Ontario Unveils New Bail Directive to Reduce Pre-Trial Custody
Province Making the Criminal Justice System Faster and Fairer
Ontario is helping make the bail system faster and fairer, while balancing the need to protect the safety of victims and the public.
In December 2016, the Attorney General appointed three prominent bail experts to provide advice on a new Bail Directive. This bail advisory group consulted widely with the legal community, analyzed expert reports, Supreme Court decisions, and travelled to Northern Ontario to hear about the distinct concerns facing Northern and remote Indigenous communities.
With their input, the province has developed a new bail directive that will aim to reduce barriers faced by Indigenous and racialized communities at the bail stage, ensure low-risk and vulnerable individuals have access to the appropriate supports for safe releases, and speed up the bail process by:
- Emphasizing that bail recommendations should start with the least restrictive form of release (the "ladder principle"), and that having an accused person released with a surety while awaiting trial should be an exception
- Reinforcing that recommendations for conditions of release should be connected to both the circumstances of the accused and the facts of the case, while at the same time, meeting public safety concerns
- Suggesting ways to make the bail process more efficient and less time-consuming such as encouraging out-of-court surety approval processes, where sureties are required
- Encouraging the use of the Bail Verification and Supervision Program and Bail Beds Program where vulnerable, low-risk people can be safely released into the community with supervision instead of being detained while awaiting trial
- Highlighting the requirement to take into account the unique circumstances of Indigenous peoples when an accused person self-identifies as Métis, Inuit or First Nation
- Emphasizing the use of community based programs as alternatives to detention for mentally ill accused persons who come in contact with the law
- Recognizing the circumstances and barriers faced at the bail stage by vulnerable and disadvantaged accused, including those who are racialized and socioeconomically marginalized.
The updated Bail Directive is part of Ontario's plan to enhance public safety by making it possible to resolve criminal cases faster and by making more supports and supervision available to vulnerable, low-risk individuals who come in contact with the law.
Improving Ontario's criminal justice system is part of our plan to create fairness, keep communities safe, and help people in their everyday lives.
- Ontario’s Bail Directive is part of the Crown Prosecution Manual which is used to provide support and guidance to Crowns on the exercise of their discretion and reinforces bail principles.
- The new Crown Prosecution Manual, which includes the new Bail Directive, will be released in the coming weeks.
- In its decision in R. v. Jordan, the Supreme Court of Canada set time limits for the completion of criminal cases, where there are no exceptional circumstances: 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.
- A criminal prosecution develops in a series of stages, beginning with an arrest of an accused. If held for bail, this represents the first stage of the court process.
- In its decision in R. v. Antic, the Supreme Court of Canada highlighted the importance of using the ladder principle and that a person charged with a crime has the right to reasonable bail.
- The decision to grant or deny bail is complex and based on the specifics of each individual case. When considering whether to recommend bail, the key factors considered by the Crown are public safety (including the protection of victims), attendance in court, the rights of the accused, and public confidence in the administration of justice.
“This directive levels the playing field for those who are disproportionately impacted at the bail stage while ensuring the safety of victims and communities. I want to thank the bail advisors for their thoughtful, and balanced advice on our approach to bail. The new Bail Policy will help to break the cycle of re-offending, reduce barriers faced by racialized and Indigenous communities, and speed up our criminal justice system to ultimately make our communities safer.”
“The OCAA welcomes the new Crown directive on bail as it will assist our dedicated and hardworking prosecutors to properly exercise their discretion, fulfill their professional obligations, and better serve the public interest through the careful balancing of individual liberty and community safety.”
“This past June, the Supreme Court of Canada - in a unanimous decision (R. v. Antic) - remarked that 'It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less.' It is encouraging to see that the Ministry of the Attorney General has now released new guidelines for Crown attorneys that, if followed, would go far in bringing about the changes that the Supreme Court envisioned. Pretrial detention recommendations and decisions are inherently difficult. The new guidelines are designed in an attempt to ensure that decisions are made quickly, sensibly, equitably and in a manner consistent with the presumption of innocence.”
“We want to thank the Ministry of the Attorney General for recognizing the need for a fairer and more efficient bail system in Ontario. The John Howard Society of Ontario has long been recommending an approach to bail that places greater emphasis on the presumption of release and the presumption of innocence, and moves away from the reliance on sureties as a condition for release. We are very pleased to see these approaches reflected in the new Directive.”