Ontario’s latest bail review plan a political stunt that will be ineffective and come at a high cost to taxpayers Adam Weisberg & Tonya Kent
The Ontario government never seems to tire of pumping out proposed legislation that is long on crowd-pleasing optics and short on common sense. The province’s latest half-baked e ort in this direction is a law that will require bail sureties to deposit cash for a friend or family member to be released on bail. This legislation is a political stunt that will come at a high cost to taxpayers. It promises to be ine icient and, in all probability, unworkable. It will also unfairly target the working poor and marginalized members of our communities. In contrast, those who are better o will have no trouble putting up cash to enable their family members to continue attending school or work while they await their trial. Under our bail system, it is commonplace for people charged with a crime to require a surety before they can be released. These sureties are usually relatives, friends or employers who can pass a rigorous background check. They promise to supervise the accused person and prevent breaches of their bail conditions by pledging an amount of money. Should the accused breach a bail condition or be charged with another crime, the money pledged can be seized in a process is known as estreatment. In reality, however, the province puts little e ort or resources into estreating bail, so sureties rarely face the prospect of an estreatment hearing. All the government’s new ‘cash bail’ legislation would do is create a provincial o ence targeting sureties who fail to post the cash they had pledged once the accused is released. Provincial authorities then may or may not pursue a provincial o ence charge against the surety. Will these cash deposits cause potential sureties to shy away? Will predatory lenders fill the void? With remand centres already crammed beyond capacity, how will they house impoverished o enders who will no longer secure bail? Those who su er will inevitably be petty criminals, homeless people, the untreated mentally ill and drug addicts without supports. The cost of warehousing these people until their trial – with no e ective rehabilitation programming available – will be staggering. This supposed “cash bail” plan also will create thousands of new provincial o ences that will require more court time, more provincial prosecutors, and more Justices of the Peace. This glut will have a cascading e ect. Serious criminal charges that are not tried within a reasonable time will be tossed out. Flagrant o enders who ought to face trial will o er a prayer of thanks to Premier Doug Ford as their charges are quietly dropped. Players in the court system often find ways to work around unfair or impractical policies that are foisted on them. In this instance, it is easy to foresee that judges and justices of the peace will balk. Perhaps, more accused will end up being released without the watchful eye of a surety. Some may be released on “loonie bails” – a predictable work-around in which the cash deposit is fulfilled by the deposit of a dollar. Cash bail has also proved to be ine ective in other jurisdictions. New Jersey eliminated it in 2017 and replaced it with a system similar to what we currently have in Canada. There was no increase in gun violence over the ensuing three years. Similarly, New York removed their cash bail system for non-violent felony charges and misdemeanour charges several years ago. And our Supreme Court of Canada has long recognized that no-deposit bail has the same coercive e ect as a cash bail. Estreatment remains the most fair and e ective remedy for breaches of bail – but only when there are tangible consequences for failing to comply. Actual enforcement would put money in government co ers at the same time as it deters unworthy sureties. Our justice system is based on the premise that everyone is innocent until proven guilty; that everyone is entitled to reasonable bail where the risk is manageable. As with any system, mistakes will occasionally be made. Balanced against this, is the reality that people are falsely accused every day based on misconceptions, unreliable evidence or faulty identifications, The right to be presumed innocent should not be predicated on one’s income or ability to deposit cash.
