Ontario bail system in need of serious repair: Gadhia
By Peter Small, AdvocateDaily.com Contributor
After a brief period of reform, bail courts are reverting to their overly restrictive ways, says Toronto criminal lawyer Roots Gadhia.
“We are now creating a system by which individuals are being held for longer periods in detention facilities without even having an opportunity at a bail hearing,” says Gadhia, principal of Roots of Law Professional Corporation.
The bail system has swung to the right after a brief period of reform beginning in 2017 when the Supreme Court of Canada ruled that a defendant’s interim release should only be denied in the narrowest of circumstances, she says.
“Prior to that, the system was significantly broken,” Gadhia tells AdvocateDaily.com.
Starting around 2010, people who should have been granted consent releases on minor charges, or those in a position to secure bail, were forced to undergo contested hearings because Crowns were taking a hard line, she says.
The result was a serious backlog.
During the brief period of liberalization that followed, several courts implemented a “bail vetter” program in which designated Crowns would review files in advance and agree to reasonable release plans, speeding up the process, Gadhia says.
However, in recent years, rising gun violence has sparked a public furor. People have come to believe that bail courts are letting too many violent criminals go, she says.
Meanwhile, politicians have jumped on the tough-on-crime bandwagon, Gadhia says. Ontario Premier Doug Ford created “SWAT teams” of guns-and-gangs prosecutors in Greater Toronto’s provincial courthouses to ensure “violent gun criminals” are denied bail.
“There’s no doubt that there is a visible increase of gun violence in the city,” she says. “But it’s untrue that the courts are just releasing these people. It’s never been that people just walk in and out of court.”
With the pendulum swinging back to the right, the Crown is directing all cases involving gun, human trafficking and other serious crimes to “special bails” that require designated courtrooms and assigned prosecutors, Gadhia says. This can cause delays of several weeks in some jurisdictions, denying defendants their right to a bail hearing in a reasonable time, she says, adding that the system is bogging down once again.
Gadhia recalls working as a duty defence counsel 20 years ago when she could handle 13 contested bail hearings a day.
“These days you’re lucky if you can go into the regular bail court and run one or two bail hearings that are contested,” she says.
There are many causes for delay, including the police, jail guards, detention facilities, courtrooms, and the Crown’s policy manuals, Gadhia says.
“Each one of these facets has done damage to the bail system, which worked perfectly fine 20 years ago.”
She says that another problem for defendants is the fact that, in the face of provincial funding cuts, Legal Aid Ontario will no longer pay private counsel for bail hearings.
“The pendulum has swung so viciously back right that it fails to take into consideration the cornerstones of our criminal justice system — the presumption of innocence, the right to reasonable bail, and Charter rights,” Gadhia says.
Federal Conservative leader Andrew Scheer, meanwhile, is stoking fears by suggesting bail courts are too soft on crime, she says.
Scheer has pledged that if the Conservatives win the upcoming federal election, he will end what he calls “automatic bail” for those charged with human trafficking offences, CBC News reports.
He has also promised that those arrested as repeat gang members will be held without bail.
“He is basically saying that some people are entitled to Charter rights in this country and others are not,” Gadhia says. “The presumption of innocence could be completely obliterated by that policy.”
These days, lawyers in Ontario face a bail “juggernaut” that is constantly pushing against accused persons, she says.
“As defence counsel, every single day we walk into court trying to figure out a way to ensure that somebody’s liberty hasn’t been violated,” Gadhia says.
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