The Dec. 27 killing of an Ontario Provincial Police (OPP) officer has brought renewed scrutiny to Canada's bail system. Following the shooting death of Const. Grzegorz Pierzchala near Hagersville, Ont., it was revealed that the 25-year-old suspect was wanted by police for missing an August court date while out on bail for charges that included assaulting a police officer and illegally possessing a handgun.
Critics argue this is proof that Canada's bail system needs to be toughened up to keep repeat violent offenders off our streets. Some experts, meanwhile, contend that the issue is far more complicated, and also involves the need to speed up criminal cases and better enforce breaches of bail conditions.
Here's what politicians, criminologists and others have to say.
'CATCH-AND-RELEASE BAIL POLICY'
Speaking to reporters on Dec. 30, Conservative Leader Pierre Poilievre called on Prime Minister Justin Trudeau's government to enact stricter bail policies for repeat violent offenders following the death of Pierzchala.
"Conservatives are calling on the Trudeau government to reverse its catch-and-release bail policy … for prisoners who have been arrested after a long rap sheet of previous offences for violent crimes," Poilievre said. "We believe that they should stay in jail until their trial is complete, and until that it can be assured that if convicted, that they should stay behind bars until such time as it can be assured to all of us that they are no longer a danger to the public."
OPP Commissioner Thomas Carrique similarly said he was "outraged" that the suspect had been out on bail before allegedly shooting Pierzchala, who was responding to a report of a vehicle stuck in a ditch.
"I know there's a lot of interest to see that changes are made to ensure, where possible, people who are charged with violent offences that are firearms-related are not in those positions moving forward," Carrique told reporters on Dec. 28.
Randall McKenzie, the suspect in the Dec. 27 killing, had initially been denied bail following his Dec. 2021 arrest for assault-and-weapons-related charges. In June, however, he was granted bail with conditions including that he wear a GPS monitor and only leave his residence under supervision for medical, legal or counselling appointments. He had also previously been handed a lifetime firearms ban after being convicted for a 2017 armed robbery, and spent much of his nearly three-year sentence in maximum security or segregation for allegedly stabbing another inmate.
The revelations about McKenzie's past have sparked similar outrage to when it was revealed that the suspect in a deadly Sept. 2022 stabbing spree in Saskatchewan had a violent criminal history, and had been wanted for months for allegedly breaching release conditions.
In a Dec. 29 statement, Ontario Premier Doug Ford urged the federal government to "address the revolving door of violent criminals caused by our country’s failed bail system."
"Too many innocent people have lost their lives at the hands of dangerous criminals who should have been behind bars – not on our streets," Ford stated. "More must be done to fix a system that is far too often sacrificing the safety of our public and police officers instead of cracking down on the perpetrators who repeatedly commit these heinous crimes."
In October, former B.C. attorney general Murray Rankin said reforms in Bill C-75 – a federal bill passed in 2019 that was designed in part to "modernize and streamline" bail procedures – were inadvertently causing more repeat offenders to end up on the streets.
"Bail is the rule; remand and custody is the exception," Rankin, now B.C.'s Minister of Indigenous Relations and Reconciliation, said of the changes in Bill C-75. "It's very hard, unless there are public safety issues, for our Crown counsel to put people away when there's a good reason to believe they should be in custody to protect the community ... This was an unintended consequence of the reform."
Poilievre also took aim at Bill C-75 last week, claiming that "easy catch-and-release bail policies are found in Justin Trudeau's Bill C-75: a bill that makes it much easier to get bail."
'WE ARE TALKING ABOUT PEOPLE WHO ARE LEGALLY INNOCENT'
Minister of Justice and Attorney General of Canada David Lametti defended Bill C-75 in a statement to CTVNews.ca, saying that it did not change the criteria for when an accused person can be released on bail.
"Bill C-75 simply brought the Criminal Code in line with binding Supreme Court decisions," Lametti explained. "As the Leader of the Opposition knows, Canada’s criminal justice system is a shared responsibility of the provinces and the federal government. The federal government is responsible for the criminal law and the provincial governments are responsible for the administration of justice, including investigating and prosecuting most Criminal Code offences, conducting bail hearings and enforcing bail conditions within their respective jurisdiction."
Former Toronto police homicide detective Mark Mendelson says it's "frustrating" that someone like McKenzie was at large, but that keeping repeat violent offenders like him behind bars requires a multi-pronged approach.
"According to the Supreme Court of Canada, and rightly so, everyone's entitled to a speedy trial; and when people get arrested, it can sometimes be a year or two or more before their trials take place," Mendelson told CTV News Channel last week. "So, maybe one of the things that we need to do is to speed up that system so that when people like McKenzie show up in court, and the courts know that he's going to get a relatively speedy trial in a couple of months, as opposed to a couple of years, there'll be less inclination to let him out awaiting trial."
Mendelson also pointed to the need for stronger police enforcement when bail conditions are breached, like when McKenzie failed to show up in court.
"There just aren't enough officers out there to knock on doors," Mendelson said. "There's thousands of people in this province [Ontario] who are on bail with conditions, and yet law enforcement just does not have enough people to go out and make sure these individuals are abiding by their conditions."
Jane Sprott, a professor in Toronto Metropolitan University's criminology department, highlights Statistics Canada data showing that nearly 70 per cent of people in provincial custody were awaiting trial in 2020 and 2021. In Ontario, that number is closer to 80 per cent.
