Critics warn Liberal bail reform bill could hurt marginalized groups

As the senate reviews a Liberal bail reform bill, civil liberties groups are warning the proposed legislation could disproportionately hurt Black, Indigenous, and other marginalized communities.

Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, says Bill-C48’s emphasis on a reverse onus system could put certain individuals at a disadvantage.

A reverse onus provision is when a person has to prove why they should receive bail, as opposed to a government proving why they should be detained.

But Rahim says, “Those who are more marginalized or vulnerable are less likely to be able to demonstrate that to a justice.”

Benjamin Perrin, a law professor at the University of British Columbia, adds that tightening up bail rules also adversely affects people who can’t afford a lawyer or are unhoused.

If the legislation goes ahead in its current form, it will require people facing certain charges to make the case for why they should get bail, instead of forcing a prosecutor to make the case. Rahim says his organization is strongly opposed to the government’s proposed changes as a way to improve public safety.

“The CCLA is fundamentally concerned that the Bill-C48 is not going to improve public safety, but in fact, is a risk to public safety and ignores some of the real issues that we could fix when it comes to the bail system,” Rahim said.

He says bail is already being denied at record rates in Canada and restricting it further will not address any public safety concerns.

Instead, Rahim says “bail verification and supervision programs” are what’s needed to truly make a difference — but right now, they’re underfunded.

Examples of these programs include pairing individuals released on bail conditions with a worker who can help keep them on track or providing individuals without a fixed address somewhere to stay while they’re out on release. For people dealing with mental health conditions, he says it also means providing additional care and treatment.

“To our knowledge, no additional funding has been provided for these types of evidence-based programs that can address safety concerns,” he said.

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Without any investments into evidence-based programs, he says more innocent people will continue to spend harmful amounts of time behind bars.

“Bail is the only thing that stands between an accusation and a prison cell,” Rahim said.

According to Perrin, pre-trial custody and prison are “horrific environments” for anyone to spend time in, no matter what state their mental health is in.

“They do a tremendous amount of damage to people’s mental health and well-being,” he said. “And those people are released in our community without getting any help.”

When someone is a risk to society and needs to be separated from it, Perrin says they should receive mental health supports, substance use treatments, and vocational training in order to aid their eventual return to society. He also emphasizes a lack of investment in programs like these — programs that he says could serve public safety better than bail restrictions.

“We would all be better off if we treated people who are charged with offences with dignity, respect, and humanity,” Perrin says.

According to the Department of Justice, 50 per cent of criminal cases in Canada do not result in the finding of guilt.

Rahim says the Liberal bail reform bill could mean more innocent individuals are going to end up in the prison system.

“And we know, because the conditions in prisons are so poor right now, that those individuals are going to feel tremendous pressure to plead guilty to get out,” he said.

Ultimately, restricting bail has a negative effect on the presumption of innocence in Canada’s justice system, Rahim says.

“At its core, people don’t feel like the criminal justice system is doing its job. And in many ways it isn’t,” Perrin said. “But this reactionary piece of legislation isn’t going to make us any safer and could end up making us less safe.”