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Cautious optimism for new bail policy

Toronto criminal lawyer Lindsay Daviau says she’s cautiously optimistic that a new bail directive will speed up the system and decrease the amount of time accused people spend in pre-trial custody.

The policy requires Crowns to adopt the “ladder principle,” which means beginning bail recommendations with the least restrictive form of release. Use of a surety, meanwhile, should be the exception, it says.  

Daviau, who practises with Rosen & Company Barristers, tells AdvocateDaily.com that the recent policy update, the first since 2005, is “long overdue.”

“These changes were necessary, and I’m glad they’ve been made,” she says. “Bail is the single most important decision an accused person can face, and I’m hopeful that this will mean faster releases with as few conditions as possible.

“I’m trying not to be cynical about whether it will make a big difference, but I will reserve judgment until I see what happens in practice,” Daviau adds.

The new directive follows on the heels of two recent Supreme Court judgments, one of which set time limits for getting criminal matters to trial, and a second that endorsed the ladder principle in bail decisions.  

According to the Canadian Press, about two-thirds of people held in Ontario jails are on remand and have not been convicted of the crime they are being held for.   

"There are some people who pose a risk to public safety and should rightly be denied bail, but for those people who are low risk and may just need a bed to sleep in, that's where Ontario can step up and help,'' Attorney General Yasir Naqvi says in the story. "People should not be denied bail by the simple virtue of their disadvantage.''

The new policy sets unconditional release as the default position for bail. If Crowns are unsatisfied with that prospect, then they can consider other options, says the article.

Daviau says the Criminal Code and Supreme Court case law suggests those release guidelines should already be in use, but in practice, that doesn’t happen.

“In my experience, I’ve almost never seen the Crown’s first position be unconditional release. It doesn’t matter whether they have a criminal record or if there is evidence, they could have a difficult time,” she says. “Usually the first resort is a surety release.”  

The new policy says the use of sureties, which involve another person assuming responsibility for the accused, should be avoided where possible because it is one of the most burdensome types of release.  

Under the current system, Daviau says the frequent use of curfews and other unnecessary conditions have turned bail into a punishment on its own.

“These are accused people with the presumption of innocence on their side, so conditions aren’t meant to be a punishment, but people often feel compelled to accept them because they will do anything to avoid spending another night in a cell,” she says. 

“My hope is that we will see some rolling back of conditions and that these changes will force some thought to be put into what is reasonable.”  

If the directive works as advertised, Daviau says time savings should be able to flow through the courts, cutting wait times for those in need of a bail hearing. In one of her own matters, a client was told he would have to wait two weeks for a hearing in Brampton.  

“Two weeks is just not acceptable,” she says. “If we can get the majority of people quick releases at first instances, the whole system won’t be so bogged down.”

According to the Canadian Press story, the current Crown bail policy dates back to 2005, and makes reference to murder-suicides committed by people on bail, and emphasizes the protection of public safety.

"(It) focuses significantly on risk aversion, speaks of some inquests where public safety concerns have been raised, as opposed to what we know the Criminal Code asks us to do in terms of the presumption of the accused being innocent and being released with the least restrictive conditions,'' Naqvi tells the news agency.

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