"That means that the vast majority of people in prisons are legally innocent," Sprott told CTVNews.ca. "It's easy, in hindsight, to point to someone and ask why they weren't detained, but the problem is that we can't know who will do what with any certainty ahead of time. And the other side of the coin – the vast majority of people who are released who do nothing criminal while on release – is often ignored."
Sprott believes keeping more people in pre-trial detention is "unlikely to have any meaningful impact on crime, but would come at a considerable financial and personal cost, especially for those who ultimately end up with all changes withdrawn." Sprott also says it's "unclear" if Bill C-75 has made it easier to get bail in Canada.
According to the federal government, Bill C-75 introduced a number of bail-related changes, including removing "unnecessary bail conditions" which "were being imposed too frequently resulting in increased breaches." Other goals of the legislation were to combat the "overrepresentation of Indigenous persons and accused from vulnerable groups who are traditionally disadvantaged in obtaining bail" and to overall "legislate a 'principle of restraint' for police and courts to ensure that release at the earliest opportunity is favoured over detention."
Alison Craig is a Toronto-based criminal lawyer who specializes in defending people charged with murder, sexual assault and drug crimes.
"Overall, our bail system is effective," Craig told CTVNews.ca. "I don’t think Bill C-75 has made much of a difference, to be honest. It certainly hasn’t in my practice. I have seen no evidence that it has put more repeat violent offenders on the street."
Anthony Doob, a professor emeritus at the University of Toronto's Centre for Criminology and Sociolegal Studies, explains that "a lot of people who are detained for at least some period of time are never found guilty."
"In understanding bail, one has to start with a simple truth: we are talking about people who are legally innocent," Doob told CTVNews.ca. "Simple ideas like, 'Everyone charged with certain offences should be held in prison without the possibility of release until their trials,' are not going to work … A suggestion that people should be held automatically, or almost automatically, would be suggesting that people are guilty until their trial and serve a sentence even if they are later found not to have committed the offence."
Doob added that the suspect in the killing of the OPP officer could have been arrested when he missed his August court appearance.
"My own feeling is that an overall thoughtful review of our bail provisions would be a good idea, but I think that the problems are much broader than the current case," Doob said. "Obviously, everyone would want the person who is going to commit a serious violent offence to be detained. But it is easy to state a goal and harder to identify the right people."
Laura MacDiarmid is an assistant professor in the University of Guelph Humber’s justice studies department, and Carolyn Yule is an associate professor in the University of Guelph’s sociology and anthropology department.
"Overall, the law on bail itself strikes a reasonable balance between public safety and the presumption of innocence before trial," the two colleagues said in a joint statement to CTVNews.ca. "While this balance works in many instances, there are examples when it does not. On the one hand, some accused are denied bail unfairly or released with very onerous conditions; on the other hand, some accused are released who, in retrospect, should have been detained."
The latter scenario, they argue, is the exception and not the rule.
"There tends to be a common misconception that bail is simply a 'catch-and-release' system, whereby accused do not take their bail conditions seriously and public safety is compromised," they said. "Our recent research with both accused and bail supervisors suggests the vast majority of accused take their conditions seriously, and do their best to comply, often with very minimal resources at their disposal."
MacDiarmid and Yule believe that while the implementation of bail could be improved with reforms like better access to legal counsel and more dedicated funding for bail supervision programs, we should also be looking well beyond courtrooms to tackle the "complex social problems" that can lead to violent crime.
"This case reminds us that mental health, addiction, homelessness and trauma are common life circumstances for many accused on bail but, importantly, the solutions to these issues primarily lie outside of the criminal justice system," they said. "While tough-on-crime measures do accomplish punishment, denunciation and incapacitation, abundant research tells us they do not contribute to the longer-term goal of public safety when offenders return to our communities."
BAIL, IN A NUTSHELL
Since everyone accused of a crime is presumed innocent until proven guilty under the law, bail theoretically allows those who are not a flight risk or danger to the public to remain free through the often-lengthy legal process.
If someone is out on bail, it means they have been released into the community while awaiting or undergoing a criminal trial, with the condition that they appear in court when required. Other conditions are frequently imposed, such as GPS ankle monitors and curfews, as well as bans on alcohol, drugs, carrying weapons or contacting a co-accused or alleged victim.
The cost of keeping an accused person in jail is significantly higher than community supervision, which usually includes regularly reporting to a bail supervisor. Courts also frequently require an accused to have a surety, who is a person that promises to supervise them and pay a predetermined amount of money if bail conditions are broken or if the accused doesn't show up to court. Unlike in the American system that we see on TV and in the movies, in Canada, bail money usually doesn't have to paid in advance. Bill C-75 tweaked bail rules so "sureties are imposed only when less onerous forms of release are inadequate."
Under the Criminal Code of Canada, everyone has the right to a bail hearing within 24 hours of arrest, or as soon as possible if a judge is not available. Canada's Charter of Rights and Freedoms also states that police and prosecutors must have a compelling reason or "just cause" to keep someone behind bars; namely that they pose a risk to the public, they are likely to skip a court appearance, or when pre-trial detention is needed for "maintaining confidence in the administration of justice" such as in high-profile cases with strong evidence related to a violent, firearms-related offences. Previous criminal history can also play a large role in determining if bail is granted.
It's generally up to authorities to argue the case for withholding bail before trial, unless someone is charged with certain serious crimes like murder, terrorism or certain firearm offences. In these cases, it's then up to the accused to convince the court that they can be released on bail, which is known as "reverse onus." Bill C-75 also amended the Criminal Code to extend this "reverse onus" to repeat offenders charged with committing offences against intimate partners.
With files from The Canadian Press
