Is Canada’s bail system really broken?

Arrested and charged with assault more than eight weeks ago, the man has appeared in court almost weekly but has yet to have a bail hearing.

“I don’t even know what the case is against me,” he tells the magistrate. “Can I go to the break room with my lawyer? I need to talk to my lawyer. I haven't been able to talk to them.”

Request rejected. “We have a long list to go through today,” the judge replies. The prisoner is ordered to return in a week.

This is a common occurrence in the early stages of criminal proceedings when defendants are still seeking bail.

Under the Canadian Charter of Rights and Freedoms, anyone accused of a crime has the right to a bail hearing within 24 hours. However, this is not always the case.

During three days in October observing a bail court, a Star reporter noted 16 nearly identical conversations, with inmates using the short time allotted to them to warn the judge that they had not had a hearing in weeks, citing either delays in obtaining evidence from police or frequent lockdowns in provincial jails preventing them from meeting with lawyers.

Just as often, there seems to be growing calls from police, politicians and the public to fix what many call a “catch and release” – and in some cases completely “broken” – system. Just this week 29-year-old mother killed in Brampton her ex-partner is out on bail after being charged with firing a firearm in the area two years ago.

One of the most significant proposals is the expansion of reverse bail, a provision that shifts the responsibility for pursuing a successful case from the Crown to the defense lawyer, a situation currently reserved for the most serious crimes.

It remains unclear whether the proposed reform, designed to curb repeat offenders, will have an impact on public safety. Or, in light of numerous Supreme Court rulings highlighting the importance of limiting this provision, whether it will be met with legal challenges.

So, is the system really broken?

Recent calls for reform from politicians and police paint a picture of a system failing to keep the most violent criminals off the streets.

In Toronto, the local police association says its frontline officers routinely see people released back onto the street within days of being arrested, and that charges of failure to comply have become among the most frequently filed.

“We might report to the media two or three times a week about someone arrested for violent crimes and released on bail,” Clayton Campbell, president of the Toronto Police Association, told the Star. “It becomes frustrating and begins to erode trust.”

But when it comes to data to support such claims, there is none.

“We don't have this kind of standardized data to quantify the problem at the national or even provincial level,” said Shakir Rahim, director of the Canadian Civil Liberties Association's criminal justice program. “So we simply cannot answer questions about how many people arrested have been released on bail and the number of first-time offenders.”

However, there are still some key indicators.

We know, for example, that more Canadians are being denied bail than ever before. In 2023–24, 76 percent of defendants were in custody awaiting trial or determination of their charges. Ten years ago, this figure was only 53 percent.

“Just think about it: If there's this idea that denial of bail equates to safety, and we have a record number of people being denied, shouldn't we be seeing an increase in safety?” – said Rahim.

However, this is not necessarily the case; violent crime has generally increased in Canada over the past decade.

Only recently have we seen signs of a decline. Statistics Canada recorded its first decline in violent crime in 2023-24. rates over the past 10 years. Toronto's homicide and shooting rates fell too year to year. The same can be said about Vancouver, where officials just recorded 23 year low in the crime rate.

Despite the recent downturn, calls for reform continue. The disconnect, Rahim says, appears to be a problem of perception.

“I think, you know, we're seeing an increase in visible unrest in our cities – because of addiction issues, because of the prevalence of homelessness, people are struggling – and it's certainly not synonymous with violent crime, but I think it does contribute to people feeling like their city is getting worse,” he said.

That, coupled with an increase in selective cases by police, politicians and the media, has left the public baffled, says lawyer Tonya Kent.

Take, for example, the case of 12-year-old boy charged with attempted murder following a shooting at a home in Markham last month. The case sparked outrage after the family whose home was attacked released a statement claiming the boy had been released on bail, which police later confirmed. However, the statement did not detail the boy's previous charges or the conditions under which he was released.

“This is a 12-year-old boy and we have no idea what his previous charges were. Why are we surprised that this child was released on bail?” – said Kent. “These are situations where we don't have any context, but suddenly everyone is making these public statements.”

In such cases, Kent says, the media has a responsibility to ask appropriate questions – to confirm previous charges and conditions imposed, and to inform the public about the percentage of people on bail who do not violate their conditions for context.

“Before we start fearmongering,” Kent added.

The changes proposed by the Carney government last week aim to expand the reverse charge provision, which is currently reserved for bail hearings for defendants charged with the most serious crimes.

At a standard bail hearing, the Crown's responsibility is to successfully argue why the accused should be ordered to remain in prison pending a decision on the charges against him. In reverse liability situations, that responsibility shifts to the defense attorney, who must instead prove why their client can be released.

As it stands, the provision applies only to serious violent crimes, certain firearms crimes, and drug trafficking or national security charges. If the Liberal bill passes, it would be expanded to include break-and-enters, violent assaults and attempted extortion, human trafficking and smuggling, and violent car thefts or car thefts linked to organized crime.

Politicians and police welcomed the proposal.

“We give them credit where it's due,” said Campbell, who told the Star he was impressed by the level of cooperation he saw from Carney's Liberals.

The Toronto Police Association is one of the key stakeholders that helped formulate the recommendations that formed the basis of the proposed legislation, and while some of the association's recommendations, including denying bail to twice-convicted offenders, were not reflected in the bill, Campbell says the proposed measures are “a step in the right direction.”

“To be clear, these guidelines are not intended to apply to everyone who has made a mistake,” Campbell said. “We're talking about really violent criminals, gang members and people who use illegal firearms.”

However, it remains unclear whether the expansion of this provision, if enacted, would result in more defendants, including first-time offenders, being ordered to remain behind bars until trial, or would reduce the number of repeat offenders.

It's possible, Campbell says, that the proposed changes won't lead to more arrests but will simply serve to keep repeat offenders behind bars longer.

Despite this, he hopes the provision will provide an additional degree of deterrence.

Meanwhile, lawyers and advocates have expressed concerns that the proposed changes could “flip the script” on the presumption of innocence, create an uneven playing field for lawyers and worsen delays in court.

There are also concerns that the changes could stretch provincial jails, which are already at capacity, to capacity.

“There’s just no room,” he said. Kent. “You're going to have overcrowding. You're going to have more violence in prisons. And those situations are going to be taken into account in sentencing.”

Judges have already commuted sentences for violent offenders, citing poor conditions in provincial jails. Just last month, Ontario Court Judge Brock Jones commuted the sentence of a man jailed for possession and possession of a firearm for more than two years after it was discovered he had spent more than 250 days in pre-trial detention, six months of which he spent in a double cell with two other prisoners.

To increase capacity, the Ford government is building a new prison in Thunder Bay, expected to be completed in 2026, and has also expanded existing facilities in Kenora and Napanee.

If the expansions do not address deteriorating conditions and frequent quarantines, prisoners will still be ordered to spend additional time in pretrial detention, which will reduce their sentences.

“It’s about proportionality,” Rahim said. “It's about saying to the state, 'Look, you need to do something about these conditions if you want to make these changes.'

The changes also risk running afoul of the Supreme Court of Canada, Rahim said. Twice, Canada's highest court has ruled that the clawback clause should only be used in “narrow and targeted” circumstances.

Whether the proposed changes would actually go beyond the scope of the constitution would be a matter of constitutional dispute, he said.