank you.

Jillian: Thank you.

Loren: That was Jillian Williamson, a criminal defence lawyer based in Calgary.