Save the Bails

Polar bears are adorable. I have nothing against Beluga whales. But if we save just one thing this year, I hope it’s Ontario’s Bail Program.

To properly grasp the value and importance of the Bail Program it is first necessary to internalize a quick primer on Ontario’s bail situation. Despite a Criminal Code that endorses pre-trial detention only where absolutely necessary for public safety, decades of ‘bail creep’ have made it more or less standard for police officers and crown attorneys to insist on ‘show cause’ hearings in all but the most trifling of cases. Practically speaking this means that a huge swath of people facing criminal charges will be held in custody until they can satisfy a Judge or Justice of the Peace (“JPs”) that it is safe to release them pending trial. In most cases this means presenting a surety – most commonly a relative, friend or co-worker – who is prepared to pledge funds as a guarantee of the good behavior of the accused while out on bail awaiting trial.

For a large contingent of disadvantaged folks – the unemployed, the mentally ill, those estranged from friends and family, or people who have recently relocated to a new jurisdiction where they have yet to establish roots – the burden of securing a surety proves too great. Everyone agrees that, in principle, they should be released with certain conditions while awaiting trial, but crowns and JPs can’t shake their instinctive insistence on a third party surety guarantor before consenting to such releases. Enter the Bail Program. Where a homegrown surety cannot be found, the Bail Program offers its trained and compassionate employees as intermediaries. Bail Program workers will liaise with shelters to find temporary housing, communicate with doctors and psychiatrists to arrange health care plans, and facilitate enrollment in alcohol, drug or anger-management programs. All the while, they demand their clients attend for regular checks and updates. Those accused who follow the program gain the benefit of their freedom while awaiting the many months it takes to grind towards a trial in our clogged criminal justice system. Failure to live up to the requirements of a Bail Program plan can lead to re-incarceration ensuring the safety of the community while maintaining some semblance of commitment to the presumption of innocence.

Even the most tough-on-crime hawkish conservative is faced with the compelling fiscal case for supporting the Bail Program. Locking someone in jail until their trial costs the taxpayer $183 per day. That same day under community supervision costs just $5 [as per statistics reported by the Toronto Star in Sept. 2014]. That’s a savings of $178 per day. Between April 1, 2013 and March 31, 2014 the Toronto Bail Program interviewed 6644 people of which 2100 were released to the program’s care [all figures provided by the Toronto Bail Program for the purposes of this column]. Let’s assume a modest six month time period until the disposition of trial (some cases will resolve sooner whereas others will take much longer but six months is an educated guesstimate). That’s 180 days of community supervision saving at $178 per day multiplied by 2100 thankful clients. It all adds up to annual savings to the criminal justice of $67,284,000 and that’s the math for Toronto alone with even more substantial savings presumed when extrapolated Province-wide. That’s well short of cancelling an Ontario gas plant, but it is the kind of sound economic case that should even make tough-on-crime conservatives sit up and take notice.

So, why has an ostensibly progressive Ontario Liberal government continually refused to guarantee the survival of the program? Last spring the Provincial government announced cutbacks to the Bail Program that would see staffing of weekend bail courts – arguably the time when Bail Program assistance is most needed – eliminated. An uproar ensued including a post on my law firm’s blog and vociferous complaints via twitter. A day after the blog post, the government reversed its decision and weekend staffing of bail courts continued uninterrupted. However, less than a year since that heartening turn-around, rumours continue to swirl that the entire program is on the chopping block.

If the Bail Program does indeed meet its demise in 2015, it won’t be for lack of success. Of the 2202 cases closed by the Bail Program in the 2013/2014 reporting period, only 15% of those people were charged with failing to comply with their bail. That means fully 85% of these people did not require pre-trial detention that would otherwise have likely been imposed but for the Bail Program’s intervention.

Leaving aside the compelling financial case, adequately funding the bail program is simply the right thing to do. It is often said that a society is judged by how it treats its weakest members. This sentiment underlies much of our laudable efforts to make the criminal justice system slightly less terrifying to complainants and victims. Yet it bears repeating that the litany of broken souls awaiting bail every day in courthouses across our Province are presumed innocent of any crime. Ensuring that the courts balance the needs of public safety with respect for the foundational principle of criminal law isn’t optional – it’s a fundamental pre-requisite to justice. And it’s as least as catchy a cause as saving those loveable whales.