There is no question that convicted felons who engage in serious criminal activity, the so-called “repeat offenders” should not be readily released back into the community while awaiting trial on new charges.
The public (which includes members of the Fifth Estate) are adamant about this. Previous convictions for serious crimes should have consequences—even after time served and the imposed debt to society having been paid, for there is another debt to society which we all share, that of not engaging in criminal activity.
When an individual, or group, continuously engage in criminal activity, especially when set free on a bond to not commit further crimes, they should lose their right to freedom unless there are very extenuating circumstances.
The Charter of Rights and Freedoms recognizes reasonable bail as a constitutional right. The law of bail must be understood in that context. Today, the law of bail, as outlined in the Criminal Code, has three main purposes: to ensure those charged with an offence appear in court when required; to maintain public safety by assessing and managing any potential risks if an accused person is released; to maintain the public’s confidence in the justice system.
It is these last two that are currently wanting.
The right to be considered innocent until found guilty is a cherished part of our rights and freedoms in Western democracies, particularly in Canada where it is enshrined in the law of the land, and that right is usually extended to those whose debts are considered paid.
In recent years it has become very clear that there is a class of criminal who consider new serious criminal charges to be a manageable cost of engaging in criminal enterprise and who leverage those rights and freedoms we all enjoy in order to continue their criminal activity.
There needs to be a change; on that we can agree.
But we must take exception to Ontario Premier Ford’s attack on our nation’s judiciary. A glance to the south will quickly point out the challenges of an elected judiciary through partisan elections can only further polarize a nation.
Canada’s criminal justice system is a shared responsibility between the provinces and territories and the federal government. The federal government is responsible for enacting criminal law and procedure, including the Criminal Code provisions that govern the law of bail, criminal prosecutions of all federal offences (other than the Criminal Code) and certain specified offences in the Criminal Code and prosecution of all offences in the territories.
But it is the provincial and territorial governments who are responsible for the administration (management) of justice. Provinces are responsible for prosecuting most criminal offences in their jurisdictions, conducting bail hearings in relation to those offences and enforcing any conditions attached to a person who has been released on bail, including if there is a breach of bail conditions. That’s right—the administration of bail is a provincial jurisdiction.
Premier Ford is not a fan of the Charter of Rights and Freedoms, having famously issued a statement saying he would use the notwithstanding clause in order to get his way in labour negotiations. Apparently, he is also not a fan of the courts standing in the way of what he wants.
The federal government made significant changes to the bail system in 2019 and 2023 where a person can be denied bail for a “just cause.” Those changes include a reverse onus, where the accused must convince the court that they should be released and the list of firearms offenses that could trigger a reverse onus has been expanded.
The issue is apparently that too many judges, nearly all who are appointed by the province we might add (albeit with a significant backlog), have been too stringent an interpretation of just cause. Adding to the issue is the knowledge in the judicial system that our jails are too crowded and generally filled disproportionately with those featuring a darker shade of skin.
There is a cost to maintaining strict adherence to a Charter of Rights and Freedoms, and unfortunately that sometimes means that criminals are tossed out with the court bathwater, too often because the system is not funded sufficiently to both tackle the underlying causes of crime and to properly oversee and enforce the conditions imposed on someone who has been charged with a serious crime.
We owe it to our peace officers, to our families, to society as a whole to ensure their safety to the best of our ability. That will require investment of resources and evidence-based policies and laws—not dog whistle politics.
Partisan control over the judiciary does happen in Ontario and Canada to a certain extent, through the advice of their respective “independent” judicial selection committees. But the thought of partisan elections of judges must remain beyond the pale, unless we want politics and political considerations to become paramount in our courts.
There need to be changes, but electing judges should never be considered to be one of them.
