Criminal Law

New bail directive for Crowns a step forward: Friedberg

By Jennifer Pritchett, Associate Editor

A new bail policy that directs Crown prosecutors to start with the least restrictive form of release has the potential to be helpful in reducing court backlogs and the number of people in custody as they await trial, says Toronto criminal lawyer Matthew Friedberg.

“Any bail reform is positive — it remains to be seen whether it goes far enough,” he tells AdvocateDaily.com.

“The bail system as it stands right now in Ontario I think is in a fairly sad state of affairs.”

Friedberg, a partner with Caramanna Friedberg LLP, notes the directive follows a Supreme Court of Canada (SCC) decision on bail earlier this year.

In the past, some accused persons have ended up agreeing to incredibly restrictive conditions such as house arrest “because that was what the prosecution was offering” for a consent bail, he says.

Often, people decide not to challenge those restrictive conditions because they don’t want to go through a contested bail hearing with the uncertainty of whether they will be released, Friedberg says.

Roughly two-thirds of people held in Ontario’s provincial jails are on remand and haven’t been convicted of the crime for which they are being held, reports the Canadian Press.

Friedberg says the numbers are "shocking."

In speaking about the new bail policy, Attorney General Yasir Naqvi tells the Canadian Press that many people end up in remand because they don’t have the social or financial support to be able to get bail.

"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,” he says. “People should not be denied bail by the simple virtue of their disadvantage.''

The new policy stresses that the default should be an unconditional release unless other options, such as conditions, should be considered, says the article. If supervision is required, the Crown should first consider some form of it in the community, such as reporting to police, rather than detention, it says.

Another change in the policy centres around the use of sureties — people who effectively assume responsibility for the accused while on bail. Under the new policy, sureties should be the exception and not the rule, says the article.

Friedberg is concerned about the impact the new policy may have on the most vulnerable people in the justice system. He says it remains to be seen whether the directive will make the system more fair for them.

Far too often he has seen accused persons “getting slapped” with conditions that have no bearing on public safety, Friedberg says.

“For example, I see clients who are on a curfew but none of the allegations occurred at night. Why is this condition a part of their release? Not enough thought goes into the nexus between the allegations and the conditions imposed on an accused.”

Friedberg hopes the new directive is a step in the right direction to move closer to a bail system that more fairly balances the rights of accused and the safety of the public.

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